Madras High Court
Siva Blue Metals vs The District Collector on 12 June, 2012
Author: B. Rajendran
Bench: R. Banumathi, B. Rajendran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/06/2012 CORAM THE HONOURABLE MRS. JUSTICE R. BANUMATHI and THE HONOURABLE MR. JUSTICE B. RAJENDRAN Writ Appeal (MD) No.244 of 2012 and Writ Appeal (MD) No.245 of 2012 M.P.(M) Nos.1 and 1 of 2012 Siva Blue Metals, Rep. By its Managing Partner R.Ananda Maheswaran, No.9 Toovipuram, 8th Street, Thoothukudi - 628 003. ... Appellant in both the appeals vs. 1. The District Collector, Thoothukudi District, Thoothukudi. 2. The Revenue Divisional Officer, Thoothukudi, Thoothukudi District. 3. The Assistant Director of Geology and Mining, Department of Geology and Mining, Thoothukudi District, Thoothukudi. ... Respondents in both the appeals Appeals are filed under Clause 15 of the Letters Patent Act against the order dated 08.02.2012 made in W.P.(MD) Nos.11495 an 11496 of 2011 on the file of this Court. !For Appellant ... Mr.AR.L.Sundaresan Senior Counsel for M/s.Sanjeevi ^For Respondents ... Mr.K.Mahendran, Special Government Pleader :COMMON JUDGMENT
B. RAJENDRAN, J In view of the issues involved in these appeals are one and the same, both the appeals are taken up together and a common judgment is delivered by consent of both parties.
2. The unsuccessful writ petitioner is the writ appellant herein. The writ petitioner has filed the writ petitions challenging the show cause notices issued to the petitioner company. The petitioner challenged the first show cause notice dated 14.09.2011, whereby, the petitioner was called upon to submit his explanation as to why he should not be directed to pay Rs.2,21,48,000/-, Rs.20,76,375/- and Rs.25,000/- towards cost of the mineral quarried more than the permitted limit, seigniorage fee and penalty respectively. While vide the second show cause notice dated 24.09.2011 he was called upon to explain on the violations of Rule 36 (5) (b) of the Tamil Nadu Minor Mineral Concession Rules, 1959, (hereinafter referred to as the 'Rules') which is liable for action under Section 36 (5) (h) of the Rules, which may result in cancellation of the lease. Both the writ petitions challenging the aforesaid show cause notices were heard and a common order was passed dismissing the same. As against the dismissal, the present writ appeals have been filed.
3. According to the writ appellant, he was granted lease to quarry rough stones and jelly from patta land in Survey Nos.739/2 and 741/1 for a period of five years as per the proceedings dated 14.12.2005. The lease agreement in Appendix-IV was executed on 11.01.2006 for the period commencing from 11.01.2006 to 10.01.2011. Subsequently, on 13.09.2010 the appellant made an application to the District Collector for surrendering the above lease and requested to add two other adjacent survey numbers S.F.Nos.729/2 and 730/1 as it is no more feasible to quarry in the original lease area without annexing the other nearby area. Pursuant to this, after inspection on 09.11.2011 the District Collector, Thoothukudi accepted the surrender application and cancelled the lease granted by the proceedings dated 14.12.2005. On the very next day, i.e. on 10.11.2010, the petitioner made an application seeking for grant of permission to quarry in all the four Survey Nos.729/2, 730/1, 739/2 and 741/1 for a period of five years. The District Collector by an order dated 24.01.2011 granted quarry lease to the appellant for a period of five years commencing from 24.01.2011 to 23.01.2016 for all the four survey numbers after the inspection report of the Sub-Collector and Assistant Director of Geology and Mining. On the very same day, i.e. on 24.01.2011, the lease agreement was executed for a period of five years. Subsequently, on 14.09.2011 and 24.09.2011 the present two impugned show cause notices have been issued. As against the same, the petitioner without offering an explanation filed two writ petitions on 03.10.2011 and ultimately, the same were dismissed by a common order dated 08.02.2012. Aggrieved against the dismissal of the writ petitions, the present writ appeals have been filed.
4. According to the appellant, both the show cause notices are liable to be quashed on the ground that they are predetermined. As the show cause notices already disclosed the quantum of mineral removed, the value of the minerals and penalty having arrived in the notices itself, there is nothing more to decide and therefore, they are predetermined. He would also contend that in view of the second notice seeking for cancellation of the lease, the District Collector has already come to the conclusion. Further as against the show cause notices issued by the Revenue Divisional Officer, the District Collector himself filed a counter affidavit and supported the action of the Revenue Divisional Officer. Therefore also, the show cause notices are predetermined. Finally, for the purpose of the penalty , they have mistakenly taken into consideration the previous lease period which has already ended and surrendered by the petitioner on 13.09.2010 itself. Therefore, the notices seeking penalty both for the previous period and for the present period are invalid. Secondly, he would also question the show cause notices on the ground of jurisdiction. According to him, when the quarrying operation was done within the licensed area, levying of the cost of the mineral is solely without jurisdiction as per the Rule 36 A(1).
5. Further, he would contend that the notices were issued without jurisdiction as imposing of penalty of Rs.25,000/- under Section 4(1)(1A) and under Section 21 (1) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the 'Act') is against law as the criminal Court only is competent to impose such a penalty. Lastly, he would contend that there is a pure violation of principles of natural justice as no notice for inspection or taking for measurement were given and the same were done by them behind the back of the appellant. Hence, he would contend that the show cause notices are invalid. He would mainly contend that the learned Single Judge has not taken into consideration that the authorities have taken into consideration both the previous period as well as the present period for the purpose of arriving at the penalty. Hence these appeals.
6. The learned Government Pleader mainly would contend that the writ petitions itself are not maintainable as the notices are only show cause notices and the appellant was only called upon to give explanation. Further, the show cause notices itself were only issued after the inspection in the presence of the petitioner's representatives and admission also made by them and the details of the exact area and the quantum are all mentioned only so as to enable the appellant to give a detailed explanation insofar as to the quantum as well as the area of measurement. Therefore, it cannot be concluded as the notices are predetermined one and definitely, the authorities have got jurisdiction. In fact, insofar as the cost of mineral excavated, the Rules provided in the event of excess material being taken away by the licensee including the material cost can be levied and as far as the penalty is concerned, the penalty of Rs.25,000/- is imposable under the Rules. All the principles of natural justice have been duly followed, necessary notices have been given properly. Under these circumstances, the learned Single Judge has correctly come to the conclusion that there is no predetermination and directed the appellant to submit his explanation. Therefore, there is no merit in these appeals.
7. We have heard all the parties concerned.
8. The main grievance of the appellant is that though it is stated as show cause notices, they are not the show cause notices as it is a predetermined one and there is nothing more to decide in the enquiry or after the explanation is offered. According to the appellant, the first show cause notice dated 14.09.2011 is concerned, the Revenue Divisional Officer has already stated in the notice the extent, the area and the quantity including the penalty. When we analyse the same, what they have stated is the total quantity of material which has been excavated from Survey Nos.729/2, 730/1, 739/2 and 741/1 was 3,39,480 cubic meters whereas as per the licence granted, the permitted area to be excavated is only 2,61,131 cubic meters. Therefore, they have shown a difference of 78,349 cubic meters or 27,685 units. This they have arrived at after inspection and evaluation. They have also correlated this with the seigniorage fee paid. Further, as there is excess quantity of materials excavated beyond the scope, beyond the limit and beyond the licence, they have also chosen to include the value of the materials under Section 36 A (1) and also the seigniorage fee in so far as the area is concerned and finally the penalty. Ultimately, they have stated in the notice as follows:
" Bkw;fz;l mguhjj; bjhifapid tpjpg;gjw;F Kd; jhA;fs; nJ bjhlh;ghf Twpf;bfhs;s Kfhe;jpuk; VJk; nUg;gpd; nJ fpilf;fg;bgw;w 15 jpdA;fSf;Fs; mYtyfj;jpy; M$uhfp Kfhe;jpuk; mspj;jpl Bfl;Lf;bfhs;sg;gLfpwJ. jtWk; gl;rj;jpy; mYtyfj;jpy; cs;s MtzA;fspd; mog;gilapy; nWjp cj;jut[ gpwg;gpf;fg;gLk; vd;gij mwpat[k;."
9. From a reading of the above, they have clearly stated that all the objections which are required to be raised by the appellant were permitted to be raised in the explanation. Further, similarly, in the show cause notice dated 24.09.2011, they have stated that the appellant has excavated from the land beyond the area permitted or extent permitted. Under these circumstances, they have called upon to offer an explanation as to why their licence should not be cancelled. They have only asked this much in that notice.
10. According to respondents, under Rule 36 A (1) of the Rules in respect of minor minerals, the Revenue Divisional Officer concerned is empowered to levy the penalty for excess rough stones quarried. In fact, both the notices were emanated only after the inspection on 03.01.2011 along with six Firka surveyors, Panchayat Land Surveyors and the Village Administrative Officer of Padmanabamangalam village. According to the learned Government Pleader, the said team took measurements of all the pits existing over the leased out sites and arrived at a total quantity of rough stones quarried as on 13.08.2011. After deducting the quantity for which transport permits were issued, the excess amount of materials removed has been arrived at. Therefore, there is nothing wrong in the show cause notices and it is always open for the appellant to submit his explanation. Thereafter, the authorities will duly consider the same. The learned Single Judge has rightly come to the conclusion that there is no predetermination. In this regard, the learned Single Judge has rightly pointed out that during the course of inspection of one A.C.Thangam, who is the Manager of the appellant/agency was present and moreover, he has also given a statement that he was with the Inspecting Team while all the pits of the quarrying sites were examined. He has also stated that the measurements are given so that the appellant who is aggrieved can raise the objections and the objections will be looked into by the authorities concerned. The learned Single Judge has also correctly accepted the explanation of the Government stating that these details were given only to enable the appellant to submit his full-fledged explanation. Therefore, the appellant is not right in contending that the authorities have given a predetermined conclusion insofar as issuing the show cause notices are concerned.
11. In this connection, the appellant would rely upon a decision of the Hon'ble Supreme Court reported in (2006) 12 SCC 33, Siemens Ltd., v. State of Maharashtra and others, for the proposition that when a notice is issued with premeditation, a writ would be maintainable. In that case, it is very clearly stated that ordinarily a writ petition is not maintainable questioning the show cause notice unless it appears to have been without jurisdiction. Similarly, when it is issued with a premeditation then there is no point in issuing the direction to consider the petition. In that case, the Hon'ble Supreme Court has come to the conclusion only because there is nothing remains to be found out from the show cause notice as already the application of mind has been made, formed of an opinion as regards the liability and the liability has also been determined. Therefore, the Hon'ble Supreme Court held that even in a case of show cause notice a writ is maintainable. But that is not the case in the writ appeals here. Here the inspection was made with the help of the surveyors in the presence of the appellant and therefore, the explanation is now sought for regarding area excavated and the materials taken in consonance with the seigniorage fee paid by him. Therefore, this cannot be treated as predetermination. It is only details which have been given in the show cause notice.
12. He would also rely upon a judgment of the Hon'ble Supreme Court reported in (2008) 7 SCC 117, Pancham Chand and others v. State of Himachal Pradesh and others, for the proposition that when an authority passes an order at the behest or under the direction of a higher authority, such an action is illegal. Here is the action, the appellant would contend that the Revenue Divisional Officer has given the notice followed by the Collector's notice. The Collector being the appellate authority ought not to have issued the notices. In fact, the Collector only had issued the show cause notice whether the licence is liable to be cancelled when he is the authority to issue the notices. Therefore, it is nothing wrong and it cannot be construed that the Revenue Divisional Officer has acted at the behest or at the instance of the Collector. Therefore, this argument also cannot be accepted.
13. He would further rely upon a judgment of the Hon'ble Supreme Court reported in (2010) 13 SCC 427, Oryx Fisheries Private Limited v. Union of India and others, wherein the Hon'ble Supreme Court has categorically held that 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 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 and in this particular case, the notice was quashed on the ground that after the show case notice there was a reply also. But the authority had made no reference to the reply except saying that it is not satisfactorily. Therefore, the Supreme Court has held that the bias of the third respondent which was latent in the show cause notice became patent in the order of the cancellation of the registration certificate. The cancellation order quotes the show cause notice and is a non-speaking one and virtually no order in the eye of law. Since the same order is an appealable one it is incumbent upon the third respondent to give adequate reasons. Therefore, the facts in that case will not be applicable as in this case we still in the show cause notice stage itself.
14. It is useful to extract Rule 36 A (1) and (3) which reads as under:
" 36-A. Penalties:
(1) [Whenever any person contravenes the provisions of sub-section (1) of section 4 of the Act in any land, enhanced seigniorage fee upto a maximum of fifteen times the normal rate subject to a minimum of [twenty five thousand rupees]3 shall be charged and recovered from that person by the District Collector or the District Forest Officer as the case may be or in the alternative, he shall liable to be punished as provided in sub-section (1) of section 21 of the Act :] [Provided that in respect of minor minerals namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay the powers and duties exercisable and dischargeable by the District Collectors under this sub-rule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.] (3) Whenever any person raises without any lawful authority any mineral from any land, the District Collector or the District Forest officer, as the case may be, may recover from such person the mineral so raised or where such mineral has already been disposed of, the price thereof, and may also recover from such person, area assessment, seigniorage fee or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
15. Insofar as the question of jurisdiction of the order is concerned, when we read Rule 36 A (3) of the Tamil Nadu Minor Mineral Concession Rules, it empowers the District Collector or the District Forest Officer as the case may be to recover from a person who unlawfully removed the minerals or excess minerals or the cost of the mineral also where such mineral has already been disposed of. Therefore, the contention of the appellant is that the levy of the cost of mineral is without jurisdiction is not correct. In any way, it is for him to submit his explanation and establish before the authorities concerned that such levy is not permissible in the case of the appellant. It is also brought to the notice of this Court and it has been extracted by the learned Single Judge in the order regarding G.O. Ms. No.63, Industries (MMA-1) Department, dated 11.05.2005 and the notification which empowers the Revenue Divisional Officer being the competent authority to act under the Act as well as the rules insofar as Rule 36 (A) 1.
16. Similarly, it is useful to extract Section 21 (5) of the Minor Mineral (Development and Regulations) Act, 1957, which reads hereunder:
"21(5). Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority."
If we take into consideration the above Section, which also empowers the authorities to seek for the value of the goods. In view of the finding of the learned Single Judge that they are only show cause notices and they are not predetermined one as the details are given only to offer opportunity to the appellant to give explanation. We do not find any reason to interfere with the reasoned order of the learned Single Judge and at the same time, we also make it clear that we are not without going into merits and without giving any opinion regarding the notices we only state that the authority should get explanation from the appellant and pass orders in accordance with law irrespective of the findings or observations made by the learned Single Judge.
17. In this connection, the learned Counsel for the appellant also would rely upon a decision of the Hon'ble Supreme Court reported in (2005) 12 SSC 309, Raghbendra Bose and others v. Sunil Krishna Ghose and others, that when directing the authorities to consider the objections and pass orders, the authorities are directed to decide without being influenced by the orders of the High Court. We only direct the Collector and the Revenue Divisional Officer to get his explanation and decide the matter in accordance with law without being influenced by any of the observations made in the order of the Single Judge. It is made very clear that as the time granted for explanation has already over, the appellant is granted further 15 days time from the date of receipt of a copy of this judgment to offer his explanation and on receipt of such explanation, the authorities shall pass orders in accordance with law.
In the result, both the writ appeals are dismissed. Consequently, connected miscellaneous petitions are closed. No costs.
srm To
1. The District Collector, Thoothukudi District, Thoothukudi.
2. The Revenue Divisional Officer, Thoothukudi, Thoothukudi District.
3. The Assistant Director of Geology and Mining, Department of Geology and Mining, Thoothukudi District, Thoothukudi.