@JUDGMENTTAG-ORDER
P. Jyothimani, J.@mdashThe writ Petitioner challenges the order of the Respondent in imposing penalty on the Petitioner as per Rules 36A(1) and
(3) of the Tamil Nadu Minor Mineral Concession Rules, 1959.
2. Even though as against the order of the Respondent, an appeal lies to the Commissioner of Geology and Mining under Rule 36C of the Tamil
Nadu Minor Mineral Concession Rules, 1959, the present writ petition has been filed by the Petitioner on the ground that the impugned order has-
been passed without following the principles of natural justice and on the basis of the materials collected behind the back of the Petitioner and that
after the period of agreement was over, there is no material to show that the Petitioner has illegally mined or has been caught red-handed.
3. The writ Petitioner was granted lease to quarry sand in the land bearing survey No. 578 measuring 2.00.0 hectares in Thatchur village, Arani
taluk for the period from 1.3.1997 to 31.3.1999. The Respondent issued a show-cause notice on 26.3.1997 based on inspection report of the
Special Revenue Inspector-cum-Assistant, Office of the Deputy Director (Geology and Mining), Tiruvannamalai District dated 12.4.1997 alleging
that when the vehicles were checked on the complaint of illicit mining at Cheyyar, it was found that sand quarrying was permitted by the Petitioner
by collecting Rs. 30/-per load as evident from the slip No. 001 with the facsimile signature of the Petitioner stated to have been seized from the
lorry bearing registration No. TNW 7446 on 20.3.1997 and also alleging that the Petitioner was granted to quarry sand in survey No. 578 for the
period from 1.3.1997 to 31.3.1999 but the permitted quarrying sand from the land bearing survey No. 279 in Thellur village and survey No. 327/1
in Vinnamangalam village in Cheyyar river and collected the amount.
4. The Petitioner submitted his explanation denying the allegations and the Respondent passed an order on 27.4.1998 imposing penalty of Rs.
19,400/-for removing 848 units of sand from survey No. 279 in Thellur village and survey No. 327/1 in Vinnamangalam village. The Petitioner filed
an appeal to the Director of Geology and Mining and the said order was confirmed on 8.9.1998 and the second appeal filed to the Government
was also dismissed in G.O.(D) No. 135 Industries (MMC.2) Department, dated 24.6.1999, against which the Petitioner moved this Court by
filing W.P. No. 1216 of 1999, in which by order dated 19.9.2001 this Court set aside the impugned order and remitted the matter back to the
Respondent with direction to proceed further after communicating the copies of the reports and inspection reports of the inspecting authorities and
giving opportunity to the Petitioner to file his objections on the basis of the said report and to conduct inspection.
5. Pursuant to the order, the Respondent issued notice stating about the inspection to be conducted on 1.3.2003. The Petitioner was present and it
was found that there was no pit in the area and no measurement was taken. It is stated that the lease-hold area given to the Petitioner was 6 kms
away from Thellur and Vinnamangalam site and the entire allegations were made based on the complaint of a former MLA who subsequently
withdrew the complaint and in the complaint given by another person Vadivelu, there was no mention about the Petitioner and certain allegation
was also made against the MLA of Arni who with the intention of releasing the lorry seized at Thellur issued a letter and there was no complaint of
illegal mining.
6. It is stated that the inspection report of the Special Revenue Inspector-cum-Assistant was made with certain insertions which were not available
at the time of inspection. Thereafter, in the letter dated 15.7.2003 stated to have been enclosed with a copy of inspection report, the Respondent
directed the Petitioner to appear in person and also submit a reply on 28.7.2003 however, there was no enclosure along with the said notice and
therefore, the Petitioner requested for a copy of inspection report and it was in the notice dated 25.7.2003 the Respondent enclosed the inspection
report and the Petitioner submitted his objections. It is stated that the absence of pit should have been due to long lapse of time, since the
agreement itself concluded in the year 1999 and the inspection was made in the year 2003.
7. It is also stated that there has been dispute regarding location which was inspected and the Respondent ought to have decided independent of
the report of the Special Revenue Inspector dated 12.4.1997 since the inspection report dated 12.4.1997 was made in the absence of the
Petitioner. As per the request of the Respondent, the Petitioner appeared in person on 28.7.1993 and submitted a detailed written submission
requesting to drop the proceedings on the ground that there was absolutely no evidence against the Petitioner, however, the Respondent passed
the impugned order on 21.10.2003, imposing penalty as per Rule 36A(1) and (3) of the Tamil Nadu Minor Mineral Concession Rules, 1959 of a
sum of Rs. 8,90,400/-which is questioned on various grounds including that the impugned order was passed based on the inspection report of the
Special Revenue Inspector dated 12.4.1997 which was made behind the back of the Petitioner and the said report is not valid and the Respondent
failed to take into consideration the objections raised by the Petitioner that there was absolutely no material to implicate the Petitioner and there
was no person examined in the presence of the Petitioner to implicate the Petitioner in the alleged illegal mining and there is nothing on record to
show about the complaint against the Petitioner and the MLA''s letter itself was only for the purpose of releasing of lorry and incidentally there
were some allegations made by the said MLA and the MLA himself withdrew the complaint in the letter dated 11.2.1999 addressed to the Deputy
Secretary to Government, Industries Department and in respect of the complaint of one Vadivelu, there was specific reference about the persons
but the name of the Petitioner was not even mentioned in the complaint given by Vadivelu and inasmuch as slip No. 001, dated 20.3.1997 relating
to lorry No. TNW 7446, had never been given by the Petitioner and the said lorry had not been seized, it is not known how such slip was relied
upon to implicate the Petitioner and in the light of catena of judgments, any material received behind the back of the Petitioner cannot be used
against him and there was no vehicle found loading sand into the lorry or transporting sand in illicit manner and the place said to have been illicitly
mined by the Petitioner is situate 6 kms. away from the place where the agreement was given to the Petitioner and the Special Revenue Inspector
has no jurisdiction to enter into the place for the purpose of finding out and giving a report as per Section 24 of the Tamil Nadu Mines and
Minerals(Development and Regulation) Act, 1957 and the vehicle TNW7 446 pertaining to the slip was not seized and the owner or driver of the
vehicle was not examined and it is not known how the Village Administrative Officer got that slip and in any event, there is no evidence for the
alleged illicit mining by the Petitioner.
8. In the counter affidavit filed by the Respondent, it is stated that the Petitioner was granted lease for quarrying sand in survey No. 578 of That
chur village in Cheyyar river for the period from 1.3.1997 to 31.3.1999 as per the proceedings of the Collector dated 21.3.1997 and the lease
deed was executed on 21.3.1997. On receipt of certain complaint of illegal removal of sand from Chevy arriver in Thellur and Vinnamangalam
village limits, the Special Revenue Inspector (Mines)-cum-Assistant and Office Assistant in the Office of the Deputy Director of Geology and
Mining, Tiruvannamalai inspected the area on 12.4.1997 and seized one lorry engaged in illicit transporting of sand. At that time, the Village
Administrative Officer revealed that the Petitioner was allowing the vehicle to remove sand on issuing slip with his facsimile signature and produced
the slips bearing sl. Nos. 001 and 002 based on which the Petitioner was called for explanation, which was submitted by the Petitioner on
29.7.1997 stating that he was only issuing discharge slip and copy of bulk permit for removing sand from his lease-hold survey No. 578 of That
Chur village and he was not collecting money for illicit removal of sand.
9. The Petitioner has also stated that the receipt No. 001 obtained by the Village Administrative Officer wasn''t issued by him or his agent and he
was not connected with the said receipt. There was a personal hearing given to the Petitioner and the Petitioner appeared before the Collector on
26.8.1997 and the Collector issued orders on 27.4.1998 imposing penalty and seignior age fee of Rs. 9,05,400/-against which the Petitioner filed
an appeal to the Commissioner of Geology and Mining, who dismissed the appeal on 8.9.1998 and the second appeal to the Government was also
dismissed on 24.6.1999 in G.O.(D) No. 13, Industries (MMC2) Department, dated 24.6.1999 and thereafter, the Petitioner filed W.P. No. 1216
of 2000 and this Court, by order dated 19.9.2000 set aside the impugned order and the matter was remitted back to the Collector with direction
to proceed further after communicating the copies of the reports and inspection report of inspecting authorities and after providing opportunity to
the Petitioner to file objection to the said report.
10. It is stated that as per the directions of this Court, inspection was made in Thellur village and Vinnamangalam village on 1.3.2003 with regard
to illicit quarrying done by the Petitioner in which the Petitioner as well his advocates were present and the local enquiry was made which revealed
that there was flood during September, 1997 and October, 1998. It is stated that there was seasonal flow of water during rainy season and after
lapse of such a long time and due to the floods, the pits would have been filled up and there was no pit seen for taking measurement. The Petitioner
appeared before the Collector on 27.8.2003 and submitted his explanation stating that there was absolutely no evidence to show that he was
involved and requesting to drop the proceedings. The Petitioner also requested that in the event of proceeding further, he must be allowed to
cross-examine the Special Revenue Inspector (Mines) who conducted the inspection in the year 1997.
11. It is stated that even though there was no pit found during the field inspection on 1.3.2003, the report submitted by the Special Revenue
Inspector (Mines) and the statement of Village Administrative Officer, Thellur show that there was a slip issued by the Petitioner affixing his
facsimile signature, which confirms that the Petitioner was involved and it was, under those circumstances, the impugned order came to be passed.
It is admitted that the inspection report of the Special Revenue Inspector(Mines)-cum-Assistant dated 12.4.1997 revealed that a lorry was seized
by the Special Revenue Inspector in the year 1997 and measurement was made at that time. It is stated that the Village Administrative Officer is
the competent authority to inspect the quarry and survey and measure any quarry in village level.
12. Heard learned Counsel for the Petitioner as well as the learned Special Government Pleader for the Respondent. The learned Special
Government Pleader has also produced the files and I have gone through the same.
13. The earlier order passed by the Respondent dated 24.6.1999 imposing penalty of Rs. 8,90,400/-was set aside by this Court in W.P. No.
1216 of 2000 by order dated 19.9.2001 by remitting the matter back to the Respondent in the following terms:
3. So without going into the merits of the case, the impugned order is set aside and the matter is remitted back to the third Respondent, giving
opportunity to proceed further after communicating the copies of the reports and inspection reports of the inspecting Authorities and thereafter
giving opportunity to the Petitioner to file their objections on the basis of the said report. The third Respondent is also directed to conduct
inspection and take measurements in the presence of the writ petitioner his representative.
14. The Respondent issued a notice on 12.5.2002 by enclosing various documents which were directed to be given by this Court and admittedly,
the spot inspection was conducted in the presence of the Petitioner on 1.3.2003.
15. The Respondent has specifically admitted in the counter affidavit that during field inspection there was no pit found on 1.3.2003. It is also not in
dispute that after the period of lease, which came to an end on 31.3.1999, the Petitioner has not quarried. It is the specific complaint that during
the period of lease viz., from 1.3.1997 to 31.3.1999, some time in April, 1997, the Petitioner quarried illicitly from some other place viz., from
survey No. 279 of Thellur village and survey No. 327/1 in Vinnamangalam village which are situate 6 kms away from the place which was allotted
to the Petitioner by way of agreement. It is not a case that in April, 1997, the Petitioner was caught red-handed when he was illicitly taking away
sand from other survey numbers viz., S. No. 327/1 of Vinnamangalam and S. No. 279 of Thellur village. The entire allegation was made against
the Petitioner on the basis of visit stated to have been made by the Special Revenue Inspector-cum-Assistant and Office Assistant on 1 2.4.1997
when a lorry was seized.
15. It is not even the case of the Respondent that the said lorry belonged to the Petitioner and the only incriminating material is the slip containing
facsimile signature of the Petitioner which has been disowned by the Petitioner. On the factual findings, it is seen that as per the directions of this
Court, when inspection was made in the year 2003 i.e. on 1.3.2003, there was no pit found and the liability has been mulcted on the Petitioner
based on the assumption that during the lapse of nearly three years due to rain and flood, the pits would have been filled up and based on the
earlier inspection report dated 12.4.1997 of the Special Revenue Inspector (Mines), the impugned order has been passed imposing penalty.
16. Admittedly, at the time when the Special Revenue Inspector (Mines)-cum-Assistant and Office Assistant visited on 12.4.1997, the Petitioner
was not asked to be present and the report itself was prepared behind the back of the Petitioner and therefore, prima facie that report cannot be
the basis for deciding against the Petitioner in passing the impugned order. A reference to the impugned order of the Respondent shows that there
was no incriminating material placed against the Petitioner and specifically the District Collector in the impugned order, found that no illegal
quarrying was noticed as per the report of the Special Revenue Inspector (Mines), but the Respondent has come to the conclusion that the
evidence would have been erased in the lapse of six years and ultimately, inflicted penalty on the Petitioner based on the report of the Special
Revenue Inspector dated 12.4.1997.
17. A reference to the files produced by the Respondent shows that there are at least five slips given with the signature of the Petitioner. The
facsimile signature of ''D. Raja'' found therein does not tally with the signature of the Petitioner found in the affidavit filed in support of the writ
petition and the slips also contain various lorry numbers. It is no doubt true that after the direction was given by this Court, the Petitioner required
various documents and copies of which were also furnished. It is not in dispute that the alleged place where the illegal quarrying was stated to have
been made is away from the place of agreement between the Petitioner and the Respondent department. At the time when the inspection was
made in the year 2003, admittedly, there was no measurement taken because, as it is seen from the counter affidavit as well as the impugned order,
there was no pit available at that time. It was, in those circumstances, on the assumption that pits that were allegedly available in the year 1997
when the inspection was made by the Special Revenue Inspection (Mines) would have been closed during the course of time and only based the
slip which had been recovered, the penalty has been made.
18. The impugned order by imposing penalty is itself in the form of punishment and therefore it requires appropriate evidence except in cases
where the persons are caught red-handed at the time of making illicit mining. Therefore, on the specific finding in the impugned order by the
Respondent Collector that there was no pit available and no measurement was taken at the time of inspection made after the matter was remanded
by this Court, it has to beheld to be a case of no evidence and in such circumstances, the reliance placed on the earlier report of the Special
Revenue Inspector (Mines) of the year 1997 to come to the conclusion against the Petitioner especially after the original order was set aside
cannot be accepted. The impugned order being penal in nature has be necessarily substantiate the allegations against the Petitioner by appropriate
material proof and in the absence of such proof, it is not possible to accept the contention of the learned Counsel for the Respondent that on
probabilities the decision can be taken.
19. Again, when it is the case of the Respondent that inspection was made in April, 1997 when the agreement was in force, it is not known as to
why no evidence was taken, if the Petitioner was actually involved in illicit quarrying. The mere production of slip containing the facsimile signature
which is stated to have been used by the Petitioner while quarrying sand in the site and which is, according to the Petitioner, stated to have been
misused by some other persons, itself is not sufficient in the absence of any evidence from any other person either in the form of complaint or
evidence before the authority concerned making the petitioner liable for penal consequences. I had an occasion to consider such circumstances in
V.S.O. Balakrishnan and Anr. v. District Collector Thiruvallur and Anr. 2009 (2) MLJ 577 with the following observations:
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.
20. That has been the consistent view of this Court. In considering Rule 36 of the Tamil Nadu Minor Mineral Concession Rules, 1959, against the
compliance of the principles of natural justice, in the matter of supply of various materials during site inspection in the absence of the person
concerned and the collection of materials behind the back of the Petitioner was found to be opposed to the principles of natural justice. It is useful
to extract the following portion of the judgment of P. Sathasivam,J. (as His Lordship then was) in an unreported judgment in W.P. No. 32829 of
2002, dated 10.9.2003, as it was elicited by N. Paul Vasanthakumar, J. in R. Sonai v. The District Collector Madurai District 2006 (5) CTC 857.
14. In an unreported judgment in W.P. No. 32829 of 2002 dated 10.9.2003 a learned Judge of this Court (P. Sathasivam,J.) 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 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 at 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 K. Subba Reddy and Ors. v. State of Tamil Nadu Secretary to Government Industries
Department Madras - 9 Writ Petition Nos. 8207 and 10062 of 1997 dated 27.7.1999. 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)
49. Neatly 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 21 relied upon a
decision of this Court as well as a decision of mine in Logasundari v. District Collector Madurai 1998 MLJ (1) 43. In the said judgment it has been
emphasized that materials that have been collected behind the back of the petitioner cannot be used against the petitioner as has been emphasized
by this Court from time to time.
In R.K. Ramaswamy v. State of T.N. A.I.R.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...
21. It was, in the earliest judgment in dated 27.7.1999, E. Padmanabhan,J. (as he then was) held that the materials collected behind the back of
the Petitioner vitiate the entire proceedings. The observation of the learned Judge is as follows:"" 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 is illegality cannot be cured. In this regard, the learned Senior Counsel relied upon a decision of this Court as well as decision of mine In the
said judgment it has been emphasized that materials that have been collected behind the back of the Petitioner cannot be used against the
Petitioners has been emphasized by this Court from time to time.
22. By applying the yardstick which has been consistently followed by this Court, I have no hesitation to hold that the finding of the Respondent in
order to implicate the Petitioner for imposing penal liability isn''t acceptable, since it is in violation of the principles of natural justice and in view of
the clinching finding in the impugned order itself that there was no pit available and there was no evidence implicating the Petitioner directly in
respect of the allegation of illegal quarrying.
23. Looking into the matter in any angle, I am of the considered view that the impugned order cannot be sustained and accordingly, the impugned
order stands set aside and the writ petition is allowed. No costs. Connected miscellaneous petition is closed.
