Madras High Court
C.Baskar vs The Revenue Divisional Officer on 25 April, 2022
WP NO.34463 OF 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25 / 04 / 2022
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
WP NO.34463 OF 2012
AND MP NO.1 OF 2012
C.Baskar ... Petitioner
VS.
The Revenue Divisional Officer
Perambalur,
Perambalur District. ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of Writ of Certiorari, calling for the records
pertaining to the respondent's show cause notices bearing Na.Ka.m
1/8318/2012 dated 09.11.2012 and 04.12.2012 pertaining to the stone
quarry bearing S.F.No.200 (Part) admeasuring 1.00.0 Hectare in
Vengalam Village, Veppanthatti Taluk, Perambalur District, quash the
same.
For Petitioner : Mr.V.Sanjeevi
For Respondent : Mr.K.M.D.Muhilan
Government Advocate
1/23
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ORDER
In this writ petition, the show cause notices dated
09.11.2012 and 04.12.2012 issued by the respondent is put to challenge.
2.From a reading of the show cause notice, it is seen that on
an inspection conducted by the respondent, it was found that the
Licensee / petitioner had unauthorisedly quarried 23350 cubic meters of
the minerals and transported the same without permission and therefore,
as to why penalty proceedings shall not be initiated as per Rule 36-A of
the Tamil Nadu Minor Mineral Concession Rules, 1959. From a reading
of the above show cause notice, it is very clear that the respondent has
pre-determined that the Licensee has committed an offence of
unauthorised quarrying and transportation of the minerals, without giving
an opportunity to the petitioner before arriving at the finding. Before
pre-determining the issue, the show cause notice with regard to
imposition of penalty of proceedings was issued.
3.Heard the submissions made on either side and perused the
materials available on record.
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4.The learned Government Advocate for the respondent
would rely on the following judgments in support of his contention:-
(i) Judgment of this Court in SIVA BLUE METALS VS.
DISTRICT COLLECTOR [2012 SCC ONLINE MAD 481] wherein it is
observed as under:
"2. By virtue of the show cause, dated 14.09.2011,
of the RDO/R2, the petitioner was called upon to submit
his explanation as to why he should not be directed to
pay Rs.2,21,48,000/-, Rs.20,76,375/- and Rs.25,000/-
towards cost of the mineral quarried more than the
permitted limit, seigniorage fee and penalty respectively;
while, by way of the show cause notice, dated
24.09.2011, issued by the District Collector/R1, the
petitioner was required to submit his explanation on the
alleged violations of Rule-36(5)(b) of the Tamil Nadu
Minor Mineral Concession Rules, 1959 (hereinafter
referred to as the 'Rules'), liable for action under Section
36 (5)(h) of the Rules which may result in cancellation of
the lease.
.....
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3.F) As regards pre-determination, a decision of
the Apex Court in Siemens Ltd. v. State of
Maharashtra (2006 (12) SCC 33) and that of a Division
Bench of this Court in Messrs. Madurai Metal Industries
v. Union of India (1991 Writ Law Reporter 59) have
been pressed into service to highlight the legal position
that if a show cause notice is issued with premeditation,
a writ petition would be maintainable and that a show
cause notice indicating a pre-conceived or pre- judged and
foreclosed mind on the part of the authorities would get
vitiated automatically. In the present case, the RDO,
based on mere recommendations of the Assistant Director
(G & M) decided to levy the exorbitant penalty on
untenable allegations against the petitioner and that is
why, the charges that would be levied are clearly spelt
out in the first show cause notice, suggesting a definite
pre-conceived notion. The same being the trait of the
second show cause notice, both are liable to be interfered
with in these writ proceedings.
4. Per contra, learned Additional Advocate
General appearing for the respondents, by referring to the
stand taken by the respondents in the counter affidavit,
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at the first instance, submitted that both the writ
petitions are totally misconceived and liable to be
dismissed as the same being premature, of course, with a
direction to the petitioner to submit their explanation to
the show cause notices. According to him, for the show
cause notice on the alleged violation of Rule-36(5b)
which allegation may, if found to have been established,
warrants cancellation of licence under Rule 36 (5h) of the
Rules, the petitioner can very well submit his explanation
refuting the allegations and in the event of such
explanation being satisfactory, there are also prospects of
the authorities dropping any further proceedings by
accepting the case of the petitioner. But, no such genuine
attempt was ever made by the petitioner, instead, he has
rushed to this Court with the present petitions as if
everything was concluded against him by the authorities.
...
9. Before winding up, the other argument of the
learned counsel for the petitioner stating that copies of
the reports, dated 13.08.2011, of the Panchayat Land
Surveyor, the Village Administrative Officer and the
Assistant Director (G & M) have not been furnished
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with, enabling the petitioner to submit a detailed reply,
has to be dealt with. This Court is conscious of the fact
that non-supply of any document prepared behind the
back of the petitioner and containing minute details in
depth should be viewed seriously as it would result in
great prejudice to the petitioner since he would be
deprived of making an effective explanation. But, in the
present case, as I have already pointed out, the entire
inspection proceedings, dated 13.08.2011, were carried
out by a battery of officials not as a surprise inspection
or without the knowledge of the petitioner, for, the
Manager of the petitioner was very much present in the
course of the proceedings. Further, in the case on hand,
learned Additional Advocate General convinced this
Court that the full-fledge details collected from the very
records of the petitioner were reflected in the show cause
notice only to enable the petitioner to reply exhaustively
and properly. More over, now, all the documents said to
have been withheld from being furnished to the petitioner
have been filed herein as typed set of papers by the
Special Government Pleader and, it could be seen that a
copy of the said typed set has been received by the
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petitioner's counsel on 21.11.2011 after making an
endorsement. That being so, with the available
exhaustive materials, what remains for the petitioner is
to submit their explanation for the show cause notices
within a stipulated time. "
(ii) Judgment of this Court in M/S.RPR GRANITES VS.
THE STATE OF TAMIL NADU [2014 SCC ONLINE MAD 6509]
wherein it is observed as under:
"7.7. The learned Special Government Pleader also
submitted that the writ petition against show-cause
notice is not maintainable and he heavily relied on the
judgment of the Apex Court in Union of India and
another Vs. Kunisetty Satyanarayana reported in 2006
(12) SCC 28. 7.8. The learned Special Government
Pleader submitted that the writ petitions are premature
one and they deserve to be dismissed.
9. The following issues arise for consideration in
these writ petitions :
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(I). Whether the first respondent has got power
and jurisdiction to issue the impugned show-cause notices
under Section 4-A(4) of the Act or the second respondent
has power to initiate proceeding under Section 4-A(4) of
the Act ?
(II). Whether the show-cause notices are liable to
be quashed for not enclosing the inspection reports,
reports of the District Collector based on those inspection
reports, the letters of the Commissioner of Geology and
Mining endorsing the reports of the District Collector ?
(III). Whether the show-cause notices are liable to
be interfered with, as the inspection of the quarry sites
was done without prior notice to the petitioners and the
impugned notices are based on such inspection reports?
(IV). Whether the first respondent pre-determined
that the petitioners violated Section 4-A(4) of the Act
and therefore, the impugned show-cause notices are liable
to be interfered with for pre-judging the issue? and (V).
Whether the writ petition is maintainable against a
show- cause notice ?
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12.1. It is a different matter, if the petitioners
requested for the supply of those copies of documents and
the first respondent refused to furnish the same. It is not
so. The petitioners did not make any such request. It is
also a different matter, if the final decision is arrived at
by the authorities without furnishing the reports, relied
on by them in the show-cause notices. The petitioners
were merely asked to appear for personal hearing,
wherein, the petitioners could have asked to furnish those
documents, that are mentioned in the show-cause notices
and also any other document, that are relevant, to prove
their version. But, instead of doing the same, the
petitioners have approached this Court prematurely at the
show- cause notices stage itself. Hence, the said
complaint of the petitioners has no merit.
12.2. In fact, the learned Special Government
Pleader made a statement before the Court that the first
respondent is willing to provide those reports and also
will afford reasonable opportunity to the petitioners.
Hence, this issue is also decided against the petitioners.
17.4. In these writ petitions under consideration,
show-cause notices were issued and the petitioners were
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asked to appear for a personal hearing to give objections
on the notices and the learned Special Government
Pleader also made a statement before this Court that all
reasonable opportunity would be given and relevant
documents, if any, required by the petitioners would be
furnished, if those documents are in the possession of the
Department. The petitioners approached this Court at the
stage of show- cause notice itself before passing the final
orders by the respondent. Hence, I am of the view that
the said judgment cannot be applied to these writ
petitions and it is premature to approach this Court.
18.35. As stated earlier, I am of the view that on a
reasonable reading of the impugned show-cause notices, a
person of ordinary prudence would not come to a
conclusion that the authority made up his mind and came
to a definite conclusion on the guilt of the petitioners. On
the other hand, it only directed the petitioners to show-
cause as to why action cannot be taken under Section 4-
A(4) of the Act based on the reports mentioned therein.
19.4. In these writ petitions under consideration,
show-cause notices were issued, the petitioners were
asked to appear for personal hearing to give objections
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and the learned Special Government Pleader also made a
statement before this Court that all reasonable
opportunity would be given and the reports, that are
referred to in the impugned show-cause notices, and other
relevant documents, that are required by the petitioners,
if any, would be furnished, if those documents are in the
possession of the Department. He also stated that
adequate opportunity would be given before taking a
final decision. Hence, I am of the view that the said
judgment cannot be applied to these writ petitions. "
(iii) Judgment of this Court in V.KANDASAMY VS. THE
REVENUE DIVISIONAL OFFICER, PERAMBALUR,
PERAMBALUR DISTRICT [W.P.NOS.3018 OF 2013 ETC., BATCH
DECIDED ON 14.12.2021] wherein it is observed as under:
"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
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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 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
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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 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
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Review and thus, the Authorities must be allowed to
exercise their adjudicatory powers in all circumstances."
5.To buttress his contention that the petitioner shall avail the
remedy of appeal and agitate the matter before the Appellate Authority
and without exhausting the alternative remedy available, the petitioner is
not entitled to maintain the writ petition, the learned Government
Advocate would rely on a judgment of the Division Bench of this Court
in P.MARIADOSS VS. THE DISTRICT COLLECTOR AND OTHERS
[WP NOS.1015 OF 2011 ETC., BATCH DECIDED ON 26.03.2012]
wherein it is observed that the petitioner shall avail the remedy of appeal
and agitate the matter before the Appellate Authority.
6.It is relevant to note that the Hon'ble Supreme Court in
SIEMENS LTD., VS. STATE OF MAHARASHTRA AND OTHERS
[2006 (12) SCC 33] wherein it is observed as under:
"9.Although ordinarily a writ court may not
exercise its discretionary jurisdiction in entertaining a
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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 Uttar Pradesh v. Brahm
Datt Sharma and Anr. AIR 1987 SC 943, Special
Director and Another v. Mohd. Ghulam Ghouse and
Another, (2004) 3 SCC 440 and Union of India and
Another v. Kunisetty Satyanarayana, 2006 (12)
SCALE 262], but the question herein has to be
considered from a different angle, viz, when a notice is
issued with pre-meditation, a writ petition would be
maintainable. In such an event, even if the courts
directs the statutory authority to hear the matter
afresh, ordinarily such hearing would not yield any
fruitful purpose [See K.I. Shephard and Others v.
Union of India and Others (1987) 4 SCC 431 : AIR
1988 SC 686]. 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.
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10.The said principle has been followed by this
Court in V.C. Banaras Hindu University and Ors. v.
Shrikant [2006 (6) SCALE 66], stating:
"48.The Vice Chancellor appears to have made
up his mind to impose the punishment of dismissal on
the Respondent herein. A post decisional hearing given
by the High Court was illusory in this case.
49.In K.I. Shephard & Ors. etc. etc. v. Union
of India & Ors. [AIR 1988 SC 686], this Court held :
"It is common experience that once a decision
has been taken, there is tendency to uphold it and a
representation may not really yield any fruitful
purpose."
11.A bare perusal of the order impugned before
the High Court as also the statements made before us
in the counter affidavit filed by the respondents, we
are satisfied that the statutory authority has already
applied its mind and has formed an opinion as regards
the liability or otherwise of the appellant. If in
passing the order the respondent has already
determined the liability of the appellant and the only
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question which remains for its consideration is
quantification thereof, the same does not remain in the
realm of a show cause notice. The writ petition, in our
opinion, was maintainable."
7.It is relevant to note that the Hon'ble Supreme Court in
ORYX FISHERIES PRIVATE LIMITED VS. UNION OF INDIA
AND OTHERS [2010 (13) SCC 427] has observed as under:
"23.Relying on the underlined portions in the
show cause notice, learned counsel for the appellant
urged that even at the stage of the show cause notice
the third respondent has completely made up his mind
and reached definite conclusion about the alleged guilt
of the appellant. This has rendered the subsequent
proceedings an empty ritual and an idle formality.
24.This Court finds that there is a lot of
substance in the aforesaid contention. It is well settled
that a quasi-judicial authority, while acting in exercise
of its statutory power must act fairly and must act
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with an open mind while initiating a show cause
proceeding. A show cause proceeding is meant to give
the person proceeded against a reasonable opportunity
of making his objection against the proposed charges
indicated in the notice.
25.Expressions like "a reasonable opportunity of
making objection" or "a reasonable opportunity of
defence" have come up for consideration before this
Court in the context of several statutes. A Constitution
Bench of this Court in Khem Chand v. Union of India
and others, reported in AIR 1958 SC 300, of course in
the context of service jurisprudence, reiterated certain
principles which are applicable in the present case also."
8.As per the above judgment, when an Authority has
completely made up his mind and reached a definite conclusion about the
alleged guilt of the appellant, the subsequent proceedings of appeal, is an
empty ritual and an idle formality. A show cause notice is meant to give a
person proceeded against a reasonable opportunity of making his
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objection against the proposed charges indicated in the notice. But, in the
instant case, the Authority has already found that the petitioner has
unauthorisedly quarried an excess quantity and removed the same and
thus, he is liable to be punished. Such a show cause notice with pre-
determination is not sustainable in law and is violative of principles of
natural justice.
9.In fact, a learned Single Judge of this Court in
N.THAVASI VS. THE DISTRICT COLLECTOR, DINDIGUL
DISTRICT AND OTHERS [WP (MD) NO.513 OF 2013 DECIDED
ON 27.08.2019] has relied on the very same judgment of the Division
Bench of this Court in P.MARIADOSS's case (cited supra) and
discussed the same and came to a conclusion that where there is violation
of principles of natural justice, the impugned penalty order should be
liable to be set aside. In the present case also, the impugned order came
to be passed in violation of principles of natural justice and passed with
pre-judged view. Therefore, it is not sustainable in law.
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10.Accordingly, the impugned show cause notices bearing
Na.Ka.m1/8318/2012 dated 09.11.2012 and 04.12.2012 passed by the
respondent are set aside and the matter is remitted back to the respondent
with a direction to issue fresh show cause notice to the petitioner with
specific details and provide ample opportunity of personal hearing to
effectively defend his case and thereafter, pass orders on merits and in
accordance with law, within a period of twelve (12) weeks from the date
of receipt of a copy of this order. It is made clear that if the respondent
decides to take measurements again, it shall be made in the presence of
the petitioner.
11.In fine, the writ petition is allowed. No costs.
Consequently, connected Miscellaneous Petition is closed.
25 / 04 / 2022
(1/3)
Index : Yes/No
Internet : Yes/No
TK
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WP NO.34463 OF 2012
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To
The Revenue Divisional Officer
Perambalur,
Perambalur District.
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WP NO.34463 OF 2012
M.GOVINDARAJ, J.
TK
WP NO.34463 OF 2012
25 / 04 / 2022
(1/3)
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