Madras High Court
V.Kandasamy vs The Revenue Divisional Officer on 14 December, 2021
W.P.Nos.3018 of 2013(batch)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.M. SUBRAMANIAM
W.P.No.3018 of 2013
and M.P.Nos.1 of 2013 & 1 of 2015
AND
W.P.Nos.6697 to 6701 of 2015
and M.P.Nos.1 to 1 of 2015
and M.P.Nos.2, 2 & 2 of 2015 (in W.P.Nos.6699 to 6701 of 2015)
W.P.No.3018 of 2013:
V.Kandasamy ... Petitioner
-Vs-
The Revenue Divisional Officer,
Perambalur,
Perambalur District. ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorari, to call for the records pertaining to the
respondent's show cause notice bearing Na.Ka.A1/7334/2012 dated
22.01.2013 pertaining to the stone quarry bearing S.F.No.374/1A2 over an
extent of 1.42.0 Hectares in Thondamanthurai (East) Village, Veppanthattai
Taluk, Perambalur District and quash the same.
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In all writ petitions:
For Petitioner : Mr.AR.L.Sundaresan, Senior Counsel
For Mr.V.Sanjeevi in W.P.No.3018 of
2013 and For M/s.AL.Ganthimathi in
W.P.Nos.6697 to 6701 of 2015
For Respondents : Mr.B.Vijay,
Additional Government Pleader.
******
COMMON ORDER
Since the issues involved in all these writ petitions are one and the
same, they are disposed of by this common order.
2. The lis on hand, are instituted questioning the legal validity of the
show cause notices issued to the petitioners, who all are miners. All possess
valid lease and miners, who are possessing valid license for mining
operations.
3. In view of the fact that these show cause notices are under
challenge, this Court thought fit not to venture into an adjudication of actual
disputes, which all are to be done with reference to the documents in original
and evidences to be placed by the respective parties. Thus, it is suffice if the
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scope of the show cause notices and the challenges made therein, are to be
considered. The impugned show cause notices reveal that the petitioners had
extended their mining operations excessively and quarried over and above
the permitted limits and thereby committed an act of illegality, irregularity or
otherwise based on facts to facts. Thus, the Authorities issued show cause
notices by imposing penalty under the provisions of the Mines and Minerals
(Development and Regulation) Act, 1957 (hereinafter referred to as the 'Act')
as well as the Tamil Nadu Minor Mineral Concession Rules, 1959.
(hereinafter referred to as the 'Rules').
4. The learned Senior Counsel as well as the learned counsels
appearing on behalf of the petitioners mainly contended that the Authorities
have no jurisdiction to issue show cause notice by invoking Rule 36(A) of
the Rules as Section 21 of the Act contemplates 'Penalties' and as per the
procedures laid down in the Act, the Authorities, on identification of
illegality or otherwise, necessarily has to lodge an complaint before the
jurisdictional Court for prosecution, by following the Criminal Procedure
Code. Thus, the procedure adopted by issuing a show cause notice
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contravenes the spirit of Section 21 of the Act and thus, the show cause
notices are liable to be set aside.
5. The learned Senior Counsel is of an opinion that once the authorities
thought fit to invoke Penalty provisions then, the procedures contemplated
under Section 21 of the Act alone must be followed and the Authorities
cannot invoke Section 21 of the Act and simultaneously Rule 36 A of the
Rules, which is improper and therefore, the notices are liable to be setaside.
6. The learned counsel for the petitioner Mr.V.Sanjeevi pointed out
that the show cause notices does not speak about the inspection report and
the manner in which the assessments are made regarding the excess mining
operation. In the absence of those details, the petitioners will not be in a
position to submit their explanation defending their case. Thus, on that
ground also, the notices are liable to be setaside.
7. The learned Additional Government Pleader appearing on behalf of
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the respondents objected the contentions raised on behalf of the petitioners
by stating that the application of Section 21 of the Act and Rule 36(A) of the
Rules are based on different circumstances and therefore, there is no
impediment for the Competent Authorities for invoking Rule 36 (A) of the
Rules. The State, by exercising the powers conferred under Section 15 of the
Act framed the Rules and such Rules are in force and based on the facts and
circumstances of each case, the Authorities competent are empowered to
invoke the Rules for the purpose of imposing Penalty by following the
procedures as contemplated under the Rules. This being the position, there is
no infirmity as such, in respect of the show cause notices issued and it is left
open to the petitioners to defend their case by submitting their explanation
and in the event of submitting any explanation/objections along with the
documents, if any, the competent Authorities would be in a position to
consider the case on merits and take a decision and proceed accordingly.
8. The learned counsel for the petitioners placed a reliance in respect of
the judgment of the Hon'ble Division Bench of this Court dated 29.10.2018
passed in W.P.(MD).Nos.19936 of 2017 and etc., batch, and they have relied
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on Paragraph 9 of the judgment, which reads as under:
“9.Section 21 of the Act came into inserted by Act 10 of
2015. Rule 36(A) has been in statute prior to that. This Rule has
been introduced in exercise of the power under Section 15 r/w
23-C of the Act. The moment Section 21 has come into being,
Rule 36-A lose its significance. In fact, it does not have any
existence thereafter. After all, between rule which has been
enacted in pursuant to the rule making power and substantive
provision of the Act, the later one would certainly prevail, for
which, there will not be any quarrel. Therefore, in no case any
revenue official can invoke Rule 36-A, for the purpose of release
of mineral, tool, machinery, instrument, vehicle etc.,”
9. However, the State preferred Review Application in Review
Application Writ (MD).Nos.80 to 82 of 2019 against the above judgment and
the Review Petitions were considered and a judgment was pronounced on
09.09.2019. In the Review Petitions, the Hon'ble Division Bench considered
Section 21 of the Act. Section 23A of the Act provides 'Compounding of
offences'. However, in respect of the said writ petition, the relief sought for is
to forbear the respondents from quarrying sand in river Vellar, Survey
No.316, Subramaniyapuram Village, Edayar Panchayat, Aranthangi Taluk,
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Pudukottai District. In the said context, the Hon'ble Division Bench has said
that Rule 36-A has to be read in consonance with Section 23A of the Act. In
paragraphs 16 and 17 of the judgment, the Hon'ble Division Bench dealt with
the scope of Section 36-A of the Tamil Nadu Minor and Mineral Concession
Rules, 1959 and its effect and the said paragraphs read as under:
“16. Much reliance has been made on Rule 36(A) of the
Tamil Nadu Minor and Minerals Concession Rules, 1959. We
would like to place on record the relevant portion of the
aforesaid provision, which speaks on penalty:-
“36-A. Penalties. - (1) Whenever any person
contravenes the provisions of sub-sections (1) and (1-A) of
Section 4 of the Act in any land, enhanced seigniorage fee
upto a maximum of fifteen times the normal rate subject to
a minimum of twenty-five thousand rupees shall be charged
and recovered from that person by the District Collector or
the District Forest Officer, as the case may be, or in the
alternative, he shall be liable to be punished as provided in
sub-section (1) of Section 21 of the Act”
17. This Rule merely speaks about the penalties alone.
These penalties are to be construed only for the purpose of
compounding the offence committed. On a reading of this Rule,
it is very clear that the penalty itself is based on seigniorage fee
subject to the minimum amount. This Rule, with due respect,
does not speak about the release of the materials seized,
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including the vehicle. Hence, Rule 36(A) has to be read in
consonance with Section 23A of the M&M Act. We have already
held that compounding under Section 23A is different from the
exercise of power under Section 21(4A) of the Act.”
10. This being the scope of the said judgment, the reliance placed on
behalf of the petitioners that Rule 36-A cannot be applied based on the
judgment, deserves no merit consideration. Admittedly, the said Rule is not
struck down and Section 15 (g) of the Act provides Power to the State in this
regard. For all these reasons, the judgment cited is of no avail to the
petitioners as the facts and circumstances are dissimilar and not comparable.
11. It is relevant to consider Section 15 (g) and Section 21 of the Mines
and Minerals (Development and Regulation) Act, 1957 along with Rule 36A
of the Tamil Nadu Minor Mineral Concession Rules, 1959.
11.1 Section 15 (1) empowers the State Governments to make rules in
respect of minor minerals. Accordingly, the State Government may, by
notification in the Official Gazette, make rules for regulating the grant of
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quarry leases, mining leases or other mineral concessions in respect of minor
minerals and for purposes connected therewith.
11.2 Section 15 (1) (g) provides Power to the State for fixing and
collection of rent, royalty, fees, dead rent, fines or other charges and the time
within which and the manner in which these shall be payable.
11.3 Section 21 (5) denotes that “Whenever any person raises, without
any lawful authority, any mineral from any land, the State Government may
recover from such person the mineral so raised, or, where such mineral has
already been disposed of the price thereof, and may also recover from such
person, rent, royalty or tax, as the case may be, for the period during which
the land was occupied by such person without any lawful authority.”
11.4 Let us now consider Rule 36-A of the Tamil Nadu Minor Mineral
Concession Rules. Sub Rule 1 states that any person contravenes the
provisions of sub-section (1) and (1-A) of Section 4 of the Act is liable to
pay penalty. In alternate, he shall be liable to be punished under Sub-section
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(1) of Section 21 of the Act.
11.5 The cogent reading of the above provisions of the Act and Rule
36-A of the Rules unambiguously clarifies that the State Government is
empowered to make Rules by notification in the official Gazette in respect of
fixing and collection of rent, royalty, fees, dead rent, fines or other charges.
Further, Section 21(5) also empowers the State Government to recover the
loss or the price thereof etc,. Thus, there is no ambiguity in respect of the
power conferred on the State Government to make Rules and Rule 36-A of
the Tamil Nadu Minor Mineral Concession Rules is within the scope of the
provisions of the Act and it does not supersede the provisions of the Act, in
fact it reads in consonance with the provisions for the purpose of effective
control of the mining operations across the State. Thus, the contention of the
petitioners that Section 21 alone is the avail for the State Government is
untenable.
12. Considering the arguments as advanced by the respective learned
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Senior Counsel as well as the learned counsels for the parties to the lis on
hand, this Court has to consider two aspects. Whether a writ proceeding
needs to be entertained against a show cause notice and secondly, the spirit of
Section 21 of the Act as well as Rule 36 A of the Rules.
13. As far as the 1st point is concerned, no writ needs to be entertained
against a show cause notice in a routine manner. Undoubtedly, all writ
petitions are maintainable under Article 226 of the Constitution of India but
the entertainability of the writ petition has to be considered by the Courts
while admitting the writ petitions challenging the show cause notices. The
writ petitions filed against a show cause notice may be entertained on the
ground that the Authorities having no jurisdiction issued the show cause
notice directly hitting the provisions of the Act or an allegation of malafides
are raised. Even in the case of raising an allegation of malafides, the
Authority against whom such an allegation is raised, must be impleaded as a
party respondent in his personal capacity in the writ proceedings.
14. In all other circumstances, the persons who received such show
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cause notices are expected to submit their explanations/objections and defend
their case and the Authorities competent are bound to consider those
explanations and take a decision on merits and in accordance with law.
Thereafter, if any Appellate remedy is contemplated under the provisions of
the Act, the said remedy also must be exhausted by the aggrieved persons.
Contrarily, the writ petitions need not be entertained at prematured stage,
which will cause prejudice to either of the parties. There is a possibility of
miscarriage in view that the entire factual adjudications are not done at the
stage of show cause notice. This apart, the High Court may not be in a
position to venture into an adjudication of such disputed facts, which all are
to be done based on the original documents and evidences to be considered
by the competent Authorities.
15. The power of Judicial Review under Article 226 of the
Constitution of India is to ensure the processes through which a decision is
taken by the Authorities in consonance with the provisions of the Act and by
following the procedures as contemplated, but not the decision itself. Thus,
adjudication which is an important factor must be allowed to be done by the
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competent Authorities. In the event of premature adjudication of facts by the
High Court, undoubtedly, there is a possibility of error, omission or
commission which would cause prejudice to either of the parties and it is not
desirable. The importance of exhausting of the remedies at no circumstances
be undermined by High Court. Such factual findings of those Authorities or
statutorily contemplated bodies are of greater assistance to the High Court for
the purpose of exercising the power of Judicial Review and thus, the
Authorities must be allowed to exercise their adjudicatory powers in all
circumstances.
16. With reference to the second point, let us consider Section 4 of the
Act. Section 4 enumerates prospecting or mining operations to be under
license or lease. Sub Section 1 to Section 4 of the Act, stipulates as follows:-
"4. Prospecting or mining operations to be under
licence or lease.-
1) No person shall undertake any reconnaissance,
prospecting or mining operations in any area, except
under and in accordance with the terms and conditions of
a reconnaissance permit or of a prospecting licence or,
as the case may be, of a mining lease, granted under this
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Act and the rules made thereunder"
Sub Section 1A to Section 4 of the Act reads as under :
" 1A) No person shall transport or store or cause
to be transported or stored any mineral otherwise than in
accordance with the provisions of this Act and the rules
made thereunder."
17. Thus, any excess mining operations made over and above the
permissible limit, is construed as an impermissible activity and contemplated
as an offense. Sub section 1-A denotes, 'no person shall transport or store or
cause to be transported or stored any mineral otherwise than in accordance
with the provisions of the Act' . Therefore, transporting or storing of minerals
beyond the permissible limits are also offences.
18. In this back drop, Section 21 of the Act is to be considered. Section
21 speaks about Penalties and the same reads as under :
"21. Penalties.-
(1) Whoever contravenes the provisions of sub-
section (1) or sub-section (1A) of section 4 shall be
punishable with imprisonment for a term which may
extend to five years and with fine which may extend to
five lakh rupees per hectare of the area.
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(2) Any rule made under any provision of this Act
may provide that any contravention thereof shall be
punishable with imprisonment for a term which may
extend to two years or with fine which may extend to five
lakh rupees, or with both, and in the case of a continuing
contravention, with additional fine which may extend to
fifty thousand rupees for every day during which such
contravention continues after conviction for the first such
contravention.
(3) Where any person trespasses into any land in
contravention of the provisions of sub-section (1) of
section 4, such trespasser may be served with an order of
eviction by the State Government or any authority
authorised in this behalf by that Government and the
State Government or such authorised authority may, if
necessary, obtain the help of the police to evict the
trespasser from the land.
(4) Whenever any person raises, transports or
causes to be raised or transported, without any lawful
authority, any mineral from any land, and, for that
purpose, uses any tool, equipment, vehicle or any other
thing, such mineral tool, equipment, vehicle or any other
thing shall be liable to be seized by an officer or authority
specially empowered in this behalf.
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(4A) Any mineral, tool, equipment, vehicle or any
other thing seized under sub-section (4), shall be liable to
be confiscated by an order of the court competent to take
cognizance of the offence under sub-section (1) and shall
be disposed of in accordance with the directions of such
court.
(5) Whenever any person raises, without any lawful
authority, any mineral from any land, the State
Government may recover from such person the mineral
so raised, or, where such mineral has already been
disposed of, the price thereof, and may also recover from
such person, rent, royalty or tax, as the case may be, for
the period during which the land was occupied by such
person without any lawful authority.
(6) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974), an
offence under sub-section (1) shall be cognizable.]
Explanation – On and from the date of commencement of
the Mines and Minerals (Development and Regulation)
Amendment Act, 2021, the expression '' raising,
transporting and causing to raise or transport any
mineral without any lawful authority'' occurring in this
section, shall mean raising, transporting or causing to
raise or transport any mineral by a person without
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prospecting license, mining lease or composite license or
in contravention of the rules made under
section 23-C."
The above provision contemplates various circumstances and
procedures to be followed. Sub Section 1 to Section 21 of the Act
contemplates, ''whoever contravenes the provisions of Sub-Section (1) or
Sub-Section (1-A) of Section 4 shall be punishable with imprisonment for a
term which may extend to five years and with fine.''
18.1. Sub-Section 2 to Section 21 of the Act states that, "any rule
made under any provisions of this Act, may provide that any contravention
thereof shall be punishable with imprisonment for a term which may extend
to two years or with fine which may extend to five lakhs rupees, or with
both."
18.2. Sub Section 5 to Section 21 of the Act enumerates that,
"whenever any person raises without any lawful authority any mineral from
any land the State Government may recover from such person the mineral so
raised and he proceeds further."
19. It is relevant to consider Rule 36 A of the Rules, 1959. Sub clause
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1 to Rule 36 A contemplates, "whenever any person contravenes the
provisions of sub-section (1) and (1-A) of Section 4 of the Act in any land,
enhanced seigniorage fee upto a maximum of fifteen times the normal rate
subject to a minimum of twenty five thousand rupees shall be charged and
recovered from that person by the District Collector or the District Forest
Officer, as the case may be or in the alternative, he shall be liable to be
punished as provided in sub-section (1) of Section 21 of the Act."
20. As rightly pointed out by the learned Senior Counsel for the
petitioners, the Rule cannot have an overriding effect of the provisions of the
Act. The Rules must be in consonance with the provisions of the Act and
cannot be repugnant to the Act. Thus, it is relevant to consider Section 21 of
the Act and Rule 36A of the Rules, for the purpose of its implementation so
as to ensure that the very purpose and object of the Act and Rules are
achieved. Sub-Section 2 to Section 21 of the Act unambiguously states that,
''any Rule made under any provisions of this Act, may provide that any
contravention thereof shall be punishable with imprisonment for a term
which may extend to two years with fine''. Therefore, Sub-Section 2 to
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Section 21 of the Act provides an opportunity to frame Rule which may
provide that any contravention thereof, shall be punishable with
imprisonment for a term which may extend to two years or with fine, which
may extend to five lakhs rupees or with both and in case of a continuing
contravention, with additional fine which may extend to Rs.50,000/- for each
day during which such contravention continues after conviction for the first
such contravention.
21. Rule 36A of the Rules also prescribes Penalties. The said Rule also
says that whenever any person contravenes the provisions of Sub-Section 1
and (1-A) to Section 4 of the Act, then, actions are to be initiated. The only
grievance of the writ petitioners are that once Section 21 of the Act
contemplates the procedure for filing of a criminal complaint by following
the procedures under the Criminal Procedure Code, then the State
Authorities cannot invoke Rule 36A of the Rules. However, Sub-Section 2 to
Section 21 of the Act unambiguously stipulates that any Rule made under any
provisions of this Act may provide that any contravention thereof shall be
punishable with imprisonment, that is one aspect of the matter. Sub-Section 5
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to Section 21 of the Act contemplates, "whenever any person raises, without
any lawful Authority, any mineral from any land, the State Government may
recover from such person the mineral so raised." Thus, Sub-Section 2 to
Section 21 of the Act contemplates punishment. Sub-Section 5 to Section 21
of the Act provides power to the State Government to recover such mineral
from such person, the mineral so raised or where such mineral has already
been disposed of, the price thereof. Thus, the State Government is
empowered to impose punishment by framing Rules in consonance with
Sub-Section 2 to Section 21 of the Act and recover the loss or damages in
accordance with Sub-Section 5 to Section 21 of the Act.
22. In this context, Rule 36 A of the Rules operates and Rule 36A
provides both punishment under Sub-Section 1 to Section 21 of the Act and
also the recovery to be made in the event of causing damage or illegal
minings. The cogent reading and understanding of Section 21 of the Act and
Rule 36 A of the Rules, this Court is of the considered opinion that the
Authorities are competent to invoke Section 21 (1) of the Act by taking
action with reference to Rule 36A of the Rules and to initiate action for
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confiscation of the minerals, if it is available or recover the losses, if any,
occurred on account of excess or illegal mining, or otherwise. When all such
circumstances are contemplated both under Section 21 of the Act as well as
under Rule 36 A of the Rules, no doubt, in the present case, the Authorities
thought fit to provide an opportunity to the petitioners so as to consider their
explanations, if any, filed. Such show cause notices are issued only with an
object to provide an opportunity and to avoid any miscarriage of justice
which would cause prejudice to the interest of the mining operators, who all
are otherwise conducting their mining operations in accordance with the
terms and conditions of the license. Thus, a balancing approach in this regard
is to be adopted and even in the absence of any contemplation of show cause
notice, there is no impediment for the Authorities to seek explanation so as to
get the explanation from the persons against whom such allegations are made
or such illegalities are identified by the inspecting Authorities.
23. This being the scope of the show cause notice, the petitioners are
bound to submit their explanations, if they have chosen to do so. In the event
of submitting an explanation, no doubt, the competent Authorities may
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provide an opportunity to the petitioners to peruse the relevant documents,
which are all relied upon by the Department for initiation of action and
thereafter, take a decision and proceed further. However, there is no
impediment for the Authorities to invoke Section 21 (1) of the Act by filing
an appropriate complaint before the competent Court of law under the code
of Criminal Procedure Code (or) and to initiate recovery proceedings for the
damages or loss caused to the State Exchequer by invoking Section 36A of
the Rules as Section 21 of the Act and Rule 36A of the Rules go together and
to ensure that the illegal mining operations are dealt with in accordance with
law.
24. In this regard, the petitioners are permitted to submit their
explanations\objections, documents, if any, within a period of four (04)
weeks from the date of receipt of a copy of this order and on receipt of any
such explanations, the Authorities competent/respondents shall conduct an
enquiry by providing an opportunity to the writ petitioners and thereafter,
take a decision on merits and in accordance with law and initiate all
appropriate further proceedings by following the procedures as contemplated
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under the Act and Rules. With these directions, all these Writ Petitions stand
Disposed of. No costs.
25. It is needless to state that the petitioners are entitled to raise all the
factual as well as the legal contentions, which all are made available to them.
26. The respondents are directed to complete the entire exercise within
a period of four (04) months from the date of receipt of a copy of this order.
Consequently, connected miscellaneous petitions are closed.
14.12.2021
Internet : Yes
Index : Yes
Speaking order :Yes
sts/shr
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To:
The Revenue Divisional Officer,
Perambalur,
Perambalur District.
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S.M.SUBRAMANIAM, J.,
sts
Common Order made in
W.P.No.3018 of 2013 &
W.P.Nos.6697 to 6701 of 2015
Dated:
14.12.2021
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