S. Selvaarajan vs The Revenue Divisional Officer

N. Paul Vasanthakumar, J.—The prayer in the writ petition is to quash the order dated 16.4.2010 giving direction to the petitioner to remit a

sum of Rs. 63,65,700/- towards seigniorage fee, fine and value of the sand measuring 6430 lorry loads.

The petitioner was granted lease in respect of sand quarry in Government poromboke land in S. No. 291 and 4 O.A.E measuring to an extent

of 10.00.0 hectares in Kanakavallipuram, Tiruvallur Taluk and District. The lease was granted by the District Collector by order dated 10.10.2000

for a period of one year from 15.10.2000 to 14.10.2001. According to the petitioner, in spite of the grant of lease, he was not allowed to do

quarrying operations from 7.4.2001, by not issuing transport permits. The petitioner filed W.P. No. 10989 of 2001 and this Court by order dated

15.6.2001 directed the authorities to issue transport permit and thereafter transport permit was issued from 7.4.2001 to 23.6.2001. Petitioner''s

lease was suspended by order dated 16.7.2001, which was also challenged before this Court in W.P. No. 13174 of 2001 and this Court granted

interim stay on 17.7.2001. The petitioner was permitted to quarry from 21.8.2001 till the expiry of the lease i.e., upto 14.10.2001.

Petitioner having been prevented from quarrying for 111 days in toto, approached this Court by filing W.P. No. 18629 of 2001 and pursuant to

the order passed by this Court dated 18.4.2002 petitioner was permitted to quarry for the 111 days by paying 40% over and above the lease

amount. The District Collector by his proceedings dated 21.6.203 directed the petitioner to pay Rs. 28,63,520/- towards 40% enhanced lease

amount, which was also paid by the petitioner.

The Government issued G.O. Ms. No. 95 dated 1.10.2003 and introduced Rule 38A of the Tamil Nadu Minor Minerals Concession Rules,

1959, ordering to take over all private quarries by the Government. Therefore the petitioner claims that he is entitled to get refund of the lease

amount for the non-quarried period of 34 days and also the security deposit amount. According to the petitioner, Division Bench of this Court in

W.A. No. 585 of 2008 by order dated 29.8.2008 directed the authorities to refund the proportionate lease amount for unexpired period of 34

days, if any, with simple interest at the rate of 6% from 1.10.2003 and refund the same within a period of two months.

The grievance of the petitioner is that the respondent, by order dated 16.4.2010 stated that the petitioner has illegally removed 6,430 lorry loads

of sand for which a show cause notice was issued and the petitioner submitted his objection to the show cause notice on 30.3.2010. The said

objection was considered along with a report said to have been submitted by the Assistant Director, Geology and Mining, Tiruvallur, dated

9.4.2001. The petitioner is objecting the said order dated 16.4.2010 by contending, either the report of the Tahsildar dated 5.4.2001 or that the

report dated 9.4.2001, which is the basis for issuing show cause notice, which were drawn by the Assistant Director (Mines) without issuing notice

to the petitioner. The alleged inspections were made not in the presence of the petitioner and the said reports were not served on the petitioner

before accepting the said reports as relying the same while passing the impugned order is vitiated as it has caused great prejudice to the petitioner.

The respondent has filed counter affidavit wherein no answer is given for the said averment made by the petitioner in the affidavit and only stated

that an appeal remedy is available u/s 36-C(1) of the Tamil Nadu Minor Minerals Concession Rules, 1959, before the District Collector,

Tiruvallur, and the writ petition is not maintainable.

Heard the learned Counsel for the petitioner as well are learned Special Government Pleader for the respondent.

Copy of the show cause notice dated 4.3.2010 is filed by the respondent in the typed set of papers. In the said show cause notice, the report of

the Tahsildar, Tiruvallur dated 5.4.2001 as well as the report of the Assistant Director, Geology and Mining, Tiruvallur, dated 9.4.2001 are

referred to as reference Nos. 2 and 4, which are the basis for initiating action and for passing the impugned order. The said reports were not

enclosed along with the said show cause notice for giving proper reply by the petitioner. The reports of the Tahsildar and Assistant Director are

also not produced before this Court. From the perusal of the impugned order also it is evident that the said reports are the basis for initiation of

action against the petitioner and for passing the impugned order imposing a fine of Rs. 16,71,800/- and other amounts totalling to the tune of Rs.

63,65,700/- as liability. The findings given by the respondent reads as follows (translated version):

In this circumstance, the issue is, whether Thiru S. Selvarajan removed 6430 loads of sand from non-permitted quarry areas or not? Thiru S.

Selvarajan has not proved with proper evidences that he did not indulge in quarrying operations in the non-permitted areas. It has been specified in

the explanation as, ""Auctioned areas"" in general. It is not acceptable. On the basis of the Technical Report submitted by the Special Director,

Geology and Mining Department, Thiruvallur, and the Tahsildar, Tiruvallur, that, ''he had quarried 6430 lands of sand on 9.4.2001'', it has been

proved that the petitioner, who is an ex-lease-holder has committed the aforesaid offence. Therefore, in pursuant to that, the explanation of the

petitioner had not been accepted.

Hence, the penalty amount imposed for having illicitly quarried 6430 lorry loads of sand calculating under Rule 36 of Tamil Nadu Minor

Minerals Concession Rules, 1959, is as follows:

Mining Licence for 6430 loads

at the rate of Rs. 130/-

6430 x 130.. Rs. 8,35,900/-

Penal Assessment in respect

of one fifteen of the mining

licence - 2 folds.. Rs.16,71,800/-

The value of the sand

quarried without permission

600 x 6430.. Rs.38,58,000/-

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Total Rs. 63,65,700/-

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It is hereby ordered that Thiru S. Selvarajan shall pay the aforesaid amount under the Head as mentioned below.

Imposing of huge fine attaches civil consequences and therefore fairness in procedures and principles of natural justice are to be followed by the

respondent. The alleged inspection was made by the Assistant Director (Mines) without issuing notice to the petitioner. The petitioner is not served

with the reports dated 5.4.2001 and 9.4.2001 given by the Tahsildar and Assistant Director, Geology and Mining, Tiruvallur, along with the show

cause notice or afterwards, i.e., before passing the impugned order or even thereafter. Hence the petitioner is not aware of the alleged reports

against him. The respondent solely relying on the report of the Assistant Director (Mines), passed the impugned order.

(a)Similar issue was considered by this Court in an unreported judgment in W.P. No. 32829 of 2002 dated 10.9.2003 i.e., whether a report

obtained behind the back of the petitioner therein can be relied on to pass an adverse order against a quarry owner. Learned Judge of this Court

(P. Sathasivam, J., as he then was) held as follows,

...The main grievance as mentioned above is that though the Assistant Director (Geology and Mining) had inspected the area of lease land on

24.7.2002 along with Assistant Geologist and submitted a report to the effect that the petitioner has not rectified the defects as mentioned in the

show cause notice dated 22.7.2002, the copy of the said report has not been furnished to the petitioner and it is also his grievance that the

inspection was made behind the back of him (petitioner). It is seen from the order impugned that though the District Collector has referred to the

fact that the Assistant Director (Geology and Mining) had inspected the lease area on 24.7.2002 and reported that the lessee has not rectified the

defects, admittedly the said inspection was made subsequent to the personal hearing conducted on 22.7.2002. It is also clear that the visit of the

Assistant Director on 24.7.2002 was not intimated to the petitioner. In fairness, the officer ought to have informed the petitioner that he is going to

visit the lease land and verify the position therein. Inasmuch as the respondent heard the petitioner in person in the personal enquiry held on

22.7.2002, though the District collector is empowered to get further report with reference to the statement made by the petitioner, it is but proper

for the Assistant Director to intimate the same to the petitioner before his inspection. In such a circumstance, the only contention that the District

collector arrived a conclusion based on the report of the Assistant Director (Geology and Mining) on 24.7.2002, who visited on 24.7.2002

without notice and behind the back of the petitioner is acceptable. In this regard, learned Counsel for the petitioner very much relied on a decision

of E. Padmanabhan, J., in Writ Petition Nos. 8207 and 10062 of 1997 dated 27.7.1999 K. Subba Reddy and Ors. v. State of Tamil Nadu,

represented by Secretary to Government, Industries Department, Madras-9). Before the learned Judge, similar objection was raised, namely, that

materials have been collected behind the back of the petitioner and in particular taking measurements behind the back of the petitioners vitiates the

entire proceedings as such those materials cannot be relied upon by the licensing authority. The following conclusion of the learned Judge is

relevant : (para 49)

Nextly it was contended that materials have been collected behind the back of the petitioners such as fixing of disputed boundaries, taking

measurements without notice and evaluating the alleged quantity of granite illicitly quarried and collection of materials and in particular taking

measurements behind the back of the petitioners also vitiates the entire proceedings and such materials cannot be relied upon by the respondents 2

and 3 to fasten a huge liability on the petitioners and this illegality cannot be cured. In this regard, the learned senior counsel relied upon a decision

of this Court as well as a decision of mine in Mrs. Logasundari Vs. The District Collector and Others, . In the said judgment it has been

emphasised that materials that have been collected behind the back of the petitioner cannot be used against the petitioner as has been emphasised

by this Court from time to time.

In R.K. Ramaswamy v. State of T.N. reported in AIR 1995 Mad 106, I had also taken an identical view similar to that as expressed above.

Though the petitioner was given show cause notices, he also submitted explanation, he was provided with personal enquiry, etc., the fact remains

that the impugned order was passed by the District Collector mainly based on the inspection of the Assistant Director (Geology and Mining) on

24.7.2002. Inasmuch as the petitioner was not given notice for the inspection made on 24.7.2002 by the Assistant Director (Geology and Mining),

that too after the completion of the personal enquiry on 22.7.2002 and also of the fact that a copy of the said report was not furnished to the

petitioner, in the light of the decisions referred to above, I hold that the materials that have been collected behind the back of the petitioner cannot

be used against the petitioner which vitiates the ultimate decision taken by the first respondent. On this ground, the impugned order of the District

Collector dated 01.08.2002 is quashed, and the matter is remitted to the respondent for a fresh disposal....

(Emphasis Supplied)

(b) Whether the non-supply of documents relied on during the enquiry is vitiated or not is considered by the Honourable Supreme Court in the

decision reported in : (2001) 9 SCC 523 Pepsu Road Transport Corporation v. Lachhman Dass Gupta and Anr. wherein, in para 3 the

Honourable Supreme Court held as follows,

We have examined the judgment of the lower appellate court as well as the impugned judgment of the High Court. In view of the conclusion of

the lower appellate court, that even the documents relied upon by the department in establishing the charge have not been given to the delinquent,

the conclusion is irresistible that the delinquent had been denied a reasonable opportunity to defend himself in the proceeding and, therefore, the

lower appellate court as well as the High Court are fully justified in setting aside the order of termination passed by the competent authority. We,

therefore, do not find any ground to interfere with the impugned judgment of the High Court passed in the second appeal.

(Emphasis Supplied)

(c) In the decision reported in State of U.P. and Others Vs. Saroj Kumar Sinha, the Supreme Court explained the observance of principles of

natural justice in paragraphs 40 to 43, which reads thus,

... Asking the respondent to give reply to the enquiry report without supply of the documents is to add insult to injury.

...In our opinion the actions of the inquiry officers in preparing the reports ex parte without supplying the relevant documents has resulted in

miscarriage of justice to the respondent. The conclusion is irresistible that the respondent has been denied a reasonable opportunity to defend

himself in the enquiry proceedings.

In our opinion, the appellants have miserably failed to give any reasonable explanation as to why the documents have not been supplied to the

respondent. The Division Bench of the High Court, therefore, very appropriately set aside the order of removal.

Taking into consideration the facts and circumstances of this case we have no hesitation in coming to the conclusion that the respondent had

been denied a reasonable opportunity to defend himself in the inquiry. We, therefore, have no reason to interfere with the judgment of the High

Court.

The contention of the respondent that this writ petition is not maintainable as the petitioner has got a remedy of filing appeal is unsustainable as

it is established by the petitioner that the respondent has violated the principles of natural justice at all stages before the impugned order was

passed. It is well accepted principle of law that exceptionally writ petition can be entertained though alternate remedy is available.In the decision

reported in Rajasthan State Electricity Board Vs. Union of India (UOI) and Others, in paragraph 3 the Supreme Court held that ''availability of

alternative remedy is not an absolute bar for granting relief in exercise of power under Article 226 of the Constitution.''

Since the petitioner is complaining that the report of the Assistant Director (Mines) was drawn behind his back and also about the non-service

of the said report dated 9.4.2001, which is very much relied on in the show cause notice as well as in the impugned order, I am of the view that the

petitioner is justified in approaching this Court without availing the remedy of filing appeal before the District Collector. The show cause notice as

well as the impugned order having been issued and passed without furnishing copy of the said report, which was drawn behind the back of the

petitioner, is the basis for initiating the proceedings against the petitioner, the respondent has committed an error by relying on the adverse report

against the petitioner and the petitioner has every right to challenge the said order before this Court. The respondent has taken ten long years to

pass the impugned order. The said unreasonable delay is not explained in the counter affidavit.

In view of the above findings, the impugned order is set aside and the matter is remitted back to the respondent with liberty to serve copy of

the report of the Assistant Director of Geology and Mining, Tiruvallur, dated 9.4.2001 and the petitioner is permitted to offer his remarks for the

said report. After considering the same and also after giving personal hearing to the petitioner, it is open to the respondent to consider whether the

said report can be relied on to proceed further and pass fresh orders in accordance with law, if it is warranted.

The writ petition is disposed of accordingly. No costs. Connected M.P. No. 1 of 2010 is closed.