@JUDGMENTTAG-ORDER
M.M. Sundresh, J.@mdashA common order is passed in both the writ petitions, considering the fact that the issues and the parties are one and the same.
2. Facts in brief:
2.1. One Shri.T. Manickam, father of the Respondent No. 2, filed six applications, dated 22.10.1985 and 10.02.1996, seeking mining lease for Garnet and Limenite over an extent of 22.21 acres of patta lands in Karaichuthuputhur Village, Radhapuram Taluk, Tirunelveli District, for a period of 20 years. By the Government Orders in G.O. Ms. No. 261, Industries, dated 15.04.1987 and G.O. Ms. No. 262, Industries, dated 15.04.1987, two mining leases were granted to Shri.T. Manickam in Survey No. 26/2 with an extent of 1.70 acres and Survey Nos. 93/9B, 93/10 to the extent of 0.15 and 0.60 hectares respectively, for a period of three years.
2.2. In the Government Order passed in G.O. Ms. No. 96, Industries (MMD2) Development, dated 22.01.1990, Shri.T. Manickam was granted mining leases for the remaining four mining lease applications, for a period of five years, in survey Nos. 23/1, 22/7, 8, 9A, 9B, 10, 92/3, 157/1-I, J, M, N, O, Q, to the extent of 6.83, 6.07, 2.80 and 2.96 acres respectively. Shri.T. Manickam, thereafter made another mining application which was forwarded by the first Petitioner, in and by his letter dated 27.03.1992 for mining Garnet in respect of Survey Nos. 158, 159, 594 to the second Petitioner through the Director of Geology and Mining. Again, the first Petitioner, in and by his letter dated 11.05.1992 has forwarded the mining lease application to the second Petitioner in respect of Survey Nos. 90/1, 90/2, 91/2, 93/3B, 4, 5A, 5B, 6, 7, 8 through the Director of Geology and Mining. Shri.T. Manickam has also made an application on 09.07.1993 for mining lease in Survey Nos. 158, 159, 594.
2.3. During the routine inspection conducted by the Deputy Director of Geology and Mining on 12.12.1993, a lorry belonging to Shri.T. Manickam was seized on the ground that it was carrying illicit mined Garnet of about 10 Metric Tonnes from Survey Nos. 93/5A and 93/5B. Complaints were also received from various quarters against Shri.T. Manickam alleging illicit mining including the then Member of the Legislative Assembly of Thiruvattur Constituency and one Thiru.S. Sankaralingapandian. A legal notice was sent by Shri.T. Manickam, dated 17.12.1993 requesting to compound the offence for the release of the vehicle. A Criminal case was also registered in Crime No. 223 of 1993 before the Ovari Police Station against Shri.T. Manickam.
2.4. On 20.12.1993, the Joint Secretary to Government has inspected the first Petitioner to take appropriate action on the allegations made in the complaints. The first Petitioner has ordered for joint inspection by the Sub-Collector, Cheranmahadevi on 04.01.1994. A joint inspection team comprising of the Sub-Collector, Cheranmahadevi, Deputy Director (G&M), Assistant Director (Survey and Land Records), Tirunelveli. Inspector of Survey, Tirunelveli, Taluk Deputy Surveyor, Taluk Sub-Inspector of Survey, Radhapuram, Firka Surveyor, Tisaiyanvilai, Village Administrative Officer, Karaichuthupudur made an inspection on 19.01.1994. It measured the pits where illegal mining was said to have been carried out in the non-leased out areas belonging to Shri.T. Manickam. The representative of Shri.T. Manickam was also present during the inspection. A quantum of about 1,77,694.15 Metric Tonnes of Garnet has been reported by the joint inspection team as the illicitly quarried Garnet.
2.5. On 11.02.1994, the first Petitioner has requested the Commissioner of Geology and Mining to send a team of technical persons to quantify the exact quantum of illicit mining. On 21.06.1994, the Sub-Collector, Cheranmahadevi, gave a report based upon the inspection dated 19.01.1994 to the first Petitioner. A second inspection was made on 23.06.1994 by various officials, in which, Shri.T. Manickam was present along with his staff. The illegally mined Garnet was quantified adopting 25% as recovery instead of 50% taken earlier, by taking into consideration of the depth of the Garnet deposit to about 1.5 metres. A further inspection was made on the factory premises and 28,379 Metric Tonnes of Garnet was also found as excess stock. The Respondent No. 2/Shri.T. Manickam has also made a statement after inspection by the technical team on 23.06.1994.
2.6. The Director of Geology and Mining by his letter dated 29.06.1994 requested the first Petitioner to ensure that the excess quantity was not transported and an order was passed by the first Petitioner on 02.07.1994 to seize the excess quantity.
2.7. In pursuant to the order passed by the Honourable Court in W.P. No. 12029 of 1994, a show cause notice was issued on 23.11.1994 as to why penalty, royalty and cost of the mineral should not be imposed for the illegal mining. A reply was given by Shri.T. Manickam dated 28.11.1994. Final orders were passed by the first Petitioner dated 30.11.1994 imposing a sum of Rs. 9,18,315/-towards royalty and another sum of Rs. 10,000/-as penalty for the excess stock of Garnet found in the factory premises. Final orders were also passed on 30.01.1995 by the first Petitioner imposing a sum of Rs. 7,53,85,000/-towards the cost of mineral illicitly mined.
2.8. Shri.T. Manickam filed two revision petitions, challenging the orders passed by the first Petitioner, under Rule 54 of the Mineral Concession Rules, 1960. After filing the revision petitions Shri.T. Manickam expired on 20.07.1997. Thereafter, the orders have been passed by the Respondent No. 1 in final order Nos. 65 of 1998 and 66 of 1998 on 15.07.1998 setting aside the orders passed by the first Petitioner and remitting the matters back for first consideration. While passing the said orders, the Respondent No. 1 has set aside the findings rendered by the first Petitioner.
2.9. The second Petitioner directed the first Petitioner to file writ petitions in and by his letter dated 16.12.1998. A subsequent letter was sent on 16.03.1999 in this regard. Accordingly, the first Petitioner has filed the present writ petitions. The writ petitions were admitted and orders of stay were granted by this Court.
3. An objection was raised by the Respondent No. 2 to the effect that the writ petitions filed by the first Petitioner are not maintainable in law. Thereafter, applications were filed to implead the second Petitioner as the Petitioner in the writ petitions along with the first Petitioner. This Honourable Court in and by its order dated 09.07.2010 in W.P.M.P. Nos. 400 and 401 of 2010 has allowed those applications permitting the second Petitioner herein to be impleaded as writ Petitioner leaving open the issue of maintainability of the writ petitions.
4. Submissions on behalf of the Petitioners:
4.1. Shri.P. Wilson, learned Additional Advocate General, submitted that the first Respondent has committed jurisdictional errors in remitting the matters after setting aside the findings on the ground that there is a failure of principles of natural justice in as much as Shri.T. Manickam has not been given a proper opportunity. The report of the Sub-Collector relied upon by the Respondent No. 1 is not conclusive and the observations contained therein cannot be a basis for coming to the conclusion. The authority to decide the illegal mining and the consequential levy of penalty is the 1st Petitioner and therefore, the Sub-Collector''s report has got no relevancy. The report of the Sub-Collector has been misconstrued. In as much as the pits have been found as a matter of fact on the patta lands belonging to the Respondent No. 2, the onus is on him to substantiate his case. The reasons assigned on the inspection reports and the compounding orders also cannot be sustained.
4.2. It was further contended that in an administrative action which involves an inspection, there is no question of principles of natural justice involved in as much as the provisions of the enactment and the rules do not contemplate the prior intimation before inspection. The inspection has been done by the authorities concerned during which time the representative of the Respondent No. 2 was present.
4.3. The power exercised by the first Petitioner is only an administrative power having its civil consequences, the said power is not a quasi-judicial power and therefore, the orders passed by the Respondent No. 1 is amenable to challenge. The Minerals having belongs to the Petitioners, it is the Petitioners who can protect their interest. Section 21(5) of the Mines and Minerals (Development and Regulations) Act, 1957 provides for a method to recover the value of the Minerals extracted illegally. The decision has been arrived at by the first Petitioner based upon the relevant materials including the documents belonging to Shri.T. Manickam.
4.4. The learned Additional Advocate General has relied upon the judgment of the Honourable Apex Court in
5. Submissions on behalf of the Respondent No. 2:
5.1. Per contra, Shri.V.T. Gopalan, learned senior counsel appearing for the Respondent No. 2 in W.P. No. 7742 of 1999 submitted that the writ petitions are not maintainable at the instance of the Petitioners. The Petitioners being quasi-judicial authorities cannot invoke the jurisdiction of the Honourable High Court. In the absence of any provision enabling the Petitioners to challenge the orders of the Respondent No. 1, the writ petitions cannot be maintained. The orders passed by the first Petitioner are quasi-judicial ones.
5.2. In support of the above said contentions, the learned senior counsel made reliance upon the judgment of the Honourable Supreme Court in
5.3. The learned senior counsel also submitted that the judgment relied upon by the Petitioner in
6. Shri.P. Kumar, learned senior counsel appearing for the Respondent No. 2 in W.P. No. 7743 of 1999 submitted that the writ petitions will have to be dismissed in as much as the second Petitioner has got impleaded only at the time of final hearing of the writ petition. Hence, the inordinate delay and laches in the dismissal of the writ petition. The learned senior counsel further raised the following issues:
1. Can the first inspection report pursuant to the inspection made on 19.01.1994 be relied upon, since it was without notice to the 2nd Respondent''s father which renders the first report incurably defective in view of the several judgments of this Hon''ble Court i.e., (i)W.P. No. 8207 of 1997 etc., dated 27.07.1999, (ii) W.P. No. 32829 of 2002 dated 10.09.2003, (iii) 2006 (5) C.T.C. 857 and (iv) 2009 (2) MLJ 577
2. Is the second inspection made on 23.06.1994 also invalid, as it has relied upon and based its decision on the first inspection report ?
3. If both the reports are to be eliminated, whether there is any other material on which the conclusion of illicit mining can be arrived at ?
4. Additionally, if the second inspection report also without jurisdiction, as the persons who inspected were incompetent and not authorized to exercise the power u/s 24(1) of the Mines and Minerals (Development and Regulations) Act, 1957.
5. Is the show cause notice dated 23.11.1994 for the second case (W.P. No. 7743 of 1999) ex-facie illegal, since the mineral found in the factory if illegally mined garnet sand which has already come from the lands and form part of the first show cause notice proceedings dated 23.11.1994 (W.P. No. 7742 of 1999) ?
6. Is not the show cause notice also invalid, since it seeks to levy royalty on the materials described as garnet fye;j kzy;, hence royalty is leviable on garnet abrasive alone ?
7. In any event, will not the declaration of available stock of garnet (abrasive) alone in the quantity of 7,972.260 Metric Tonnes would adequately cover the quantity of 28,379.260 Metric Tonnes of garnet sand found at the factory and consequently there is no excess of garnet available over and above the declared stock ?
8. Apart from the above, the issue whether the show cause notices are liable to be set aside and all the proceedings are to be declared invalid on the ground that from the show cause notice itself, it is apparent that the District Collector has prejudged the issue and as such the proceedings are invalid and more so in view of the judgment of the Hon''ble Supreme Court of India reported in (2006) 12 SCC 33 (Siemens Case).
7. The learned senior counsel submitted that the materials required for arriving at a final decision are already available with the Respondent No. 1 on record and therefore instead of remanding the matters, the Respondent No. 1 has to look into all the aspects adduced not only by the Petitioners but also by the Respondent No. 2. The points raised by the Respondent No. 2 before this Court will have to be looked into by the Respondent No. 1.
8. Heard Shri.P. Wilson, learned Additional Advocate General, Assisted by Shri.A. Arumugam, learned Special Government Pleader, appearing for the Petitioners, Shri. Achuthan, learned Counsel appearing for the Respondent No. 1, Shri.V.T. Gopalan, learned Senior Counsel appearing for the Respondent No. 2 in W.P. No. 7742 of 1999 and Shri.P. Kumar, learned Senior Counsel, Assisted by Shri.V. Sanjeevi, appearing for the Respondent No. 2 in W.P. No. 7743 of 1999.
9. The core issues to be decided in these two writ petitions are as to whether the writ petitions filed by the Petitioners are maintainable in law and the orders of remand passed by the Respondent No. 1 being the revisional authority are justified and warranted on the facts and circumstances of the case.
10. Maintainability of the writ petitions:
10.1. It is not in dispute that the Petitioners are the owners of the Minerals. The very fact lease deeds were executed by the Petitioners in favour of the Respondent No. 2 in accordance with the Mineral Concession Rules, 1960 itself would exemplify the fact that the Petitioners are the owners of the Minerals and there cannot be any other persons other than the Petitioners who are interested in the same. If the Petitioners are of the view that the Respondent No. 1 has passed orders contrary to their interests and to the development of the Minerals, it is always open to them to challenge the said orders before the competent Court of law. In
12. In this connection, it is necessary to note that in the first place, the State Government is not merely an authority subordinate to the Central Government which would, undoubtedly, be bound by the revisional orders of the superior authority. It is also the owner of the mines and minerals in question. If it is directed to issue a mining lease in favour of any party, it has locus standi to challenge that order under Article 226 of the Constitution of India.
10.2. The said judgment of the Honourable Apex Court dealing with Rule 54(1) of the Mineral Concession Rules, 1960 would make it clear that the writ petitions filed by the Petitioners are maintainable in law. In the judgments relied upon by the learned senior counsel for the Respondent No. 2 in W.P. No. 7742 of 1999, Shri.V.T. Gopalan, the issue involved was the maintainability of an appeal filed by the adjudicating authority in the absence of any provisions of law. The facts involved in the present case are totally different. In the present case on hand, the Petitioners being the owners of the Minerals have got every right to protect their interest. In the case involved in
11. Similarly in
12. Powers of the first Petitioner vis-a-vis the Respondent No. 1:
12.1.A perusal of the Section 21(5) of the Mines and Minerals (Development and Regulations) Act, 1957 would show that the Petitioners can recover the price, from such person who raises any mineral without lawful authority, apart from rent, royalty or tax. The above said provision makes it very clear that it is a mechanism or method by which a recovery can be resorted from a person who unlawfully occupies a land by raising minerals. Such a procedure for recovery is an administrative one having its civil consequences. Therefore, while holding that before exercising the power u/s 21(5) of the Mines and Minerals (Development and Regulations) Act, 1957 an opportunity of hearing is mandated considering the civil consequences, the same cannot be construed to hold that such a power is a quasi-judicial power. What is required u/s 21(5) to be done by the 1st Petitioner is to decide as to whether there is any unlawful raising of the mineral by the person to whom a recovery is sought to be made. Even though Section 21 of the Act speaks about penalties, it should be construed only as a mode of recovery by way of compensation. The said position of law has been considered by the Honourable Supreme Court in
7. In our opinion, the demand by the State of Karnataka of the price of the mineral cannot be said to be levy of penalty or a penal action. The marginal note of the section - "penalties", creates a wrong impression. A reading of Section 21 shows that it deals with a variety of situations. Sub-sections (1), (2), (4), (4-A) and (6) are in the realm of criminal law. Sub-section (3) empowers the State Government or any authority authorized in this behalf to summarily evict a trespasser. Sub-section (5) empowers the State Government to recover rent, royalty or tax from the person who has raised the mineral from any land without any lawful authority and also empowers the State Government to recover the price thereof where such mineral has already been disposed of inasmuch as the same would not be available for seizure and confiscation. The provision as to recovery of price is in the nature of recovering the compensation and not penalty so also the power of the State Government to recover rent, royalty or tax in respect of any mineral raised without any lawful authority can also not be called a penal action. The underlying principle of Sub-section (5) is that a person acting without any lawful authority must not find himself placed in a position more advantageous than a person raising minerals with lawful authority.
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11. In the facts of this case, in spite of the judgment of the High Court, if the Appellants would not have persuaded this Court to pass the interim orders, they would not have been entitled to operate the mining lease and to raise and remove and dispose of the minerals extracted. But for the interim orders passed by this Court, there is no difference between the Appellants and any person raising, without any lawful authority, any mineral from any land, attracting applicability of Sub-section (5) of Section 21. As the Appellants have lost from the Court, they cannot be allowed to retain the benefit earned by them under the interim orders of the Court. The High Court has rightly held the Appellants liable to be placed in the same position in which they would have been if this Court would not have protected them by issuing interim orders. All that the State Government is demanding from the Appellants is the price of the minor minerals. Rent, royalty or tax has already been recovered by the State Government and, therefore, there is no demand under that head. No penal proceedings, much less any criminal proceedings, have been initiated against the Appellants. It is absolutely incorrect to contend that the Appellants are being asked to pay any penalty or are being subjected to any penal action. It is not the case of the Appellants that they are being asked to pay a price more than what they have realised from the exports or that the price appointed by the Respondent State is in any manner arbitrary or unreasonable.
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15. We are clearly of the opinion that the marginal note "penalties" cannot be pressed into service for giving such colour to the meaning of Sub-section (5) as it cannot have in law. The recovery of price of the mineral is intended to compensate the State for the loss of the mineral owned by it and caused by a person who has been held to be not entitled in law to raise the same. There is no element of penalty involved and the recovery of price is not a penal action. It is just compensatory.
12.2. The learned senior counsel Shri.V.T. Gopalan submitted that the orders passed by the Respondent No. 1 are quasi-judicial orders. In support of his contention, the learned senior counsel has made reliance upon the judgment of the Honourable Apex Court rendered in
19. The only relevant decisions of this Court are
12.3. Therefore, from the above said ratio laid down by the Honourable Apex Court, it is clear that the orders passed by the Respondent No. 1 are only administrative orders having civil consequences.
13. Rule 55 of the Mineral Concession Rules, 1960 provides for a revision before the Respondent No. 1. A perusal of the above said rule would show that the powers of the Respondent No. 1 is wide enough to confirm, rescind, modify the orders passed by the concerned State Government. Under Rule 55, the Respondent No. 1 can call for the records from the State Government and it can confirm, modify and set aside or pass such other order. It can call for records from the State Government, while passing the orders. Therefore, when such a power is provided to the Respondent No. 1 which is the final authority on facts and law under the Act, the Respondent No. 1 shall not remand the matter to the first Petitioner until and unless it is called for. In this case records are very much available before the Respondent No. 1 and in fact only based upon a part of the records produced by the Petitioners above the order impugned have been passed even though not required. Hence, this Court is of the opinion that the power of the Respondent No. 1 is wide enough to decide an issue on merits unless it is required on facts to be decided only by the concerned State Government.
14. Orders of remand - whether necessary:
14.1. The discussions made above would indicate that an order of remand cannot be made for the mere asking, by the Respondent No. 1 especially when the first Petitioner is only an administrative authority and not a quasi-judicial authority. In other words, when the Respondent No. 1 is exercising its quasi-judicial power it cannot delegate such a power to the Petitioners, unless it is not in a position to get certain information which the concerned State Government alone can look into. Further, an order of remand can be passed based upon the decision made by the revisional authority for implementing the same. For example, if the Respondent No. 1 is of the opinion that a factual verification is required to fix the quantum of the sum payable by the Respondent No. 2 based on its decision on merits then for such a purpose a order of remand can be made where there is no serious adjudication is required. In as much as the power exercised u/s 21(5) of the Mines and Minerals (Development and Regulations) Act, 1957 is to recover the amount quantified towards the unauthorised extraction of Minerals and the State Government being the owner of the Minerals, it is always incumbent on the Respondent No. 1 to decide the matters on merits being a quasi-judicial authority. Further, while remanding the matters the Respondent No. 1 has not considered the various contentions raised by both the parties which if it had done so there would not have been any necessity for the orders of remand. Therefore, this Court is of the opinion that the Respondent No. 1 has committed an error in remitting the matters back to the first Petitioner for further considerations that too after setting aside certain findings on merit.
14.2. The Respondent No. 1 has committed another fundamental error in deciding the matters on merits by setting aside the findings of the first Petitioner after holding that there is a violation of principles of natural justice. As observed earlier, even assuming a procedural violation resulting in the consequential violation of principles of natural justice, the Respondent No. 1 being the competent authority can decide the matters by itself unless it is prevented from sufficient reasons for doing so. Therefore, this Court is of the opinion that the approach of the Respondent No. 1 in setting aside the findings of the first Petitioner and thereafter remitting the matters cannot be accepted.
15. This Court also finds that there is no useful purpose in remitting the matters back to the first Petitioner in as much as the Petitioners themselves have filed these writ petitions. Further, it is seen that the inspection was done as early as in the month of January 1994 and more than 15 years have elapsed. Hence, it is just and proper in the interest of both the parties that the Respondent No. 1 will have to decide on matters one way or other instead of once again directing the Petitioners to decide the same.
16. The Respondent No. 1 has also wrongly proceeded on the footing that the entire liability is on the first Petitioner to prove that the Respondent No. 2 has involved himself in illicit mining. Such an approach of the Respondent No. 1 is also not called for. In as much as the Respondent No. 2 being the owner, he is equally liable to substantiate his case. The Respondent No. 1 has also committed an error in not considering the entire materials available on record including the various contentions raised by both parties.
17. In so far as the issue of delay in filing the writ petitions are concerned, this Court is of the opinion that the facts narrated above would indicate that there is no delay in filing the writ petitions. The revisional orders were passed on 15.07.1998 and after correspondence between the Petitioners 1 and 2, the writ petitions have been filed on 25.03.1999. The mere fact that the second Petitioner has been impleaded subsequently cannot be a ground to dismiss the writ petitions, in as much as the writ petitions have been filed within a reasonable time and the same have been pending. Therefore, this Court does not find any delay in filing the writ petitions.
18. In so far as the writ petition in W.P. No. 7743 of 2009 is concerned, as submitted by the learned senior counsel appearing for the Respondent No. 2 that the proceedings initiated is consequent on the earlier proceedings which is subject matter of W.P. No. 7742 of 1999. This Court is also unable to go into the merits of the case both on facts and on the legal issues in as much as a limited issue to be considered by this Court is as to whether the orders of remand passed by the Respondent No. 1 are justifiable or not. Therefore, this Court is not willing to go into the merits of the dispute between the parties.
19. The learned Counsel appearing for the Respondent No. 2 submitted that there was an interim order passed pending revisions in both the cases and the conditional order imposed by the revisional authority was complied with by the Respondent No. 2. The learned Counsel further submitted that the said order passed by the revisional authority in both the cases will have to continue pending the final adjudication by the first Respondent. It is a well settled principle of law that once an order is set aside and remitted back to the authority for reconsideration, the interim order granted already would be restored. Therefore, it is made clear that the interim order granted already in both the revisions would stand restored automatically pending final order to be passed by the first Respondent.
20. Accordingly, the orders impugned in both the writ petitions are set aside and the Respondent No. 1 is directed to decide the revision petitions filed by the Respondent No. 2 afresh, on merits and in accordance with law. The Respondent No. 1 is further directed to consider all the issues raised by the Petitioners as well as the Respondent No. 2 including those raised before this Court. The Respondent No. 1 will have to pass orders without being influenced by any of the observations made by this Honourable Court on the merits of the case as well as the earlier findings rendered by it. The Respondent No. 1 is also directed to dispose of both the revision petitions, within a period of six months, from the date of receipt of a copy of this order.
21. These writ petitions are ordered accordingly. No costs.
