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2014 DIGILAW 4177 (MAD)

M. Senthil Kumar v. District Collector, Namakkal

2014-11-10

T.S.SIVAGNANAM

body2014
Judgment 1. The petitioner has prayed for issuance of a Writ of Certiorari, to quash the order passed by the first respondent, dated 11.10.2014. By the said impugned order, the lease granted in favour of the petitioner by the first respondent to quarry gravel sands from his patta land in S.F.No.31/1(p), Molapalayam village, Rasipuram Taluk, Namakkal District, was cancelled. 2. The petitioner is the owner of the said land measuring about 4 hectares and he filed an application before the first respondent for grant of lease to quarry gravel sand in the said lands. Permission was granted to the petitioner and the State Level Environment Impact Assessing Authority considered the petitioner's application and granted environmental clearance. A lease deed was executed for a period of three years by virtue of which, the petitioner was entitled to quarry gravel sands in the said land from 07.03.2013 to 06.03.2016. The second respondent appears to have sent a report, dated 24.09.2014, alleging that the petitioner has been carrying on mining operations beyond the portion of the land for which permission was granted. Based on such report, a show cause notice dated 30.09.2014, was issued as to why the action should not be taken against the petitioner for violation of the conditions of lease. The petitioner submitted his reply dated 08.10.2014, stating that he has not violated the conditions of lease and on the western side of the land, the petitioner had dug the earth only to form a road to reach the land to transport the material to be quarried and there is no quarrying done beyond the area, which has been leased. On receipt of the reply, the respondent passed the impugned order cancelling the lease and recommending action to be taken to recover penalty under Section 36A of the Tamil Nadu Mine and Mineral Concession Rules, 1959. The said order of cancellation of lease and the recommendation to take action for recovery of penalty is challenged in this Writ Petition. 3. The learned Senior counsel for the petitioner submitted that the petitioner has not quarried beyond the leasehold area and he has clearly explained that on the western side of the land, the earth was removed for the purpose of formation of road and no earth was transported out of the leasehold area. 3. The learned Senior counsel for the petitioner submitted that the petitioner has not quarried beyond the leasehold area and he has clearly explained that on the western side of the land, the earth was removed for the purpose of formation of road and no earth was transported out of the leasehold area. Further, it is submitted that the copy of the report of the second respondent which is the basis for the impugned order has not been furnished to the petitioner and the petitioner did not have an opportunity to rebut the findings given by the second respondent in the report. Further, it is submitted that the quarrying operations were orally directed to be stopped on 21.08.2014 and accordingly, it was stopped and there was no person in the quarry site. It is submitted that no notice was issued to the petitioner prior to the inspection and the statement in the show cause notice and the impugned order, as if, joint inspection was done is false and incorrect and the petitioner was not present and his signature alone was obtained in some reports in the office of the second respondent subsequently and as such, the proceedings are against the principles of natural justice. It is further submitted that the petitioner fairly admitted that he had excavated the earth only to form a road to reach his land and this cannot be taken to be an admission that the petitioner has done illegal quarrying. On the above grounds, the learned counsel sought for setting aside the impugned proceedings. In support of his contentions, the learned counsel placed reliance on the decisions of this Court in the cases of V.S.O. Balakrishnan & Anr., vs. District Collector, reported in (2009) 2 MLJ 577 ; S. Selvaarajan vs. The Revenue Divisional Officer reported in 2010 (6) CTC 73 ; and J. Joshuva vs. The Revenue Divisional Officer reported in 2011 (5) CTC 273 . 4. 4. The learned Special Government Pleader appearing for the respondents based on written instructions given by the respondents submitted that during the currency of the lease period, the subject quarry was inspected by the second respondent on 24.09.2014, accompanied by the officials of the mines department and during the inspection, it was found that the petitioner has exceeded the leasehold boundary on the western side and an extent of illegal gravel quarrying has been done in four places having a maximum distance of 265mts., and minimum distance of 78mts., with an average height of 5.5mts., to 12mts., and average width of 10.5mts., to 12mts., in the slope of the excavated area. Therefore, it is submitted that the illicitly quarrying the gravel is 21623 Qmts., or 3603 lorry loads (in 2 units) and the same is against the conditions of lease. It is further submitted that the petitioner was present in the leasehold area at the time of inspection and also while taking measurement and he has given statement before the Inspecting Officers by accepting the offence committed by him. In this regard, a proposal was sent to the Revenue Divisional Officer, Namakkal, for taking penal action against the petitioner by letter dated 30.09.2014. Further, before passing final order, the petitioner was given an opportunity by the first respondent to put forth his explanation and personal hearing was also conducted on 08.10.2014, in which the petitioner participated and gave statement accepting the offence committed by him. In the light of the above facts, the District Collector cancelled the lease. The learned counsel further submitted that as against the impugned order the petitioner has an effective alternate remedy of filing an appeal under Rule 36C(2) of the Rules and without exhausting the same, the petitioner cannot approach this Court by filing a writ petition. In support of his contention, the learned counsel placed reliance on the decision of the Division Bench of this Court in the case of P. Mariadoss vs. The District Collector & Ors., in W.P.Nos.1015 of 2011 etc., batch, dated 26.03.2014. 5. Heard the learned counsels appearing on either side and perused the materials placed on record. 6. The impugned proceedings has been challenged on the ground of violation of principles of natural justice. Primarily three contentions were raised to justify the grounds of challenge. 5. Heard the learned counsels appearing on either side and perused the materials placed on record. 6. The impugned proceedings has been challenged on the ground of violation of principles of natural justice. Primarily three contentions were raised to justify the grounds of challenge. Firstly, by contending that the inspection was not conducted in the presence of the petitioner and he had no notice of inspection. Secondly, it is contended that the report submitted by the second respondent was not furnished to the petitioner and he had no opportunity to rebut the findings given by the second respondent which appears to be the sole basis for the impugned order. Thirdly, it is contended that the petitioner while admitting quarrying of gravel sand on the western side of the quarry stated that it was quarried for the purpose of forming a road to reach the leasehold area. 7. As regards the first contention, the learned Special Government Pleader produced the copy of the inspection report dated 24.09.2014, the petitioner's signature finds place in the report. The petitioner would now state that his signatures alone were obtained in the report, but he was not present at the time of inspection. This contention cannot be examined in a Writ Petition. Furthermore, there is no specific allegation of malafide against any of the officials nor any of the officials have been impleaded in their personal capacity with the specific allegations of malafide. Therefore, the said plea raised by the petitioner is rejected as an after thought. 8. As regards the second contention stating that the copy of the inspection report was not furnished, it is to be noted that it is the admitted case of the petitioner that he has effected quarrying and it appears that the area in which the quarrying was done is not within the leasehold area, but the petitioner's explanation is that the said quarrying was done for the purpose of formation of a road to approach the leasehold area. This again is a question of fact. This again is a question of fact. From the statement recorded by the petitioner, it is seen that the petitioner admitted that there was quarrying, which was outside the boundaries of the leasehold area and if it is the case that the quarrying was not for transporting the sand, but for forming the road, then prior permission should have been obtained or the petitioner should have been able to substantiate before the first respondent that no gravel sand was removed from the quarry site. This has not been done by the petitioner. Further, the petitioner did not seek for the copy of the report submitted by the second respondent, but submitted his explanation to the show cause notice and participated in the personal hearing afforded by the first respondent. Even in the personal hearing, the petitioner appears to have given a statement that he has effected quarrying in the area, which is outside the leasehold area. In such circumstances, the petitioner was not prejudiced by any finding given by the second respondent in his report, rather chose to participate in the proceedings, appeared before the first respondent and gave statement. Even at that stage before the first respondent, it was well open to the petitioner to produce evidence in support of his contention, which is now being raised in this Writ Petition, which appears to have been raised for the first time. 9. The decision in the case of V.S.O. Balakrishnan & Anr., (supra), and S. Selvaarajan, (supra) were infact relied upon before the Division Bench of this Court in the case of Mariadoss, (supra) and after taking note of the said decision, the Division Bench passed the order dated 26.03.2012, holding that there cannot be any notice prior to surprise inspection. In the case of V.S.O. Balakrishnan & Anr., (supra), it was alleged that the lessee against whom allegation of illicit quarrying was made and studied only upto 8th standard and not well-versed with the English language and his signature was obtained with the undertaking that the show cause notice would be withdrawn and the matter was typed in English language and without knowing the contents, he had signed the same. After taking note facts of the said case, the Court observed that when there was no proper enquiry or no personal hearing and no materials were produced to show the petitioners were involved in illicit quarrying, there is violation of principles of natural justice. The said decision is clearly distinguishable on facts as in the instant case, the petitioner has appeared before the District Collector and it is not his case that he has not effected any quarrying, but he would state it was for a different purpose, for formation of the road. In such circumstances, it was for the petitioner to prove the same and therefore, the question of any violation of principles of natural justice does not arise, as the petitioner was afforded opportunity. 10. In the case of S. Selvaarajan,(supra), the objection was the report of the Tahsildar and the Assistant Director of Geology and Mining were considered by the District Collector, while passing the impugned order without issuing notice to the petitioner therein, when the reports were drawn without notice to the petitioner and copy of the report was not served on the petitioner. The facts in the case on hand is different inasmuch as the petitioner does not deny that he has done the quarrying, which is beyond the leasehold area, but his contention is that it was not for the purpose of removing the earth/gravel, but for formation of road. If such is the case, no prejudice has been caused to the petitioner on account of non-supply of report of the second respondent, which only states, a fact which was admitted by the petitioner regarding quarrying. If it is the petitioner's case that quarrying was for forming of the road, he should have established the same before the District Collector. That apart, the petitioner did not request for furnishing a copy of such report and he has also given a statement before the District Collector at the time of personal hearing. Therefore, the decision in the case of S. Selvaarajan (supra), does not in any manner advance the case of the petitioner herein. 11. That apart, the petitioner did not request for furnishing a copy of such report and he has also given a statement before the District Collector at the time of personal hearing. Therefore, the decision in the case of S. Selvaarajan (supra), does not in any manner advance the case of the petitioner herein. 11. The decision in the case of J. Joshuva, (supra), the Court observed that principles of natural justice do not enable authority to come to a conclusion even before the enquiry is initiated to find out whether or not any contravention is committed and such preconceived notion would certainly make inroads into concept of fairness. In the said case, challenge was to the show cause notice alleging illegal quarrying and on facts, the Court came to the conclusion that the authorities have pre-determined the issue. No such conclusion can be arrived at in the case on hand as there is no materials to show that the authorities have pre-decided the matter. In any event all the factual contentions, the petitioner seeks to place before this Court could very well be raised before the Appellate Authority, since the onus is on the petitioner to establish that whatever quarrying he has done was not for removal of the gravel sand, but was for forming of the road and that he did not remove the any gravel sand though pits were found in the land. 12. The Hon'ble Division Bench of this Court in the case of P. Mariadoss vs. The District Collector & Ors., (supra), was considering the writ petitions wherein challenge was made to somewhat identical orders passed by the District Collector cancelling the leases on the ground of illicit quarrying and the Writ Petitions were filed without availing the alternate remedy under the Rules. The Hon'ble Division Bench pointed out that no purpose would be served if notice is issued prior to surprise inspection, when there has been allegation that illicit mining is being carried on and that the authorities have been empowered to enter into the quarry site by virtue of the power under Section 24(1) of the MMRD Act, the petitioners cannot insist that they should be put on prior notice before conducting surprise inspection. Therefore, it was held that it is not a case of denial of reasonable opportunity and the inspection conducted by the authorities without notice cannot be faulted. 13. Therefore, it was held that it is not a case of denial of reasonable opportunity and the inspection conducted by the authorities without notice cannot be faulted. 13. The only question now remains for consideration is that whether non-furnishing of the report has prejudiced the petitioner and whether there are any valid grounds for the petitioner to bye-pass the alternate remedy. 14. As noticed above, the petitioner did not deny the quarrying done, but would come forward with an explanation that it was for the purpose of forming an approached road. This had to be established by the petitioner, which the petitioner could have very well done before the first respondent, the fact finding authority, this the petitioner failed to do. Therefore, mere non-furnishing of the report of the second respondent did not in any manner prejudice the petitioner's right. Furthermore, the petitioner was afforded an opportunity to appear before the first respondent and put forth his contention. 15. In such circumstances, this Court is of the view that it is not a case where the petitioner should be permitted to agitate the correctness of the impugned order in this Writ Petition without availing the alternate remedy. 16. In the result, the Writ Petition is held to be not maintainable as the same has been filed without exhausting the alternate remedy available under Rule 36C(2) of the Tamil Nadu Mineral Concession Rules, 1989. Accordingly, while declining to grant the relief sought for in the Writ petition, liberty is granted to the petitioner to file an appeal as against the impugned order before the Commissioner of Geology and Mining Chennai and if such appeal is filed within a period of thirty days from the date of receipt of a copy of this order, the Appellate Authority shall entertain the appeal without reference to limitation and consider the appeal on merits and in accordance with law, after affording an opportunity of personal hearing to the petitioner without being influenced by any observation in this order. Since this Court has granted time to file an appeal, no coercive steps shall be taken against the petitioner, pursuant to the order passed by the first respondent dated 11.10.2014 for a period of 30 days. No costs. Consequently connected miscellaneous petition is closed. Note: (i) Registry is directed to return the original impugned order after retaining one photo copy of the same. No costs. Consequently connected miscellaneous petition is closed. Note: (i) Registry is directed to return the original impugned order after retaining one photo copy of the same. (ii) Issue Order Copy on 14.11.2014.