Madras High Court
Mr.Durai Divyanathan vs /
Author: Anita Sumanth
Bench: Anita Sumanth
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 01.07.2019
PRONOUNCED ON: 29.08.2019
CORAM
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
W.P(MD)No.10656 of 2010
And
M.P.(MD)Nos.2 and 3 of 2010
Mr.Durai Divyanathan ... Petitioner
/Vs./
1.The District Collector,
Pudukkottai District,
Pudukkottai.
2.The Commissioner of Geology and Mining,
Guindy, Chennai – 600 035. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorari, calling for the records of
the first respondent's proceedings bearing Na.Ka.No.488/08/Mines and
Minerals dated 31.01.2010 signed and dispatched on 01.03.2010 and
received by the petitioners on 03.03.2010 as confirmed by the second
respondent's proceedings bearing Rc.No.3223/MM5/2010, dated
03.08.2010, quash the same.
For Petitioner : Mr.K.Ramakrishna Reddy
For Respondents : Mrs.J.Padmavathy Devi
Special Government Pleader
http://www.judis.nic.in
2
ORDER
Heard Mr.Ramakrishna Reddy, learned counsel for Mr.Kadarkarai, learned counsel for the petitioner and Mrs.J.Padmavathi Devi, learned Special Government Pleader for the respondents.
2. The submissions of learned counsel appearing for the petitioner are as follows:
(i) The Anna Traders Co-operative Society of which the petitioner was President, was granted lease of a stone quarry comprised in S.No. 271/2 in Parambur Village, Illupur Taluk, Pudukkottai District under proceedings dated 01.10.1985 for a period of three fasli years, that is 1395, 1396, 1397. Quarrying operations were conducted, according to the petitioner, in line with the terms and conditions of the licence.
(ii) Separately, the petitioner owns 0.49.5 hectares of land in S.No. 269/2345 & 6 in the same locality and vide G.O.Ms.No.(3D)No. 109/Industries(MMB-II)Department,dated 29.07.1998, was granted a licence for quarry in the aforesaid land for a period of 10 years between 18.09.1998 and 17.09.2008.
(iii) A communication had been issued on 04.12.2004 by the District Collector, R-1 to the Commissioner of Geology and Mining, R-2 seeking inspection of the quarry on the basis of complaints raised by disgruntled third parties.
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(iv) Pursuant thereto, R-2 issued a report dated 05.01.2005 stating that there was no violation by the petitioner as alleged. The file was thus closed. The communication at point (iii) has not been placed on file. Both the aforesaid communication and the Inspection Report dated 05.01.2005 are unavailable as part of the records of the authorities, specifically summoned to ascertain the same.
(v) While this is so, a show cause notice (in short 'SCN') dated 12.02.2008 was issued to the effect that, pursuant to a review conducted by the concerned Ministry on 12.09.2007, there was an inspection of twenty quarries in the District of Pudukkottai on 03.12.2007 and 06.12.2007. The inspection revealed that three out of the twenty quarries including one quarry on Government land had encroached upon adjacent Government land, carrying out illegal quarrying operations thereupon.
(vi) The specific allegation as against the petitioner was that it had illegally quarried adjacent Government land in S.R.No.271/2 admeasuring 0.02.2 hectares removing 300 cbm of granite, being 30% of the volume of illicit operation amounting to 1000 m-3.
(vii) The petitioner was called upon to show cause why the value of mineral seigniorage and penalty under the relevant provisions of the Mines and Minerals (Development and Regulation) Act 1957 (in short 'Act') and the Tamil Nadu Mining and Mineral Concession Rules (in short 'Rules') not be recovered.
http://www.judis.nic.in (viii) A personal hearing was afforded. In the personal hearing, the 4 petitioner categorically denied all allegations relying upon the report of R-2 dated 05.01.2005. It was pointed out that the principles of natural justice had been violated insofar as no notice had been issued prior to the inspection. The petitioner contended that the show cause had pre-judged the issue and all proceedings thereafter were a mere formality.
(ix) Mr.Reddy explains that a quarry is normally expected to produce 15-20% of marketable granite with the remaining 80-85% constituting debris. Thus, to produce 300 cbm of marketable granite as alleged, a total quantum of 2000 cbm -2500 cbm of granites would have had to be quarried which exercise would take 12-15 months. All this, from just 0.02 hectares of land, which is insufficient, according to him, even to hold the necessary quarrying equipment.
(x) The sanctioned quarrying operations are carried on by the petitioner under monitoring by the detect officials. Illegal quarrying is thus, he says, impossible without detection by them.
(xi) Moreover, even assuming such operations had been carried on, the mineral could not have been transported without necessary transport permits, which itself are issued only by the respondent authorities.
(xii) Inspite of the detailed objections raised, the proposal in the show cause notice stood confirmed on 31.01.2010 levying penalty of a sum of Rs.62,33,700/-.
3. An appeal was filed before the second respondent which was dismissed, http://www.judis.nic.in rejecting all contentions of the petitioner, including the ground 5 of violation of principles of natural justice. The present writ petition has thus been filed as against proceedings dated 31.01.2010 as confirmed by appellate order dated 03.08.2010.
4. Mr.Reddy draws attention to the law on the question of violation of principles of natural justice, placing reliance upon various judgments of the Supreme Court.
5. Reliance is placed upon the following case-law, emphasizing specifically an order of the learned Single Judge of this Court in the case of V.S.O Balakrishnan and others vs. District Collector ((2009) (2) MLJ
577) drawing a parallel between the present case and the aforesaid to highlight the similarity in facts and the conclusions of the Court in favour of the petitioner. The cases relied upon by the petitioner are as follows:
1.Yeshwant Gajanan Joshi & others vs. The Hindustan Petroleum Corporation Limited and another [AIR 1988 BOMBAY 408(DB)]
2.V.S.O.Balakrishnan and Another vs. District Collector, Thiruvallur & another [2009 (2) MLJ 577]
3.V.Kottaiveeran vs. The District Collector, Madurai District in W.A.(MD)NO.488 of 2010 dated 13.12.2011
4.D.Babu Reddy, Proprietor of Seenivasa Brick Works and B.Jayakumar, Proprietor of Parasakthi Brick Works, Subbareddypalayam Vilalge, Ponneri, Tiruvallur vs. The Revenue Divisional Officer, Ponneri, Tiruvallur District, in W.P.Nos.5460 & 5461 of 2015 dated 07.10.2015
5.Siemens Limited vs. State of Maharashtra and others [2006 (12) SCC 33].
6.Oryx Fisheries Private Limited vs. Union of India and Others [2010 (13) SCC 427]
7.S.Thankamani vs. Greater Cochin Development Authority And another [2008 (14) SCC 723] http://www.judis.nic.in 8.Sivakami and others vs. State of Tamil Nadu and 6 others [2018 (4) SCC 587
9.Mrs.Logasundari vs. The District Collector, Madurai District & others [1998 (1) MLJ 43]
10.K.Dhanasekar vs. Revenue Divisional Officer, Changalpattu, [Special Leave to Appeal (Civil) No(s).13696 of 2012, dated 07.05.2012
11.Goa Foundation vs. Union of India and others [(2014) 6 SCC 590]
6. Mr.Reddy urges that the impugned orders thus be quashed seeing as the very basis of the proceedings stand vitiated on account of the violation of the principles of natural justice and since, the show cause notice was itself issued only post an illegal surprise inspection. The fatal flaw in the proceedings, according to him, has been occasioned at that juncture and cannot be corrected now.
7. A counter has been filed by the District Collector denying all averments in the writ petition. They state as follws:
(i) In terms of G.O.3(D)No.109, Industries (MMB-II) Department, dated 29.07.1998, the petitioner had been granted quarry lease for a period of ten (10) years on his patta land imposing specific conditions.
The conditions are:
1.The lessee should not encroach the Government Poramboke lands in S.F.No.270/2, 271/2 of Parambur Village.
2.The lessee should leave 7.5 mtrs of safety distance on all sides of the area applied for lease.
3.No mining should be done with in 50 mtrs from the House http://www.judis.nic.in 7 situated in S.F.No.268/13.
4.The applicant should transfer the patta in his name before the execution of lease deed.
(ii) In the month of December 2007, there was an inspection of several quarries in Pudukottai District including the quarries operated by the petitioner. Vide report dated 19.12.2007, it was brought to the notice of the authorities that the petitioner had encroached upon lands not covered by permit and had illicitly quarried granite in the neighbouring Government poramboke land in S.F.No.271/2 of Parambur Village, Villapur Taluk.
(iii) This land abutted the boundary of the petitioners' land in respect of which lease permit had been given.
(iv) The quantum of granite illicitly removed was 300 cbm, computed by formula i.e., total area subject to illicit quarry, being 0.02 hectares or 200 sq.mts and average depth of 5 meters were taken to arrive at the volume of illicit operation at 1000 m3 at 30% recovery. Thus, the quantum of granite illicitly mined was 1000 x 30/100, totalling 300 cbm.
(v) A show cause notice was issued on 12.02.2008 and proceedings were completed in line with the provisions of natural justice, confirming the proposals in the show cause notice.
(vi) As against the original order passed levying penalty of a sum of Rs.62,33,700/-, http://www.judis.nic.in an appeal was filed before the Commissioner of Geology 8 and Mining.
(vii) The appeal was dismissed but instead of availing statutory remedy of further appeal before the Principal Secretary to Government, Industries Department, the present Writ Petition has been filed.
(viii) While the petitioner relies on the internal communication dated 04.12.2004 from the District Collector to the Deputy Director of Geology and Mining directing the latter to inspect the subject quarry, and the subsequent inspection report dated 05.01.2005, the respondents argue that the aforesaid documents are unavailable on file. To confirm this, the records were summoned, whereupon the learned Special Government Pleader appearing for the respondents categorically reiterates that the aforesaid letter and inspection report are not available on record.
8. The respondents for their part, rely on the following cases, and pray, in summary, that the writ petition be dismissed. :
1.P.Murugesan and another vs. The District Collector. Pudukottai District [W.P.(MD)No.3159 of 2010 dated 03.03.2017
2. P.Mariadass Vs. District Collector, Kancheepuram District and others [W.P.Nos.1015, 1030, 1113, 1989 and 3806 of 2011, dated 26.03.2012]
9. Heard learned counsel.
10. The submissions of the petitioner are two-fold. Firstly, he contends that the inspection conducted by the respondent was behind his back http://www.judis.nic.in and a notice ought to have been issued prior to the conduct of such 9 inspection. This submission has to be straight away rejected in the light of the decision of a Division Bench of this Court in P.Mariadass Vs. District Collector, Kancheepuram District and others [W.P.Nos.1015, 1030, 1113, 1989 and 3806 of 2011, dated 26.03.2012] especially paragraph No.21 wherein the Bench approves the modus operandi of conduct of surprise inspections noting that in the absence of the element of surprise, the purpose of the inspection would itself be lost. Evidently, where the State is of the view that all is not well as regards the activities/operations in a particular site, it stands to reason that the authorities must cause inspection only by surprise. After all, this is permitted under the terms of the quarry permit at points 5 and 14 extracted below where the Lessee, the petitioner, agrees to:
‘….
5. To allow any officer authorised by the Director of Geology and Mining of Tamil Nadu in that area from time to time and at all times to enter upon any part of the said lands where mining operations may be carried on or for the purpose of inspecting the same.
……
14. The lessee should also allow any officer authorised by the District Collector or any Officer authorised by him in this behalf or anyother officer authorised by him in this behalf or any other officer authorised by the State Government in this behalf to inspect the area and verify records and accounts and furnish such information under the terms as may be required by them.
……’ Moreover, in the present case, the site inspected is poromboke land where http://www.judis.nic.in the State can enter at will. 10
The Bench, at paragraph 21 states thus:
‘21. The petitioners contended that no notice was given to them prior to inspection. 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. 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. ‘
11. Coming to the merits, the petitioner places great reliance on the 2005 Inspection Report stating that the same has not been taken into consideration by either of the respondents though specifically cited by him.
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12. I see that the original order of the District Collector merely pro- ceeds on the basis of the second inspection report (2007 Report). In fact, this order contains absolutely no discussion and reveals no application of mind at all. Though running to four pages, the first three pages merely extract details of the lease and explanations tendered by the petitioner. The conclusion is as follows:
'On perusing the letter given by Mr.Durai Divyana- than, dated 16.02.2009, 14.09.2009.
In his written explanation Thiru.Durai Divyanathan denied having removed coloured granites from po- romboke lands. S.No.271/2 in the proceedings of the District Collector in G.O.No.330/85 dated 01.10.1985 in YP650 Pudukkottai District lease was granted to Anna Traders Co-operative Societies from Quarrying jelly and rough stones. 3 years lease was granted to the society at that time, Divyanathan was the Presi- dent of the Society. Colour Granite lease was granted to Divyanathan and the Assistant Director of Geology and Minding on inspecting the Patta lands were able to see that on the Eastern side of his patta lands, on the Government poromboke lands bearing S.No. 271/2, 0.02.0 hectares to an extent of 5 metres depth coloured granite stones have been removed. And the total extent that has been removed is about 300 cbm. This has been stated in the report. The Ex-
planation of Mr.Durai Divyanathan that no granite stones have been removed by him from S.No.271/2 cannot be accepted.
13. The order of the Commissioner dated 03.08.2010 however, con- tains the following discussion and findings:
'6) The appeal petition, the remarks of the District Col- lector on the appeal petition, the arguments put forth by the counsel for the appellant during the personal hearing and the written statement produced at the time of hearing were examined and the following points are observed.
http://www.judis.nic.in 12 a.Earlier a quarry lease for quarrying rough stone, jelly was granted to Pudukkottai District Anna Labour Con- tract Co-operative Society in S.F.No.271/1 of Govern- ment Poramboke land in Parambur Village, Ilupur Ta- luk, Pudukkottai District for a period of three years ie.,Fasli 1395 to 1397 vide proceedings No.300/1985 (G&M), dated 01.10.1985.
b.The appellant during personal hearing has informed that he was the President of the above said society. The appellant was granted multi colour granite quarry lease over an extent of 0.49.5 hect. of patta lands in S.F.No.269/2,3,4,5,6 in Parambur Village, Iluppur Ta- luk, Pudukkottai District vide G.O.Ms.(3D)No.109, In- dustries (MMB2) Department, dated 24.07.1998 for a period of 10 years. The patta lands for which the gran- ite quarry lease granted to the appellant are situated adjacent to the Government poramboke land in S.F.No.271/2. The counsel for the appellant has stated during the persona hearing that the then Deputy Di- rector (G&M), had inspected the granite quarry lease granted ot the appellant on 05.01.2005 and reported that there were no quarrying activity in S.F.No.271/2 of Government land. The counsel for the appellant has stated that the District Collector did not consider the report of the then Deputy Director (G&M), Pudukkot- tai.
c.The District Collector in the remarks has categorical- ly stated that the Assistant Director from the office of the Commissioner of Geology and Mining have inspect- ed the subject lands and they have reported that the appellant had indulged in ilicit quarrying of multi colour granite in the Government Porambokke land in S.F.No.271/2 and trnasported 300 cbm of multicolour granite blocks. Further the officials who had inspected the quarried portion in S.F.No.271/2 found variations between the cutting face in rocks caused due to quar- rying for rough stone, jelly, aralai and multicolour granite.
d.Further, there are three years gap between the in- spection undertaken by the then Deputy Director (G&M), Pudukkottai and the Assistant Directors, O/o.the Commissioner of Geology and Mining, Chen- nai. Hence there is every possibility for illicit quarrying and transportation of multicolour granite by the appel- http://www.judis.nic.in lant in the Government poramboke land. Therefore, 13 the appellant's contention that the then Deputy Direc- tor (G&M) had reported that there was no illicit quar- rying in S.F.No.271/2 could not be considered and ac- cepted also.
e.The appellant has stated that the Government land in S.F.No.271/2 was used as pathway. But the officials from the Head office at the time of inspection have found that there was no pathway in the above said Government land. On complaint, the officials from the heard office were deputed to inspect the subject area and they were not authorized to inform the appellant about the inspection to be carried out by them. Simi- larly they are not empowered to afford an opportunity to the appellant to explain his status regarding alleged illicit quarrying and transportation of multi colour granite blocks in the Government poramboke land and accordingly the report was submitted to the Director of Geology and Mining.'
14. The appellate order, in the last paragraph, does make reference to the 2005 Report and while not disputing the report itself, points out the possibility of illegal quarry in the government land post the date of the first report. Thus, it is not that the authorities have completely ignored the 2005 report and the conclusion of the first appellate authority to the effect that illegal quarrying activities could well have been carried out between 2005 and 2007 is, though a presumption, a justifiable one. The reliance that can be placed on the 2005 report, is thus, limited, and the same has been taken into account by the appellate authority.
15. The 2007 Inspection report relied upon by the authorities is ex- tracted below:
'INSPECTION REPORT http://www.judis.nic.in 14 As per the decision arrived at in the review meeting conduct- ed by Hon'ble Minister for Higher Education and Mines and Minerals, on 12.09.2007, and as deputed by the Director of Geology and Mining, a detailed inspection was carried out in granite leasehold areas granted both in Patta and poramboke lands in Pudukkottai District. The inspection was carried out between 03.12.2007 and 06.12.2007 and the following in- spection reports are furnished.
During the filed inspection, 20 granite lease quarries were in- spected, along with the Assistant Director (G&M), Special Revenue Inspector (Mines), Pudukkottai, Firka Surveyors and Village Administrative Officers identified the lands. As a result of said inspection 3 Patta land granite quarries and one gov- ernment poramboke granite quarry were, identified involved in illicit quarrying by exceeding the original lease granted area. Assisted by the concerned Firka Surveyors and Village Administrative Officers, detailed authenticated sketches were prepared with the specific demarcation of illicit quarrying ares indicated in different shades and furnished with this report. Detailed statements were obtained from the concerned Vil- lage Administrative Officer's regarding the illicit quarrying carried out by the defaulter lessee.'
16. The Statement of the Village Administrative Officer is to the fol- lowing effect:
',d;W 05.12.2007 Fsj;J}h; jhYfh guk;G+h; fpuhkk; Gy vz;:269/2,3,4,5,6 kw;Wk; 274/5, 8 gug;G 0.585 – y;
n`f;Nlh;-y; jpU.D.Jiujpt;aehjd;
mth;fshy; ,af;fg;gl;L tUk; fpuhidl; Fthhpapid guk;G+h; FWtl;l epymsth; kw;Wk; fpuhk eph;thf mY- tyh;> cjtp ,af;Fdh; Kd;dpiyapy; jzpf;if nra;ag;gl;lij ehd; ed;F mwpNtd;. Nkw;gb jzpf;if- apd; NghJ Fj;jifjhuh; jpU.D.Jiujpt;aehjd; rl;ltp- Nuhjkhf jdf;F toq;fg;gl;l Fj;jif gug;gpd; fpof;F gFjp vy;iyapid fle;J mUfpy; cs;s Gy vz;:
271/2 y; cs;s muRg;Gwk;Nghf;F epyj;jpy; fpuhidl; Fthhp nra;Js;sJ fz;Lgpbf;fg;gl;lJ. Nkw;gb rl;ltp- Nuhj Fthhpapd; nkhj;j gug;ghdJ 0.02.0 n`f;Nlh; vd fz;lwpag;gl;lJ. Nkw;gb rl;ltpNuhj Fthhpapid Nkw;gb Fj;jifjhuh; nra;Js;shh; vd;gJ tprhuizapy; njhpatUfpwJ vd nfhLf;fyhd thf;FKyk;.'
17. Thus, the ‘ascertainment’ of the authorities regarding the illegal http://www.judis.nic.in mining carried on is based substantially upon the statement of the VAO. 15 The sketch of the area, available in the record, does establish that the land in Survey No.271 (Poramboke) abuts the property of the petitioner. It is thus, and taking a wholistic view of the matter, that the appellate au- thority has confirmed the allegations as against the petitioner. I thus find no infirmity in the order of the appellate authority dated 03.08.2010 on this score.
18. As regards the errors alleged by the petitioner in relation to the amounts of mineral stated to be illegally quarried, there is no reference to the same by the appellate authority. I do not find any discussion in regard to the methodology adopted by the respondents. Though the petitioner has disputed the same, the facts necessary in this regard such as the technology of mining followed and the quality of the mineral itself among others are unavailable and in any event I do not propose to delve into this factual aspect of the matter in a Writ Petition under Article 226 of the Constitution of India.
19. Thus, for this limited purpose alone, the petitioner is permitted to file a second appeal in terms of Section 36-C(2) of the Rules. Such ap- peal, if filed within two weeks from date of receipt of this order shall be received by the office of the second appellate authority without reference to limitation and disposed after hearing the petitioner, within a period of three (3) of conclusion of personal hearing, in accordance with law.
20. This writ petition is dismissed. No costs. Consequently connect- ed Miscellaneous http://www.judis.nic.in Petitions are closed.
16 29.08.2019 Index : Yes/No Internet : Yes/No sm To 1.The District Collector, Pudukkottai District, Pudukkottai. 2.The Commissioner of Geology and Mining, Guindy, Chennai – 600 035. http://www.judis.nic.in 17 DR.ANITA SUMANTH, J. sm Pre-delivery Order made in W.P(MD)No.10656 of 2010 Dated: .08.2019 http://www.judis.nic.in