Madras High Court
S.Gnanasekaran vs The Government Of Tamil Nadu on 24 November, 2021
Author: C.V.Karthikeyan
Bench: M.Dhandapani, C.V.Karthikeyan
____________
W.P. No.32563/2019, etc. Batch
.IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
24.11.2021
& 23.12.2021
21.12.2021
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NO. 32563 OF 2019
W.P. NOS.5606, 5933, 5982, 5984, 5985, 5988, 6124, 6129,
6126, 6345, 6347, 6528, 6537, 6532, 6534, 6540, 6627, 6676,
6679, 6713, 6715, 6872, 6881, 6883, 6885, 6887, 6994, 7893,
8297, 8940, 9481, 9486, 9482, 9484 OF 2020 OF 2020
W.P. NOS. 11129, 11134, 25722, 25726, 25728 & 25731 OF 2021
W.P. NOS. 22525, 22537, 22538, 22532, 22534, 22528 & 22530 OF 2021
AND
W.M.P. NO. 32937 OF 2019
W.M.P. NOS. 6944, 9648, 6950, 7024 TO 7027, 7190, 7198, 7192,
7479, 7482, 7752, 7755, 7757, 7760, 7764, 7858, 7917, 7920, 7968,
7970, 7977, 8190, 8204, 8207, 8211, 8215, 8344, 9322, 9946, 10874,
11587, 11588, 11585, 11656, 11584 OF 2020
AND
W.M.P. NOS. 23761, 23755, 23762, 23757, 23746,
23751, 11770 & 11771 of 2021
W.P. NO. 25722 OF 2021
S.Gnanasekaran .. Petitioner
- Vs -
1. The Government of Tamil Nadu
rep. By its Secretary to Government
Industries Department, Fort St. George
Chennai 600 009.
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W.P. No.32563/2019, etc. Batch
2. The Director of Geology and Mining
Department of Geology & Mining
Guindy, Chennai 600 032.
3. The District Collector
Kancheepuram District, Kancheepuram.
4. The Asst./Deputy Director of
Geology & Mining, Dept. of Geology & Mining
Kancheepuram District, Kancheepuram. .. Respondents
W.P. No.25722 of 2021 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorari to call for the records relating to the
impugned memorandum of the 3rd respondent bearing Na.Ka. No.234/Q1/2021-6
dated 07.10.2021 demanding cost of mineral with reference to the stone quarry
in patta land bearing Survey Nos.292/1, etc., over an extent of 4.90.5 Hectares in
Vadamangalam Village, Sriperumbudur Taluk, Kancheepuram District and quash
the same.
For Petitioners : Mr. V.Sanjeevi in
WP Nos.25722/21, 5926, 5930, 5933,
5982, 5984, 5985, 5988, 6126, 6676,
6679, 6713, 6715, 8297 & 8940/20
22525, 22537, 22538, 22532, 22534,
22528 & 22530/2021
Mr.K.Ramakrishna Reddy in
WP Nos.5606, 6124, 6129, 6528, 6537,
6532, 6534, 6540, 6872, 6881, 6883,
6885, 6887 & 6994/20
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W.P. No.32563/2019, etc. Batch
Mr. S.Doraisamy in
WP Nos.6345 & 6347/20
Mr. T.Ramesh in WP 6627/2020
Mr. K.R.Krishnan in WP Nos.7893, 9481,
9486, 9482, 9484/20
Mr. S.Vasudevan in
WP Nos.11129 & 11134/21
Mr. S.Sathish in WP 32563/2019
For Respondents : Mr. B.Vijay, AGP
Mr. K.Srinivasamurthy, for R-3 in
WP Nos.6124, 6582/20 & 11129/21
COMMON ORDER
Environment is the backbone and the lifeline of not only the human race, but also equally to all other living beings on this planet earth. The sustenance of the living beings, including the human race, is very much dependent on the maintenance of the environment around us and the Creator of the Universe has endowed the human race with very many priceless necessities, which gives life and sustenance to the human race. However, with scant regard to safeguarding the environment, unscrupulous elements try to erode the environment of its wealth for their individual benefit, thereby, the erosion of environment leads to pollution. The pollution, in turn, creates climate change, which affects the livelihood of the human race. The catastrophic effect of environmental erosion results in global warming, which alters the climate and affects the very existence 3/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch of human race, thereby, a holocaust is cast over the human race. The rich minerals in the Indian terrain are badly affected by the alarming rate of unrestricted mining and damage to the ecosystem and spells disaster to the conservation of not only the human race, but also other living forms.
2. It is oft quoted that human race must make earth a better place to live. But in utter deference to the above, environment is degraded to such an extent that the more intelligent and intellectual minds are gazing above to find a better place for the human folk to live, beyond earth. When the Creator had ordained on the human folk a place, which is rich in all necessities and wealth for a healthy, peaceful and happy living of the masses, man, of his own making, is not only eroding the wealth for his individual benefit, but also making earth a difficult place to live. In fact, in course of time, earth would become a place, which is totally inhabitable, as the erosion of environmental wealth would be a catastrophe which would result in wiping off the human race from planet earth.
3. The intelligent and intellectual minds, without embarking upon protecting the environment, which has been given to mankind by the Creator for 4/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch a happy living, looks beyond the confines of the safer place to the outer parts of the Universe to find a place, which could accommodate the human race and which would have all the necessities, which mankind requires.
4. Parliament, in its wisdom, has enacted many laws for the upkeep of the environment and safeguarding it and the Judiciary, as the protector of the life and liberty of the living beings, time and again, exercising its power, vested upon it by the various laws and also the Constitution, steps in to set right the wrong by its innumerable judgments, which are pronounced, keeping in mind the public interest and the welfare of the collective masses.
5. However, individuals, for their personal benefit, with scant regard to either the laws or the regulations and without adhering to the law laid down by the Courts, time and again, flout the directions and indulge in utter destruction of the environment. Though stringent laws and penal consequences are envisaged under various laws, yet, the loopholes in the said laws are taken aid of by the unscrupulous elements to fulfill their thirst. The vision of the Creator for a healthy, peaceful and happy living for one and all on planet earth is diminishing 5/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch day by day. The act of the human folk in eroding the environmental wealth for individual's benefit is spelling doomsday to the human race and the day is not far when the human race would be left in lurch without anything to eat, drink and sustain themselves leading to total anarchy.
6. In the backdrop of the above ill-effects in which the human race is counting its time on earth, amidst the environmental degradation, a curious question has fallen before this Court in the present batch of writ petitions, which is of seminal importance.
7. In a batch of petitions, a learned single Judge of this Court, C.V.Karthikeyan,J., relating to the mining activities allegedly said to be carried on by the petitioners therein, without following Rule 41 and 42 of the Minor Minerals (Development & Regulations) Act, (for short 'MMDRA Act'), on merits, dismissed the prayer of the petitioners therein holding that non-issuance of notice to the petitioners cannot be said to be violation of principles of natural justice and directed the petitioners to pay the penalty amount, as demanded by 6/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch the respondents along with costs, in tune with the directions of the Hon'ble Supreme Court in Deepak Kumar's case and Common Cause case.
8. While a similar batch of petitions came up before G.R.Swaminathan, J., at the Madurai Bench, the learned Judge, entertaining a doubt with regard to the non-compliance of principles of natural justice in levying penalty as no notice was issued prior to the levy, entertained a doubt about the legality of the said order passed by C.V.Karthikeyan, J., and, therefore, had referred the matter to be placed before the Hon'ble Chief Justice for constituting a Larger Bench to dispel his doubts with regard to the necessity to comply the principles of natural justice in the facts of the case. However, no question of reference has been framed therein by the learned Judge.
9. Against the order passed upholding the levy of penalty, writ appeals have been filed by the petitioners therein, but no interim orders have been passed in the said writ appeals. In view of the doubt raised in the other batch of petitions, the matters have been directed to be tagged along with the writ 7/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch appeal. In the aftermath of the aforesaid position, the present writ petitions, which raise the same question has been listed before this Court.
10. Two sets of writ petitions on two different dates, were listed before this Court. In the first set of writ petitions, the mining was in respect of minor minerals, whereas in the second set of writ petitions, the mining was in respect of major minerals and the extent of the mining lease in both the sets of writ petitions are below 5 hectares. Since, both the batch of writ petitions have been filed on the same footing, questioning the legality of the impugned order passed against the respective petitioners contending in one voice that there is violation of principles of natural justice as no notice was issued to them before passing the impugned orders, they are taken up together and a common and comprehensive order is passed.
11. Learned counsel appearing for the petitioners submitted that in view of the fact that certain doubts have been raised by another learned Judge to the order upholding levy of penalty, this Court, as a matter of judicial discipline, should refer the matter to the Larger Bench for laying down the proposition of 8/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch law on which doubt has been raised and this Court may not be justified in siding along with the view levying penalty. Very many decisions on the manner in which this Court has to deal with the matter where a reference has been made has been placed before this Court, which are as under :-
“i) Mahadeolal Kanodia – Vs – The Administrator General of W.B. (AIR 1960 SC 936);
ii) Sundardas Kanyalal Bhathija & Ors – Vs – The Collector, Thane, Maharashtra & Ors. (AIR 1991 SC 1893);
iii) State of Tripura – Vs – Tripura Bar Association & Ors. (1998 (5) SCC 637)
iv) Sub-Inspector Rooplal & Anr. - Vs – Lt.Governor through Chief Secretary, Delhi & Ors. (2000 (1) SCC 644);
v) Rajasthan Public Service Commission & Anr. - Vs – Harish Kumar Purohit & Ors. (2003 (5) SCC 480);
vi) The State of Tamil Nadu & Anr. - Vs – A.Kalaimani & Ors. (AIR 2019 SC 3906); and
vii) S.Kasi – Vs – State (2020 (4) CTC 587)”
12. Per contra, learned Addl. Government Pleader appearing for the respondents submitted that the view propounded by the learned Judge upholding the levy of penalty is a precedent, and the said judgment is binding on the Court and the doubt raised by the learned Judge is a mere reference to a 9/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch Larger Bench, which could not be considered to be a precedent, which binds this Court and, therefore, this Court, if it deems fit and proper, on appreciation of the findings recorded by the learned Judge upholding the levy of penalty, in view of the binding nature of the said order, may pass an order similar to the one passed upholding levy of penalty. In support of his submissions, learned Addl. Government Pleader appearing for the respondents relied on the following decisions with regard to the scope of this Court to deal with the matter when a precedent and a reference are there :-
“i) Harbhajan Singh & Anr. - Vs – State of Punjab & Anr. (2009 (13) SCC 608);
ii) M.S.Bhati – Vs – National Insurance Co. Ltd. (2019 (12) SCC 248); and
iii) Ahamed Hossain Sk. - Vs – State of West Bengal & Ors.
(2001 SCC OnLine Cal 341)”
13. This Court, before adverting to the submissions advanced on either side with regard to the propriety of this Court to proceed further with the matter, would like to cull out a few facts, for better appreciation of the contentions placed before this Court.
10/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
14. The petitioners in the first set of petitions, are holders of lease for mining minor minerals and the lease period differs between each of the petitioners and the lease pertain to different districts in the State of Tamil Nadu for mining minor minerals. Almost all the mining lease are due to end in the year 2017 or thereabouts. During the subsistence of the lease, in a matter relating to preservation of environment and the need to maintain ecology, the Hon'ble Supreme Court, in the case of Deepak Kumar & Ors. - Vs – State of Haryana (I.A. Nos.12-13/2011 – SLP (C) 729-731/2011, etc. - Dated – 27.02.2012), considering the large scale illegal and rampant mining operation carried out by lease holders, without scant regard to the ecological impact and environmental degradation had passed direction that even in respect of leases of minor minerals including renewal for an area of less than five hectares, the State/Union Territories were to grant lease only after getting environmental clearance from the Ministry of Environment and Forest.
15. Pursuant to the said order in Deepak Kumar's case (supra), the Ministry of Environment & Forests, vide their letter dated 18.5.2012 directed the State Environment Impact Assessment Authorities to comply with the orders of the 11/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch Hon'ble Supreme Court and in continuation of the said communication, the State Government, vide G.O. Ms. No.79, Industries (MMC.1) Dept., dated 6.4.2015 amendment was made to Rules 41 and 42 of the Tamil Nadu Minor Mineral Concession Rules, 1959. Vide Rule 41, while mining plan was made mandatory, vide Rule 42 (iii), environment clearance was made mandatory for grant of quarry lease for minor minerals, which should be accompanied along with a mining plan mandated under rule 41 and for existing leases, the lessees were to obtain environmental clearance and submit the same.
16. Initially, under sub-rule (iii) of Rule 42, a period of 180 days was granted to the existing leaseholders to obtain environment clearance, which was periodically extended by requisite amendment to Rule 42 (iii) and finally it stood extended to 630 days.
17. In the meantime, the Hon'ble Supreme Court in the case of Common Cause – Vs – Union of India (W.P. (Civil) No.114/2014 – Dated - 02.08.2017), considered the ecological imbalance that has been created throughout the length and breadth of the country and the detrimental effects that it has on the overall 12/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch environment and in particular the destruction that is being caused to mankind and also the other living species in the globe, had issued a slew of directions, which included a direction that in the event of the environmental clearance not having been submitted by the lessee pursuant to the direction in Deepak Kumar's case (supra), the State Governments were directed to collect 100% penalty from the respective lessees for their failure to obtain environmental clearance certificate and also for the lifting of the minerals, which were deemed to be illegal in the absence of any environmental clearance being submitted by the respective lessees.
18. In the interregnum, pursuant to the order in Deepak Kumar's case (supra), the State Governments not having enforced the directions issued in the said decision in letter and spirit and that the directions being diluted by one amendment or the other to the respective rules giving a lifeline to the lessees to continue their ravaging of the environment by lifting of minerals, the Ministry of Environment & Forests stepped in and issued Official Memorandum dated 03.04.2017 directing strict enforcement of the directions given in the aforesaid decision and any infraction of the guidelines should be visited with penalty. 13/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
19. On the heels of the said direction of the Central Government, the freeze came to Rule 42 (iii) freezing the time limit for obtaining environment clearance to 630 days and non-submission of the requisite environmental clearance was to be visited with penalty.
20. Pursuant to the above, the writ petitioners, who were the lessees of different extent of lands, but below 5 hectares, for whom quarrying licence was granted prior to the decision in Deepak Kumar's case (supra), the non-submission of environmental clearance within the period stipulated in Rule 42 (iii) necessitated the issuance of the impugned notices in and by which the quantification was made with regard to the penalty for the lifting of the minerals by prescribing a cut-off date of 15.1.16, the date on which the Ministry of Environment & Forests had issued the notification. No notice was given to the petitioners prior to the issuance of the impugned notice quantifying the penalty for the period 15.1.2016 to 10.01.2017 and aggrieved by the same, the present writ petitions have been filed.
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21. In the second batch of writ petitions, which pertain to mining of major minerals, quarrying licence was granted prior to the decision in Deepak Kumar's case (supra), and pursuant to the decision in Deepak Kumar's case, the petitioners had filed application for environmental clearance before the Environment Impact Assessment Authority (for short 'EIAA'), which has been returned back to the petitioners on the ground that EIAA is not competent to issue the licence. Thereafter, the petitioners have moved before the Tamil Nadu Pollution Control Board and obtained environmental clearance. However, the said clearance was not accepted in view of the official memorandum of the Ministry of Environment & Forest, dated 15.1.2016 and, therefore, the petitioners were asked to submit environmental clearance within the period stipulated in Rule 42 (iii). Pursuant thereto, though the petitioners had submitted application for environmental clearance, but no environmental clearance have been obtained by them till the date of issuance of the impugned orders. Complaining that they have complied with filing application, but requisite environmental clearance was not granted and that without appreciating the same, the levy of penalty has been passed on the petitioners, without any notice, 15/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch levying penalty for the period 15.1.2016 to 10.01.2017, the second set of writ petitions have been filed.
22. In the above backdrop of the factual position relating to mining of minor minerals, orders came to be passed by my learned Brother, C.V.Karthikeyan, J., and the learned Judge had held that since the impugned notices were the off-shoot of the directions of the Hon'ble Supreme Court in Common Cause case (supra), the necessity for compliance with principles of natural justice by issuing notice would not be required, as the directions were to be complied with in letter and spirit and no opportunity of hearing was required to be given to the individual lessees, who had contravened the provision of Rule 42 (iii), as the order passed by the Hon'ble Supreme Court is binding on all the courts and that the decrees and orders passed by the Supreme Court is enforceable throughout the territory of India in view of the powers envisaged under Articles 141 and 142 of the Constitution. Therefore, the learned Judge held that issuance of notice, if any, would be nothing but an empty formality and no purpose would be served in issuing the said notice in view of the binding nature of the order passed by the Hon'ble Supreme Court. The learned Judge 16/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch further observed that the petitioners therein, having not complied with Rule 42
(iii) to submit the relevant environment clearance within the stipulated time, the quarrying operations done by the petitioners is without lawful authority and, therefore, the penalty levied on the basis of the order passed by the Hon'ble Supreme Court is just and reasonable.
23. However, as stated above, in the other batch of petitions relating to mining of minor minerals, which arose at Madurai Bench, G.R.Swaminathan, J., held that before the expiry of the period of 630 days mandated u/r 42 (iii), the quarrying operations done by the lessees cannot be said to be without lawful authority. Learned Judge further went on to hold that the theory of empty formality can be pressed into service only when hearing the affected party would not have made any difference, as no prejudice would be caused then to the affected party. Learned Judge has further opined that the sums demanded are strongly disputed by the petitioners as the sums demanded from them represent the price of minerals, while Section 21 (5) of the MMDR Act speaks only of 'price'. The learned Judge has held that according to the petitioners, the cost of minerals notified for the purpose of Rule 7 cannot be the price for the purpose of Section 17/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch 21 (5) of the MMDR Act. In the abovesaid scenario, a doubt was entertained by , G.R.Swaminathan, J., as to whether the order of C.V.Karthikeyan, J., holding that non-issuance of notice is in no way a violation of principles of natural justice and to dispel the said doubt entertained by G.R.Swaminathan, J., the matter was directed to be placed before a Larger Bench.
24. In the aforesaid backdrop, the above contentions have been addressed before this Court by the learned counsel appearing on either side. While the learned counsel for the petitioners submit that in view of the reference made to the Larger Bench by G.R.Swaminathan, J., doubting the view expressed by Justice C.V.Karthikeyan, J., these matters should also be referred to the Larger Bench; however the said contention is controverted by the learned Addl. Government Pleader appearing for the respondents by contending that judicial discipline warrants that when there is an order passed by a coordinate Bench, so long as the said order holds the field, this Court is bound to follow the precedent, which binds this Court and concur with the view expressed by the coordinate Bench, and this Court shall not refer the matter to the Larger Bench on the mere ground that one other learned Judge has referred the matter to the Larger Bench to have 18/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch his doubts dispelled unless the Court feels that there is doubt on a substantive question of law, which requires to be settled by the Larger Bench.
25. It is also the contention of the learned counsel for the petitioners that the order passed by G.R.Swaminathan, J., is strictly not a reference to a Larger Bench with questions for decision, but it is a reference simpliciter to be placed before the Hon'ble Chief Justice to be heard by a Larger Bench. In this regard, learned counsel for the petitioners drew the attention of this Court to power available to the learned single Judge under the Madras High Court Writ Rules, 2021 and the earlier Madras High Court Writ Rules, wherein in Rule 17 (2) of the 2021 Rules, the learned single Judge may, at any time, refer a matter for bearing and determination by a larger Bench having regard to the importance and complexity of the case.
26. In the above scenario, this Court has to first look into the legal position as regards judicial discipline with regard to an order, which is a binding precedent, to be followed by this Court while a doubt with reference to the law on the same issue is pending consideration before a Larger Bench. 19/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
27. In M.S.Bhati – Vs – National Insurance Company Ltd. (2019 (12) SCC
248), the Hon'ble Supreme Court, with regard to the precedential status of binding precedent when it stands referred to a Larger Bench for reconsideration, reiterated the proposition of law that the binding nature of the precedent remains unaltered until the reference is decided. In this context, it was held thus:-
“10. The learned counsel further submitted on the alternative plea that the decision in Mukund Dewangan has been reserved for reconsideration by a larger Bench in Bajaj Alliance General Insurance Co. td. v. Rambha Devi by a two-Judge Bench of this Court on 3.5.2018.
11. The law which has been laid down by a three-Judge Bench of this Court in Mukund Dewangan binds this Court.
As a matter of judicial discipline, we are duty-bound to follow that decision which continues to hold the field.”
28. Reliance has been placed on the Full Bench decision of the Calcutta High Court in Ahamed Hossain Sk. - Vs – State of West Bengal & Ors. (2001 SCC OnLine Cal 341), wherein the Calcutta High Court has dealt with in extenso the necessity for following judicial precedents and the power of the learned single 20/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch Judge to refer a matter directly to a Larger Bench irrespective of the fact that a binding precedent of a Division Bench has been brought to his notice. In the aforesaid context, it has been held thus :-
“34. The principles that emerge from the decisions, cited supra, are that the decisions of the Supreme Court are binding on all the Courts, Article 141 of the Constitution embodies the rule of precedent. A Special Bench/ Full Bench judgment of that High Court is binding on the question of law decided by it and despite the same if any Division Bench holds to the contrary then a Division Bench has the authority to differ with the Division Bench which has taken a view contrary to the Special Bench judgment. A single judge of a High Court is bound by the judgment of another single Judge and a fortiori judgments of Benches consisting of more judges than one. So also, a Division Bench of two judges of High Court is bound by judgments of another Division Bench of two Judges and Full Bench. A single Judge or Benches of High Courts cannot differ from the earlier judgments of co- ordinate jurisdiction merely because they hold a different view. When a Division Bench of two Judges differs from the judgment of another Division Bench of two Judges, it has to refer the case to a Full Bench. A single Judge cannot differ from a decision of a larger Bench except when that decision or a judgment relied upon in that decision is specifically overruled by a Full Bench or the Supreme Court. However, if 21/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch the decision of the larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the single Judge would be to refer the mailer to the Division Bench.“
29. In the aforesaid Full Bench decision of the Calcutta High Court, the proposition of law that has been laid down is that a coordinate Bench is bound by the judgment of another coordinate Bench, be it a single Judge or a Division Bench and in case of an affirmative decision by the Division Bench on a particular legal proposition, the single Judge is bound to accept the view and cannot differ from the same and refer it to a Larger Bench. The said decision is applicable only to the extent of a single Judge accepting the view of a coordinate Bench of equivalent composition and not to refer the matter to a Larger Bench, when a decision of a Division Bench is available. However, that is not the case before this Court.
30. In the case on hand, a view given by one of the learned single Judge has been doubted by another learned single Judge, which has been referred for an affirmative pronouncement to a Larger Bench. However, the order passed by 22/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch the learned single Judge, viz., C.V.Karthikeyan, J., still holds the field and it is neither set aside nor stayed by a Division Bench. That being the admitted position, merely because a doubt has arisen in the mind of another learned single Judge of this Court on the proposition of law laid down, the same would not act as a bar for this Court to desist from taking up the case.
31. The pivotal doubt, which G.R.Swaminathan, J., wanted to be dispelled by the Larger Bench for which reference has been made, though not by means of a question of law, is that principles of natural justice, which requires affording of an opportunity before any adverse order can be passed against any person, not being followed by the respondents, and which having prejudiced the petitioners, would not the order passed by C.V.Karthikeyan, J., be termed to be erroneous.
32. For arriving at the said doubt, the learned Judge had reasoned out as under :-
“12.The Hon'ble Supreme Court in Deepak Kumar directed the States to frame necessary rules under Section 15 of MMDR Act, 1957. Such rules came to be issued by the State of Tamil Nadu with effect from 06.04.2015. But Rule 42 (iii) of Tamil Nadu Minor Mineral Concession Rules, 1959 specifically 23/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch states that the holders of existing licenses will have to submit the environmental clearance within 630 days from the date of the commencement of the Rules. Thus, prima facie it appears to me that till the expiry of the period of 630 days, the quarrying operations cannot be said to be without lawful authority.
13.Section 21(5) of the MMDR Act, 1957 empowers recovery of the price of the unauthorizedly quarried mineral if it had been disposed of. The Hon'ble Apex Court in Common Cause mandates that this provision should be invoked. The learned Additional Advocate General states that the respondents have merely carried out this mandate and nothing else. She would further contend that there was no need to issue show cause notice. She also pointed out that the sums demanded were arrived at based on the prices already notified by the department under Rule 7 of the Tamil Nadu Minor Mineral Concession Rules, 1959. She argued that affording a hearing to the petitioners would have been a useless formality because that could have made no difference. If that could be clearly demonstrated, it might be a good answer. But I have my own misgivings. It is true that Section 21(5) of the Act does not contemplate issuance of prior notice. But then, Courts are obliged to read the requirement of observing the principles of natural justice into statutory provisions unless they have been specifically excluded [vide (2014) 13 SCC 506, Swami Devi Dayal 24/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch Hospital & Dental College vs. Union of India]. The theory of useless formality can be pressed into service only when hearing the affected party would not have made any difference. If there is no prejudice, then the formality of issuing notice can be dispensed with. In this case, the petitioners strongly dispute that the sums demanded from them represent the price of the minerals. Section 21(5) of the Act speaks of “price”. According to the petitioners, the cost of minerals notified for the purpose of Rule 7 cannot be the price for the purpose of Section 21(5) of the Act.
14. In my tentative view, the petitioners have shown that they have been prejudiced by not being afforded the opportunity of hearing. This is because they claim that they can place materials before the authority that the price which the minerals fetched is not what has been attributed by the respondents. More than anything else, Rule 42 (iv) states that if the existing holders fail to submit the environmental clearance within the stipulated period, it shall be cancelled after giving an opportunity of personal hearing. When the Rule contemplates such an opportunity for cancellation, there is no reason to exclude the application of the principles of natural justice for recovering the price of minerals under Section 21(5) of the Act. That apart, any action having civil consequences must be preceded by issuance of notice. In fact, in Common Cause judgment itself, principles of natural justice 25/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch were followed in letter and spirit by the Hon'ble Supreme Court.
15. The notification dated 15.01.2016 did not direct the lease holders to desist from operating the leases if they have not obtained EC. Such a direction came to be issued only on 15.04.2017. The Common Cause judgment came in August, 2017. Rule 42 also did not bar the lessees from continuing their operations during the period of 630 days from the commencement of the rules. What amazes me is the conduct of the State Government. Deepak Kumar judgment which came on 27.02.2012 prohibited grant of quarry leases after the said date unless EC was obtained. I must record here that the Government of Tamil Nadu did issue quarry licenses even after this date to the applicants who did not have EC. In my view, such issuing of licenses constituted contempt of the order passed by the Hon'ble Supreme Court. During the period in question, for the existing lease holders, the respondents issued permits for transportation. The respondents collected seigniorage fees. Having done so, the respondents have now turned the tables and characterize the actions of the petitioners as without lawful authority.” 26/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
33. The above doubt expressed by G.R.Swaminathan, J., stems from the observations and findings rendered by C.V.Karthikeyan, J., wherein the learned Judge had rendered the findings on the following reasoning :-
“192.The said arguments are rejected. Article 141 of the Constitution of India is as follows:-
“141. Law declared by Supreme Court to be binding on all courts:-
The law declared by the Supreme Court shall be binding on all courts within the territory of India”
193.Article 142 of the Constitution of India is as follows:-
“142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc:-
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any 27/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”
194.The law declared by the Hon'ble Supreme Court is binding on all Courts within the territory of India. The Madras High Court is a Court within the territory of India. It is unfortunate that this aspect has to be reminded to the learned counsels for the petitioners. Further, when the Hon'ble Supreme Court, in exercise of its jurisdiction, passes orders for doing complete justice in any cause, they shall be enforceable throughout the territory of India.
195.I very emphatically state that the judgment in Common Cause (referred supra) is directly binding on each and every one of the writ petitioners herein. It is directly binding on each and every one of the respondents herein. It is directly binding on each and every one of the learned counsels who entered appearance on behalf of the petitioners herein. It is directly binding on the learned Additional Advocate General, Special Government Pleader, Additional Government Pleader, Government Advocate and each and every one of the other counsels, who entered appearance on behalf of the respondents herein. It is directly binding on this Court.
212.The learned counsel for the petitioners then put forth a further argument in one voice that the impugned notice suffers from violation of principles of natural justice. I hold that the principles of natural justice cannot be extended for 28/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch complying with the directions of the Hon'ble Supreme Court of India. Articles 141 and 142 of the Constitution of India have been extracted above. It is clear that any order passed by the Hon'ble Supreme Court is binding on every person. The date, when the Hon'ble Supreme Court directed that Environment Clearance is a pre-requisite for grant of extension of lease even for mining of lands of less than 5 hectares is the date when the petitioners were bound to get Environment Clearance. They do not require any further notice. The date, on which, Common Cause (referred supra), was pronounced and the Hon'ble Supreme Court had held that if mining activities are continued without obtaining Environment Clearance, then 100% compensation is leviable, then from that date onwards, the liability of the petitioners had arisen and they need not be put on any further notice. The law declared by the Hon'ble Supreme Court is binding on all Courts of the country. Further, issuing a show cause notice would only be an empty formality. The petitioners if at all they want to reply to any show cause notice, can only question the rationals of the Supreme Court Judgment. They cannot do so. They are bound by the judgment.
34. From the above, what transpires is that the whole fabric of the difference between the two Hon'ble Judges arise on account of the interpretation 29/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch that is given to the terminology “principles of natural justice”. Further, what are the circumstances in which it could be said that principles of natural justice is violated and the necessity to issue a notice could be said to be mandatory as without such notice, a grave prejudice would be caused to the party against whom the said order is passed.
35. Natural Justice is an important concept in administrative law. Natural justice is an expression of English common law, which involves a procedural requirement of fairness. It is an important concept in administrative law. In the words of Justice Krishna Iyer “Natural justice is a pervasive fact of secular law where a spiritual touch enlivens legislation, legislation and adjudication to make fairness a creed of life. It has many colour and shades, many forms and shapes. It is no doubt, a procedural requirement but it ensures a strong safeguard against any Judicial or administrative order or action, adversely affecting the substantive rights of the i.ndividuals”.
36. Natural justice has an impressive history which has been recognized from the earliest times. The Greeks had accepted the principle that ‘no man 30/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch should be condemned unheard’. It was first applied in ‘Garden of Eden’ where opportunity to be heard was given to Adam and then providing him punishment. Some of the evidences of natural justice is also found in Roman law. Principle of natural justice has also been found in the Kautilya’s Arthsastra, Manusmriti and different text. Aristotle, before the era of Christ, spoke of such principles calling it as universal law. In India the principle is prevalent from the ancient times. We find it invoked in Kautilya's Arthashastra. In this context, para 43 of the judgment of the Hon'ble Supreme Court In the case of Mohinder Singh Gill – Vs - Chief Election Commissioner (1978 (1) SCC 405) , may be usefully quoted:
“Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed from the legendary days of Adam-and of Kautilya's Arthashastra-the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not newfangled. Today its application must be sustained by current legislation, case law or 31/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system."
37. In Swadeshi Cotton Mills -Vs - Union of India (AIR 1981 SC 818), it was observed that natural justice is a branch of public law and is a formidable weapon which can be wielded to secure justice to the citizen. Also in Canara Bank – Vs – V.K. Awasthi (2005 (6) SCC 321) the Supreme Court observed that principles of natural justice are those rules which have been laid down by courts as being the minimum protectiof the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi–judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice
38. From the above, it is clear that principles of natural justice are those rules which have been laid down by the courts as being minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. Therefore, only where an arbitrary procedure is being 32/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch adopted, to safeguard the rights of the individual, the invocation of principles of natural justice should be resorted to.
39. From the ratio laid down by the Hon'ble Supreme Court in matters relating to principles of natural justice, it is abundantly clear that where there is a likelihood of infringement of the rights of individual due to certain adverse orders that is likely to be passed, the administrative authority is duty bound to issue a notice of hearing to the concerned person and after due hearing pass orders.
40. Is really the petitioners prejudiced for want of notice, which has infringed their rights, thereby, there is violation of principles of natural justice, as observed by G.R.Swaminathan, J., and if the answer to the said question is in the affirmative, then this Court is duty bound to refer the matter to a Larger Bench siding with G.R.Swaminathan, J. However, in the alternative, if this Court is of the opinion that the rights of the petitioners have not been infringed by the act of the respondents, then in view of the order passed by C.V.Karthikeyan, J., which holds the field till date and is a binding on this Court, this Court as a matter of judicial 33/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch discipline has to go along with the order passed by the coordinate Bench of C.V.Karthikeyan, J.
41. To arrive at whether any prejudice has been caused to the petitioners for want of notice, this Court has to advert to the findings recorded by C.V.Karthikeyan, J.
42. The sum and substance of the argument of the petitioners before C.V.Karthikeyan, J., was that the petitioners therein were provided with 630 days for obtaining the environment clearance as per Rule 42 (iii) and till such time, any mining operation is perfectly legal as they are under no obligation to provide environment clearance.
43. The learned Judge had rejected those arguments on the ground that Rules 41 and 42 were introduced by G.O. Ms. No.79, Industries (MMC-1) Dept., dated 6.4.2015 and published in the Tamil Nadu Government Gazette on 22.4.2015. Once the rules are published in the Gazette, the time started ticking for the petitioners to take steps to obtain clearance. In this regard, it would be 34/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch apt to refer to Rule 42, which pertains to environment clearance and for better appreciation, the same is extracted hereunder :-
“42. Submission of environment clearance for the grant of quarry lease for minor minerals including granite :-
“(i) The approved mining plan shall be forwarded to the applicant for obtaining environment clearance from the State Level Environment Impact Assessment Authority or the Ministry of Environment and Forests, as the case may be.
(ii) On submission of approved mining plan and environment clearance from the said authorities, the Government or the District Collector, as the case may be, shall grant the quarry lease.
(iii) Where quarrying operations for minor minerals including granites have been undertaken before the commencement of these rules without environment clearance, such holder of minor mineral including granite leases shall submit the environment clearance, such holder of minor mineral including granite leases shall submit the environment clearance within one hundred and eighty days from the date of commencement of these rules.
(iv) When the existing holders of minor mineral leases including granite failed to submit the environment clearance within the stipulated period, the District Collector or the Government, as the case may be shall cancel the lease after giving an opportunity of personal hearing.” 35/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch (Emphasis Supplied)
44. The abovesaid Rule 42 was inserted into the Tamil Nadu Minor Mineral Concession Rules on account of the orders passed by the Hon'ble Supreme Court in Deepak Kumar's case (supra). Initially, 180 days was granted for obtaining the environment clearance, which has been periodically extended and finally, it stood at 630 days, by virtue of the amendment made vide G.O. Ms. No.105, Industries (MMC-1) Dept., dated 14th July, 2016.
45. On the heels of the aforesaid amendment, in view of non-compliance of the directions issued by the Hon'ble Supreme Court in Deepak Kumar's case (supra), the Ministry of Environment, Forests & Climate Change, Impact Assessment Division, Government of India, issued Letter No.Z-11013/24/2017-IA-
II (M) dated 3.4.2017 whereby categorical direction was issued to the States to comply with the said order in Deepak Kumar's case (supra) and that no mining lease shall operate without prior EC and all such mines (including less than 5 Hectares) which were in operation before 15.01.2016 are required to stop their mining activity and apply for environmental clearance to the competent authority 36/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch at the requisite level and that it was further mandated therein that the mining leases which continue to operate without obtaining environmental clearance after 15.01.2016 shall be considered as violation and the same shall be dealt with in accordance with the violation policy under the Environmental Impact Assessment Notification, 2006.
46. Further, to the said letter, M.P. No.260/2017 in O.A. No.123/2014 was filed by the State of Tamil Nadu seeking extension of time for implementation of the directions before the Tribunal, which extension was negatived by the Tribunal vide order dated 18.4.2017.
47. Thereafter, came the order of the Hon'ble Supreme Court in Common Cause case (supra) in and by which the Hon'ble Supreme Court had categorically held the necessity for holding an environmental clearance by the lessees irrespective of the extent of land, in effect, approving the decision in Deepak Kumar's case (supra). A few of the observations/findings of the Hon'ble Supreme Court, which have a crucial bearing on the issue of environmental clearance, are quoted below :-
37/76
https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch “107. It was submitted on behalf of the mining lease holders that possibility of getting an ex post facto EC was a signal to the mining lease holders that obtaining an EC was not mandatory or that if it was not obtained, the default was retrospectively condonable. We do not agree. We have referred to various provisions of the MMDR Act and the rules framed thereunder to indicate the statutory importance given to the protection and preservation of the environment. This was also emphasized in M.C.Mehta in which it was also stated that “It does not appear that MOEF intended to legalise the commencement or continuance of mining activity without compliance of stipulations of the notification.” It appears to us that the MoEF has, in a sense, cajoling the mining lease holders to comply with the law and EIA 1994 rather than use the stick. That the mining lease holders chose to misconstrue the soft implementation as a licence to not abide by the requirements of the law is unfortunate and was an act of omission or commission by them at their own peril. We cannot attribute insensitivity to the MoEF or even to the mining lease holders to environment protection and preservation, but at the same time we cannot overlook the obligation of everyone to abide by the law. That the MoEF took a soft approach cannot be an escapist excuse for non- compliance with the law or EIA 1994.
* * * * * * * 38/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
116. We have already held that a mining plan is subordinate to the EC and in M.C.Mehta it was held by this Court that having an approved mining plan does not imply that a mining lease holder can commence mining operations. That being so, a modified mining plan without a revised or amended EC, is of no consequence. What the contention of learned counsel suggests to us is that under the shield of a modified mining plan, illegal or unlawful mining in the form of mining without an EC, mining by over-reaching EIA 1994 and EIA 2006 was being carried out.”
48. Pursuant to the order passed by the Hon'ble Supreme Court in Common Cause case (supra), the MoEFCC , vide its office memorandum dated 30.5.2018, issued directions for considering of mining proposals involving violation of EIA Notification, 2006, which was followed by the letter No.1375/LC/2016 dated 18.6.2019 of the Director of Geology and Mining in which direction was issued to collect 100% cost of minerals, where there is violation relating to submission of environment clearance. The abovesaid letter had prompted the issuance of the present impugned orders levying penalty of 100% upon the petitioners herein and other lessees similarly placed for non- 39/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch compliance of the orders of the Hon'ble Supreme Court relating to environment clearance.
49. As pointed out above, the pivotal contention of the petitioners is that Rule 42 (iii) provides for 630 days period to submit environment clearance and before the expiry of the time period, the lease period of the petitioners have come to a close and in the absence of renewal of the lease, the petitioners cannot be imposed with penalty as the mining activity carried on by them was neither unlawful nor illegal. It is the further submission of the petitioners that even if non-submission of environment clearance necessitates action, the said action could only be in consonance with Rule 42 (iv), wherein, cancellation of licence after affording an opportunity of personal hearing is provided. However, in the case on hand, there arose no occasion for cancellation of the lease, as the lease period was already over and if the respondents are to take any action over and above 42 (iv), opportunity of personal hearing is sine qua non to the adherence of principles of natural justice and absence of notice is a glaring violation of principles of natural justice and, therefore, the impugned orders deserve to be set aside.
40/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
50. Levy of penalty is assailed on the ground that no notice was issued and, therefore, there is violation of principles of natural justice, which makes the levied penalty unsustainable. To appreciate the above contention, it is but necessary to advert to the facts relating to the lease and the application submitted for mining plan and environmental clearance by the respective petitioners.
51. The writ petitions can be broadly brought under the following four heads:-
Details culled out from the petitions Writ Petition Nos.
i) Mining Plan Obtained 11129, 11134, 25722, 25726,
ii) EC Application Submitted 25728, 25731/2021
iii) EC not obtained
i) Mining Plan claimed to be Obtained 5606, 6124, 6129, 6528, 6532,
ii) No EC Application Submitted 6534, 6537, 6540, 6872, 6881, 6883, 6885, 6887, 6994/2020
i) Mining Plan not obtained 5926, 5933, 5982, 5984, 5985,
ii) No EC Application Submitted 5988, 6126, 6345, 6347, 6627, 6676, 6679, 6713, 6714, 6715, 7893, 8297, 8940, 9481, 9482, 9484, 9486/2020 32563/2019
i) Mining Plan not obtained 22525, 22537, 22538, 22532,
ii) EC Application Submitted 22534, 22528 & 22530/2021 41/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
52. The four sets of writ petitions clearly reveal that none of the petitioners have obtained the mandatory environment clearance. But the stand taken by the petitioners is that they have been provided with 630 days to obtain the environmental clearance and, therefore, the activity of mining during the interregnum period cannot be said to be illegal or unlawful mining.
53. The petitioners are taking umbrage under Rule 42 (iii), which prescribes a period of 630 days to obtain environmental clearance and until the said period, the mining activity carried on by the petitioner cannot be held to be unlawful or illegal and that no penalty can be levied on the petitioners for not obtaining and submitting the environmental clearance.
54. Rule 42 (iii) has already been extracted above. A careful perusal of Rule 42 (iii) reveals that the lessees were granted time, initially by 180 days, which was extended upto 630 days and within the said period of 630 days, the lessees were to submit the environmental clearance. The word used in the Rule is “within”. The word “within” used in the said rule signifies that no period 42/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch further than 630 days would be granted for getting the environmental clearance. The petitioners in some of the writ petitions, as shown in the above tabulated statement, claim that they have submitted application for environmental clearance. But a perusal of the typed set of papers of the individual writ petition reveals that on the submission of the application for environmental clearance, the Environment Impact Assessment Authority (for short 'EIAA') had called upon the petitioners to provide certain additional documents. However, the typed set of the petitioners are silent as to the production of the said documents before the EIAA. It is to be pointed out that mere submission of an application for environmental clearance would not suffice to say that the petitioners have fulfilled the mandate u/r 42 (iii) and it is for the EIAA to issue the environmental clearance. The petitioners are duty bound to submit the requisite documents for EIAA to take a decision about grant of environmental clearance.
55. Be that as it may. In some of the other petitions, as shown in the tabulated statement above, though a stray remark has been made that mining plan has been approved, yet there is no material to show the possession of an approved mining plan by the petitioners. Further, the petitioners in the said 43/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch petitions have not submitted any application seeking environmental clearance. Further worse is the other set of writ petitions in which neither a mining plan has been approved nor application for environmental clearance has been submitted. Yet the petitioners have come before the Court to claim that they have been granted 630 days time to obtain environmental clearance.
56. In this regard, the order of the Hon'ble Supreme Court in Common Cause case (supra) has clearly laid down the ratio that mining plan is subordinate to EC and mere approval of a mining plan does not imply that a mining lease holder can commence mining operations. Equally, the above ratio gets extended to the existing lessees to mean that the mere approval of a mining plan does not imply that a mining lease holder can go ahead with the mining operations in view of the existing lease in the absence of environmental clearance.
57. It is to be pointed out that the period of 180 days, initially provided under Rule 42 (iii), was only to give a breathing time to the existing lessees to submit necessary mining plan and obtain approval and with that proceed for getting environmental clearance. However, for reasons best known, the time 44/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch period has been extended four times from 180 to 250, then from 250 to 390, then from 390 to 450 and finally from 450 to 630 days for the existing lessees to obtain environmental clearance. The amendment to Rule 42 (iii) was initially made on 6.4.15 and the period stood extended four times till the issuance of the Government Order on 14.7.16 when the period was extended upto 630 days. For most of the lessees, the period of lease stood expired by 2017. Therefore, for all purposes, the extension of time granted upto 630 days, could only be concluded to be for the purpose of making the lease expire or safeguarding the interests of the existing lessees, thereby making mockery of the order passed by the Hon'ble Supreme Court in Deepak Kumar case (supra), which has since been approved in Common Cause case (supra).
58. Pausing here for a moment. The petitioners heavily stress that no notice was issued prior to the levy of penalty, which is in stark violation of principles of natural justice and, therefore, on that ground these petitions need to be allowed. In aid of their submissions, the petitioners rely on the reasonings given in the reference made by G.R.Swaminathan, J.
45/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
59. However, the respondents rely on the findings recorded by Justice C.V.Karthikeyan, J., and submits that the said order is a binding precedent and therein, the learned Judge had clearly held that there is no violation of principles of natural justice and, therefore, the same needs to be followed.
60. The reference has been made by the learned Judge on the following premise :-
12.The Hon'ble Supreme Court in Deepak Kumar directed the States to frame necessary rules under Section 15 of MMDR Act, 1957. Such rules came to be issued by the State of Tamil Nadu with effect from 06.04.2015. But Rule 42 (iii) of Tamil Nadu Minor Mineral Concession Rules, 1959 specifically states that the holders of existing licenses will have to submit the environmental clearance within 630 days from the date of the commencement of the Rules. Thus, prima facie it appears to me that till the expiry of the period of 630 days, the quarrying operations cannot be said to be without lawful authority.
* * * * * * *
14. In my tentative view, the petitioners have shown that they have been prejudiced by not being afforded the opportunity of hearing. This is because they claim that they can place materials before the authority that the price which 46/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch the minerals fetched is not what has been attributed by the respondents. More than anything else, Rule 42 (iv) states that if the existing holders fail to submit the environmental clearance within the stipulated period, it shall be cancelled after giving an opportunity of personal hearing. When the Rule contemplates such an opportunity for cancellation, there is no reason to exclude the application of the principles of natural justice for recovering the price of minerals under Section 21(5) of the Act. That apart, any action having civil consequences must be preceded by issuance of notice. In fact, in Common Cause judgment itself, principles of natural justice were followed in letter and spirit by the Hon'ble Supreme Court.
15. The notification dated 15.01.2016 did not direct the lease holders to desist from operating the leases if they have not obtained EC. Such a direction came to be issued only on 15.04.2017. The Common Cause judgment came in August, 2017. Rule 42 also did not bar the lessees from continuing their operations during the period of 630 days from the commencement of the rules. What amazes me is the conduct of the State Government. Deepak Kumar judgment which came on 27.02.2012 prohibited grant of quarry leases after the said date unless EC was obtained. I must record here that the Government of Tamil Nadu did issue quarry licenses even after this date to the applicants who did not have EC. In my view, such issuing of licenses constituted contempt of the 47/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch order passed by the Hon'ble Supreme Court. During the period in question, for the existing lease holders, the respondents issued permits for transportation. The respondents collected seigniorage fees. Having done so, the respondents have now turned the tables and characterize the actions of the petitioners as without lawful authority.” (Emphasis Supplied)
61. The fact which weighed more in the mind of the learned Judge to make the reference was the fact that there was no clause desisting the lessees from carrying on the mining operation and there was no bar envisaged under the rules prohibiting the lessees from carrying on the mining activities. Furthermore, the learned Judge had gone on to hold that the act of the State Government in not prohibiting the lessees from carrying on the mining operation, but issued permits to transport the mined minerals amounted to contempt of the orders passed by the Hon'ble Supreme Court. The learned Judge, on his own accord, has recorded a finding that complying with the directions of the Hon'ble Supreme Court is just and necessary and non-compliance of the same would amount to contempt. Only in the said backdrop, later in point of time, the penalty came to be imposed 48/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch by the respondents in view of the orders of the Hon'ble Supreme Court in Common Cause case (supra).
62. On the one hand, the learned Judge says that the non-issuance of notice is violation of principles of natural justice and on the other hand says that the non-compliance with the directions of the Supreme Court would be an act of contempt. Giving a notice and, thereafter, implementing the orders of the Hon'ble Supreme Court by levying penalty, would it not be an exercise in futility insofar as the petitioners are concerned, as the issuance of notice would be an empty formality.
63. In this context, it is but necessary to look at the reason for the learned Judge, C.V.Karthikeyan, J., to pass an order holding that the impugned orders are sustainable. The relevant portion of the order is quoted hereunder :-
“212.The learned counsel for the petitioners then put forth a further argument in one voice that the impugned notice suffers from violation of principles of natural justice. I hold that the principles of natural justice cannot be extended for complying with the directions of the Hon'ble Supreme Court of India. Articles 141 and 142 of the Constitution of India have 49/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch been extracted above. It is clear that any order passed by the Hon'ble Supreme Court is binding on every person. The date, when the Hon'ble Supreme Court directed that Environment Clearance is a pre-requisite for grant of extension of lease even for mining of lands of less than 5 hectares is the date when the petitioners were bound to get Environment Clearance. They do not require any further notice. The date, on which, Common Cause (referred supra), was pronounced and the Hon'ble Supreme Court had held that if mining activities are continued without obtaining Environment Clearance, then 100% compensation is leviable, then from that date onwards, the liability of the petitioners had arisen and they need not be put on any further notice. The law declared by the Hon'ble Supreme Court is binding on all Courts of the country. Further, issuing a show cause notice would only be an empty formality. The petitioners if at all they want to reply to any show cause notice, can only question the rationals of the Supreme Court Judgment. They cannot do so. They are bound by the judgment.” (Emphasis Supplied)
64. The learned Judge has held that the law declared by the Hon'ble Supreme is binding on all the parties and to this end, the learned Judge has relied on Article 142 of the Constitution of India, which has made enforcement of 50/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch decrees of the Supreme Court enforceable. The learned Judge has went on to hold that once the Hon'ble Supreme Court has passed an order, it is not only binding on the all the Courts, but also the citizens and it is enforceable and such being the position, the Hon'ble Supreme Court having held that those who have not given environment clearance should be levied penalty at 100%, the impugned order does not suffer the vice of principles of natural justice.
65. In the aforesaid backdrop, what requires to be highlighted here is the fact that environmental clearance was made mandatory by the decision in Deepak Kumar's case (supra), which necessitated amendment to Rule 42. The said decision in Deepak Kumar's case (supra) came way back in the year 2012 and the said decision mandated that mining, which was carried out in the lands, which was less than 5 hectares, the lessees should obtain environmental clearance. No quarrel was made with regard to the said decision by any of the lessees, who are the petitioners herein and they were continuing mining operations gleefully due to the inclusion of Rule 42 (iii) which was amended four times to suit the convenience of the petitioners. Between 2015 and 2016, sub- rule (iii) to Rule 42 was amended four times.
51/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
66. Inspite of issuance of notification in the Gazette on 15.1.2016, the State Government filed application before the National Green Tribunal for extension of time, which was negatived by the Tribunal vide order dated 18.4.2017. However, it is to be pointed out that none of the lessees, who were holding mining licence had either approached the Hon'ble Supreme Court or the National Green Tribunal either assailing the orders mandating environmental clearance or seeking extension of time to submit the environmental clearance. In the period between 15.1.2016 and 18.4.2017, there was no interim directions in favour of the petitioners as the decision of the Hon'ble Supreme Court in Deepak Kumar's case (supra) held the field. Therefore, even on the said date, the petitioners were well aware of the necessity to obtain and submit environment clearance as by then, as sub rule (iii) to Rule 42 was amended vide G.O. Ms. No.79, Industries (MMC-1) Department, dated 6.4.2015, which had mandated 180 days period for obtaining the environment clearance.
67. True it is that the period was periodically extended for reasons best known to the petitioners as also the respondents, but the petitioners cannot 52/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch feign ignorance of the said amendment. In fact, once the amendment was made to sub rules )ii) and (iii) to Rule 42, the petitioners were bound to obtain mining plan approval and environment clearance, within a period of 180 days. Therefore, necessity warranted filing of application for mining plan approval and for getting the environment clearance within the 180 days period prescribed initially under sub rule (iii) to Rule 42. As pointed out above, except for few of the petitioners, viz., four in number, who had applied for environmental clearance, none of the other petitioners have applied for mining plan approval and environmental clearance as could be seen from the typed set of papers.
68. The petitioners in the first set of petitions, if really their intentions were bona fide, ought to have applied for mining plan approval and environmental clearance immediately on the issuance of G.O. Ms. No.79 on 6.4.2015. But as pointed out above, majority of the petitioners had scant regard for the said Government Order and did not lift their toe to apply for the aforesaid clearances.
53/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
69. In the second set of writ petitions, except for the fact that initially the petitioners had filed application before EIAA for environmental clearance and on its rejection, had obtained environmental clearance from the Tamil Nadu Pollution Control Board and after the issuance of the official memorandum by MoEF on 15.1.2016, the petitioners had applied to EIAA for environmental clearance. However, no material whatsoever is placed before this Court to convince the Court that the petitioners were scrupulously following up the issue with EIAA relating to issuance of environmental clearance. It is not that the petitioners can contend themselves by filing an application before the EIAA for environmental clearance and keep silent without pursuing the same. It is for the petitioners, in their interest, to obtain environmental clearance and file the same before the concerned authority to continue the mining operations. However, content with applying for environmental clearance, the petitioners kept silent and have not pursued the same till the expiry of their lease period, on which date, they packed their baggage and left off. However, before the said pack off, the decision in Deepak Kumar's case (supra) had been passed by the Hon'ble Supreme Court and, thereafter, the Supreme Court had also passed an order in Common Cause case (supra) directing levy of penalty. The official memorandum 54/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch of MoEF had come as a shocker to the petitioners, which has resulted in the levy of penalty.
70. It is also to be pointed out that inspite of the directions of the Hon'ble Supreme Court in Deepak Kumar's case (supra), the State Government was frequently extending the time for obtaining environmental clearance and a careful perusal of the record reveals that most of the licences were to expire by the end of 2017. Therefore, it could safely be concluded that only for the purpose of benefitting the petitioners and to safeguard them from the rigour of obtaining environmental clearance, the time period was extended. When a direction has been issued by the Hon'ble Supreme Court in Deepak Kumar's case (supra), it was the duty of the State Government as also the lessees, if really they are law abiding citizens, to honour the decision of the Hon'ble Supreme Court. Even if there was any difficulty for the petitioners to comply with the said directions in Deepak Kumar's case (supra), the proper course open to the petitioners was to have approached the Supreme Court by filing necessary review petitions, as third party petitioners, which they did not do. But the petitioners merely kept silent and carried on their acts of mining. Having mined the minerals 55/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch till the expiry of their lease period and packed their baggage, the Supreme Court order in Common Cause case (supra) had hit the nail on the head of the State Government to collect penalty, which the State Government had to honour in view of Article 142 of the Constitution.
71. Be that as it may. One other important fact, which is clear from the typed set is that the National Green Tribunal, had, vide its order dated 4.5.2016, given categorical direction that such of the mine owners, who have not submitted applications as on 31st March, 2016 to SEIAA, DEIAA and DEAC shall be shut down forthwith and will not be permitted to carry on any mining activity in any manner whatsoever. However, no material, either on behalf of the petitioners or on behalf of the respondents are available before this Court to show that in the absence of such environmental clearance, the mining activities were stopped.
72. However, the State Government even pursuant to the said order of the Green Tribunal, by notification dated 13.5.2016, had once again extended the time from 390 days to 450 days by amending sub rule (iii) to Rule 42. In effect, the order of the Green Tribunal was diluted. Therefore, from the above 56/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch sequence of events, the petitioners, who held mining leases were well aware of the necessity to obtain environmental clearance, but seldom respected the various orders passed by the Hon'ble Supreme Court as well as the National Green Tribunal and were carrying on rampant mining till the expiry of their lease period. Once their lease period came to a close, by which time, the 630 days period mandated u/r 42 (iii) was also nearing, the petitioners had packed baggage and wound up their fort. The order of the Hon'ble Supreme Court in Common Cause case (supra), which came on 2.08.2017, mandated levy of penalty on all illegal mining activities, which necessitated issuance of the impugned orders levying penalty.
73. In this regard, as already held, it is to be pointed out that the time given u/r 42 (iii) is for the purpose of the lessees taking steps to obtain environmental clearance and it is not for the purpose of enabling the lessees to keep silent till their lease period gets over and wind up the mining activity and, make a mockery of the orders of the Supreme Court by claiming that they should be put on notice before passing any order adverse to their interest. When the lessees were all along aware of the necessity to obtain environmental clearance 57/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch in respect of the lease which were subsisting and with which they were undertaking mining activity, a duty is cast on the lessees to take appropriate steps to obtain the environmental clearance. But the lessees have not only taken steps to obtain the environmental clearance as mandated in the order passed by the Hon'ble Supreme Court and the National Green Tribunal, but had clandestinely taken all necessary steps to get the order defeated by getting the time period specified u/r 42 (iii) extended upto a period of 630 days, by which time, the lease period of most of the lessees came to a close. In effect, the successive amendments to sub-rule (iii) to Rule 42 had paved the way for the petitioners to thwart the lawful orders passed by the Courts, more especially the Hon'ble Supreme Court in Deepak Kumar's case (supra), which order is an enforceable order binding on all the citizens in the country by virtue of Article 142 of the Constitution.
74. Though the respondents had, time and again amended sub rule (iii) to Rule 42 for the benefit of the existing lessees, however, the petitioners, also being party to acts, which are in total derogation of the Apex Court directions and had knowledge of the necessity to obtain environment clearance, the claim for 58/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch immunity by the petitioners asserting that notice has to be mandatorily issued before levying any penalty, even in respect of an enforceable order of the Hon'ble Supreme Court, is nothing but a calculated attempt on the part of the petitioners to once again defeat the enforceable orders of the Hon'ble Supreme Court in Common Cause case (supra) by claiming violation of principles of natural justice.
75. In Aligarh Muslim University & Ors. - Vs – Mansoor Ali Khan (2000 (7) SCC 529), the Supreme Court had occasion to consider the following question :-
“Whether in the facts of the case, Mr. Mansoor Ali Khan can invoke the principle of natural justice and whether it is a case where, even if notice had been given, the result would not have been different and whether it could be said that no prejudice was caused to him if on the admitted or proved facts, grant of an opportunity would not have made any difference?”
76. In the context of the above question, the Hon'ble Supreme Court answered the same in the following manner :-
As pointed recently in M.C. Mehta Vs. Union of India (1999 (6) SCC 237), there can be certain situations in which an order passed in violation of natural justice need not be set aside under 59/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary.
Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao vs. Government of Andhra Pradesh [1966 (2) SCR 172 = AIR 1966 SC 828], it is not necessary to quash the order merely because of violation of principles of natural justice.
In M.C.Mehta it was pointed out that at one time, it was held in Ridge vs. Baldwin ( 1964 AC 40) that breach of principles of natural justice was in itself treated as prejudice and that no other 'defacto' prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor Vs. Jagmohan ( 1980 (4) SCC
379), Chinnappa Reddy, J. followed Ridge vs. Baldwin and set aside the order of supercession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer.
Chinnappa Reddy, J. in S.L.Kapoor's case, laid two exceptions (at p.395) namely, " if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not 60/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.” (Emphasis Supplied)
77. In the case on hand, the whole crux of the reference pertains to violation of principles of natural justice, in that, non-issuance of notice before levying penalty has been considered to be a violation. To this end, G.R.Swaminathan, J., has relied upon Section 21 (5) of MMDR Act which speaks about recovery of price for unauthorized quarrying. The word “price”, which is found in Section 21 (5), according to the learned Judge, is assailed by the petitioners that it cannot be the price, which is notified under Rule 7 as the price prescribed under Rule 7 cannot be the price meant u/s 21 (5).
78. First of all, it has to be stated that the levy of penalty, which is impugned herein, is on the basis of the directions of the Hon'ble Supreme Court in Common Cause case (supra). If at all, the petitioners have any grievance relating to the word price, which is prescribed u/r 7 and Section 21 (5), the course 61/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch that should have be taken by the petitioners is to assail the same before the Hon'ble Supreme Court by impleading themselves in the Common Cause case by filing necessary petition and contending before the Apex Court as to the interpretation of the word price in Section 21 (5) and Rule 7. The petitioners cannot go before the respondents and contend that the word price found in Section 21 (5) cannot be interpreted to be the price found in Rule 7. It is not for the respondents to give interpretation to the word price found in Rule 7 and Section 21 (5). Contending that the word price in Section 21 (5) and Rule 7 are different cannot be the basis to claim the levy imposed by the respondents is bad as no notice has been given.
79. Even if notice is given, the computation of levy of penalty would be made by the respondents only in the manner in which they interpret the word price and if the petitioners were really concerned, the course open to them was to file review petition or implead petition before the Hon'ble Supreme Court in Common Cause case and to have sought for necessary clarification as to how the levy of penalty is to be computed. However, without going before the Hon'ble Supreme Court, coming before this Court and claiming that there is violation of 62/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch principles of natural justice as no notice was issued to them is nothing but an attempt on the part of the petitioners to protract the proceedings.
80. The Hon'ble Supreme Court in Aligarh Muslim University case (supra) further went on to speak about the “useless formality theory” and in that context held as under :-
“The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi Vs. State Bank of India ( 1984(1) SCC 43), Sabyasachi Mukherji, J. ( as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed: quoting Wade Administrative Law, (5th Ed.PP.472-475) as follows:
31) "....it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent ....There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with and so forth".
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other 63/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch rulings taking the same view have been exhaustively referred to in State Bank of Patiala Vs. S.K. Sharma ( 1996(3) SCC 364). In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh Vs. State of M.P. ( 1996(5) SCC 460).
The 'useless formality' theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above, - there has been considerable debate of the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, De. Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.” (Emphasis Supplied) 64/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
81. The Hon'ble Supreme Court, expounding the reasons on the “useless formality theory” has postulated that there are divergent views with regard to the said theory and that the applicability of the said theory should ultimately depend on the facts of a particular case.
82. In the case on hand, the facts and sequence of events, as detailed above, clearly paint the picture that the petitioners had not taken any steps to satisfy Rule 42 (iii) since its amendment on 6.4.2015. Inspite of grant of several opportunities by extending the time period for compliance of Rule 42 (iii), the petitioners have all along kept silent and allowed the time to dilute itself, by which time their lease period came to an end. Thereby, the petitioners not only evaded compliance of Rule 42 (iii), but also evaded cancellation of their lease as per Rule 42 (iv). The respondents also, without enforcing sub rule (iv) to Rule 42, had been repeatedly amending sub rule (iii) to Rule 42 for reasons which does not require any elaboration. Having not complied with the mandate of the Hon'ble Supreme Court as also Rule 42 (iii), yet the petitioners have the temerity to come before this Court and claim that the respondents have not complied with the principles of natural justice by issuing necessary notice. 65/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
83. As pointed out above, the respondents are duty bound to comply with the directions issued by the Hon'ble Supreme Court and, in fact, for the benefit of the petitioners and other persons similarly placed, the State had gone to the extent of extending the time four times and even sought for extension of time before the National Green Tribunal, which was negatived, though the petitioners did not take any steps with regard to reviewing the order passed by the Hon'ble Supreme Court and the National Green Tribunal. Therefore, left with no alternative and having invited the official memorandum of the Ministry of Environment and Forests on the directions of the Hon'ble Supreme Court in Common Cause case (supra), the State Government had acted upon at the nth hour, in the year 2019, to levy the penalty as any infraction would have resulted in commission of contempt of the orders of the Hon'ble Supreme Court resulting in initiating of proceedings.
84. As pointed out above, even if notice had been issued, no purpose would have served, as the State was duty bound to comply with the orders of the Hon'ble Supreme Court, as pointed out by C.V.Karthikeyan, J., and if at all any 66/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch grievance is expressed by the petitioners, the choice open to the petitioners was to have approached the Hon'ble Supreme Court for necessary clarification/directions and mere issuance of notice by the respondents for the purpose of compliance of principles of natural justice would not in any way further the cause of the petitioners as such notice would be an empty formality only for the purpose of enabling the petitioners to drag on the issue, as at the end of the day, the respondents had to comply with the orders of the Hon'ble Supreme Court in Common Cause case (supra).
85. As laid down by Chinnappa Reddy, J., in S.L.Kapoor's case, "if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply”, would squarely stand attracted to the case on hand, as the facts in the present case are admitted and indisputable and, therefore, mere issuance of notice before levying the penalty would in no way alter the situation in which the petitioners are presently placed.
67/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch
86. One of the other contentions raised by the petitioners is with regard to the reference made by G.R.Swaminathan, J., to a Larger Bench. It is the contention of the petitioners that Rule 17 (2) of the Madras High Court Writ Rules, 2021, provides that the single Judge can refer a matter for determination by a Larger Bench and, therefore, without framing any question of law, the matter can be referred and in the present case, it is only a request by the learned Judge, which is a reference simpliciter and not a reference on a question of law framed.
87. For sake of better clarity, Rule 17 (2) on which reliance has been placed by the petitioners, is quoted hereunder :-
“17 (2) All other petitions shall be heard by a Single Judge. Provided that the Single Judge before whom a petition is posted for hearing may at any time refer it for hearing and determination by a Larger Bench having regard to the importance or complexity of the case.”
88. It is to be placed on record that though an order, on merits, has been passed by C.V.Karthikeyan, J., yet, entertaining a doubt, in the other batch of petitions, G.R.Swaminathan, J., has referred the matter to be placed before a 68/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch Larger Bench. Though the petitioners, in the written submission has submitted that it is not a reference simpliciter, but it is only a request to dispel the doubt, the petitions have been directed to be placed before the Larger Bench. Whatever name the reference may be called, but it is to be pointed out that once a reference is made, be it a reference through a question of law framed or a request to clarify some doubt, it is basically on a question on which the reference is made. Therefore, under the garb of technicality, the petitioners cannot contend that it is not a reference and it is only a request. Be it a reference or request, it is a matter of record that there is a precedent in the form of the order passed by C.V.Karthikeyan, J.
89. As already stated above, the doubt, which is to be dispelled, has not been formulated as a question of law, for being answered by the Larger Bench. Further, it has to be pointed out that though C.V.Karthikeyan, J., has stated in his order the reasons for dismissing the writ petitions, which, though not extensive, but crisp on the point, however, except for the the doubt that has been raised on the question of principles of natural justice, G.R.Swaminathan, J., has not recorded his finding on individual aspects of the case for not accepting the view 69/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch expressed by C.V.Karthikeyan, J., point-wise, which is a necessity in case a referral is made to a Larger Bench. It is not the case of the petitioners that there are two different contra orders on merits by two different Hon'ble Judges. Only when there are contra orders by two different Hon'ble Judges, then this Court, as a matter of judicial discipline, is bound to refer the matter to a Larger Bench. However, mere entertainment of a doubt by one of the learned Judge would not preclude this Court from hearing the matter when there is a binding precedent in the form of an order passed by another learned Judge. There being no interim orders relating to the order passed by C.V.Karthikeyan, J., and the order still holding the field, unless this Court has the same doubt, it is not necessary to refer the matter to a Larger Bench, so long as this Court is in agreement with the findings and view expressed by C.V.Karthikeyan, J.
90. In the backdrop of the factual position, above, this Court is of the considered view that the above aspects have been gone into in detail by C.V.Karthikeyan, J., and the learned Judge had come to the conclusion that the non-issuance of notice would in no way be termed to be violation of principles of natural justice and this Court, for the reasons recorded by it, as aforesaid, is in 70/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch agreement with the view expressed by C.V.Karthikeyan, J. In view of the above, this Court is of the view that the order passed by C.V.Karthikeyan, J., being a binding precedent, this Court has to necessarily accept the said view, as even on an independent application of mind, this Court has expressed its view that non- issuance of notice in the present case could not be termed to be in violation of principles of natural justice and, therefore, no reference is required to be made in this regard by following the reference made by G.R.Swaminathan, J. In doing so, this Court is not also in any manner breaching judicial discipline, which has been time and again pointed out by the Hon'ble Supreme Court, more recently in its recent decision in M.S.Bhati's case (supra).
91. For the reasons aforesaid, all the writ petitions fail and, accordingly, the same is dismissed. Consequently, connected miscellaneous petitions are closed. However, in the circumstances of the case, there shall be no order as to costs.
92. Before parting with the case, it is to be pointed out that even in the reference, G.R.Swaminathan, J., has made the following observation :- 71/76
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15. The notification dated 15.01.2016 did not direct the lease holders to desist from operating the leases if they have not obtained EC. Such a direction came to be issued only on 15.04.2017. The Common Cause judgment came in August, 2017. Rule 42 also did not bar the lessees from continuing their operations during the period of 630 days from the commencement of the rules. What amazes me is the conduct of the State Government. Deepak Kumar judgment which came on 27.02.2012 prohibited grant of quarry leases after the said date unless EC was obtained. I must record here that the Government of Tamil Nadu did issue quarry licenses even after this date to the applicants who did not have EC. In my view, such issuing of licenses constituted contempt of the order passed by the Hon'ble Supreme Court. During the period in question, for the existing lease holders, the respondents issued permits for transportation.
The respondents collected seigniorage fees. Having done so, the respondents have now turned the tables and characterize the actions of the petitioners as without lawful authority.” (Emphasis Supplied)
93. From the above, it is clear that even the learned Judge, who had referred the matter to a Larger Bench, had lamented at the act of the Government in aiding the petitioners in continuing with their mining operation with scant regard to the environment inspite of the categorical orders passed by 72/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch the Hon'ble Supreme Court in Deepak Kumar's case and Common Cause case (supra). It is crystal clear from the facts enumerated by the learned Judge that without the connivance of the officials at the helm of affairs, the petitioners could not have mined the minerals, in utter disregard to the directions of the Hon'ble Supreme Court, as the officials had aided the petitioners by providing them transport permits and other requisite permits to mine the minerals and collecting seigniorage fees, thereby allowing the petitioners to degrade and deteriorate the environment for satisfying their needs. When the petitioners, for their act in causing deterioration of the environment, have been penalised with levy of penalty, the officials, who were equally responsible for allowing the petitioners to mine without submitting environmental clearance, should also be dealt with in an appropriate manner, which would be befitting the injury that they have caused to the environment and put in jeopardy the interest, safety and health of the public and, therefore, in the fitness of things and in the interest of justice, necessary action by way of departmental proceedings should be initiated on such of those officials, who, with scant regard to the environmental degradation, had allowed the petitioners to continue their reprehensible acts. No amount of cost imposed 73/76 https://www.mhc.tn.gov.in/judis ____________ W.P. No.32563/2019, etc. Batch on the petitioners would be a lesson to the erring officials, who have committed this unpardonable act.
94. In the above circumstances, this Court directs the 1st respondent to trace out the officials, who were responsible for issuing permits for transportation of the mined minerals by collecting seigniorage fees, inspite of the orders of the Hon'ble Supreme Court relating to mandatory submission of environmental clearance and initiate departmental action against the said officials and file report in this regard before this Court on 28.01.2022.
95. List the matter on 28.01.2022 for filing report by the respondents.
23.12.2021
Index : Yes
Internet : Yes
GLN
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To
1. The Secretary to Government
Industries Department
Government of Tamil Nadu
Fort St. George, Chennai 600 009.
2. The Director of Geology and Mining
Department of Geology & Mining
Guindy, Chennai 600 032.
3. The District Collector
Kancheepuram District, Kancheepuram.
4. The Asst./Deputy Director of
Geology & Mining, Dept. of Geology & Mining
Kancheepuram District, Kancheepuram.
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M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. NO. 32563 OF 2019, etc. Batch
Pronounced on
23.12.2021
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