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2022 DIGILAW 2694 (MAD)

G. Selvaraj v. District Collector, Villupuram

2022-08-12

N.ANAND VENKATESH

body2022
JUDGMENT (Prayer: Writ Petition under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari to call for the records pertaining to the 2nd respondent's proceedings bearing Na.Ka.No.A- 2/4085/10 dated 26.08.2010 as confirmed by the 1st respondent's proceedings bearing Na.Ka.A/Geology and Mining /1021/2010, dated 23.10.2012. Writ Petition under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari to call for the records pertaining to the 2nd respondent's proceedings bearing Na.Ka.No.A- 2/4481/10 dated 26.08.2010 as confirmed by the 1st respondent's proceedings bearing Na.Ka.A/Geology and Mining /1019/2010, dated 23.10.2012.) Common Order 1. The issue involved in both these Writ Petitions are common and hence, they are taken up together, heard and disposed of through this Common Order. 2. The petitioners have filed these Writ Petitions challenging the proceedings of the 2nd respondent dated 26.8.2010 and which was confirmed in Appeal by the 1st respondent through Orders dated 14.11.2012 and 23.10.2012 respectively. 3. The case of the petitioners is that they are agriculturists and while so, a show cause notice came to be issued by the 2nd respondent to the effect that an inspection was conducted in the subject quarry and it was noticed that 2000 units of rough stones and 8 units of 1 ½ size jelly were mined and kept in the subject property illegally by the petitioners and the same was seized and handed over to the V.A.O. for safe custody. On receipt of the show cause notice, the petitioners gave a detailed reply, denying all the allegations and they took a stand that they never indulged in any stone quarrying business and the subject property was actually given on lease for a period of 10 years from the year 1996 and the lessees had conducted mining operations during this period and whatever minerals were recovered from the site was leftover by the lessees and the petitioners have nothing to do with the same. 4. The further case of the petitioners is that the 2nd respondent, after receipt of the reply and without conducting any enquiry, rejected the explanation given by the petitioners and demanded payment of a sum of Rs.17,02,500/- and Rs.24,11,250/- respectively from the petitioners. 5. 4. The further case of the petitioners is that the 2nd respondent, after receipt of the reply and without conducting any enquiry, rejected the explanation given by the petitioners and demanded payment of a sum of Rs.17,02,500/- and Rs.24,11,250/- respectively from the petitioners. 5. The petitioners aggrieved by the same, filed an appeal before the 1st respondent and the 1st respondent, once again, without conducting any enquiry, confirmed the Order passed by the 2nd respondent in a mechanical manner. Aggrieved by the same, the present Writ Petitions have been filed before this Court. 6. Heard Mr.K.Ramakrishna Reddy, learned counsel for the petitioner in both the writ petitions and Mr.B.Vijay, learned Additional Government Pleader for respondents in both writ petitions. 7. The main ground that was raised by the learned counsel for the petitioners is that the show cause notice that was issued by the 2nd respondent itself was a pre-judged notice and for the mining that was done by some third parties for a period of 10 years, penalty was imposed against the petitioners even without conducting an enquiry. Hence, the impugned proceedings of the respondent is challenged mainly on the ground of violation of Principles of natural justice. 8. The learned counsel for the petitioners in order to substantiate his submissions, relied upon the following judgments: a) [Siemens Ltd. v. State of Maharashtra and Others] reported in (2006) 12 SCC 33 . b) [V.S.O. Balakrishnan and Another v. District Collector,Thiruvallur and Another] reported in (2009) 2 MLJ 577 . c) [Oryx Fisheries Private Limited v. Union of India and Others] reported in (2010) 13 SCC 427 . 9. Per contra, the learned Additional Government Pleader appearing on behalf of the respondents submitted that the relevant rules does not contemplate personal enquiry and it is enough if an opportunity is given to the petitioners and the same is considered at the time of passing the orders. The learned counsel further submitted that the petitioners did not have a subsisting lease on the date when the inspection was conducted and they also did not have any transport permit and inspite of the same, mineral was excavated from the subject property and the mined mineral which was available in the property was seized and recovered. The learned counsel further submitted that the petitioners did not have a subsisting lease on the date when the inspection was conducted and they also did not have any transport permit and inspite of the same, mineral was excavated from the subject property and the mined mineral which was available in the property was seized and recovered. It is only based on the mineral that was seized, the penalty, seigniorage and the value of the mineral was assessed and sought to be recovered from the petitioners. The learned counsel submitted that the petitioners have an efficacious remedy of Second Appeal under Rule 36-C of the Tamil Nadu Minor Mineral Concession Rules, 1959 (hereinafter referred to as ‘the Rules’) and without exhausting this remedy, these Writ Petitions cannot be maintained before this Court. The learned Additional Government Pleader further submitted that the defence taken by the petitioners as if no enquiry was conducted, is only a ruse to escape from illegal mining done by the petitioners. Hence, the learned Additional Government Pleader sought for the dismissal of these Writ Petitions. The learned Additional Government Pleader in order to substantiate his submissions, relied upon the Division Bench judgment of this Court in [P. Mariadoss v. The District Collector and Others] reported in 2012 SCC OnLine Mad 1135. 10. The complaint against the petitioners is that they had illegally excavated minerals from Government poramboke lands in Survey No.110/1 measuring an extent of 9.55.5 hectares. As per the show cause notice, the concerned authorities conducted an inspection in the property on 19.6.2010 and submitted a report. As per this report, mineral had been excavated and the mined mineral was available in the spot. This was found to have been done by the petitioners and hence, action was initiated under Rule 36-A of the Rules. 11. The petitioners, on receipt of the show cause notice, gave a reply to the effect that the subject property was already given on lease for a period of 10 years and the quarrying operation was going on for a long time and whatever minerals were found on the spot, was not mined by the petitioners and for some illegal quarrying that was done by third parties, the blame is sought to be put against the petitioners. Hence, the petitioners took a stand that a false case has been foisted against them. 12. Hence, the petitioners took a stand that a false case has been foisted against them. 12. Both the respondents in their impugned proceedings have given a finding that there was no lease granted in favour of the petitioners and there was no transport permit given in the name of the petitioners and inspite of the same, mineral has been excavated and the mined mineral was found in the site. This was seized and penalty was imposed against the petitioners. 13. The first ground that requires the consideration of this Court is as to whether Rule 36-A of the Rules contemplates conducting a personal enquiry, apart from receiving a reply for the show cause notice. It will be relevant to take note of the judgment of this Court in V. S. O. Balakrishnan, referred supra. The relevant portions in the judgment are extracted hereunder: “11. In all these cases, whether it is in respect of quarrying silica sand or in the case of granite, the complaint is that the petitioners concerned have illegally quarried the same from other survey numbers which are stated to be situate adjacent to the survey numbers in respect of which lease has been granted in favour of the petitioners. While it is true that the petitioners are strictly expected to quarry only from the survey numbers, extent and the quantity as per the terms of the agreement, there is no clause in the agreement contemplating the lessees to complain if any third party illegally quarrying in some other places the same has to be prevented. In fact, such condition, even if available, would not be binding on the petitioners since it is not for the petitioners to find out as to who are other outsiders illegally quarrying in other survey numbers, whether it is at their life risk or otherwise. But the question to be decided in all these cases here is as to whether there was any material placed to prove that the petitioners who are lessees have actually involved in the illegal quarrying. 12. This is relevant because what is contemplated under the impugned orders is penal liability and therefore it goes without saying that unless proper proof or materials are placed to the effect that the petitioners individually have been carrying on illicit quarrying, imposition of penal liability would certainly be impermissible in law. 12. This is relevant because what is contemplated under the impugned orders is penal liability and therefore it goes without saying that unless proper proof or materials are placed to the effect that the petitioners individually have been carrying on illicit quarrying, imposition of penal liability would certainly be impermissible in law. It is the admitted case of the respondents in all these cases that even before show-cause notices were given, surprise inspection had been done by responsible officials and based on their reports only, show-cause notices came to be issued. While it is stated in the counter affidavits filed in two cases that some Lorry Owners Association complained about the illicit quarrying, admittedly, such persons have not been examined. A reference to the impugned orders make it clear that there was no personal hearing or any enquiry conducted in these cases. The show-cause notice which was issued based on inspection stated to have been conducted by responsible officials of the respondents actually is predetermined that the petitioners were involved in illicit quarrying. It is not even the case of the respondents that copy of inspection report has been furnished to the petitioners while issuing the showcause notice. Therefore, there are two patent errors in the decision making process, viz., show-cause notice has been issued not only with pre-determination, but also without furnishing copy of inspection report and secondly, the very impugned orders have been passed without conducting any enquiry in the manner known to law.” 14. This Court placed reliance upon the earlier judgments of the Apex Court and it was held that personal hearing or enquiry ought to have been conducted in order to ascertain as to whether the delinquent actually indulged in illicit quarrying. Even though Rule 36-A does not specify personal hearing or enquiry, in a case where factual ascertainment is required in order to find out whether the concerned persons actually involved in illicit quarrying, such enquiry/personal hearing will become mandatory, failing which the concerned persons will not be in a position to prove their defence. 15. The learned Additional Government Pleader has relied upon the Division Bench judgment of this Court in P. Mariadoss, referred supra. The portions relied upon by the learned Additional Government Pleader are extracted hereunder: “19. 15. The learned Additional Government Pleader has relied upon the Division Bench judgment of this Court in P. Mariadoss, referred supra. The portions relied upon by the learned Additional Government Pleader are extracted hereunder: “19. As could be seen from the report of the Deputy Director, Geology and Mining, Kancheepuram, dated 08.09.2010, that during the course of inspection and surprise raids conducted by the officials of Geology and Mining, Kancheepuram and also joint inspection by the Revenue and Police officials to curb the illicit quarry and transport of minerals of existing stone quarry in Tirusoolam village of Alandur Taluk and Keerapakkam and Edayan Kodumanthangal village of Chengalpat Taluk, the leaseholders are exceeding the leasehold area and indulging in illicit quarry in non leasehold in adjoining Government poromboke land, thereby causing loss of mineral reserves and damaging the properties belonging to the Government. In order to ascertain, the leasehold boundaries of the stone quarries of the writ petitioners and three others and in view of the difficulties faced in employing the local surveyors belonging to the Revenue Department, the Commissioner of Geology and Mining exercised its powers and constituted a team of surveyors and deputed them to undertake the survey and demarcation of the leasehold boundary by using theodolite survey instrument. Accordingly, the Commissioner of Geology and Mining, the State Authority, deputed two surveyors each from Krishnagiri and Theni Districts to conduct survey by proceedings of the Commissioner dated 12.07.2010 and this team deputed by the Commissioner carried out the survey work between 12.07.2010 till 29.07.2010. Therefore, the power under Section 24(1) of the Act, has been exercised by the State Level Authority for the purpose of ascertaining the position of the working of the mine and for which purpose, the officers so deputed by the State Authority shall be entitled to enter and inspect any mine, survey and take measurement, weigh, measure or take measurements of the stocks of mineral lying at any mine, examine any documents, book, register, etc., and order for production of any such document, book, register etc., among other things. That apart, the surprise inspection was conducted pursuant to the decision taken by the State Level Authority, since there were complaints about illicit quarrying. Therefore, we hold that the inspection team which inspected the quarries pursuant to the order passed by the Commissioner of Geology and Mining, is within the jurisdiction/authorisation under G.O.Ms. That apart, the surprise inspection was conducted pursuant to the decision taken by the State Level Authority, since there were complaints about illicit quarrying. Therefore, we hold that the inspection team which inspected the quarries pursuant to the order passed by the Commissioner of Geology and Mining, is within the jurisdiction/authorisation under G.O.Ms. No. 63, dated 11.05.2005. 20. Next aspect which has to be gone into is as to whether there has been violation of principles of natural justice and whether the petitioners were justifying in by-passing the alternate remedy. From the counter affidavit filed W.P. No. 1015 of 2011, it is seen that the writ petitioner's quarry was inspected by the Special Team on 15.07.2010, 16.07.2010 and 23.07.2010. It is stated that a request was made by M/s.Roman Tarmat Limited requesting permission to lease out quarry No. 8 in Survey No. 99 (Part), Keerapakkam village for carrying out Government work and such request was made under Rule 7 of the Tamil Nadu Mineral Concession Rules, 1959, which enables quarrying for public purposes. The request was examined and the proposal was sent recommending grant of permission. In order to fix the boundaries, when the officials went to the site on 18.06.2010, one Panchatshram, representative of the writ petitioner and four others stopped the survey work and prevented the Government officials from discharging their official duties. The Tahsildar sent a letter to the Sub-Inspector of Police, to take action against the persons who prevented them from doing government work and also provide Police protection for conducting the survey work on 23.06.2010. It is stated that survey work was carried out on 23.06.2010, with Police protection. When the report was submitted, it came to light the petitioner was allegedly involved in illicit quarrying. Subsequently, the Inter Departmental Survey Team was formed by the Commissioner, who had jurisdiction over the whole of Tamil Nadu, to undertake survey and demarcation of the leasehold boundaries in the whole District by using theodolite survey instrument. It is stated that totally eight quarries were surveyed and demarcated during the said period. Further, it is stated that the proceedings of the Deputy Director, Geology and Mining, Kancheepuram, dated 08.09.2010, was forwarded to the petitioner, based on his request dated 06.10.2010 and 11.12.2010 and in spite of the same, the petitioner appears to have not sent any comprehensive reply to the show cause notice dated 28.09.2010. Further, it is stated that the proceedings of the Deputy Director, Geology and Mining, Kancheepuram, dated 08.09.2010, was forwarded to the petitioner, based on his request dated 06.10.2010 and 11.12.2010 and in spite of the same, the petitioner appears to have not sent any comprehensive reply to the show cause notice dated 28.09.2010. Therefore, it appears that the copy of the Inspection Report, dated 08.09.2010, has been furnished to the petitioner. Even as per the impugned order, the inspection was conducted in the presence of the lessee/his employee and it is also stated that when an earlier inspection was conducted, the employees/associates of the petitioner prevented survey being conducted.” 16. The above judgment involved a case where lease was granted in favour of the petitioners and they were found to be encroaching upon the adjacent Government poramboke land and carrying on illicit quarry. Under such circumstances, an inspection was carried out and the leasehold area and the non-leasehold area was demarcated and the extent to which illicit quarry was undertaken and minerals were mined, were identified. In the light of these facts, the Division Bench found that the explanation given by the petitioners therein was considered and Orders were passed and that there was no violation of principles of natural justice. Accordingly, the Division Bench took into consideration the alternative remedy available to the petitioners therein and refused to entertain the Writ Petitions. 17. The findings of the Division Bench in the above judgment may not apply to the facts of the present case. There is no dispute that there was illegal quarrying and the minerals that were mined were also seized from the Government poramboke land. The only question is as to who indulged in the illicit quarrying. The petitioners have taken a stand that they did not indulge in illegal quarrying and they have been falsely implicated in this case. 18. Even when the show cause notice was issued to the petitioners, specific reliance was placed on the report that was prepared after the inspection was conducted in the site. A copy of the report was not given to the petitioners and they never had an opportunity to confront the report. That apart, the respondents did not take into consideration the defence taken by the petitioners and had not dealt with the same. A copy of the report was not given to the petitioners and they never had an opportunity to confront the report. That apart, the respondents did not take into consideration the defence taken by the petitioners and had not dealt with the same. The respondents merely relied upon the statement given by the V.A.O. and proceeded to pass the Order. The recovery of the mineral that was illegally quarried and the ipse dixit statement of the V.A.O., by itself, cannot be a ground to impose penalty against the petitioners. Right from the issuance of the show cause notice, the respondents seemed to have pre-determined that it is the petitioners who were involved in the illegal quarrying. This important aspect was not even considered by the 1st respondent, even though a ground to that effect was raised by the petitioners. 19. It is true that the petitioners have a remedy to file a Second Appeal under Rule 36-C of the Rules. However, when there is a violation of principles of natural justice, such alternative remedy will not come in the way of this Court exercising its Writ jurisdiction. That apart, these Writ Petitions were entertained in the year 2012 and throwing out the petitioners after 10 years on the ground of alternative remedy, in the facts of the present case, will cause injustice to the petitioners. 20. In the considered view of this Court, the inspection report not being furnished to the petitioners, the petitioners not being given an opportunity of personal hearing to establish their defence and the Orders passed by the respondents, even without dealing with the defence raised by the petitioners and straight away concluding the case against the petitioners based on the statement of the V.A.O., which was never allowed to be confronted by the petitioners, clearly vitiates the impugned Orders passed by the respondents as violative of principles of natural justice. 21. In view of the same, this Court is inclined to interfere with the impugned Orders passed by the 1st and 2nd respondents and remand the matter back to the file of the 2nd respondent to conduct a fresh enquiry within the time limit fixed by this Court. 22. In the result, the impugned Orders challenged in these Writ Petitions are quashed. The 2nd respondent is directed to issue a fresh notice of enquiry to the petitioners along with the inspection report. 22. In the result, the impugned Orders challenged in these Writ Petitions are quashed. The 2nd respondent is directed to issue a fresh notice of enquiry to the petitioners along with the inspection report. The petitioners shall be given sufficient opportunity to establish their defence. Thereafter, the 2nd respondent shall pass orders on its own merits and in accordance with law. This process shall be completed by the 2nd respondent within a period of three months from the date of receipt of copy of this Order. Any observations made by this Court in this Order shall not have any bearing and the 2nd respondent shall independently deal with the merits of the case and pass Orders within the time stipulated by this Court. 23. Both the Writ Petitions accordingly stand allowed in the above terms. No costs. Consequently, connected miscellaneous petitions are closed.