Madras High Court
M/S.Rpr Granites vs The State Of Tamil Nadu on 2 September, 2014
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.09.2014
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.(MD)Nos.5100 of 2013
to 5112 of 2013
and 6232 to 6234 of 2013
& connected M.Ps
W.P.(MD)No.5100 of 2013
M/s.RPR Granites,
rep. by its Partner Mr.P.Senthilkumar,
Near Veerrakaliamman Koil,
Keelavalavu, Melur Taluk,
Madurai District ? 625 102. ... Petitioner
Vs.
1. The State of Tamil Nadu
Rep. by the Secretary to Government,
Industries Department,
Fort St. George,
Chennai ? 600 009.
2. The District Collector,
Madurai District, Madurai. ... Respondents
Prayer in W.P.(MD)No.5100 of 2013 : Writ Petition filed 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 first respondent's letter No.4179/MMB-
1/2013-8, dated 15.03.2013 pertaining to the petitioner's patta lands
measuring 1-03-0 hectares, comprised in S.F.Nos.214/5A, 214/7A, 214/7B and
215/15(Part) situated in E.Malampatti Village, Melur Taluk, Madurai District,
quash the same.
!For Petitioner : Mr.V.T.Gopalan,
Senior Counsel for
Mr.K.Ramakrishna Reddy
For Respondents : Mr.B.Pugalenthi,
Special Govt. Pleader
:COMMON ORDER
The petitioners were granted lease for quarrying granite in patta lands for a period of 20/30 years between 2003 and 2008 by various Government Orders and the details of the same are extracted hereunder :
Sl. No. W.P.No. Petitioner's Name Government Order vide leases have been granted to the petitioners 1 5100/2013 PRP Granites G.O.(3D)No.28, Industries (MMB-1) Department, dated 22.11.2006 2 5101/2013 PRP Granites G.O.(3D)No.41, Industries (MMB-1) Department, dated 17.10.2003 3 5102/2013 PRP Granites G.O.(3D)No.125, Industries (MMB-1) Department, dated 10.12.2008 4 5103/2013 PRP Granites G.O.(3D)No.74, Industries (MMB-1) Department, dated 13.07.2004 5 5104/2013 PRP Granites G.O.(3D)No.88, Industries (MMB-1) Department, dated 08.09.2005 6 5105/2013 PRP Granites G.O.(3D)No.120, Industries (MMB-1) Department, dated 10.12.2008 7 5106/2013 PRP Granites G.O.(3D)No.73, Industries (MMB-1) Department, dated 13.07.2004 8 5107/2013 PRP Granites G.O.(3D)No.28, Industries (MMB-1) Department, dated 12.02.2007 9 5108/2013 PRP Granites G.O.(3D)No.19, Industries (MMB-1) Department, dated 18.03.2005 10 5109/2013 PRP Granites G.O.(3D)No.2, Industries (MMB-1) Department, dated 05.02.2005 11 5110/2013 PRP Granites G.O.(3D)No.78, Industries (MMB-1) Department, dated 21.07.2004 12 5111/2013 Shree Murugan Enterprises G.O.(3D)No.60, Industries (MMB-1) Department, dated 23.10.2006 13 5112/2013 K.Murugesan G.O.(3D)No.104, Industries (MMB-1) Department, dated 03.12.2008 14 6232/2013 PRP Granites G.O.(3D)No.124, Industries (MMB-1) Department, dated 10.12.2008 15 6233/2013 PRP Granites G.O.(3D)No.36, Industries (MMB-1) Department, dated 22.02.2007 16 6234/2013 PRP Granites G.O.(3D)No.57, Industries (MMB-1) Department, dated 21.07.2005
2. While so, the Government issued the impugned show-cause notices dated 15.03.2013 in W.P.(MD)Nos.5100 to 5112 of 2013 and 22.03.2013 in W.P.(MD)Nos.6232 to 6234 of 2013 to the petitioners under Section 4-A(4) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as ?the Act?) directing them to appear for the personal hearing on the dates mentioned in the impugned show-cause notices and to show-cause as to why the lease deeds granted to them in the aforesaid Government Orders should not be declared as lapsed.
3. The petitioners have filed these writ petitions to quash the impugned show-cause notices without appearing for the personal appearing and without submitting their explanation.
4.0. The main plank of the contentions of the petitioners is that the first respondent - Government is not the competent authority to issue the impugned show-cause notices. According to the petitioners, the District Collector is the competent authority to adjudicate the issue as to whether the petitioners failed to undertake mining operations for a period of two years after the execution of lease deed and thereby the lease shall lapse. Thereafter, if the decision of the District Collector is an adverse one, the petitioners have an appellate remedy before the appellate authority. Hence, the first respondent is not the appropriate and competent authority to issue impugned show-cause notices making the allegations contained therein. 4.1. The petitioners also stated that while the show-cause notices relied on the reports of the inspection teams that inspected the quarry sites, the same were not furnished. The impugned show-cause notices also referred to the reports of the District Collector, that is based on the reports of the inspection teams. The reports of the District Collector were also not furnished to them. Moreover, the impugned show-cause notices also refer to the letters of the Commissioner of Geology and Mining and the same were also not furnished. Hence, according to the petitioners, the impugned show-cause notices have to be interfered with.
4.2. The petitioners also stated that the inspection teams made surprise inspections without putting them on notice and the petitioners were not present at the time of inspection and the show-cause notices based on such inspection reports are bad and illegal.
4.3. The petitioners also pleaded that the impugned show-cause notices pre-determined the issue that the petitioners violated Section 4-A(4) of the Act and the show-cause notices are mere empty formality.
5. When these writ petitions were posted ?for admission? in the motion list, this Court heard the learned Senior Counsel for the petitioners as well as the learned Special Government Pleader for the respondents and reserved orders.
6. The learned Senior Counsel for the petitioners made the following submissions :
(i) The first respondent has no jurisdiction to issue impugned show-cause notices under Section 4-A(4) of the Act and on the other hand, it is only the District Collector, who can adjudicate the issue and thereafter, there is an appeal remedy.
(ii) The following decisions are relied on in this regard for the proposition that if the Statute prescribes an authority to decide a particular issue, only that particular authority shall decide the same and not some other authority or higher authorities :
(1)S.Kannan V. Karnataka State Road Transport Authority, 1984 (1) SCC 375, para 15 ; and (2)Manohar Lal V. Ugrasen, 2010 (11) SCC 557, para 23 ;
As a corollary, it was submitted that when the Statute mandates the things to be done in a particular way, those things should be done in that manner alone. Hence, instead of the District Collector issuing notice, the notice issued by the Government is contrary to the mandate of the law. The following judgments are relied on in this regard :
(1)M/s.Golden Granites V. K.V.Shanmugam and Others, AIR 1988 MADRAS 150, paras 42 and 43 ;
(2)CIT V. Anjum M.H.Ghaswala, (2002) 1 SCC 633, para 27 ; and (3)Gujarat Urja Nigam Ltd. V. Essar Power Ltd., (2008) 4 SCC 755, para 35 ;
(iii). It was submitted that while the show-cause notices rely on the ex-parte inspection reports, the reports of the District Collector based on those inspection reports and also the letters of the Commissioner of Geology and Mining endorsing the reports of the District Collector, the said reports are not enclosed along with the show-cause notices and those reports are vital documents and therefore, in view of non-furnishing of those relevant documents, the show-cause notices are liable to be interfered with.
(iv). It was further submitted that the inspection reports were ex-parate reports and no notices were given before conducting the inspection on the quarry sites and therefore, the show-cause notices, based on those reports, are bad and illegal.
(v). Lastly, it was submitted that the first respondent pre-
determined the issue that the petitioners violated Section 4-A(4) of the Act. They relied on the following judgments in this regard :
(i) Siemens Ltd. V. State of Maharashtra reported in (2006) 12 SCC 33 ;
(ii) V.S.O.Balakrishnan V. District Collector reported in (2009) 2 MLJ 577 ;
(iii) Oryx Fisheries (P) Ltd. V. Union of India reported in (2010) 13 SCC 427 ;
(iv) A Division Bench judgment of this Court dated 13.12.2011 in W.A.(MD)No.488 of 2010 ; and
(v) An order of a learned Single Judge of this Court dated 28.09.2012 in W.P.(MD)Nos.5820, 8507, 8508 of 2010 and 8942 of 2012 ;
7.0. On the other hand, learned Special Government Pleader submitted that several complaints have been received by the Government on the illegal granite operations in Mellur Taluk in Madurai District and on receiving a direction from the Government, the then District Collector conducted an inspection and submitted a preliminary report that illegal quarrying has caused loss to the Government over an extent of Rs.16,000/- Crore. Thereafter, the Government have instructed the District Collector to take appropriate action in accordance with law.
7.1. The learned Special Government Pleader also submitted that pursuant to such direction, the District Collector took action and constituted special teams to inspect the mines and to submit their reports and accordingly, those special teams carried out inspections. The inspection revealed that the lease-holders committed several irregularities. Various actions were taken by the concerned authorities in respect of other irregularities. The inspection teams also found that the petitioners herein failed to undertake the mining operations for more than two years after the execution of lease deed and thereby violated Section 4-A(4) of the Act. Based on the said inspection report, the District Collector sent reports which was endorsed by the Commissioner of Geology and Mining. Thereafter, the first respondent, being the competent authority under Section 4-A(4) of the Act, issued the impugned show-cause notices. He heavily relied on paragraphs 3 and 4 of the show-cause notices in this regard and the said paragraphs in the impugned show-cause notice in W.P.No.5100 of 2013 are extracted hereunder :
?3. The District Collector has further reported that the lessee has not submitted the notice of opening of mines as required under Section 23 of the Granite Conservation and Development Rules, 1999 and the field inspection report reveals that the lessee has not carried out any quarrying operations in the area granted under lease from the date of execution of the lease deed, i.e., 28.9.2003. Granite blocks are stored in the lease hold area without any quarry operation. The lessee also obtained transport permit to the tune of 53.395 CBM without any quarrying operation in the lease granted area.
4. The Commissioner of Geology and Mining in his letter 3rd cited has endorsed the report of District Collector, Madurai and requested the Government to declare the quarry lease granted to Tvl.P.R.P. Exports vide G.O.(3D)No.28, Industries (MMB1) Department, dated 22.11.2006 for multi-
coloured granite over an extent of 1.03.0 hectares of patta lands in S.F.Nos.214/2, 214/3, 214/5A, 214/7A, 214/7B & 215/15 (Part) in El.Malampatti Village, Melur Taluk, Madurai District, as lapsed as per Section 4-A(4) of Mines and Minerals (Development and Regulation) Act, 1957, since you have not carried out any quarrying operations in the area granted for quarry lease for more than two years.?
7.2. The learned Special Government Pleader submitted that similar paragraphs are found in the other impugned show-cause notices. It is submitted that the reference made to other irregularities found in the inspection reports is not relevant for the purpose of the Government issuing notices under Section 4-A(4) of the Act and various actions are taken by different authorities for different delinquencies committed by the petitioners and other quarry lease-holders.
7.3. He submitted that the Government is the competent authority to proceed against the petitioners under Section 4-A(4) of the Act and no other authority, other than the Government, is the competent authority to proceed under Section 4-A(4) of the Act. According to him, the matter is squarely covered by a decision of this Court in P.Sivaprakasam V. The Director of Geology and Mining and two others, reported in 1995 (II) CTC 12. 7.4. The learned Special Government Pleader stated that the respondents are willing to provide the reports of the inspection teams, the report of the District Collector, based on the inspection reports and also the letters of the Commissioner of Geology and Mining endorsing the reports of the District Collector. It was submitted that the petitioners did not make any request to furnish those reports and if they appeared on the appointed date for personal hearing and sought for those reports, the first respondent could have given those reports. He submitted that had the petitioners sought time to give explanation on receipt of these reports, the respondent Government would have certainly given adequate time in accordance with the principles of natural justice. But they rushed to this Court with these writ petitions at the stage of show-cause notices itself. 7.5. The learned Special Government Pleader further contended that the very purpose of surprise inspection would be defeated, if a prior notice is given. According to him, it is for the officials making inspection, to decide as to whether to issue prior notice about the inspection or to make a surprise inspection. He relied on Section 23-B and Section 24 of the Act in this regard. He heavily relied on the First Bench judgment of this Court dated 26.03.2012 in P.Mariadoss Vs. District Collector, Kancheepuram (W.P.No.1015 of 2011 etc. batch).
7.6. The learned Special Government Pleader submitted that there was no pre-determination of the issue and therefore, the judgments relied on by the learned Senior Counsel for the petitioners are not applicable to these writ petitions, since in those cases, it was found, on facts, that pre- determination was made in the show-cause notices. In these writ petitions, the first respondent did not come to the conclusion that the petitioners did not commence the quarry operations for two years and the petitioners were only asked to show-cause as to why Section 4-A(4) of the Act should not be invoked, since the inspection reports stated that the petitioners did not commence the quarry operations for two years. The petitioners, instead of appearing before the first respondent and urging with various grounds that are raised in these writ petitions to reject the inspection reports and the reports of the District Collector and the Commissioner of Geology and Mining, have rushed to this Court at the threshold of the show-cause notice stage itself. Hence, the judgments, relied on by the learned Senior counsel for the petitioners are not applicable to these writ petitions. 7.7. The learned Special Government Pleader also submitted that the writ petition against show-cause notice is not maintainable and he heavily relied on the judgment of the Apex Court in Union of India and another Vs. Kunisetty Satyanarayana reported in 2006 (12) SCC 28. 7.8. The learned Special Government Pleader submitted that the writ petitions are premature one and they deserve to be dismissed.
8. I have carefully considered the submissions made by either side.
9. The following issues arise for consideration in these writ petitions :
(I). Whether the first respondent has got power and jurisdiction to issue the impugned show-cause notices under Section 4-A(4) of the Act or the second respondent has power to initiate proceeding under Section 4-A(4) of the Act ?
(II). Whether the show-cause notices are liable to be quashed for not enclosing the inspection reports, reports of the District Collector based on those inspection reports, the letters of the Commissioner of Geology and Mining endorsing the reports of the District Collector ? (III). Whether the show-cause notices are liable to be interfered with, as the inspection of the quarry sites was done without prior notice to the petitioners and the impugned notices are based on such inspection reports?
(IV). Whether the first respondent pre-determined that the petitioners violated Section 4-A(4) of the Act and therefore, the impugned show-cause notices are liable to be interfered with for pre-judging the issue? and (V). Whether the writ petition is maintainable against a show-
cause notice ?
Issue No.I :
10. The main issue arises for consideration is as to whether the first respondent has got power and jurisdiction to issue the impugned show- cause notices under Section 4-A(4) of the Act or the second respondent has power to initiate proceeding under Section 4-A(4) of the Act, since the same is seriously questioned by the petitioners. It is relevant to extract Section 4-A(4) of the Act, as hereunder :
?4-A. Termination of prospecting licenses or mining leases- (4) Where the holder of a mining lease fails to undertake mining operations for a period of two years after the date of execution of the lease, or having commenced mining operations, has discontinued the same for a period of two years, the lease shall lapse on the expiry of the period of two years from the date of execution of the lease or, as the case may be discontinuance of the mining operations :
Provided that the State Government may, on an application made by the holder of such lease before its expiry under this sub-section and on being satisfied that it will not be possible for the holder of the lease to undertake mining operations or to continue such operations for reasons beyond his control, make an order, subject to such conditions as may be prescribed, to the effect that such lease shall not lapse :
Provided further that the State Government may, on an application by the holder of a lease submitted within a period of six months from the date of its lapse and on being satisfied that such non-commencement of discontinuance was due to reasons beyond the control of the holder of the lease, revive the lease from such prospective or retrospective date as it thinks fit but not earlier than the date of lapse of the lease : Provided also that no lease shall be revived under the second proviso for more than twice during the entire period of the lease.?
11.0. The question is as to which authority shall declare that lease was lapsed under Section 4-A(4) of the Act. Is it the first respondent ? Government or some other authority, namely, the District Collector ?, as contended by the petitioners.
11.1. The answer to this question is very simple. The leases were granted by the Government by various Government Orders under Rule 19-A of the Tamil Nadu Minor Mineral Concession Rules, 1959 and the details of those orders are extracted in the tabular column. Therefore, the Government is the authority to exercise power under Section 4-A(4) of the Act, unless the same is delegated to some other authority by the Government. 11.2. The learned counsel for the petitioners are not able to state that the power under Section 4-A(4) of the Act was delegated to the District Collector or some other authority by the Government. Furthermore, a reading of the entire Section 4-A(4) of the Act, including provisos, makes it clear that it is the State Government and the State Government alone is the competent authority to decide as to whether the lease shall lapse or not under Section 4-A(4) of the Act. As rightly contended by the learned Special Government Pleader, the matter was decided by this Court in P.Sivaprakasam V. The Director of Geology and Mining & two others, 1995 (II) CTC 12. The relevant passage in paragraph 6 of the said judgment is extracted as hereunder :
?6. ..... Therefore, I uphold the contentions raised by the petitioner that the third respondent has no jurisdiction to exercise power under Section 4-A(4) of the Act and it is the State Government alone which can exercise the power. Once we come to this conclusion that the lapsing under the above provision of law requires a declaration by the State Government, it follows that the principles of natural justice have to be read into the said provision of law. .....?
11.3. Hence, I am not able to agree with the submission made by the learned Senior Counsel for the petitioners that the first respondent has no jurisdiction to issue impugned show-cause notices under Section 4-A(4) of the Act and on the other hand, it is only the District Collector, who can adjudicate the issue. If the Statute prescribes the District Collector as the concerned competent authority and if the Government has usurped the power, then the judgments, that are relied on by the petitioners, namely, (1984) 1 SCC 375 and (2010) 11 SCC 557 have relevance. But it is not so. The relevant passages relied on by the learned Senior Counsel for the petitioners in those judgments are extracted herein below and the same would not be of any use to the petitioners, as I have come to the conclusion that the District Collector is not the competent authority under Section 4-A(4) of the Act.
11.4. The learned counsel for the petitioners relied on paragraph 15 of the judgment in S.Kannan V. Karnataka State Road Transport Authority, reported in (1984) 1 SCC 375. The following passage from paragraph 15 is extracted hereunder :
?15. .... It is equally not possible to accept the submission that when a power is conferred on a lower authority that power can always be enjoyed by the authority higher in the hierarchy in relation to the lower authority. There is express provision in the statute which provides that the State Transport Authority can always and without any fetter enjoy the power of the Regional Transport Authority and in the absence of such provision it is difficult to read merely on the basis of vertical hierarchy wherever the lower authority is mentioned in the statute, the higher authority be included therein.?
11.5. The following passage from paragraph 23 of the judgment in Manohar Lal V. Ugrasen, reported in (2010) 11 SCC 557 is extracted hereunder :
?23. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgate its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act.?
11.6. The three other judgments, namely, Golden Granites V. K.V.Shanmugam and Others, AIR 1988 MADRAS 150, CIT V. Anjum M.H.Ghaswala, (2002) 1 SCC 633 and Gujarat Urja Nigam Ltd. V. Essar Power Ltd., (2008) 4 SCC 755 were cited for the proposition that things should be done in the manner, as mandated in the Statute, and things should not be done in any other manner.
11.7. In my view, these judgments are not applicable to these writ petitions, because under Section 4-A(4) of the Act, it is only the first respondent, who is the competent authority. The learned counsel for the petitioners are not able to cite any provision of the Statute or the rules that the show-cause notices shall be issued only by some other authority and in contravention to such a rule provided by the Statute, the first respondent issued the show-cause notice.
11.8. Hence, I decide the issue No.I against the petitioners.
Issue No.II 12.0. The issue No.II is that the inspection reports, the reports of the District Collector based on the inspections reports and the letters of the Commissioner of Geology and Mining endorsing the reports of the District Collector, which are referred to in the impugned show-cause notices, were not enclosed along with show-cause notices so as to provide a reasonable opportunity to the petitioners to answer the allegations. 12.1. It is a different matter, if the petitioners requested for the supply of those copies of documents and the first respondent refused to furnish the same. It is not so. The petitioners did not make any such request. It is also a different matter, if the final decision is arrived at by the authorities without furnishing the reports, relied on by them in the show-cause notices. The petitioners were merely asked to appear for personal hearing, wherein, the petitioners could have asked to furnish those documents, that are mentioned in the show-cause notices and also any other document, that are relevant, to prove their version. But, instead of doing the same, the petitioners have approached this Court prematurely at the show- cause notices stage itself. Hence, the said complaint of the petitioners has no merit.
12.2. In fact, the learned Special Government Pleader made a statement before the Court that the first respondent is willing to provide those reports and also will afford reasonable opportunity to the petitioners. Hence, this issue is also decided against the petitioners.
Issue No.III :
13.0. The issue No.III that arises for consideration is as to whether the show-cause notices are liable to be interfered with, as the inspection of the quarry sites was done without prior notice to the petitioners and the impugned notices are based on such inspection reports ? 13.1. It is relevant to extract Section 23-B and 24(1) of the Act, in this regard.
?23-B. Power to search ? If any Gazetted Officer of the Central or a State Government authorised by the Central Government or a State Government, as the case may be, in this behalf by general or special order has reason to believe that any mineral has been raised in contravention of the provisions of this Act or rules made thereunder or any document or thing in relation to such mineral is secreted in any place or vehicle, he may search for such mineral, document or thing and the provisions of section 100 of the Code of Criminal Prcoedure, 1973 shall apply to every such search.
24. Power of entry and inspection ? (1) For the purpose of ascertaining the position of the working, actual or prospective, of any mine or abandoned mine or for any other purpose connected with this Act or the rules made thereunder, any person authorised by the Central Government or a State Government in this behalf, by general order, may -
(a) enter and inspect any mine ;
(b) survey and take measurements in any such mine ;
(c) weight, measure or take measurements of the stocks of minerals lying at any mine ;
(d) examine any document, book, register, or record in the possession or power of any person having the control of, or connected with, any mine and place marks of identification thereon, and take extracts from or make copies of such document, book, register or record ;
(e) order the production of any such document, book, register, record, as is referred to in clause (d) ; and
(f) examine any person having the control of, or connected with, any mine.?
13.2. Section 24(1) of the Act vests power on the State Government to issue notification notifying certain persons to inspect any mines.
13.3. Furthermore, as contended by the learned Special Government Pleader, the very purpose of inspection would be defeated, if a prior notice is given to the quarry lease-holders. It is for the concerned officials to decide as to whether they could issue prior notice or to make a surprise inspection without notice. If the concerned official has decided to make a surprise inspection, I am of the considered view that the same cannot be described as an illegal act. In fact, the same issue came up for consideration before the First Bench of this Court in P.Mariadoss V. District Collector, Kancheepuram, (W.P.No.1015 of 2011 and 1030 of 2011 etc. batch). 13.4. Paragraph 21 of the judgment of the First Bench in P.Mariadoss case is extracted hereunder, in this regard :
21. .... We fail to understand as to what purpose would be served if notice is issued prior to a surprise inspection, when there has been an allegation that illicit mining is being carried on. The authorities being empowered to enter into the quarry by virtue of the power under Section 24(1) of the Central Act, the petitioners cannot insist that they should be put on prior notice before conducting the surprise inspection as in these cases.
Therefore, this is not a case of denial of reasonable opportunity to the petitioners, but it is seen that the petitioner has been given show cause notice and thereafter on his request, the copy of the inspection report was also furnished and even in the impugned order as well as in the counter affidavit, there is a specific averment that the inspection was carried out in the presence of the lessee/employee. Therefore, we do not agree with the contentions raised by the learned counsel for the petitioner that there has been violation of principles of natural justice. Therefore, we find no justification for the petitioners to by-pass the appellate remedy. .....?
13.5. In view of the aforesaid decision of the First Bench of this Court, I am of the view that the complaint of the petitioners that the impugned show-cause notices are liable to be interfered with, since, the same were issued based on the ex-parte inspection reports has no substance and the same deserves to be rejected.
13.6. Accordingly, the issue No.III is also decided against the petitioners.
Issue No.IV :
14.0. The next issue is as to whether the first respondent pre- determined the issue that the petitioners violated Section 4-A(4) of the Act and therefore, the impugned show-cause notices are liable to be interfered with for pre-judging the issue.
14.1. I have read the show-cause notices carefully. No person of ordinary prudence would come to the conclusion that the first respondent already took a decision that the lease shall lapse under Section 4-A(4) of the Act. On the other hand, the show-cause notices were issued to show-cause as to why the provision under Section 4-A(4) of the Act shall not be invoked, as the petitioners failed to commence the quarry operations after obtaining lease for more than two years as per the reports referred to in the show- cause notices.
14.2. The lease was awarded between 2003 and 2008, as disclosed above in the tabular column. According to the first respondent, based on the reports of the inspection teams, the petitioners failed to commence the quarry operations in the quarry sites, for which, leases were granted. It is purely a question of fact as to whether the petitioners commenced the quarry operations in the quarry sites or not. The same cannot be adjudicated under Article 226 of the Constitution. It is relevant to extract Para 21 of the judgment of the First Bench dated 26.03.2012 in W.P.No.1015 of 2011 etc. batch (P.Mariadoss V. The District Collector, Kancheepuram) which is extracted hereunder :
?21. ..... More so, when the issue involves serious disputed questions of fact which cannot be adjudicated in a writ petition. The allegation against the petitioners is that they exceeded their boundary limit and carried out illicit mining in Government Poromboke land. This aspect is essentially a pure question of fact and this Court cannot, based on affidavits decide whether the petitioners crossed the boundary line and did mining operations beyond the demarcated leasehold area. This is all the more a reason that the petitioner should file an appeal.?
14.2. If the aforesaid principle is applied to these writ petitions, the question as to whether the petitioners commenced the quarry operations or not is purely a question of fact and the same cannot be adjudicated in a writ petition.
14.3. The petitioners were, therefore, given personal hearing by the first respondent, wherein, they could establish their version that they commenced the quarry operations and the reports, that are referred to in the show-cause notices are false and those reports should be rejected and the said exercise cannot be undertaken by a writ court. 14.4. It is a different matter if the respondent came to any conclusion on the allegations, then this Court could entertain the writ petitions even against the show-cause notices, as held by the Apex Court. But no such pre-determination was made. As rightly contended by the learned Special Government Pleader, in W.P.(MD)Nos.5820, 8507, 8508 of 2010 and 8942 of 2012, the learned Special Government Pleader accepted the mistake of pre-
determination in the show-cause notices and agreed to withdraw the same. Paragraphs 10 and 11 of the order of this Court dated 28.09.2012 in those writ petitions are extracted, in this regard, as hereunder :
?10. The learned Special Government Pleader appearing on behalf of the State is unable to support the show cause notices, as the District Collector, who is the competent authority to pass an order, is shown to have made up his mind, to impose penalty and recover other charges, as is clear from reading of impugned show cause notices.
11. The learned Special Government Pleader states, that the impugned show cause notices will be withdrawn within a week, and fresh notices will be issued for taking action against violations strictly in accordance with law.? Therefore that judgment cannot be of any use to the petitioners. 14.5. It was submitted that the first respondent prejudged the issue and came to the conclusion that the petitioners violated Section 4-A(4) of the Act by not commencing the quarry operations for more than two years even after the grant of leases. Based on the reports, referred to in the show-cause notices, now an allegation is made that they did not commence quarry operations and therefore, the petitioners were asked to show-cause as to why Section 4-A(4) of the Act shall not be invoked to declare that the lease shall lapse. In my considered view, the allegations made by the petitioners that the first respondent came to a conclusion that the petitioners did not commence the quarry operations for more than two years have no basis. The show-cause notices do not reveal that the first respondent came to the definition conclusion that the petitioners did not commence the quarry operations. Such an argument of the petitioners has no basis. Hence, the other judgments relied on by the petitioners, namely, (i) Siemens Ltd. V. State of Maharashtra reported in (2006) 12 SCC 33 ; (ii) V.S.O.Balakrishnan V. District Collector reported in (2009) 2 MLJ 577 ; (iii) Oryx Fisheries (P) Ltd. V. Union of India reported in (2010) 13 SCC 427 ; and (iv) A Division Bench judgment of this Court dated 13.12.2011 in W.A.(MD)No.488 of 2010 cannot be applied to these writ petitions, since I came to the conclusion that there was no pre-determination by the first respondent.
15. Those other judgments relied on are considered one by one:
16.0. The petitioners placed heavy reliance on the judgment of the Apex Court in Siemens Ltd. V. State of Maharashtra, reported in 2006 (12) SCC 33.
16.1. The appellant therein is a multi location company, which has a factory and godown at Kelwe, within the jurisdiction of Bombay Municipal Corporation.
16.2. It pays cess for the goods supplied from the said factory in terms of the provisions of the Bombay Provincial Municipal Corporations Act, 1949. The appellant therein also owns a factory at Aurangabad and an office at Kharghar. Admittedly, the factory at Aurangabad and the office at Kharghar are not within the jurisdictional limit of Bombay Municipal Corporation. But for the supply made from Aurangabad and Kharghar, a demand for payment of Cess was made by way of notice. The same was questioned before the Bombay High Court.
16.3. The Bombay High Court refused to entertain the same on the ground that the writ petitions against show-cause notices were not maintainable.
16.4. The Apex Court reversed the said view on the ground that the show-cause notice was issued without jurisdiction and also on the ground that the respondent already determined the liability of the appellant and the only question remains was the quantification thereafter. Paragraphs 9 and 11 of the judgments of the Apex Cort in Siemens's case are extracted hereunder :
?9. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U.P. v. Brahm Datt Sharma (1987) 2 SCC 179, Special Director V. Mohd. Ghulam Ghouse, (2004) 3 SCC 440, and Union of India v. Kunisetty Satyanarayana, (2006) 12 SCC 28, but the question herein has to be considered from a different angle, viz. When a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. (See K.I.Shephard V. Union of India, (1987) 4 SCC
431). It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter-affidavit as also in its purported show-cause notice.
10. ....
11. A bare perusal of the order impugned before the High Court as also the statements made before us in the counter-affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show-cause notice. The writ petition, in our opinion, was maintainable.?
16.5. The aforesaid paragraphs 9 and 11 make it very clear that the Apex Court came to the conclusion that the show-cause notices as well as counter-affidavit filed in that case made it amply clear that there was pre- determination of the liability of the appellant. But this is not so in this case. Therefore, that judgment cannot be applied to this case. 16.6. Further, paragraph 9 of the judgment in Siemens's case makes it clear that the writ court may not normally exercise jurisdiction in entertaining a writ petition questioning a notice to show-cause. Therefore, there is a heavy burden placed on the writ petitioners to establish their case that the show-cause notices were issued without jurisdiction and the show-cause notices came to be issued with pre-determination and no purpose would be served in participating in the enquiry. The petitioners miserably failed to discharge the burden. Hence, no interference at the show-cause notice stage is warranted.
17.0. The next judgment relied on by the learned counsel for the petitioner is V.S.O.Balakrishnan V. District Collector, (2009) 2 MLJ 577. 17.1. In (2009) 2 MLJ 577, three writ petitions, namely, W.P.Nos.26650 of 2005, 7324 of 2006 and 7325 of 2006 were disposed of by a common order. The writ petitioners therein were directed to pay a sum of Rs.17,98,300/-, 2,84,04,000/- and 1,97,25,000/- respectively towards the silica sand and granite blocks allegedly quarried from lease-hold and non- leasehold area. The writ petitions challenged those final orders directing to remit the amount.
17.2. Thus, it was not a case, wherein, show-cause notice was put to challenge. In that case, show-cause notice was issued. But no personal hearing was given. Further no inspection report was furnished, when the same was relied on to pass the final order imposing penalty. Apart from finding those infirmities, this Court also found that there was pre-determination in the show-cause notice itself. In this regard, the following passages in paragraph 12 of the judgment is extracted hereunder :
?12. .... A reference to the impugned orders make it clear that there was no personal hearing or any enquiry conducted in these cases. ...... It is not even the case of the respondents that copy of inspection report has been furnished to the petitioners while issuing the show-cause 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.?
17.3. In the aforesaid facts and circumstances of the case, this Court set aside the final orders passed by the authority. 17.4. In these writ petitions under consideration, show-cause notices were issued and the petitioners were asked to appear for a personal hearing to give objections on the notices and the learned Special Government Pleader also made a statement before this Court that all reasonable opportunity would be given and relevant documents, if any, required by the petitioners would be furnished, if those documents are in the possession of the Department. The petitioners approached this Court at the stage of show-
cause notice itself before passing the final orders by the respondent. Hence, I am of the view that the said judgment cannot be applied to these writ petitions and it is premature to approach this Court.
18.0. In Oryx Fisheries Private Limited V. Union of India, 2010 (13) SCC 427, the appellant therein was a private limited Indian company engaged in the production, procurement, processing and export of sea foods and other related products. The appellant therein entered into a contract dated 26.09.2006 with one Cascade Marine Foods , incorporated under the relevant laws of U.A.E. at Sharjah, for the supply of pealed and undeveined (for short ?PUD?) shrimps.
18.1. Prior to the despatch of the consignment, on 18.10.2006 an inspection was carried out by the local agent of Cascade and it was found that there is no bad odour.
18.2. On 25.10.2006, the consignment was despatched from Mumbai. The same arrived at Sharjah port on 02.11.2006 via delivery order dated 06.11.2006.
18.3. The Director of Customs, Sharjah, was requested to authorise the delivery of shrimps to Cascade. Following this, on 07.11.2006, the Sharjah Customs vide its Customs Declaration Form stated that the consignment was not to be released before health inspection. Accordingly, the customs and health authorities of U.A.E. inspected the quality of PUD shrimps and they were satisfied that it was fit for human consumption. 18.4. Thereafter, the health authorities resealed the consignment.
18.5. On 12.11.2006, the Cascade took possession of the consignment.
18.6. After a lapse of more than 10 days, Cascade alleged that the PUD shrimps was of very poor quality based on their analysis report dated 21.11.2006.
18.7. The appellant held a meeting with the Cascade officials and agreed to compensate the Cascade to the extent of value of the defective goods.
18.8. While it was the case of the Cascade that as requested by the appellant, on 21.12.2006, the Cascade delivered several samples to Mr.Celestine of M/s.Starfish Trading FZE, for analysis report, the same was disputed by the appellant that Cascade failed to handover samples to the said M/s.Starfish Trading FZE.
18.9. While so, the Municipality Audit in U.A.E. found out that the validity of PUD shrimp packages had expired and thus the authorities compulsorily destroyed the entire consignment of shrimps and the destruction cost was debited to Cascade.
18.10. The Cascade made a huge claim of $86,104.00, which represented the material cost and destruction charges, from the appellant. 18.11. On 03.09.2007, Cascade sent a letter to the Chairman, Marine Products Export Development Authority (for short MPEDA) making a quality complaint on the shipment effected by the appellant and the resultant loss caused to them. The Cascade also alleged that the appellant intentionally cheated them by delivering the decomposed shrimps, which is unfit for human consumption.
18.12. The third respondent in that case, namely, the Deputy Director, MPEDA, forwarded the aforesaid complaint dated 03.09.2007 to the appellant through its letter dated 12.09.2007 and sought clarification from the appellant regarding the same.
18.13. The appellant gave the explanation dated 18.09.2007 stating that they sent the standard quality shrimps and that the appellant doubted the analysis report dated 21.11.2006 of the Cascade. 18.14. Thereafter, the third respondent therein sent a letter dated 25.10.2007 to the appellant directing to settle the dispute with Cascade urgently by 10.11.2007. The appellant sent a negative reply dated 11.11.2007 to the aforesaid letter.
18.15. After a series of correspondence between the appellant and the third respondent, the third respondent decided on 20.11.2007 to convene a joint meeting on 05.12.2007 between the appellant and Cascade to find out an amicable settlement.
18.16. The appellant, in order to amicably settle the dispute, came with a proposal to offer 25% of the value of the goods exported, by way of deferred payment against adjustment. However, Cascade refused to accede to the same.
18.17. In the said circumstances, the third respondent issued a show-cause notice dated 23.01.2008 calling upon the appellant to show-cause as to why the certificate of registration of the appellant should not be cancelled.
18.18. The appellant replied to the show-cause notice by its letter dated 04.02.2008.
18.19. While so, the third respondent without giving any reason and without giving any personal hearing, passed the order dated 19.03.2008 cancelling the registration certificate of the appellant. 18.20. The appellant filed an appeal against the order dated 19.03.2008 of the third respondent therein before the second respondent/appellate authority under the Statutory rule, namely, Rule 44 of the Marine Products Export Development Authority Rule, 1972. 18.21. The second respondent passed the order dated 19.08.2008 confirming the cancellation of Registration certificate of the appellant. 18.22. The appellant therein filed writ petition before the High Court of Bombay questioning the order of the original authority dated 19.03.2008 and the order of the appellate authority dated 19.08.2008. The High Court dismissed the writ petition by an order dated 16.10.2008. The appellant thereafter approached the Apex Court.
18.23. Before going into the finding recorded by the Apex Court, I am of the view that the aforesaid narration of facts makes it very clear that the appellant therein filed a statutory appeal and thereafter only questioned the final order of the original authority and the appellate authority before the High Court. While assailing those orders, one of the contentions of the appellant therein was that the third respondent completely made up his mind at the show-cause notice stage itself and reached a definite conclusion about the alleged guilt of the appellant. That was found, on facts, acceptable to the Apex Court.
18.24. The Apex Court in this judgment referred to the unanimous Constitution Bench judgment in Khem Chand V. Union of India, AIR 1958 SC 300, and extracted a passage from the said judgment in paragraph 26 of its judgment. Paragraph 26 of the judgment in Oryx Fisheries case is extracted hereunder :
?26. S.R.Das, C.J., speaking for the unanimous Constitution Bench in Khem Chand Vs. Union of India, AIR 1958 SC 300, held that the concept of ?reasonable opportunity? includes various safeguards and one of them, in the words of the learned Chief Justice, is : (AIR p.307, para 19) :
?(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based ; ?
18.25. That is, the reasonable opportunity requires that the person, who was issued with a charge sheet, should be put on notice about the charges levelled against him and the allegations on which the charges are based.
18.26. Instead of telling the charges, if the person is confronted with definite conclusion of his alleged guilt in the show-cause notice itself, then the entire proceeding would get vitiated, as held by the Apex Court in paragraph 27 of the judgment in Oryx Fisheries case. Paragraph 27 of the judgment in that case is extracted hereunder :
?27. It is not doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show-cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony.?
18.27. Before paragraph 27 of the judgment, the show-cause notice was extracted in paragraph 22 of the said judgment and certain portions of the show-cause notice were underlined by the Apex Court and those underlined portions make it clear that the third respondent therein made up his mind at the stage of show-cause notice itself. Those portions in the show-cause notice, as underlined by the Apex Court, are extracted from paragraph 22 of the judgment in Oryx Fisheries case as hereunder:
?22. .... At the meeting, it was convincingly proved that the cargo shipped by you to the abovementioned buyer was defective and you have not so far settled the complaint. ......
1. It has been proved beyond doubt that you have sent sub-standard material to M/s.Cascade Marine Foods, LLC, Sharjah, ....?
18.28. Thereafter, only the Apex Court recorded in paragraph 27, as stated above, that the entire proceeding got vitiated due to the pre- determined mind expressed in that show-cause notice. 18.29. In paragraph 31 of its judgment, the Apex Court held that the show-cause notice cannot be read hyper-technically and the same has to be read reasonably. It is also held that if on a reasonable reading of a show-
cause notice, a person of ordinary prudence comes to the conclusion that the issues are prejudged in the show-cause notice, such a show-cause notice does not commence a fair procedure. Paragraph 31 of the judgment in Oryx Fisheries is extracted hereunder :
?31. It is of course true that the show-cause notice cannot be read hyper-technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.?
18.30. Apart from holding that the show-cause notice was a pre-
determined one, the Apex Court also held that the final order of cancellation of registration certificate passed by the third respondent is totally a non- speaking order and also extracted the final order of the third respondent in paragraph 36. The following passage in paragraph 36 of the judgment in Oryx Fisheries case, is extracted, in this regard, as hereunder :
?36. The appellant gave a reply to the show-cause notice but in the order of the third respondent by which registration certificate of the appellant was cancelled, no reference was made to the reply of the appellant, except saying that it is not satisfactory. The cancellation order is totally a non-speaking one. .....?
18.31. Thereafter, in paragraph 37, it is held that the final cancellation order is a non-speaking order and is virtually no order in the eye of the law.
18.32. The Apex Court in paragraph 40 of its judgments set out certain principles formulated in Kranti Associates V. (2010) 9 SCC 496, holding that both the quasi-judicial and the administrative authorities shall record reasons for its conclusions.
18.33. That is, the Apex Court interfered with the order of cancellation of registration on the ground that it was a non-speaking order also.
18.34. The aforesaid analysis of the judgment in Oryx Fisheries case makes it very clear that the said judgment is not applicable to the facts of these writ petitions.
18.35. As stated earlier, I am of the view that on a reasonable reading of the impugned show-cause notices, a person of ordinary prudence would not come to a conclusion that the authority made up his mind and came to a definite conclusion on the guilt of the petitioners. On the other hand, it only directed the petitioners to show-cause as to why action cannot be taken under Section 4-A(4) of the Act based on the reports mentioned therein.
19.0. The next judgment, relied on by the learned counsel for the petitioners, dated 13.12.2011 in W.A.(MD)No.488 of 2010 (V.Kottaiveeran V. The District Collector, Madurai District, Madurai) also would not render any assistance to the petitioners.
19.1. In that case, the appellant therein was imposed with a penalty by the District Collector on the ground that he illicitly quarried granite blocks in Madurai District. The writ petition questioning the order of the Collector was dismissed. The Writ Appeal was allowed accepting the case of the appellant. In that case, no show-cause notice was issued and the inspection reports were not furnished and he was not even given opportunity to put forth his objections, as found in paragraph 3 of the said judgment. The relevant passage from paragraph 3 of the judgment dated 13.12.2011 in W.A.No.488 of 2010 is extracted hereunder :
?3. .... the appellant was not served with any show cause notice and only as per the provision under the Right to Information Act, he has got a copy of the show cause notice. It is submitted that they sent the show cause notice to the old address without finding out the correct and new address of the appellant. ...... the appellant was also not furnished with inspection reports and he has not given an opportunity to put forth his objections and contentions before passing the impugned order.?
19.2. In those circumstances, a Division Bench of this Court also found that the perusal of the show-cause notice makes it clear that the authority pre-determined the issue. The following passage from paragraph 8 of the judgment is extracted hereunder :
?8. Be that as it may, the appellant has obtained a copy of the said show- cause notice, as per the provision under the Right to Information Act and also produced before this Court. A perusal of the same makes it abundantly clear that the authority concerned already had a predetermined mind, as if the appellant/petitioner is responsible for carrying out the illegal quarry in the adjacent area.?
19.3. Applying the judgment of the Apex Court in Siemens case, the writ appeal was allowed by the Division Bench.
19.4. In these writ petitions under consideration, show-cause notices were issued, the petitioners were asked to appear for personal hearing to give objections and the learned Special Government Pleader also made a statement before this Court that all reasonable opportunity would be given and the reports, that are referred to in the impugned show-cause notices, and other relevant documents, that are required by the petitioners, if any, would be furnished, if those documents are in the possession of the Department. He also stated that adequate opportunity would be given before taking a final decision. Hence, I am of the view that the said judgment cannot be applied to these writ petitions.
Issue No.V :
20.0. The last issue is as to whether the writ petition is maintainable against a show-cause notice.
20.1. It is a well-settled law that a writ petition is not maintainable against a show-cause notice. It has been held by the Apex Court in Union of India and another Vs. Kunisetty Satyanarayana, reported in 2006 (12) SCC 28, that was relied on by the learned Special Government Pleader, that the writ petition is not maintainable against a show-cause notice, and the said judgment squarely applies to the facts of these cases and the following passage in paragraph 14 of the said judgment is extracted in this regard :
?14. .... A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.?
20.2. In fact, the said principle is also stated in Siemens case and Oryx Fisheries case. But the Apex Court, on the facts of those cases, held that the show-cause notices itself were pre-determined one and therefore, interfered in favour of the appellants therein.
21. In view of the aforesaid discussion of facts and law, it is clear that heavy burden is placed on the petitioners to point out that the first respondent has already come to a conclusion and show-cause notices are merely an empty formality.
22. In my view, the petitioners failed to establish that the show-cause notices were issued without jurisdiction or the first respondent already arrived at a definite conclusion on the guilt on the part of the petitioners. Hence, I have no hesitation to hold that the writ petitions are not maintainable and the petitions are liable to be dismissed.
23. Accordingly, the writ petitions are dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions are also dismissed.
24. The first respondent is directed to provide the reports mentioned in the show-cause notices and also give reasonable opportunity to the petitioners before taking a decision under Section 4-A(4) of the Act to declare that the lease shall lapse or not.
To
1. The Secretary to Government, Industries Department, Govt. of Tamil Nadu, Fort St. George, Chennai ? 600 009.
2. The District Collector, Madurai District, Madurai.