Madras High Court
P.Senthil Kumar vs The Sub-Collector on 9 March, 2022
WP NO.20675 OF 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2022
CORAM:
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
WP NO.20675 OF 2014
AND MP NOS.1 OF 2014 AND 1 OF 2015
P.Senthil Kumar ... Petitioner
Vs.
The Sub-Collector
Perambalur,
Perambalur District. ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorari, to call for the records of the
respondent relating to the order passed in Proceedings Na.Ka.No.A1/242/
2014 dated 13.03.2014, quash the same.
For Petitioner : Mr.V.Sanjeevi
For Respondent : Mr.B.Vijay
Additional Government Pleader
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ORDER
Challenging the penalty imposed on the petitioner by the
respondent vide order dated 13.03.2014, the present writ petition has been
preferred.
2.The petitioner was granted lease to quarry stones in
S.F.No.328/2, Block - 22, within an area of 1.00.0 Hectares in Kalpadi (N)
Village, Perambalur Taluk and District for a period of ten years. On an
inspection conducted by the respondent, it was found that the Licensee /
petitioner had unauthorisedly quarried 45103 cubic meters of the minerals
and transported the same without permission and in violation of the Rules. On
the basis of the same, a show cause notice was issued to the petitioner on
13.02.2014, as to why action shall not be initiated against him for
unauthorised quarrying. The petitioner had submitted his explanation that in
the quarry allotted to him, only the soil and quarry waste was there and that
he has not unauthorisely quarried any minerals. Thereafter, without
conducting any enquiry, the penalty proceedings came to be passed.
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3.From a reading of the impugned proceedings, it is noted that
the authorities, without following the principles of natural justice have
determined that the petitioner has committed violation of Rules and quarried
the minerals unauthorisedly. The issue was pre-determined. Thereafter, a
show cause notice came to be issued. In spite of the objection raised by the
petitioner that he has not committed any violation of Rules, no enquiry was
conducted and opportunity to challenge the pre-determination of illegal
quarrying was not afforded to him. On the other hand, on the basis of the
pre-determined decision, the penalty order came to be passed without
affording any opportunity to the petitioner.
4.According to the respondent, during the joint inspection
conducted by him along with the Assistant Geologist, on 20.12.2013, it was
found that the petitioner has quarried excess quantity of stones from the area
which was not allotted to him and also transported excess quantity of stones
than the permitted quantity. Thereafter, on 13.02.2014, another notice was
issued with enclosures and called for explanation for the same. The petitioner
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WP NO.20675 OF 2014
submitted his explanation stating that he had quarried only in the place
allotted to him and that he has not quarried in any other place, much less an
excess of the permitted quantity. The respondent in his proceedings
Na.Ka.No.A1/242/2014 dated 13.03.2014, imposed penalty on the petitioner.
5.A reading of the impugned order reveals that the petitioner has
submitted his explanation that he has not illegally quarried the stones. But
without discussing or recording any reasons, the respondent straight away
imposed the penalty of a sum of Rs.4,11,93,160/-. Aggrieved over the same,
the petitioner is before this Court.
6.The learned counsel for the petitioner would submit that no
show cause notice as required under the Tamil Nadu Minor Mineral
Concession Rules, 1959 was issued by the respondent before passing the
impugned order. Further, as per Rule 36(5)(h) of the Tamil Nadu Minor
Mineral Concession Rules, 1959, the respondent has no power to cancel the
lease and it is only the District Collector, who empowers to cancel the lease
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WP NO.20675 OF 2014
for violation of lease condition / breach of rules. Such an order can be passed
only after providing an opportunity of hearing to the lessee. But, in the
impugned notice, the respondent Sub-Collector, without any authority has
called for the explanation as to why the lease should not be cancelled for
violation of rules. Further, during the inspection, the petitioner was not
present and that it is highly improbable to take measurements, identification
of the leasehold area, fixing the boundary of the leasehold area, etc., by the
respondent along with Assistant Geologist without the presence and
assistance of the Surveyors. Therefore, it is purely based on assumption and
information given by somebody else. There is no detail as to whether the
quarry was made and that it was done by the petitioner. Without discussing
or recording the above details, the impugned order came to be passed.
Further, there are lot of discrepancies in the calculation and without giving
any revised order, the respondent has proceeded to impose penalty and
therefore, it is illegal.
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7.Resisting the submission, the learned Additional Government
Pleader would vehemently contend that for conducting surprise inspection,
prior notice is not required. It is specifically stated that the petitioner has
quarried in a place, which is not allotted to him and also the records proved
that he has transported more than the quantity which is permitted to him.
Since all the details have been provided along with the notice and that the
petitioner was given ample opportunity to specifically deny the same, the
petitioner has not given specific reply/explanation, to the notice. On the other
hand, he would make a bald and vague allegation, without denying the
specific measurements and excess quarrying and transporting as submitted in
his reply. This non-denial will amount to implied admission of the guilt. Once
there is no denial, the Authority need not give elaborate reasons to the
admitted breach.
8.Heard the submissions made on either side and perused the
materials available on record.
9.On a perusal of the impugned order, it is noted that a notice
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was issued by the respondent stating that the petitioner has quarried 45103
CUM of minerals without permission and in violation of rules. The impugned
order further reveals that a show cause notice was issued and a reply was
given and that it was not acceptable and therefore, the penalty was imposed.
Other than this, no reasons were recorded therein. While passing a penalty
order, it is incumbent on the authority to specifically state what is the area
allotted for quarrying, what is the area leased out for quarrying and that the
area in which the lessee is quarrying in violation of the license condition or
rules and regulations and the quantum of excess quarrying and the method of
calculation in arriving at the penalty in accordance with the rules. Without
discussing the reply submitted by the lessee and without recording any
specific details of violation and the reasons for imposing penalty, if an
impugned order is passed, it is violative of principles of natural justice and
that it will amount to non-application of mind.
10.Any penalty order, without recording the reasons shall be
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construed as an arbitrary award and it is violative of principles of natural
justice. In such view of the matter, the impugned order does not stand the
scrutiny of law.
11.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 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,
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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.
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 :
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"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 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."
12.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:
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"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 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
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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."
13.The learned Additional Government Pleader would rely on
the following judgments to buttress his contention that writ petition is not
maintainable against a show cause notice and that the petitioner can avail
opportunity of getting the records from the respondents and submit an
effective reply.
(a) Judgment of this Court in SIVA BLUE
METALS VS. THE DISTRICT COLLECTOR,
THOOTHUKUDI AND OTHERS [2012 SCC
ONLINE MAD 481]
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(b) Judgment of this Court in M/S.RPR
GRANITES VS. THE STATE OF TAMIL NADU
AND ANOTHER [2014 SCC ONLINE MAD 6509]
(c) Judgment of this Court in
V.KANDASAMY VS. THE REVENUE
DIVISIONAL OFFICER, PERAMBALUR [WP
NOS.3018/2013 AND 6697 TO 6701 OF 2015
DECIDED ON 14.12.2021]
14.Further, the learned Additional Government Pleader 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.
15.But, in the instant case, show cause notice categorically
mentioned that the petitioner has already committed an offence and that he is
liable to be punished. After forming of an opinion, the respondent has issued
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the show cause notice and any amount of explanation will not be fruitful. The
show cause notice was also not properly issued in the manner known to law
and appropriate opportunity was not given to the petitioner to put forward his
defense. Therefore, the judgments relied on by the learned Additional
Government Pleader will not be applicable to the present case on hand.
16.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 without issuing any show cause
notice and without adhering to the settled procedure and therefore, it is liable
to be set aside.
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17.Accordingly, the impugned order passed by the respondent in
Proceedings Na.Ka.No.A1/242/ 2014 dated 13.03.2014 is 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 the petitioner to effectively defend his case
and pass orders, on merits and in accordance with law, within a period of
twelve weeks from the date of receipt of a copy of this order. If required, the
respondent is directed to take measurements in the presence of the petitioner.
18.The writ petition is disposed of accordingly. No costs.
Consequently, connected miscellaneous petitions are closed.
09.03.2022
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Index : Yes/No
Internet : Yes/No
Speaking / Non-speaking order
TK
To
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WP NO.20675 OF 2014
The Sub-Collector
Perambalur,
Perambalur District.
M.GOVINDARAJ, J.
TK
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09.03.2022
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