Madras High Court
V.S.O.Balakrishnan vs The District Collector on 7 January, 2009
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:07-01-2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.26650 of 2005, W.P.(MD)Nos. 7324 and 7325 of 2006 and connected miscellaneous petitions. ..... V.S.O.Balakrishnan ... Petitioner in WP.26650/05 1.P.K.Selvaraj Proprietor M/s.Sri Lakshmi Exports No.1015, Trichy Main Road Melur Madurai District 625 106. 2.Duraipandi @ Periasamy Proprietor M/s.Meenakshi Granites No.5, Padnakata Shopping Complex Madurai Main Road Melur Madurai District. ..Petitioners in WP(MD).7324/06 C.Panneer Mohamad ..Petitioner in WP(MD).7325/06 vs. 1.The District Collector Thiruvallur District Thiruvallur. 2.The Assistant Director of Geology and Mining Thiruvallur District Thiruvallur. ..Respondents in WP.26650/05 The District Collector Madurai District Madurai. ..Respondent in WP(MD)Nos.7324 & 7325 of 2006. Writ petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari as stated therein. For petitioners : Mr.V.T.Gopalan,Sr.Counsel for Mr.K.Ramakrishna Reddy For respondent : Mr.S.Ramasamy,Addl.Advocate General assisted by Mrs.Lita Srinivasan and Ms.N.Kavitha, Government Advocates .. COMMON ORDER
In all these cases, by the respective orders, the District Collector directed the petitioners concerned to remit amounts levied towards the silica sand and granite blocks allegedly quarried from lease hold as well as non-leasehold areas with further direction that the non-compliance of the said direction would attract the proceedings under the Revenue Recovery Act to realise the above said amounts. Out of these writ petitions, W.P. (MD) Nos.7324 and 7325 of 2006 are relating to granite quarry at Madurai District, while W.P.No.26650 of 2005 relates to silica sand quarry at Gummidipoondi area.
2. The impugned orders proceeded on the basis that while the writ petitioner in W.P.No.26650 of 2005 was granted lease to quarry silica sand over an extent of 3.28.5 hectares in respect of survey Nos.84/2, 85 and 88 (patta lands) in Elavur village, Gummidipoondi taluk for a period of 20 years viz., 7.6.1997 to 6.6.2017, during the course of inspection it was found that the lessee indulged in illicit mining of silica sand in survey Nos.77/1A, 77/2, 77/3 and 77/4 of Elavur village, for which permission was not granted. In respect of the said writ petitioner, the total amount levied was Rs.17,98,300/-. In respect of petitioners in W.P.(MD) No.7324 of 2006, they are said to have made illicit quarrying of granite blocks measuring 720 cbm in S.F.No.525/6 of Thiruvathavur village, Melur taluk. Further, they alleged to have done illicit quarrying to an extent of 0.06.0 hectares to the depth of 6 metres in the above S.F.number in an unauthorised manner. It is based on that, a sum of Rs.2,84,04,000/- has been directed to be paid immediately.
3. Likewise, the writ petitioner in W.P.(MD) No.7325 of 2006 is alleged to have done illicit quarrying of granite blocks measuring 500 cbm in S.F.No.529/1 in Thiruvathavur village, Melur taluk and the said quarrying was done to the depth of 3 metres and he has been directed to pay an amount of Rs.1,97,25,000/-.
4. The writ petitioners in their respective affidavits have stated that they have strictly followed the terms of the agreements by which lease was granted and the provisions of the Tamil Nadu Minor Minerals Concession Rules, 1959. The writ petitioner in W.P.No.26650 of 2005 would state that he has studied upto VIII Standard only and he is not well versed in English. It is the case of the petitioner in W.P.No.26650 of 2005 that the officials have visited every week and after inspection of stock and quarrying operations, necessary permission was given for transporting quarried mineral and therefore, there is no illegality. As far as the reply to the show-cause notice issued by the District Collector dated 25.4.2005, it is the case of the writ petitioner in W.P.No.26650 of 2005 that at that time he was undergoing treatment, however, he has sent a reply through his representative to the District Collector explaining the actual reason. It is also his case that the reports of the officials were created without enquiry and behind his back. The second respondent in the said writ petition, viz., the Assistant Director of Geology and Mining is said to have obtained his signature giving an undertaking that the show-cause notice would be withdrawn and that was typed in English and believing the words of the second respondent, without knowing the contents of the letter, the petitioner has put his signature and all the reports have been prepared behind the back of the petitioner.
4(a). It is also his case that no notice of inspection was served on the petitioner by the officer when they have allegedly inspected. It is stated that during the entire period of six years and two months, he could quarry and transport 31950 Mts. or 2662 lorry loads with valid permits issued by the respondents, whereas false allegations have been made as if the petitioner has removed 1,50,157 Mts or 12540 lorry loads of silica sand. It is also stated that in similar circumstances, this Court has already held that levying of penalty by a report prepared behind the back of the party concerned is not admissible and is against the principles of natural justice. It is also the case of the petitioner that there is absolutely no evidence to show that the petitioner has in fact done the alleged illegal activity. Similar contentions have been raised by the petitioners in the other writ petitions also.
5. The District Collector concerned has filed counter affidavits in these writ petitions. It is the case of the said respondent in W.P.No.26650 of 2005 that the Assistant Director (Mines), Tiruvallur along with the Special Deputy Tahsildar (Mines) and the Assistant Grade Revenue Inspector (Mines) had visited the lands in S.Nos.84/2, 85 and 88 of Elavur village on 4.11.2004 to ascertain whether the petitioner has committed any violation. In the inspection report, the Assistant Director (Mines) has stated that the petitioner has committed violation by quarrying 74,000 cubic meters of silica sand over an extent of 29600 sq.ft. in the area leased out to him and illegally quarrying 11000 cubic meters of silica sand over an extent of 4400 sq.ft. in respect of S.Nos.77/1A, 77/2, 77/3 and 77/4 for which permission was not granted and as per Section 21(5)of the Tamil Nadu Mines and Minerals (Development and Regulation) Act, 1957, he has recommended for action to be taken against the petitioner. It was thereafter, a notice was issued to the petitioner to appear for a personal enquiry with sufficient records but the petitioner did not turn up and another opportunity was given to the petitioner to appear on 28.2.2005. Subsequently a show-cause notice was issued to the petitioner on 25.4.2005 with direction to submit his explanation. The first respondent states that the petitioner sent a reply on 7.6.2005 which was not convincing and therefore, the petitioner was directed to pay a sum of Rs.17,98,300/- for his illegal activities.
5(a). It is the case of the first respondent that the discharge slips issued have not been returned and therefore, it is not correct to state that the petitioner has not quarried for a particular period. It is stated that lorry owners of Senkundram village have complained that mud lorry owners were illegally quarrying sand from Tada, Soolurpet and Sunnambukulam villages, transporting and selling it in the name of silica sand. It was based on the said complaint, the Tahsildar, Gummidipoondi and the Revenue Divisional Officer, Ponneri were requested to inspect the quarry site and to report whether any violation has been committed. It was found on inspection that there was violation committed by the petitioner in making illegal quarrying. It is also stated that against the order of the District Collector, there is an appeal remedy available and without exhausting the said remedy, the writ petition has been filed.
6. The District Collector, respondent in the other two writ petitions has also taken the same stand. It is the case of the respondent, District Collector that in case of surprise inspection, there is no necessity to give prior notice. The District Collector relies upon an order passed by the Commissioner and Director of Geology and Mining dated 29.5.2006 while disposing of an appeal in respect of illicit quarrying of sand in Keelamathur village, Madurai South taluk wherein it is observed that in such cases, authorities are not expected to give prior information as it would amount to giving an opportunity to the offender to erase the material evidence. Further, it is the case of the respondent, District Collector that show cause notice has been given to the petitioner and that itself is an opportunity for the petitioner to prove his innocence. It is also stated that the area where the illegal quarrying was detected is contiguous to the area which was leased out to the petitioner. According to the respondent, the petitioner has not left the safety distance as per condition No.18 of the lease agreement. It is also stated that no third party can enter into the place without the consent and permission of the petitioner. It is also stated that for the purpose of quarrying heavy machinery was employed and there was no possibility for the petitioner to allow any person to operate such heavy machinery without his concurrence.
7. Mr.V.T.Gopalan, learned senior counsel appearing for the petitioners would submit that in hierarchy of orders, this Court in respect of imposition of penalty for illegal mining, has held that the Collector should conduct proper enquiry and give personal hearing by examining witnesses who had seen the petitioner removing the sand from the land other than the land in respect of which lease or licence was granted.
8. In respect of the writ petitioner in W.P.No.26650 of 2005, it is his submission that the letter said to have been given by the petitioner dated 7.6.2005 was typed in English while the petitioner has studied upto 8th Standard only and in any event, according to the learned senior counsel, there is no admission of any mistake and therefore, the impugned order which proceeds as if the petitioner has admitted the illicit quarrying has no meaning. He would submit that unless and until the materials are placed to prove that the concerned lessee has committed illicit quarrying, there is no question of imposition of any penalty. In fact, it is his submission that when the complaint of the petitioner was that the second respondent has instigated the petitioner to give such a letter, the second respondent has not filed any counter affidavit denying the said averment. He would submit that if the averment is not denied by the person against whom it is made or the denial is vague, the averment is deemed to have been accepted and in support of his submission, he would rely upon the judgements of the Supreme Court in Mintu Bhakta vs. The State of West Bengal ( 1973 (4) SCC 85 ); Manohar vs. State of Karnataka and others ( 1995 Supl.(4) SCC 218 ); and H.S.S.K.Niyami vs. Union of India ( 1990 (4) SCC 516 ).
8(a). He would also submit that here, in all these cases, show cause notices issued by the Collector were predetermined and even by the time when the show-cause notices were issued, decision had already been taken by the authorities as if the petitioners have committed illicit quarrying and therefore, the show-cause notices cannot be the basis for the impugned orders. He would rely upon the judgement in Siemens Ltd., vs. State of Maharashtra and others ( 2007 (1) CTC (SC) 844 ). It is his further submission that opportunity should have been given at the time of inspection or personal hearing should have been conducted in which the persons who have complained against the petitioners should have been examined. In the absence of such procedure, according to him, there is absolutely no enquiry conducted and the decision has been arrived at on surmises. He would also submit that in one case opportunity was given to all persons to assemble in a place by way of joint inspection and the same was considered to be not a proper opportunity.
9. Per contra, Mr.S.Ramasamy, learned Additional Advocate General submits that the judgements which are relied upon by the learned senior counsel for the petitioners are not applicable to the case on hand. According to him, they are all cases where no enquiry was conducted whereas in the present cases, authorities have conducted enquiry and opportunity to submit explanation was given. He would also submit that there is a provision of appeal under Rule 36-C of the Tamil Nadu Minor Mineral Concession Rules,1959 and without resorting to that, the writ petitions filed are not maintainable. It is his submission that even if illegal quarrying is done by third parties, nothing prevented the petitioners from informing the same to the authorities. To substantiate his contention that there is an adequate alternative and effective remedy available, he would rely upon the judgement of the Supreme Court in State of Himachal Pradesh and others vs. Gujarat Ambuja Cement Ltd., and another ( 2005 (6) SCC 499 ). He would also rely upon the judgement in State Bank of India vs. Allied Chemical Laboratories and another ( 2006 (9) SCC 252 ). He would submit that there is no lack of jurisdiction on the part of the authorities who have passed the impugned orders and in the light of the opportunity given to the petitioners, there is no violation of the principles of natural justice.
10. I have heard the learned senior counsel for the petitioners and the learned Additional Advocate General appearing for the respondents.
11. In all these cases, whether it is in respect of quarrying silica sand or in the case of granite, the complaint is that the petitioners concerned have illegally quarried the same from other survey numbers which are stated to be situate adjacent to the survey numbers in respect of which lease has been granted in favour of the petitioners. While it is true that the petitioners are strictly expected to quarry only from the survey numbers, extent and the quantity as per the terms of the agreement, there is no clause in the agreement contemplating the lessees to complain if any third party illegally quarrying in some other places the same has to be prevented. In fact, such condition, even if available, would not be binding on the petitioners since it is not for the petitioners to find out as to who are other outsiders illegally quarrying in other survey numbers, whether it is at their life risk or otherwise. But the question to be decided in all these cases here is as to whether there was any material placed to prove that the petitioners who are lessees have actually involved in the illegal quarrying.
12. This is relevant because what is contemplated under the impugned orders is penal liability and therefore it goes without saying that unless proper proof or materials are placed to the effect that the petitioners individually have been carrying on illicit quarrying, imposition of penal liability would certainly be impermissible in law. It is the admitted case of the respondents in all these cases that even before show-cause notices were given, surprise inspection had been done by responsible officials and based on their reports only, show-cause notices came to be issued. While it is stated in the counter affidavits filed in two cases that some Lorry Owners' Association complained about the illicit quarrying, admittedly, such persons have not been examined. A reference to the impugned orders make it clear that there was no personal hearing or any enquiry conducted in these cases. The show-cause notice which was issued based on inspection stated to have been conducted by responsible officials of the respondents actually is pre-determined that the petitioners were involved in illicit quarrying. It is not even the case of the respondents that copy of inspection report has been furnished to the petitioners while issuing the show-cause notice. Therefore, there are two patent errors in the decision making process, viz., show-cause notice has been issued not only with pre-determination, but also without furnishing copy of inspection report and secondly, the very impugned orders have been passed without conducting any enquiry in the manner known to law.
13. A reading of the impugned orders, especially the order impugned in W.P.No.26650 of 2005 shows that the procedure followed appears to be summary in nature, especially when such a serious matter is dealt with by the respondents. Merely because a letter is said to have been given by the petitioner in W.P.No.26650 of 2005 stating, "with reference to the above letter dated 25th April, 2005, I, V.S.O.Balakrishnan, was ailing from heart disease and operated for bye-pass surgery. So I am not aware of things going on in our mines. The mining operations are managed by the Mining Manager and the labourers. They are not aware of Survey Numbers and they are mining Silica sand from the neighbouring areas also by mistake. Now we find it our self and stopped all the mining peoples of our company,"
that itself would not absolve the respondents of the liability in conducting enquiry in a fair manner. In such view of the matter, when there is violation of the principles of natural justice, the availability of alternative remedy is not a bar for maintaining the writ petition.
14. In Harbanslal Sahnia v. Indian Oil Corpn. Ltd. ( 2003 (2) SCC 107 ), the Apex Court has held that alternative remedy is a rule of discretion and not one of compulsion. The Supreme Court has held as follows:
" 7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks.) The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings."
15. In Whirlpool Corporation. v. Registrar of Trade Marks ( 1998 (8) SCC 1 ), the Supreme Court has held that the existence of alternative statutory remedy is not a constitutional bar to the High Court's jurisdiction, but it is a self imposed restriction. The Supreme Court has again reiterated that in cases where fundamental rights are sought to be enforced or violation of the principles of natural justice was complained or the proceedings are wholly without jurisdiction, the writ petitions are maintainable.
" 14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for any other purpose.
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
16. In such view of the matter, applying the factual position which has been narrated above that there has been no proper enquiry conducted or no personal hearing was conducted or no materials were produced to show that the petitioners were involved in illicit quarrying, there is violation of the principles of natural justice, I am of the considered view that the contention of the learned Additional Advocate General that the availability of alternative remedy would exclude the writ jurisdiction is not sustainable.
17. In Siemens Ltd. v. State of Maharashtra ( 2007 (1) CTC 844 ), the Apex Court has held that when the show-cause notice is pre-motivated, the writ petition would be maintainable in the following words:
" 10. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U.P. v. Brahm Datt Sharma, Special Director v. Mohd. Ghulam Ghouse and Union of India v. Kunisetty Satyanarayana, but the question herein has to be considered from a different angle viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. (See K.I. Shephard v. Union of India.) It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter-affidavit as also in its purported show-cause notice."
18. In W.P.No.26650 of 2005, it is the case of the petitioner in the affidavit filed that the second respondent, viz., Assistant Director of Geology and Mining, Tiruvallur has asked the petitioner to admit the violation to enable withdrawal of show-cause notice and on that belief only, he signed the letter typed in English while he was unable to read and understand. The second respondent against whom such a specific allegation has been made by the petitioner in the affidavit has not chosen to file any counter affidavit and only the District Collector viz., the first respondent has made a bald denial in his counter affidavit.
19. In such view of the matter, it is not possible to accept the contention of the learned Additional Advocate General that the petitioner in the said writ petition has specifically admitted that he has involved in the illicit quarrying. If such an improper motive is alleged against an authority, it is the duty of that authority to place on record its version and denial as it was held by the constitution Bench of the Supreme Court in C.S. Rowjee v. State of Andhra Pradesh ( AIR 1964 SC 962 ). The relevant portion of the judgement is as follows:
" 20. It is, no doubt, true that allegations of mala fides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times. It is also somewhat unfortunate that allegations of this nature which have no foundation, in fact, are made in several of the cases which have come up before this and other courts and it is found that they have been made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not some of it at least might stick. Consequently it has become the duty of the Court to scrutinise these allegations with care so as to avoid being in any manner influenced by them, in cases where they have no foundation in fact. In this task which is thus cast on the courts it would conduce to a more satisfactory disposal and consideration of them, if those against whom allegations are made came forward to place before the court either their denials or their version of the matter, so that the Court may be in a position to judge as to whether the onus that lies upon those who make allegations of mala fides on the part of authorities of the status of those with which this appeal is concerned, have discharged their burden of proving it. In the absence of such affidavits or of materials placed before the Court by these authorities, the Court is left to judge of the veracity of the allegations merely on tests of probability with nothing more substantial by way of answer. This is precisely the situation in which we find ourselves in the present case."
20. The respondents being authorities who are performing statutory functions are certainly expected to follow the principles of natural justice and conduct enquiry in a proper manner. Even in the judgement relied upon by the learned Additional Advocate General in State of H.P. v. Gujarat Ambuja Cement Ltd., ( 2005 (6) SCC 499 ), the Hon'ble Supreme Court has held that in case of breach of principles of natural justice, the same should be treated as an extraordinary circumstance for exercising jurisdiction under Article 226 of the Constitution of India. The relevant portion of the judgement of the Supreme Court is as follows:
" 17. We shall first deal with the plea regarding alternative remedy as raised by the appellant State. Except for a period when Article 226 was amended by the Constitution (Forty-second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction.
18. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission; Sangram Singh v. Election Tribunal, Kotah; Union of India v. T.R. Varma; State of U.P. v. Mohd. Nooh and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted."
21. As correctly pointed out by the learned senior counsel for the petitioners, in W.P.Nos.2066 to 2071 of 1998 (Gandhimathi & others vs. The State of Tamil Nadu, rep. by its Secretary to Govt., Industries Dept., Secretariat, Chennai-9 and others) by judgement dated 17.10.2003, E.Padmanabhan,J. in similar circumstances, has held as follows:
"It is not as if the petitioners have been caught red-handed while committing theft of mineral. It is not as if the petitioners' vehicle have been seized at the place from which it is alleged the petitioners have illicitly quarried and removed sand. No material has been relied upon by the Collector to fasten such a liability. It is unfortunate that the Collector as a matter of routine, just after issuing the show-cause notice, passed the impugned orders. There must be some acceptable material to conclude that the petitioners have committed theft of mineral. In the absence of such material, the orders impugned cannot be sustained."
22. The same was the view taken in similar circumstances by K.Raviraja Pandian,J. in W.P.Nos.7829 to 7831 of 2001 (S.Sarves and others v. The District Collector, Karur District, Karur and another) by judgement dated 20.11.2006 which is as follows:
"It is unfortunate that the first respondent, who has passed the order, has not even applied his mind. Formal show cause notices without any material have been issued. On receipt of such show cause notices, the respective petitioners submitted objections containing detailed explanation and denying the very averments. That being the position, the District Collector, who had issued the impugned proceedings, should have conducted an enquiry or given a personal hearing by examining witnesses, who had seen the petitioners removing the sand from the lands other than the lands, in respect of which, licenses were issued in favour of the petitioners. No such attempt has been made. The report of the Assistant Director (Geology and Mining) also is slient about it.
3. It is not as if the petitioners have been caught red-handed while committing theft of mineral. Further, it is not as if the petitioners vehicle have been seized at the place from which it is alleged that the petitioners have illicitly quarried and removed sand. No material has been relied upon by the Collector to fasten such a liability. It is unfortunate that the Collector as a matter of routine, just after issuing the show cause notice, passed the impugned orders. There must be some acceptable material to conclude that the petitioners have committed theft of mineral. In the absence of such material, the orders impugned cannot be sustained."
23. While dealing with a similar show cause notice, S.Nagamuthu,J. in W.P.No.27845 of 2007 (G.Achuthan v. The District Collector, Vellore District, Vellore), by judgement dated 30.6.2008, has observed as follows:
"A reading of the impugned show cause notice would go to show that the respondent has alleged that the petitioner quarried illegally in R.S.No.452/1. It is not made known as to how the said prima facie conclusion was arrived at by the respondent. No record has been produced before this Court to satisfy this Court that an appropriate enquiry was held to find out that there was quarrying in the land belonging to the Government and that it was done by the petitioner. Therefore, I am of the opinion that the impugned notice has been issued without any material to make out a prima facie case that the petitioner has quarried in the Government land.
9. However, as rightly pointed out by the learned Government Advocate, the petitioner has got the remedy to approach the respondent to submit his reply to the show-cause notice and to establish his case that he did not perform any quarrying operation in the Government poramboke land. On receiving such reply from the petitioner, it is incumbent for the respondent to consider the same and to hold a necessary enquiry to find out whether any quarrying had been done in R.S.No.452/1 and to proceed further against the person who is responsible for the said quarrying. Without doing so, it is made clear, that the District Collector shall not straight away proceed against the petitioner to impose any penalty on him on the basis of the impugned show cause notice."
24. That was the view taken by K.Suguna,J. in W.P.(MD)Nos.11622 and 11623 of 2006 ( M/s.Deccan Granites Limited Topas and another vs. The District Collector, Madurai District ) by judgement dated 9.5.2007. The relevant portion of the judgement is as follows:
" 5. According to the learned senior counsel for the petitioners, no enquiry was conducted to find out as to whether who is responsible for the alleged pits, just because, the petitioner's lease hold area is adjacent to the alleged pits, the Tahsildar and the Assistant Geologist had presumed that the petitioner is the responsible for the said alleged pits. If an enquiry was conducted, certainly, the truth would have brought to light. For the reasons best known to the respondent, without conducting any enquiry based on the assumption and presumption, conclusion has been arrived at, consequently the penalty has been levied by the impugned order.
6. After notice, the learned Special Government Pleader has fairly conceded that though the personal hearing was given, no enquiry was conducted. That apart, no inspection was conducted in the presence of the petitioners and no intimation was given. Apart from this, it is crystal clear that the impugned order has been passed without conducting any enquiry. Since the petitioners lease hold area is adjacent to the alleged pits, it cannot be presumed that the petitioners had indulged in illegal quarrying in the adjacent land."
25. On the factual matrix which I have narrated above, there is absolutely no evidence to show as to who were responsible for making pits and illicit quarrying of either silica sand or granite and in the absence of any material, it is not possible to accept the contention of the learned Additional Advocate General that without the knowledge of the petitioners such quarrying could not have been done even by third parties. In view of the same, the writ petitions stand allowed and the impugned orders of the respective respondents are set aside. No costs.
kh To
1.The District Collector Thiruvallur District Thiruvallur.
2.The Assistant Director of Geology and Mining Thiruvallur District Thiruvallur.
3.The District Collector Madurai District Madurai