Madras High Court
M/S. Sindhu Granites vs The District Collector on 28 September, 2012
Author: Vinod K. Sharma
Bench: Vinod K. Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 28/09/2012 Coram THE HONOURABLE MR. JUSTICE VINOD K. SHARMA W.P.(MD) No.5820 of 2010 W.P.(MD) No.8507 of 2010 W.P.(MD) No.8508 of 2010 and W.P.(MD) No.8942 of 2012 M/s. Sindhu Granites, Rep. by its Prop. Mr. P. K. Selvaraj, No.1015, Trichy Main Road, Melur, Madurai District. ...... Petitioner in W.P.(MD)Nos.5820, 8507 of 2010 and 8942 of 2012 M/s. Aiswariya Rock Exports Ltd., Rep. by its Partner Mr. S. Shankaranarayanan, Door No.6/315, Kalikappan II Bit, Karuppayurani, Madurai - 625 020. ....... Petitioner in W.P.(MD)No.8508 of 2010 Vs The District Collector, Madurai District, Madurai. ...... Respondent in all W.Ps W.P.(MD)Nos.5820, 8507 of 2010 and 8942 of 2012:- Writ Petitions filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari, to call for the records pertaining to the respondent's show cause notices bearing Rc.No.987/09/Mines dated 10.04.2010, Rc.No.987/09/Mines dated 06.06.2010 and Rc.No.987/09/Mines dated xx..05..2012 received by the petitioner on 23.06.2012 and to quash the same. W.P.(MD)No.8508 of 2010:- Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari to call for the records of the respondent's proceedings bearing Na.Ka.No.149/Mines/2010 dated 31.05.2010 and to quash the same. !For Petitioners... Mr. V. T. Gopalan Senior Counsel for Mr. K. Ramakrishna Reddy ^For Respondent ... Mr. M. Govindan Special Government Pleader - - - - - - - - :COMMON ORDER
This common order shall dispose of W.P.(MD) Nos.5820, 8507, 8508 of 2010 and 8942 of 2012, as common question of law, and facts are involved in all these writ petitions.
2. For the sake of brevity, the facts are taken from W.P.(MD)No.8508 of 2010.
3. The petitioner was granted quarry lease in lands measuring 0.74.0 Hectares comprised in S.No.101/1A1(pt) situated in Kalikappan Bit II and 0-46-5 in S.No.12/13A2 situated in Poolangulam Village, Madurai North Taluk, MaduraiDistrict by G.O.(3D)No.24 Industries (MMB1) Department dated 16.02.2006. The lease is for a period of 20 years i.e., from 07.03.2006 to 06.03.2006. The petitioner is carrying on the quarrying operations as per the terms of the lease, on payment of necessary seigniorage fee charges etc.,
4. It is the case of the petitioner, that there is no violation of terms of lease whatsoever. It seems certain complaints were made against the quarrying operations of the petitioner alleging that the petitioner was illegally quarrying from poromboke adjoining the patta land of the petitioner. The complaint was also filed to the Human Rights Commission, which forwarded the papers to the District Collector.
5. The District Collector, on the receipt of the notice from the Human Rights Commission got conducted enquiry from the Tashildar. Thereafter, on the basis of the materials collected at the back of the petitioner, the impugned show cause notices have been issued to the petitioner under Rule 36-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, to show cause as to why penalty be not imposed and recovered along with other charges.
6. The impugned show cause notices are challenged on the ground, that a reading of the show cause notices show, that the respondents have already made up their mind, to impose the penalty and other charges on the basis of enquiry conducted at the back of the petitioner and by placing reliance on the report submitted by the Tahsildar.
7. It is the contention of the learned Senior Counsel for the petitioners, that the impugned show cause notices cannot be sustained, as issuance of show cause notices is merely a formality, as the officer is only to pass an order based on the materials collected at the back of the petitioner. Thus, there being violation of principles of natural justice, the impugned show cause notices deserves to be set aside.
8. In support of this contention, the learned Senior Counsel placed reliance on the decisions of this Court in SIEMENS LTD., ..VS.. STATE OF MAHARASHTRA AND OTHERS (2006 (12) S.C.C. 33) and ORYX FISHERIES PRIVATE LIMITED ..VS.. UNION OF INDIA AND OTHERS (2010 (13) S.C.C. 427).
9. The Hon'ble Supreme Court in ORYX FISHERIES PRIVATE LIMITED ..VS.. UNION OF INDIA AND OTHERS (2010 (13) S.C.C. 427) has been pleased to lay down as under:-
"27. It is no 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.
31. It is of course true that the show-cause notice cannot be read hypertechnically 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.
32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show- cause notice.
33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi-judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it.
35. Going by the aforesaid test any man of ordinary prudence would come to a conclusion that in the instant case the alleged guilt of the appellant has been prejudged at the stage of show-cause notice itself.
43. For the reasons aforesaid, this Court quashes the show-cause notice as also the order dated 19-3-2008 passed by the third respondent. In view of that, the appellate order has no legs to stand and accordingly is quashed.
44. We are constrained to observe that unfortunately this aspect of the matter was not considered by the High Court. We cannot, therefore, approve the order of the High Court and the same is accordingly quashed. The cancellation of the registration certificate of the appellant is set aside and we declare the registration to be valid if it is not vitiated for any other reason."
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.
12. In view of the stand taken by the learned Special Government Pleader, W.P.(MD) Nos.5820, 8507of 2010 and 8942 of 2012, are rendered infructuous and disposed of accordingly, with liberty to the respondents, to issue fresh show cause notices strictly in accordance with law. No costs.
13. The learned Senior Counsel for the petitioner challenged the impugned order in W.P.(MD)No.8508 of 2010, cancelling the lease and imposing penalty for violating the provisions of Tamil Nadu Mining and Mineral Concession Rules 1959, on the ground, that the respondent served the show cause notice with pre-determined mind. Thereafter, in spite of the reply, disputing the allegations, no enquiry was held, and the objections raised by the petitioners have been rejected by a non-speaking order by re-iterating the findings already recorded in the show cause notice. Therefore, the impugned order, being arbitrary is hit by Article 14 of the Constitution of India, being in violation of principles of natural justice.
14. The learned Special Government Pleader fairly conceded that the impugned order cannot be defended.
15. Consequently, W.P.(MD)No.8508 of 2010 is allowed. The impugned order is set aside, with liberty to the respondent to issue fresh show cause notice and thereafter proceed in accordance with law for taking appropriate action.
No costs.
Dpn/-
To:
The District Collector, Madurai District, Madurai.