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2007 DIGILAW 3329 (MAD)

M. Babu v. The Collector Theni District, Theni

2007-10-17

K.CHANDRU

body2007
Judgment :- 1. This writ petition is filed by the owner of the vehicle, a tractor with trailer bearing Registration No.TN 60 Y 3143 and TN 60 1268. The said vehicle was seized by the Revenue Inspector and the Village Administrative officer when the petitioner transported garden soil from his land to spread the same in the cattle shed located in the backyard of his house. 2. When the vehicle was seized and left with the custody of the Village Administrative Officer, Gudalur, the Revenue Inspector got the signature, from the driver of the vehicle. Though it is alleged that the signature was obtained in a blank paper, the same was not accepted by the respondents. It is stated that it was a confessional statement given by the driver of the petitioners vehicle. The petitioners brother by name Krishnamurthy appeared before the Revenue Divisional Officer, (second respondent) and gave a statement that the vehicle did not carry any minerals and it was only a waste soil. For transporting waste soil, no permission is required and they have not committed any offence either in terms of the Mines and Minerals (Development and Regulation) Act, 1957 or in terms of Minor Mineral Concession Rules, 1959. 3. Even before any notice could be given, the petitioner approached this Court for the release of the vehicle as he had not committed any offence either under the Act or under the Rules. He also pleaded that the extra-ordinary power of this court should be used to find out the real truth since many a time the Revenue Officials were harassing the agriculturists when they transport garden soil for their personal use. Therefore this Court appointed an Advocate Commissioner to visit the place immediately and also to verify personally whether the tractor with trailer detained by the respondents contained any blue metal jelly. 4. Mrs. Maria Roseline, the Advocate Commissioner appointed by this Court immediately proceeded to Gudalur and filed her report which was taken on file. She also produced sample soil taken from the seized the tractor and that was also shown to the Court. The said soil given in a packet is left with the safe custody by the Registry. 5. 4. Mrs. Maria Roseline, the Advocate Commissioner appointed by this Court immediately proceeded to Gudalur and filed her report which was taken on file. She also produced sample soil taken from the seized the tractor and that was also shown to the Court. The said soil given in a packet is left with the safe custody by the Registry. 5. By this time the Tahsildar, (third respondent) had sent a letter dated 10.8.2007 stating that the tractor had brought in blue metal jelly and that the driver had given a confession statement, and on that basis he requested the second respondent, Revenue Divisional Officer to take appropriate action including imposition of fine. 6. This Court after perusing the report of the Advocate Commissioner filed in M.P.No.2 of 2007, directed the release of the vehicle without any precondition, and accordingly it was released to the owner. 7. Ms. R. Anitha, learned Additional Government Pleader objected to the release of the vehicle and stated that the driver of the vehicle had given a confession statement and it is not as if there was no offence committed. She also stated that a show-cause notice was given by the Revenue Divisional Officer dated 13.8.2007 asking the petitioner as to why action should not be taken for the purpose of removing stones in the vehicle in contravention of Rule 36A of the Minor Mineral Concession Rules, 1959 and the petitioner may be asked to give a reply. As stated already, the brother of the petitioner had appeared before the second respondent and given a statement stating that no mineral was taken in the tractor and only garden soil was shifted from his garden to the cattle shed situated at the backyard of his house. 8. In the meanwhile, the second respondent passed a final order imposing a fine of Rs.25,000/-along with the value of mineral rated at Rs.450/- and licence fee of Rs.85/-. In all together, a sum of Rs.25,535/- was directed to be paid by the petitioner. 9. The petitioner took permission of this Court and filed M.P.Nos.3 and 4 of 2007. M.P.No. 3 of 2007 was filed to amend the prayer in the writ petition so as to attack the final order of the second respondent and M.P.No. 4 of 2007 was filed to permit the petitioner to raise additional grounds. 9. The petitioner took permission of this Court and filed M.P.Nos.3 and 4 of 2007. M.P.No. 3 of 2007 was filed to amend the prayer in the writ petition so as to attack the final order of the second respondent and M.P.No. 4 of 2007 was filed to permit the petitioner to raise additional grounds. This Court granted permission in both the petitions by an order dated 19.9.2007. Thereafter, the learned Additional Government Pleader had filed a counter affidavit signed by the second respondent on 29.9.2007. 10. Heard Mr. V. Pannerselvam, learned counsel appearing for the petitioner and Ms. R. Anitha, learned Additional Government Pleader for the respondents and have perused the records. 11. The short question that arises for consideration is as to whether the petitioner had committed any offence so as to justify the impugned order. The learned Additional Government Pleader submitted that even the garden soil is also a "mineral" and for this purpose, she relied upon the definition of term minerals found in Section 3(a) of the Mines and Minerals (Development and Regulation) Act, 1957. In the said definition, it is stated that the term minerals includes all minerals except mineral oils. 12. Since the definition is so vague, the learned Additional Government Pleader immediately referred to Rule 36A of the Minor Mineral Concession Rules, 1959, which reads as follows:- "36-A Penalties.- (1) Whenever any person contravenes the provisions of [sub sections (1) and (1-A) of section 4] of the Act in any land, enhanced seigniorage fee upto a maximum of fifteen times the normal rate subject to a minimum of [twenty-five thousand rupees] shall be charged and recovered from that person by the District Collector or the District Forest Officer, as the case may be, or in the alternative, he shall be liable to be punished as provided in sub-section (1) of section 21 of the Act. [Provided that in respect of minor minerals, namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay, the powers and duties exercisable and dischargeable by the District Collectors under this sub-rule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction]." (Emphasis added) 13. Therefore, the learned Additional Government Pleader submitted that the term minerals includes several items and that it is includes even garden soil. Therefore, the learned Additional Government Pleader submitted that the term minerals includes several items and that it is includes even garden soil. When it is read with the Rule 17, the Rule does not prohibit a registered holder to quarry free of charge any minor mineral on a small scale for his own use for a specific bonafide domestic or agricultural purpose, and the same has not been made an offence under the Act. The learned Additional Government Pleader did not have any answer to the same. 14. But however, she submitted that the driver of the vehicle had given a confession statement. Therefore, it is not open to the petitioner to contend otherwise. A copy of the confession statement given by the driver by name Murugesan was also furnished by the learned Additional Government Pleader. In that it is stated that he had taken the mineral (sand) without the permission from a land belonging to one Gunasekar and, he pleaded leniency to be shown for the mistake committed by him. 15. This statement from the driver bristles with contradictions and suspicion. The petitioners allegation is that the driver was coerced to sign a statement. This when compared with the Advocate Commissioners report dated 10.9.2007 and also the sample soil taken from the tractor as per the orders of this Court, clearly shows that the detained tractor did not carry any prohibited mineral. As has been noted, both in the report of the Tahsildar to the Revenue Divisional Officer dated 10.8.2007 as well as the show cause notice dated 13.8.2007, it is repeatedly mentioned only about stones (blue metal jelly) and not any garden soil or sand. Only in the final order dated 3.9.2007, there was a mention about sand being seized from the petitioners vehicle. 16. A proceedings under Rule 36 A of the Act must be taken in a just and reasonable manner and it cannot exceed the parameters of Rule 36 A of Minor Mineral Concession Rules. The pre-requisite for a penalty under Rule 36 A is a contravention of Section 4(1) and 4(1A) of the Mines and Minerals (Development and Regulation) Act, 1957. Both sections provide for prospecting or mining operations should be done under a licence. The pre-requisite for a penalty under Rule 36 A is a contravention of Section 4(1) and 4(1A) of the Mines and Minerals (Development and Regulation) Act, 1957. Both sections provide for prospecting or mining operations should be done under a licence. But however, by virtue of Rule 17 of the Minor Mineral Concession Rule, no licence is required for transporting a minor mineral for bonafide domestic or agricultural purpose and for own use. 17. In the present case, the petitioners brother had appeared before the second respondent and stated that he did not transport any mineral (sand). It is incumbent on the second respondent to hold an enquiry so as to establish that there was a contraband mineral involved in its transport by a vehicle owned by the petitioner and that it was taken without permit or licence. As seen from the report of the Tahsildar and the show cause notice, it is mentioned only about transport of stone. In the so called confession statement obtained from the driver, it was mentioned about the sand. It is unthinkable as to how the original show cause notice was prepared contrary to the drivers statement. It was true that the driver had mentioned about shifting the sand, then in the report of the Tahsildar and the show cause notices, it should have referred about the mineral(sand) and not about any stone. It clearly shows that the subordinates of the second respondent were acting without any authority and had seized the vehicle. 18. It also clearly shows that the statement of the driver was obtained subsequently to suit the final order and certainly the statement of the driver was not placed before the Tahsildar, when he sent his report to the second respondent and when he had issued the show cause notice. Even otherwise, when the owner of the vehicle appeared and gave a legitimate explanation about the shifting of garden soil, the second respondent should have conducted an enquiry and personally satisfied himself about the so called transportation of mineral(sand) by the petitioner. 19. This Court is satisfied with the materials and the report of the Advocate Commissioner as well as the sample soil produced from the Trailer that what was transported was not sand or stone but only garden soil. The entire exercise of the respondents clearly infringes the relevant laws. 19. This Court is satisfied with the materials and the report of the Advocate Commissioner as well as the sample soil produced from the Trailer that what was transported was not sand or stone but only garden soil. The entire exercise of the respondents clearly infringes the relevant laws. The petitioner had suffered unnecessary harassment and humiliation at the hands of the respondents. 20. In view of the above, the adjudication order passed by the second respondent dated 3.9.2007 shall stand quashed. The writ petition stands allowed. No costs. Consequently, connected M.P.Nos.1 and 2 are closed.