IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 24555 of 2010(T) ---------------------------------------- PETITIONER(S): ----------------------- M/S.ATLAS MINES AND GRANITES (INDIA)LTD. REGISTERED OFFICE AT P.B.NO.39, PARK JUNCTION, MAVELIKKARA- 690101, KERALA REPRESENTED BY ITS MANAGING DIRECTOR, SUJATHAN, KOTTAPURATHU, KOTTARAKAVU, MAVELIKARA. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.V.SUNIL KUMAR (PANACHAMOODU) SRI.H.JAWHAR RESPONDENT(S): -------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT IN THE DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. REVENUE DIVISIONAL OFFICER, ADOOR, PATHANAMTHITTA DITRICT. 3. TAHSILDAR, ADOOR TALUK, ADOOR, PATHANAMTHITTA DISTRICT. 4. J.ANANTHAN, KATTUMADATHIL HOUSE, PALLICKAL NADUVILEMURI, MAVELIKARA. *ADDL. R5 & R6 IMPLEADED. 5. VILLAGE OFFICER, KOODAL VILLAGE, ADOOR, PATHANAMTHITTA DISTRICT. 6. ENADIMANGALAM PANCHAYATH, REP.BY ITS SECRETARY, ENADIMANGALAM, ADOOR, PATHANAMTHITTA DISTRICT. *ADDL. R5 & R6 ARE IMPLEADED AS PER ORDER DT. 1.10.2010 IN IA. 13347/2010. R1 TO R3 & R5 BY GOVT. PLEADER SRI.T.K.ARAVINDAKUMAR BABU R4 BY ADVS. SRI.NAGARAJ NARAYANAN, SRI.RAJAN VELLOTH, SRI.SAIJO HASSAN, SRI.BENOJ C AUGUSTIN, SRI.PRATHAP PILLAI, SRI.RAFEEK. V.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24555/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CERTIFICATE OF INCORPORATION IN FORM 1. P2:- COPY OF THE AGREMENT DTD. 8.6.07 ENTERED INTO BETWEEN 4TH RESPONDENT AND THE MANAGING DIRECTOR OF THE PETITIONER. P3:- COPY OF THE RECEIPT ACKNOWLEDGING RECEIPT OF MONEY BY THE 4TH RESPONDENT. P4:- COPY OF THE APPLICATION DTD. 9.9.08 SUBMITTED BY THE 4TH RESPONDENT TO THE DIRECTOR OF MINING SEEKING TRANSFER OF UARRYING LEASE IN FAVOUR OF PETITIONER. P5:- COPY OF THE SALE DEED NO.390/09 DTD. 4.4.09 OF SRO, ENADIMANGALAM. P6:- COPY OF THE TAX RECEIPT EVIDENCING REMITTANCE OF TAX FOR THE YEAR 2008-2009. P7:- COPY OF THE PLAINT IN OS. NO.243/09 OF THE SUB COURT, PATHANAMTHITTA. P8:- COPY OF THE APPLICATION DT. 5.3.2010 FILED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT. P9:- COPY OF THE ORDER NO.R-26455/2009 OF THE 3RD RESPONDENT. P10:- COPY OF THE MEMORANDUM OF REVISION PETITION NO.B/5 3316/2010 BEFORE THE 2ND RESPONDENT. P11:- COPY OF THE ORDER DTD. 19.6.2010 OF THE 2ND RESPONDENT. P12:- COPY OF THE NOTICE DTD. 24.6.2010. P13:- COPY OF THE INFORMATION RECEIVED BY THE 4TH RESPONDENT ALONG WITH THE APPLICATION UNDER RIGHT TO INFORMATION ACT. P14:- COPY OF THE HEARING NOTE SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P15:- COPY OF THE ORDER NO.B5-3316/2010 DTD. 14.7.2010 BY THE 2ND RESPONDENT. P16:- COPY OF THE COMMUNICATION ISSUED BY THE REGISTRAR OF COMPANIES TO THE 4TH RESPONDENT. P17:- COPY OF THE MINUTES OF THE IST MEETING OF THE BOARD OF DIRECTORS. P18:- COPY OF THE CERTIFICATE OF REGISTRATION UNDER KERALA VALUE ADDED TAX. P19:- COPY OF THE APPLICATION SUBMITTED BY THE 4TH RESPONDENT BEFORE THE DISTRICT COLLECTOR, PATHANAMTHITTA. P20:- COPY OF THE ORDER NO.7-49360/2008 DTD. 16.11.2009 ISSUED BY THE DISTRICT COLLECTOR. W.P.(C) NO.24555/2010 RESPONDENT'S EXHIBITS R4(a):- COPY OF THE LEASE DEED DTD. 15.11.2006. R4(b):- COPY OF THE LEASE DEED NO.1151/2008 DTD. 14.8.08. R4(c):- COPY OF THE PLAINT IN OS. NO.243/2009 DTD. 14.8.09. R4(d):- COPY OF THE WRITTEN STATEMENT IN OS. NO.243/2009 DTD. 25.11.2009. R4(e):- COPY OF THE PLAINT IN OS. NO.262/2009 DTD. 3.10.2009. R4(f):- COPY OF THE LAND TAX RECEIPT DTD. 18.5.2010. R4(g):- COPY OF THE ORDER DTD. 4.11.2009. R4(h):- COPY OF THE LETTER DTD. 5.8.2010. R4(i):- COPY OF THE LETTER DTD. 4.10.2010. R4(j):- COPY OF THE LETTER ISSUED BY THE STATE BANK OF INDIA DTD. 14.6.2010. R4(k):- COPY OF THE LIST OF MATERIALS DTD. 14.5.2008. R4(l):- COPY OF THE LETTER DTD. 29.9.2010. R4(m):- COPY OF THE DETAILS OF REMITTANCE OF ROYALTY BY THE 4TH RESPONDENT FROM 6.9.07 ONWARDS. R4(n):- COPY OF THE MOVING PERMIT DTD. 29.4.2009 ISSUED BY THE DIRECTOR OF MINING AND GEOLOGY. R4(o):- COPY OF THE RECEIPT OF ROYALTY REMITTED BY THE 4TH RESPONDENT. R4(p):- COPY OF THE MOVING PERMIT DTD. 8.10.2010 ISSUED TO THE 4TH RESPONDENT BY THE SENIOR GEOLOGIST, MINING AND GEOLOGY DEPARTMENT. R4(q):- COPY OF THE COMMUNICATION DTD. 9.12.2009. R4(r):- COPY OF THE RELEVANT PAGE OF THE THANDAPER ACCOUNT. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ----------------------------- W.P.(C) No.24555 of 2010 ----------------------------------- 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, W.P.(C) No.24555 of 2010 -: 2 :- 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 W.P.(C) No.24555 of 2010 -: 3 :- 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 W.P.(C) No.24555 of 2010 -: 4 :- 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 W.P.(C) No.24555 of 2010 -: 5 :- 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 W.P.(C) No.24555 of 2010 -: 6 :- 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 W.P.(C) No.24555 of 2010 -: 7 :- 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 W.P.(C) No.24555 of 2010 -: 8 :- 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 W.P.(C) No.24555 of 2010 -: 9 :- 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