IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 WP(C).No. 25223 of 2008(C) --------------------------------------- PETITIONERS: -------------------- 1. K.A.SHAMEENA, (RAZIYA MANZIL, CHATHAMANGALAM), MANAGING PARTNER, ABBA 'M'SAND & GRANITES, NIT CAMPUS (P.O) KOZHIKODE - 673601 2. P.SIYALI, (PALAMTHALAKKAL KUMARANALLOOR) PARTNER, ABBA 'M'SAND & GRANITES, NIT CAMPUS (P.O.)KOZHIKODE - 673601. 3. P.POCKER, (ASHIRVAD, THAZHEKODE KOZHIKODE), PARTNER, ABBA 'M'SAND & GRANITES, NIT CAMPUS (P.O.) KOZHIKODE - 673601. BY ADV. SRI.C.K.ABDUL RAHIM, ADV. SRI.C.MOIDEEN KUTTY, ADV. SRI.K.A.SHAMSUDEEN. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY TO REGISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT REGISTRAR (GENERAL), KOZHIKODE. 3. THE SUB REGISTRAR, BALUSSERY, KOZHIKODE. W.P.(C). NO.25223/2008-C: 4. THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, CIVIL STATION, KOZHIKODE. 5. THE REVENUE, DIVISIONAL OFFICER, KOZHIKODE. R1 TO R5 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.25223/2008-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE QUARRYING LEASES EXECUTED BY THE PETITIONER DTD. 17/12/2007. EXT.P.1.A: COPY OF THE QUARRYING LEASES EXECUTED BY THE PETITIONER DT. 17/12/2007. EXT.P.1.B: COPY OF THE QUARRYING LEASES EXECUTED BY THE PETITIONER DTD. 17/12/2007. EXT.P.2: COPY OF THE COVERING LETTER ISSUED BY THE R.4. DTD. 17/12/07. EXT.P.2.A: COPY OF THE COVERING LETTER ISSUED BY THE R.4. DT. 17/12/2007. EXT.P.2.B: COPY OF THE COVERING LETTER ISSUED BY THE R.4. DT. 17/12/2007. EXT.P.3: COPY OF THE LETTER ISSUED BY R.5. DT. 11/06/2008. EXT.P.3.A: COPY OF THE LETTER ISSUED BY R.5. DT. 11/06/2008. EXT.P.3.B: COPY OF THE LETTER ISSUED BY R.5. DTD. 11/06/2008. EXT.P.4: COPY OF THE CHELLAN RECEIPTS. EXT.P.4.A: COPY OF THE CHELLAN RECEIPTS. EXT.P.4.B: COPY OF THE CHELLAN RECEIPTS. EXT.P.5: COPY OF THE CERTIFICATE ENDORSED ON THE LEASE DEEDS BY THE R.5. ON 26/06/2008. EXT.P.5.A: COPY OF THE CERTIFICATE ENDORSED ON THE LEASE DEEDS BY THE R.5. ON 26/06/2008. EXT.P.5.B: COPY OF THE CERTIFICATE ENDORSED ON THE LEASE DEEDS BY THE R.5. ON 26/06/2008. EXT.P.6: COPY OF THE QUARRYING LEASES DEED FORWARDED BY THE R.5. TO THE R.4. DT. 25/06/08. EXT.P.6.A: COPY OF THE QUARRYING LEASES DEED FORWARDED BY THE R.5. TO THE R.4. DT. 25/06/2008. EXT.P.6.B: COPY OF THE QUARRYING LEASE DEED FORWARDED BY THE R.5. TO THE R.4. DT. 25/06/2008. W.P.(C). NO.25223/2008-C: EXT.P.7: COPY OF THE REQUEST LETTER ISSUED BY THE R.4. TO THE R.3. DT. 27/06/08. EXT.P.7.A: COPY OF THE REQUEST LETTER ISSUED BY THE R.4. TO THE R.3. DT. 27/06/08. EXT.P.7.B: COPY OF THE REQUEST LETTER ISSUED BY THE R.4. TO THE R.3. DT. 27/06/08. EXT.P.8: COPY OF THE REPRESENTATION SUBMITTED BY THE P.1. DT. 15/07/08. EXT.P.9: COPY OF THE APPLICATION SUBMITTED TO THE R.3. DT. 22/07/08. EXT.P.10: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C). NO. 23002/2008 DTD. 30/07/2008. EXT.P.11: COPY OF THE COVERING LETTER FORWARDING EXT.P.10 JUDGMENT, TO R.3. DTD. 11/08/2008. EXT.P.12: COPY OF THE LETTER ISSUED BY R.2. DTD. 02/08/2008. EXT.P.13: COPY OF THE LETTER ISSUED BY THE R.2. DTD. 13/08/2008. EXT.P.14: COPY OF THE LETTER SUBMITTED TO THE R.4. EX.P.15: COPY OF THE REPLY ISSUED BY THE R.4. DT. 24/08/2008. RESPONDENTS' EXHIBIT: EXT.R2.: LR. NO. G-391/08 DT. 06/05/08 FROM REVENUE DIVISIONAL OFFICE, KOZHIKODE. //TRUE COPY// P.S. TO JUDGE. prv. V.GIRI, J. ------------------------- W.P.(C).No.25223 of 2008 ------------------------- Dated this the 7th day of November, 2008. JUDGMENT The petitioners, who are the partners of a firm engaged in quarrying and crushing of granites and production of M-sand, applied for and were granted quarrying lease by the 4th respondent Geologist under the provisions of the Miner Mineral Concession Rules, 1967. Lease was granted in favour of the petitioners for different extents. As per Rule 33 of the Rules, a quarrying lease in Form No.H will have to be executed within three months of the lease and the right to quarry will commence only if the lease is executed and a permit is granted on the basis of such lease. 2. Exts.P1, P1(a) and P1(b) lease deeds were executed by the petitioners and the Geologist. On the same day, the Geologist forwarded the same for adjudication of the stamp duty payable on the basis of the undisputed royalty payable to the Government and on the basis of the surface rent and security deposit. There is no dispute that Exts.P2, P2(a) and P2(b) W.P.(C).NO.25223/08 :: 2 :: covering letters accompanying the lease deeds were forwarded to the Revenue Divisional Officer on 17.12.2007. Ext.P3 series, issued only on 11.6.2008, show that the petitioners were intimated of the actual stamp duty leviable on the lease deeds. On receipt of the intimation under Ext.P3 series dated 11.6.2008, it is seen that the petitioners had remitted stamp duty on 16.6.2008 as per Ext.P4 series challan receipts and certificates evidencing the levy of stamp duty on the originals of the lease deeds are seen to have been issued by Ext.P5 series. The petitioners have a case that the adjudicated quarrying lease deeds in form No.H were then forwarded by Ext.P6 series dated 25.6.2008 to the Geologist, and according to the petitioners the Geologist forwarded it to the Sub Registrar, Balussery, the jurisdictional registering authority on 27.6.2008 as per Ext.P7 series for registering the documents with a request that the Geologist, who had executed the agreement ex-officio, may be exempted from personal appearance at the time of registration of the documents. W.P.(C).NO.25223/08 :: 3 :: The documents were not registered. But the petitioners were only informed that there would be a levy of penalty. But by Ext.P8 letter, the petitioners requested the District Registrar to take steps to see that the documents are registered condoning the delay, pointing out that the Sub Registrar, Balussery, directed payment of 10 times of the registration fee as penalty, but the delay in presentation of the documents for registration is not attributable to them. Ext.P9 is a representation similarly addressed to the Sub Registrar. The last portion of Ext.P9 is relevant and is extracted hereunder: “Under the above circumstances we humbly request your authority to forward this application for decision of the District Registrar under the provisions of Section 25(2) of the Registration act, 1908. The District Registrar may consider the above narrated aspects and to direct registration of the documents condoning the delay, taking a lenient view of imposing the minimum penalty of one time amount in addition to the proper registration fee.” 3. Going by the contents of Ext.P9, it seems that the petitioners were willing to pay a nominal amount of penalty, though they were not responsible for the delay in presentation of the documents within the W.P.(C).NO.25223/08 :: 4 :: originals 4 months' period, but within the extended 4 months period, within which the registration is possible in terms of Section 25 of the Registration Act read with Rule 44 of the Registration Rules. It seems that since there was no response to Exts.P8 and P9, the petitioners had approached this court in W.P.(C)No.23002/08, which was disposed of under Ext.P10 requiring the Sub Registrar to forward Ext.P9 representation to the District Registrar with a further direction to the District Registrar to take a time bound decision. Even before the receipt of Ext.P10 along with Ext.P11 covering letter, the District Registrar proceeded to pass Ext.P12 order, presumably on the basis of the report forwarded to him by the Sub Registrar. In Ext.P12, there is a reference to the presentation of lease deeds in the office of the Sub Registrar on 28.6.2008. But on the premise that no grounds were made out for remission of the penalty that has to be remitted; for condoning the delay in presenting the documents; for registration beyond the period of 4 months from the date of the lease deeds, the District W.P.(C).NO.25223/08 :: 5 :: Registrar affirmed the order of penalty viz., at 10 times the registration fee that is otherwise leviable by the Registration Authorities. The same stand was again affirmed in Ext.P13, which is a communication issued, after the receipt of Ext.P10 judgment. Exts.P12 and P13 have been challenged in this writ petition. 4. Counter affidavits have been filed by the respondents. 5. I heard Sri.Abdul Rahim, learned counsel for the petitioners and Smt.M.R.Sreelatha, learned Senior Government Pleader. 6. Taking note of the fact that Ext.P1 series lease deeds were drawn up on 17.12.2007 and forwarded to the Revenue Divisional Officer, immediately thereafter, as evidenced by Ext.P2 series, but were subsequently received only in the month of June, 2008, I find it difficult to completely affirm the stand taken by the respondents that the petitioners are responsible for the delay in presentation of the documents for registration. Apart from the same, there is yet another factor, which I take it W.P.(C).NO.25223/08 :: 6 :: noteworthy. Where the actual registration of the documents is compulsory, can it not be said to have taken place for the purpose of registration, only when the executants have made endorsements on the originals of the documents presented for registration. The stamp duty was to be adjudicated in the present case by the Revenue Divisional Officer on the basis of the anticipated royalty and surface rent and security deposit. On adjudication of the stamp duty and intimation of the same, the petitioners had remitted it on 16.6.2008. The actual execution of the originals lease deeds, in the circumstances, can be said to have taken place only on 16.6.2008, when the remittance of stamp duty was endorsed on the originals. 7. The stand taken in the counter affidavit is that reference made to the date of 28.6.2008 in Ext.P12 is a mistake, but the documents were actually received by post on 25.7.2008. If the date of receipt is taken as 16.6.2008, then the receipt of the same either on 28.6.2008 or on 25.7.2008 is within the period of 4 W.P.(C).NO.25223/08 :: 7 :: months stipulated in that behalf under Section 25 of the Registration Act. But, I do not think it necessary to finally pronounce on this aspect. I have made reference to the above only as a matter of ascertaining whether there is any wilful non-condonable laches on the part of the petitioners. 8. Assuming that the documents were executed on 17.12.2007, they should have been actually presented within four months i.e. on or before 17.4.2007. There is no dispute that the documents were actually with the Revenue Divisional Officer, at that point of time, pending assessment of the stamp duty leviable on the lease deeds. The actual receipt of the originals lease deeds on 16.6.2008, after the adjudication of the stamp duty, is also not disputed. If that be so, it is difficult to infer any delay on the part of the petitioners, at least, on 16.6.2008. No doubt, if the date of execution is 17.12.2007, then the period of presentation had expired on 17.4.2008. Obviously the petitioners cannot be made culpable for the delay till 16.6.2008. Irrespective of W.P.(C).NO.25223/08 :: 8 :: whether the documents were received in the office of the Sub Registrar on 28.6.2008 or 25.7.2008, the receipt of the documents, within the period of 4 months subsequent to the original 4 months period prescribed for registration of the documents, is also a matter that could be inferred without any dispute in that regard. 9. Learned Government Pleader submits that the registration of the documents cannot take place unless the executant is present in person. The lessor of the lease is the Geologist and obviously the petitioners are not responsible for his absence. The petitioners have no objection in presenting themselves whenever they are summoned to or required to be present. In the facts and circumstances of the case, I think, it is only appropriate that the documents, the originals of Ext.P1 series are registered. But the levy of penalty at 10 times the registration fee, in my view, in the aforementioned circumstances, will be too harsh a penalty, that could be imposed on the petitioners. I am not able to find the petitioners guilty of any laches. W.P.(C).NO.25223/08 :: 9 :: 10. In the result, Exts.P12 and P13 are quashed. The petitioners shall present the originals of Ext.P1 series lease deeds on any day in the 3rd Week of November, 2008 and on presentation of the same by the petitioners in the manner aforementioned, the same shall be treated as due presentation of the documents within the extended time stipulated under Section 25 of the Registration Act. The petitioners shall remit penalty at one time in excess of normal registration fee leviable on Ext.P1 series documents. On such remission, it shall be treated as due compliance with the order for the delayed presentation of the documents for registration. The documents shall then be registered without further delay. Writ petition is disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy//