IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24555 of 2010(T)
1. M/S.ATLAS MINES AND GRANITES (INDIA)LTD.
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. REVENUE DIVISIONAL OFFICER, ADOOR,
3. TAHSILDAR, ADOOR TALUK, ADOOR,
4. J.ANANTHAN, KATTUMADATHIL HOUSE,
For Petitioner :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
For Respondent :SRI.NAGARAJ NARAYANAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :12/10/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) No.24555 of 2010
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Dated this the 12th day of October 2010
J U D G M E N T
Challenge in this writ petition is against Exts.P9 and
P15, orders passed by the Tahasildar and Revenue Divisional
Officer, exercising their powers under the provisions of
Transfer of Registry Rules, 1966.
2. The 4th respondent holds Exts.R4(a) and R4(b),
Mining Leases in respect of the property situated in Survey
Nos.248/2 and 248/7 of Koodal village in Adoor Taluk.
According to the petitioner, as per Ext.P2, an agreement
between the Managing Director of the petitioner company
and the 4th respondent, the parties agreed to incorporate a
company under the provisions of the Companies Act, 1956
and the 4th respondent also agreed to transfer the quarries, in
respect of which he had Exts.R4(a) and R4(b) Mining Leases,
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against the receipt of consideration specified in the
agreement. It is stated that accordingly the petitioner
company was incorporated and Ext.P1 dated 24.7.2008 is the
Certificate of Incorporation.
3. The case of the petitioner is that, as agreed
between the parties, 4 Sale Deeds were executed by the 4th
respondent in favour of the company and Ext.P5 dated
4.4.2009 is one of the Sale Deeds. It is stated that based on
the sale deeds, the properties were mutated into the name of
the company and that accordingly, the company was paying
basic tax in respect of the properties. It is also the contention
of the petitioner that in pursuance to the sale deed executed,
the 4th respondent submitted Ext.P4 application for transfer of
quarrying lease pertaining to the property in Survey
Nos.248/2 and 248/7.
4. It is stated that subsequently on 14.8.2009, the 4th
respondent filed O.S.No.243/2009 before the Sub Court,
Pathanamthitta, praying to set aside the sale deeds in favour
of the company. A copy of the plaint is Ext.P7. The petitioner
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company entered appearance and has filed written statement.
While the suit was pending consideration of the Court, the 4th
respondent submitted Ext.P8 application to the 3rd respondent
requesting for cancellation of the mutation in respect of the
property in Survey Nos.248/2, 248/7 and 293/1/1 in relation to
which sale deeds were executed on 4.4.2009.
5. Accordingly, the Tahasildar issued notice to the
petitioner, considered the objections filed by the petitioner
and issued Ext.P9 order cancelling the mutation in favour of
the petitioner company. In this order two reasons are stated
to justify the order cancelling the mutation. First is, that in
terms of the provisions contained in the Mines and Mineral
Concession Rules and also the terms of Exts.R4(a) and R4(b)
Mining Leases, lease is not transferable and therefore the
alienation of the property itself is illegal. It is also stated that
in respect of the property in Survey Nos.248/7 and 293/1/1
proceedings under the Securitisation Act initiated by the
State Bank of India were pending and that during the
pendency of such proceedings, the property could not have
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been transferred to the petitioner company. On these two
grounds, the Tahasildar has ordered cancellation of the
mutation effected in favour of the petitioner company.
Aggrieved by Ext.P9 order, petitioner filed Ext.P10 revision to
the Revenue Divisional Officer, who by Ext.P11 order stayed
Ext.P9. Notice was issued to the parties and after hearing the
objections of both parties, Ext.P15 order upholding Ext.P9
was passed. It is in these circumstances, the writ petition is
filed seeking to quash Exts.P9 and P15 orders.
6. The contention raised by the learned counsel for
the petitioner is that Exts.P9 and P15 are illegal and against
the provisions of the Transfer of Registry Rules. It is his
contention that, even if the lease was not transferable in view
of the restrictions imposed in the Mines and Mineral
Concession Rules and Exts.R4(a) and R4(b), as a consequence
the transfer of the property for consideration cannot be
invalidated and at best, only the lease could have been got
invalidated. It is also his case that, Ext.P13 notice issued
under Sec.8(1) of the Securitisation Rules, or the pendency of
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the proceedings under the Securitisation Act could not have
been a reason to invalidate the alienation of the property but
at best any transfer of such property would not have affected
the interest of the financial institutions/secured creditors.
Therefore, according to counsel, the impugned orders are
illegal. The learned counsel appearing for the 4th respondent
attempted to sustain Exts.P9 and P15. According to the
learned counsel there is an absolute bar in transferring the
property in respect of quarrying lease has been granted. It is
stated that if such a property is transferred, such transfer is
invalid and that if the transfer is invalid, the authorities under
the Transfer of Registry Rules could not have ordered
mutation and any mutation effected is liable for cancellation.
It was contended that since proceedings under the
Securitisation Act were pending, the property could not have
been transferred. The learned counsel contended that for
that reason also the mutation ordered in favour of the
petitioner company was illegal and liable for cancellation.
7. Although several controversies pending between
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the parties are pending before different courts and various
other authorities, having regard to the fact that the validity of
Exts.P9 and P15 alone arises for consideration in this writ
petition, it is not necessary for this Court to deal with any
other factual issues. As already stated, in Ext.P9 only two
reasons are stated. First is that in view of the prohibition of
transfer of quarrying lease, the alienation of property itself
was illegal. The Rule 29 of the Mines and Mineral Concession
Rules, contain conditions of quarrying lease. This rule
incorporates restrictions on the right of lessee to transfer the
quarrying lease. Such provisions are also incorporated in
Exts.R4(a) and R4(b) Mining Leases. Consequence of
violation of the conditions of Mining Lease are also
incorporated in the Mining Leases. A reading of these
conditions would show that if a lessee violates any of those
conditions of lease, that will result in the invalidation of the
mining lease. However, transfer of Mining lease or violation
of any of its conditions will not result in the invalidation of the
alienation of the property or forfeiture of the title to the land
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itself nor will the title holder be deprived of the ownership of
his property. Therefore, conclusion of the Tahasildar in
Ext.P9 order that in view of the conditions of the Mining lease
and the rules contained in Mines and Mineral Concession
Rules, since transfer of lease was impermissible, alienation of
the property is liable to be invalidated cannot be accepted.
Therefore, that reason assigned in Ext.P9 for cancellation of
mutation is unsustainable.
8. The other reason stated in Ext.P9 is that
proceedings under the provisions of Securitisation Act was
pending at the time of alienation of the property. As stated in
Ext.P13 dated 10.7.2010, the learned counsel for the
petitioner contended that the notice under Sec.13(4) was
published only in December, 2009 whereas the property in
question was transferred in April 2009. Therefore, at the time
of its alienation, petitioner had no notice of the pendency of
the proceedings. Apart from that, at best, consequence of
such transfer can be that the transfer will not in any manner
will affect the interest of the secured creditor. However, this
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reason cannot be a ground for the transferor to avoid the
consequences of transfer. Therefore, the second reason
stated in Ext.P9 is also unsustainable.
9. It is the settled position of law that mutation will
not by itself create any interest in the property nor will
mutation result in any one being deprived of the title to the
property which he otherwise has. Mutation is effected only
for fiscal purposes. Therefore the fact that mutation has been
effected in favour of the company will not by itself, be to the
prejudice of any one’s legal rights over the property in
question.
10. In so far as Ext.P15 order is concerned, this
appellate order does not deal with any of the issues raised,
but on the other hand, the RDO merely endorsed the view
taken by the original authority. Therefore basically this is a
dependent order and if Ext.P9 is invalidated, Ext.P15 also will
stand invalidated.
Therefore I quash Exts.P9 and P15. It is made
clear that the findings in this judgment are only for the
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limited purpose of disposal of this writ petition and any court
or other authority which are seized of the other disputes
between the parties shall decide those matters untrammelled
by the findings herein .
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE.
Jvt