Madras High Court
R. Sonai vs The District Collector on 7 December, 2006
Equivalent citations: AIR 2007 (NOC) 1057 (MAD.) = (2006) CTC 857 (MADURAI BENCH)
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 07/12/2006 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P(MD)No.10086 of 2006 and M.P.Nos.1 and 2 R. Sonai ... Petitioner Vs. 1. The District Collector, Madurai District, Madurai. 2. The Assistant Director of Geology & Mining, Madurai. 3. The President, Tamil Nadu Samanar Peravai, No.1, Sannathi Street, Vandavasi, Thiruvannamalai District. ... Respondents Prayer Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of certiorari calling for the records relating to 1st respondent's proceedings in Na.Ka.No.1341 of 2006 (Mines) dated 31.10.2006 with respect to petitioner's stone quarry comprised in S.F.No.86 (Part 1) and S.F.No.86 (part 2) over an extent of 5.00.0 hectares each in Karadipatti village, Madurai south taluk and quash the same. !For Petitioner ... Mr.M. Muthappan ^For Respondents 1 and 2 ... Mrs.Jessi Jeeva Priya, Spl. Government Pleader For 3rd Respondent ... Mr.D.Krishnakumar :ORDER
In this writ petition, petitioner seeks to quash the proceedings of the first respondent in Na.Ka.No.1341 of 2006 (Mines) dated 31.10.2006 with respect to the petitioner's stone quarry comprised in S.F.No.86 (Part 1) and S.F.No.86 (part 2) over an extent of 5.00.0 Hectares each in Karadipatti Village, Madurai south taluk and quash the same.
2. The brief facts necessary for disposal of the writ petition as available in the pleadings are as follows.
(a) Petitioner is the successful bidder for stone quarries comprised in S.F.No.86 (Part 1) and (Part 2) of Karadipatti Village, Madurai South Taluk in an extent of 5.00.0 Hectares each. Auction notification was issued by the first respondent in Madurai District Gazette No.22 dated 21.6.2004. Petitioner's bid amount was Rs.12 lakhs for each quarry. Petitioner was granted leasehold right to quarry rough stones, Jelly for a period of five years from 17.8.2004 to 16.8.2009. Petitioner remitted the entire amount along with security deposit of Rs.1,20,000/- for each quarry and the lease deed was executed on 17.8.2004.
Petitioner was the highest bidder for the previous period of quarry in S.F.No.86 (Part 1) for the period of five years from 14.6.1999 to 13.6.2004.
(b) According to the petitioner he was doing quarrying operations without any complaint or violation of the conditions stipulated in the lease agreement. But on 14.8.2006, a show cause notice was issued by the first respondent on the basis of the complaint made by the third respondent asking as to why the lease granted in favour of the petitioner shall not be cancelled for violation of the provisions of the Ancient Monument and Archaeological Sites and Remains Act, 1958 as well as relevant Rules 1959 and notification issued by the Central Government Gazette F.8/2/90/M, dated 17.6.1992 on the ground that quarrying operation is carried on within 300 metres of ancient monument.
(c) Petitioner submitted his reply on 25.8.2006 that he has not violated the conditions of the lease deed as well as the Rules. It was also pointed out by the petitioner that there was no damage or danger to the ancient monument by the quarrying operation of the petitioner and the complaint has been given by the third respondent without any basis. Petitioner was called upon to attend an enquiry on 5.9.2006 and the notice for the said enquiry was issued on 1.9.2005. Petitioner appeared for the enquiry and reiterated the submissions made in the explanation. First respondent, without furnishing copy of the enquiry report said to have been submitted by the second respondent or any other person, has chosen to cancel the lease granted to the petitioner by this proceedings in Na.Ka.No.1341/2006 Mines, dated 31.10.2006. The said order is challenged in this writ petition on the ground that the first respondent has no jurisdiction to cancel the quarry lease and that the report submitted by the Tahsildar as well as the Assistant Director of Geology and Mining, which are the basis for passing the impugned order were not furnished to the petitioner. However, the same are relied on in the impugned order and therefore the impugned order is in violation of the principles of natural justice.
(d) It is also urged in the affidavit that the inspection conducted by the Tahsildar as well as the Assistant Director of Geology and Mining are behind the back of the petitioner and without any intimation to the petitioner. It is also stated that the quarry lease itself was notified by the first respondent through the District Gazette and the petitioner being the successful bidder was given lease and the same cannot be cancelled before the expiry of the period without any valid reason as the petitioner never damaged any of the monuments, which are located beyond 300 metres of the petitioner's quarry site.
3. First respondent filed counter affidavit wherein it is stated as follows.
(i) The first respondent received a complaint on 4.8.2006 from Samanar Peravai that their monuments and archaeological importance will be damaged unless the quarry lease granted in favour of the petitioner in respect of S.No.86 is cancelled. It is further stated that on the basis of the complaint received, the Assistant Geologist (Mines), Special Revenue Inspector (Mines) and the Surveyor have inspected the site on 4.8.2006 and they have reported that quarrying operations are carried out within the radius of 125 metres on the northern side and 150 metres on the western side from Samanar Padugai. The Tahsildar, Madurai South in his report dated 30.8.2006 has stated that the petitioner is carrying out quarrying operations within the radius of 134 metres from Samanar Padugai (Archaeological monument). Since the petitioner is using explosives for quarrying operations, there is possibility of endanger to Archaeological monuments. Hence it was recommended to cancel the quarry lease granted in favour of the petitioner, pursuant to which the impugned order of cancellation was passed.
(ii) It is further stated that show cause notice was issued to the petitioner on 14.8.2006 calling upon him to submit his explanation for the above violation. Petitioner also submitted his explanation on 25.8.2006.
(iii) It is also stated in the counter affidavit that the Superintending Archaeologist, Government of India, Chennai, in his letter dated 5.10.2006 has stated that Karadipatti, a famous historically protected monument, is unique of its kind and it comprises of a few Jaina Beds and two figures of Tirthankaras carved on the southern rock face. The entire survey No.86 is protected by the Archaeological Survey of India as per AM&ASR Act, 1958 and Rules 1959 and the said site is under constant threat of quarrying operations. It is further stated that as per the Gazette Notification No.F.8/2/90/M dated 17.6.1992, the areas upto 100 metres from the protected limits and further beyond it upto 200 metres near or adjoining protected monuments to be protected and regulated areas respectively for the purposes of both mining and construction. Ultimately the Superintending Archaeologist stated that the Jaina monument situated in S.F.No.86 has a land extent of 45.55 acres which is totally protected area and therefore he has requested to cancel the quarry lease granted to the petitioner.
(iv) The first respondent further stated in the counter affidavit that in accordance with the provisions in the Tamil Nadu Minor Mineral concession Rules, 1959, the impugned order is passed after taking note of the explanation submitted by the petitioner and after hearing the petitioner. Petitioner has not demanded for any document nor inspection of the site in his presence. Had the petitioner requested for the document it would have been supplied to him.
(v) It is also contended in the counter affidavit that there is alternate remedy of filing appeal before the Commissioner and Director of Geology and Mining, Chennai, under rule 36(c)(2) of the Tamil Nadu Minor Mineral Concession Rules, 1959, and without availing the said remedy, the writ petition cannot be maintained and hence the first respondent prayed for dismissal of the writ petition.
4. The learned counsel appearing for the petitioner argued that the first respondent has no jurisdiction to cancel the lease granted to the petitioner as the State Government is the competent authority under section 4A(2) of the Mines and Minerals (Development and Regulation) Act, 1957 and the cancellation of lease ordered by the first respondent is without jurisdiction. The learned counsel further submitted that the alleged inspection conducted by the Assistant Geologist (Mines) on 4.8.2006 and the inspection of the Tahsildar, Madurai South, based on which a report was submitted on 30.8.2006 were behind the back of the petitioner and not even the inspection reports were furnished to the petitioner, which are the basis for cancelling the leasehold rights of the petitioner. According to the learned counsel the show cause notice issued to the petitioner is dated 14.8.2006 and the petitioner submitted his explanation on 25.8.2006 and the said show cause notice was issued prior to the inspection of the Tahsildar on 30.8.2006 and therefore the documents which are relied upon by the first respondent for cancelling the lease are after issuance of the show cause notice and hence the petitioner was never put on notice about the adverse report of the Tahsildar and thus the principles of natural justice is violated. The learned counsel further argued that the petitioner is doing quarrying operations beyond 300 metres from the Jaina monuments and no damage is caused to them by the petitioner's quarrying operations and the report of the Tahsildar and the Assistant Geologist (Mines) are contrary to the facts and one sided. Therefore the learned counsel for the petitioner submitted that the impugned order is liable to be set aside.
5. The learned Special Government Pleader submitted that on the ground of complaints received from the third respondent, the Assistant Geologist (Mines) and the Tahsildar conducted local inspection and submitted their reports. Petitioner was issued show cause notice, first respondent considered the explanation and conducted enquiry, in which the petitioner appeared and therefore principles of natural justice is fully complied with. The learned Special Government Pleader further submitted that the entire S.F.No.86 and its parts including S.No.86(part 1) of Karadipatti village is protected by the Archaeological Survey of India as per the AM&ASR Act, 1958 and Rules 1959 and that the Superintending Archaeologist has stated that this monument is under constant threat of quarrying operations and the petitioner cannot quarry upto 100 metres from the protected limits and upto 200 metres near or adjoining protected monuments. The learned Special Government Pleader also submits that the first respondent is the competent authority to cancel the quarry lease in terms of Rule 36 of the Tamil Nadu Minor Mineral Concession Rules, 1959, and relied on an unreported decision of this Court made in W.P.No.1635 of 1997 dated 27.1.2003 (P.R.Kuppusamy v. State of Tamil Nadu and 2 others) wherein this Court granted direction in similar matter to take appropriate action to cancel the quarry lease to the District Collector, Sivaganga as quarrying was carried on in the said matter, which caused threat to the national monuments viz., Chithannavasal. Placing reliance on the said decision the learned Special Government Pleader submitted that the first respondent followed the principle laid down in the said order and followed the principles of natural justice and therefore the impugned order is to be sustained.
6. I have considered the submissions made by the learned counsel for the petitioner as well as the learned Special Government Pleader.
7. The notification inviting tenders for quarry lease was published in the District Gazette by the first respondent. Clause 18 of the notification issued by the first respondent in the Gazette dated 21.6.2004 empowers the first respondent to cancel the quarry lease. The tender application form issued under Annexure-VI contains a declaration to be signed by the person who submit application, wherein it is stated that the grant of licence is under the provisions of the Tamil Nadu Minor Mineral Concession Rules, 1959. The lease agreement signed by the petitioner is with the first respondent. Clause 12 of the lease agreement contains special conditions, which forms part of the lease agreement, which states that the lessee shall do quarry operations without causing any damage to the adjoining houses, pathway, electric poles, transformers, temples and historical monuments. Rule 36(h) of the Tamil Nadu Minor Mineral Concession Rules, 1959, also empowers the District Collector to cancel the lease in case of any breach of condition after granting opportunity of hearing to the said person viz., the lessee. Hence it is clear that the first respondent is empowered to pass the impugned order by following the principles of natural justice. Hence there is no substance in the contention of the learned counsel for the petitioner that the State Government alone is competent to cancel the quarry lease under Section 4A of the Mines and Minerals (Development and Regulation) Act, 1957.
8. The grievance of the petitioner is that the impugned order has been passed by the first respondent without following the principles of natural justice, particularly without furnishing the copy of the report of the Tahsildar dated 30.8.2006 and that of the Assistant Geologist (Mines) dated 4.8.2006. The point in issue is whether the petitioner is doing his quarrying operations within 300 metres of the monuments of Jaina Beds, since the areas upto 100 metres from the protected limits and further beyond 200 metres near or adjoining the protected and regulated areas respectively for the purpose of both mining and construction as per gazette notification No.F.8/2/90/M, dated 17.6.1992 issued by the Government of India as per AM & ASR Act, 1958 & Rules 1959.
9. It is the case of the petitioner that the petitioner is doing quarrying operation beyond 300 metres. However in the report of the Assistant Geologist (Mines) dated 4.8.2006, it is said to be stated that the quarrying operations are carried out by the petitioner within the radius of 120 metres on the northern side and 150 metres on the western side from Jaina beds. The report of the Tahsildar, Madurai South dated 30.8.2006 also states that the petitioner is doing quarrying operation within the radius of 134 metres of Jaina beds. Admittedly the said reports are the basis for passing the impugned order and even according to the counter affidavit filed by the respondents, it is not stated that the copies of the said reports dated 4.8.2006 and 30.8.2006 are furnished to the petitioner and the petitioner was given opportunity to rebut the averments made in the reports. It is also the case of the petitioner that the said reports were drawn by the respective officers behind the back of the petitioner and he was not informed of the inspection and in his absence, the alleged measurements were taken by the said officers and therefore the report drawn behind the back of the petitioner cannot be the basis for cancelling the petitioner's quarry lease which is granted for 5 years, the period of which expires on 16.8.2009.
10. The above said submission of the learned counsel for the petitioner is well founded. Section 36(h) of the Tamil Nadu Minor Mineral Concession Rules, 1959 mandates the first respondent to give opportunity of hearing to the lessee before cancellation of the lease. The compliance of natural justice will be completed not only by issue of show cause notice and hearing the objections, but it requires serving of copies of the relevant documents which are relied upon for cancelling the lease. Admittedly the said reports are not supplied to the petitioner and the reason stated in the counter affidavit is that had the petitioner requested for the copies of the report, the same would have been supplied to him. It is further stated that had the petitioner requested for the site inspection in his presence, it would have been done. It is also stated that for the default on the part of the petitioner, the respondents cannot be blamed. The said statements in the counter affidavit amply prove that the petitioner was not informed of the site inspection and the inspections were made by the Officers not in the presence of the petitioner and the copies of the reports were not furnished to the petitioner even though the same were the basis for cancelling the leasehold right of the petitioner.
11. The opportunity of hearing contemplated in Rule 36(h) of the Tamil Nadu Minor Mineral Concession Rules, 1959 is a real hearing and it shall not be treated as an empty formality. Since the cancellation of quarry lease involves civil consequences, it is incumbent on the part of the first respondent to follow the due process of hearing in a fair and just manner.
12. Whether the non-supply of documents relied on during the enquiry is vitiated or not is considered by the Honourable Supreme Court in the decision reported in (2001) 9 SCC 523 (Pepsu Road Transport Corporation v. Lachhman Dass Gupta and another) wherein, in para 3 the Honourable Supreme Court held as follows, "3. We have examined the judgment of the lower appellate court as well as the impugned judgment of the High Court. In view of the conclusion of the lower appellate court, that even the documents relied upon by the department in establishing the charge have not been given to the delinquent, the conclusion is irresistible that the delinquent had been denied a reasonable opportunity to defend himself in the proceeding and, therefore, the lower appellate court as well as the High Court are fully justified in setting aside the order of termination passed by the competent authority. We, therefore, do not find any ground to interfere with the impugned judgment of the High Court passed in the second appeal."
13. The petitioner is maintaining a stand that he is doing quarrying operations beyond 300 metres of the monuments. Hence it is all the more necessary for the officials concerned to make inspection and measure the distance in the presence of the petitioner. The first respondent, who is discharging his statutory duty is bound to follow the principles of natural justice and the ground stated in the counter affidavit that the petitioner has not demanded for the reports and requested to conduct inspection in his presence and therefore the same were not furnished and followed is unsustainable. Hence the impugned order passed on the basis of the inspection report which were prepared by the officers not in the presence of the petitioner, are to be declared as illegal.
14. In an unreported judgment in W.P.No.32829 of 2002 dated 10.9.2003 a learned Judge of this Court (P.Sathasivam, J.) held as follows, "....... The main grievance as mentioned above is that though the Assistant Director (Geology and Mining) had inspected the area of lease land on 24.7.2002 along with Assistant Geologist and submitted a report to the effect that the petitioner has not rectified the defects as mentioned in the show cause notice dated 22.7.2002, the copy of the said report has not been furnished to the petitioner and it is also his grievance that the inspection was made behind the back of him (petitioner). It is seen from the order impugned that though the District Collector has referred to the fact that the Assistant Director (Geology and Mining) had inspected the lease area on 24.7.2002 and reported that the lessee has not rectified the defects, admittedly the said inspection was made subsequent to the personal hearing conducted on 22.7.2002. It is also clear that the visit of the Assistant Director on 24.7.2002 was not intimated to the petitioner. In fairness, the officer ought to have informed the petitioner that he is going to visit the lease land and verify the position therein. Inasmuch as the respondent heard the petitioner in person in the personal enquiry held on 22.7.2002, though the District collector is empowered to get further report with reference to the statement made by the petitioner, it is but proper for the Assistant Director to intimate the same to the petitioner before his inspection. In such a circumstance, the only contention that the District collector arrived a conclusion based on the report of the Assistant Director (Geology and Mining) on 24.7.2002, who visited on 24.7.2002 without notice and behind the back of the petitioner is acceptable. In this regard, learned counsel for the petitioner very much relied on a decision of E.Padmanabhan, J., in Writ Petition Nos.8207 and 10062 of 1997 dated 27.7.1999 (K.Subba Reddy and others v. State of Tamil Nadu, represented by Secretary to Government, Industries Department, Madras-9). Before the learned Judge, similar objection was raised, namely, that materials have been collected behind the back of the petitioner and in particular taking measurements behind the back of the petitioners vitiates the entire proceedings as such those materials cannot be relied upon by the licensing authority. The following conclusion of the learned Judge is relevant : (para 49) "49. Nextly it was contended that materials have been collected behind the back of the petitioners such as fixing of disputed boundaries, taking measurements without notice and evaluating the alleged quantity of granite illicitly quarried and collection of materials and in particular taking measurements behind the back of the petitioners also vitiates the entire proceedings and such materials cannot be relied upon by the respondents 2 and 3 to fasten a huge liability on the petitioners and this illegality cannot be cured. In this regard, the learned senior counsel relied upon a decision of this Court as well as a decision of mine in Logasundari vs. District Collector, Madurai, reported in 1998 MLJ (I) 43. In the said judgment it has been emphasised that materials that have been collected behind the back of the petitioner cannot be used against the petitioner as has been emphasised by this Court from time to time." In R.K. Ramaswamy v. State of T.N., reported in AIR 1995 Madras 106, I had also taken an identical view similar to that as expressed above. Though the petitioner was given show cause notices, he also submitted explanation, he was provided with personal enquiry, etc., the fact remains that the impugned order was passed by the District Collector mainly based on the inspection of the Assistant Director (Geology and Mining) on 24.7.2002. Inasmuch as the petitioner was not given notice for the inspection made on 24.7.2002 by the Assistant Director (Geology and Mining), that too after the completion of the personal enquiry on 22.7.2002 and also of the fact that a copy of the said report was not furnished to the petitioner, in the light of the decisions referred to above, I hold that the materials that have been collected behind the back of the petitioner cannot be used against the petitioner which vitiates the ultimate decision taken by the first respondent. On this ground, the impugned order of the District Collector dated 01.08.2002 is quashed, and the matter is remitted to the respondent for a fresh disposal. ...... "
15. Therefore, on the limited grounds of non-compliance of the principles of natural justice and not following the fairness in the procedure, the impugned order dated 31.10.2006 is set aside. The first respondent is at liberty to pass fresh orders by following the principles of natural justice and fairness in procedure as indicated above, if it is warranted. No costs. Connected miscellaneous petitions are closed.
vr To
1. The District Collector, Madurai District, Madurai.
2. The Assistant Director of Geology & Mining, Madurai.