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2003 DIGILAW 447 (JHR)

Lal Madhusudan Nath Shadeo v. State Of Bihar

2003-04-08

VIKRAMADITYA PRASAD

body2003
ORDER Vikramaditya Prasad, J. 1. The question to be answered in this writ is whether lease holder petitioner, who sought approval for transfer of the lease to another person but did not execute the deed of transfer, is liable to pay the mining dues including the dead rent etc. against the mining lease? 2. The petitioner was a mining lease holder under the Bihar Minor Mineral Concession Rules. The petitioners case is that the approval of the Collector was sought for transfer of the mining lease and that approval was granted by the Collector and before obtaining that approval, the respondent No. 4 had sworn an affidavit, by which he undertook to fulfill all formalities concerning mining lease. By Annexure-6 respondent State raised demand for dues against the petitioner and the petitioner seeks quashing of Annexure-6 on the ground that the lease stood transferred to respondent No. 4. 3. Approval for transfer and transfer are two different things. A question arises when the transfer becomes complete. In this context, covenants of lease are relevant to be looked into. Covenants are contained in Form D under Rule 21 of the Rules. Clause 13, Part-VII of the Rules read as follows :-- "13. Liberty to assign or transfer his rights.--The lessee/lessees may assign this lease or transfer any right, title or interest hereunder by outright sale to a person approved by the Collector, with the previous written sanction for the Collector on payment of a fee of Rs. 1,000/-. The lessee/lessees shall not allow this lease or any right, title or interest hereunder to be attached or sold in compliance with any decree or order of a Court or Revenue Officer; provided that the assignment or transfer as aforesaid the instrument thereof shall be registered within three calendar months from the date of its completion. The lessee/lessees shall not however sub-lease or sub-let any right, title or interest in this lease." Form C under Rule 17 is a register of Mining Lease, which in its column (a) (ix) speaks of the date of assignment or transfer of the lease. From perusal of the Clause 13 aforesaid, it is clear that after approval, the lease has to be transferred by a registered deed within three months from the date of its completion. From perusal of the Clause 13 aforesaid, it is clear that after approval, the lease has to be transferred by a registered deed within three months from the date of its completion. No deed of transfer of lease either executed by the State or by the petitioner in favour of the respondent No. 4 has been produced by the petitioner or respondent State. No Annexure has been annexed in the States counter- affidavit to show that in the Register of Mining Lease in column (ix) aforesaid, the date of transfer has been entered into. 4. The learned counsel appearing for the petitioner says that after approval was granted by the Collector, it was the duty of the contemplated transferee to get the deed of transfer registered or it was an affair between the State and the contemplated transferee and the petitioner-lessee had nothing to do as he became third petitioner. 5. I find myself in disagreement with the submission of the learned counsel appearing for the petitioner for the simple reason that till the transfer is complete, the privity of the agreement of the lease was between the petitioner and the State. The approval is a simple formality on the part of the Collector giving clearance to the petitioner-lessee to transfer the lease to the person in whose favour approval has been granted. Therefore, it is the duty of the petitioner-lessee to see that within three months from the date of the approval, the transfer is effected by a registered deed. If the deed is not registered, then the transfer is not final and conclusive and consequently, in the eye of law, there is no transfer. The argument that after the clearance, the question of execution became a matter between the State and the contemplated transferee, is also not a valid argument because by that time, the State does not legally recognize the contemplated transferee. The Collector has only given approval to the petitioner-lessee for effecting the transfer. The purpose of sanctioning approval for transfer is only to know whether the contemplated transferee fulfills all the criteria for holding the mining lease. If he does not hold required criteria, in that circumstances, the approval may be withheld. The Collector has only given approval to the petitioner-lessee for effecting the transfer. The purpose of sanctioning approval for transfer is only to know whether the contemplated transferee fulfills all the criteria for holding the mining lease. If he does not hold required criteria, in that circumstances, the approval may be withheld. Only grant of approval does not mean that the transfer has also been effected and the petitioner-lessee is absolved from the liability of paying the dues under that lease without effecting a valid transfer within those three months. Approval of transfer and transfer by deed after such approval are quite two different things-the first gives right to lessee to transfer and the second provides the mariner for executing that right; both are co-related but compliance of the earlier does not warrant compliance of the latter. 6. Thus, I am of the considered view that in this case, despite the approval of the Collector, there was no valid transfer by a registered deed. Therefore, the lease will be deemed to be subsisting still in the name of the original lessee. If the original lessee is not a subsisting lessee, all the dues whatsoever are to be paid by him (original lessee). Consequently, I do not find any merit in this writ petition, which is accordingly dismissed.