IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 29-08-2008 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.16479 OF 2000 A.G.L.Irudhayaraj ... Petitioner -vs- The Collector of Tiruchirapalli, Tiruchirapalli. ... Respondent Petition under Article 226 of the Constitution of India, praying for issuance of a writ of certiorari. For petitioner : Mr.P.R.Krishnan, Senior Counsel, for Mr.R.Parthiban. For respondent : Mr.D.Sreenivasan, Additional Govt.Pleader. O R D E R V.DHANAPALAN,J. Petitioner has filed this Writ Petition, praying to quash the proceedings of the respondent, dated 13.03.2000, in Na.Ka.Pi.1032/90. 2. According to the petitioner, he entered into an agreement with the Government of Tamil Nadu on 29.03.1985, for quarrying an extent of 4.64 acres in S.F.No.29,33/2-A-1 and 33/4 AT of Puthur Village, Tiruchirapalli Taluk, for a period of one year; the said lands belong to him and are patta lands; the agreement was extended for two subsequent years and had come to an end on 28.03.1988; though he made several representations for https://hcservices.ecourts.gov.in/hcservices/ renewal, the same was not considered; he was quarrying rough stones from the said lands and he had a stone crushing machine at Shozhamparai in Pandamangalam, Uraiyur, Trichy; the said lands were inspected by the Deputy Director, Geology and Mines, Trichy, along with other officials, in his absence and without any notice; though he was quarrying only from the patta lands, an order, dated 11.11.1991 was passed and served on him on 26.11.1991, by which a penalty of Rs.12,16,800/- was imposed and he was also ordered to pay the cost of rough stone, stated to have been quarried from the poramboke land in S.F.No.30/2B, to the tune of Rs.3,12,000/-; totally he was ordered to pay a sum of Rs.15,28,800/- within a period of 30 days from the date of receipt of the proceedings. 3. It is also the case of the petitioner that aggrieved over the said order, the petitioner filed W.P.No.17299 of 1991 and, by an order dated 11.12.1991, the said Writ Petition was allowed on the ground that the said order was in violation of the principles of natural justice; liberty was also given to the respondent to proceed in accordance with law; thereafter, the Collector issued a notice fixing the date of hearing on 03.03.1992 at 05.30 p.m.; the notice fixing the date of hearing on 03.03.1992 was received only on 04.03.1992 and, hence, he could not participate in the enquiry; thereafter, an order dated 11.03.1992 was passed again demanding penalty; therefore, he filed another Writ Petition No.5758 of 1992 and the said Writ Petition was also allowed by an order dated 09.08.1999 on the ground of violation of principles of natural justice. 4. The further case of the petitioner is that on 25.08.1999, he presented a petition before the respondent through an advocate, stating that he was quarrying in the patta lands; based on the said representation, the Collector, to know whether the petitioner was quarrying in Government poramboke land, directed for measurement of the land; thereafter, without carrying out any inspection, the respondent passed the impugned order dated 13.03.2000, levying penalty of Rs.20,82,101/-. Hence, this Writ Petition. 5. The respondent has filed a counter affidavit, stating that the petitioner was given a right to remove rough stone from his patta lands in Puthur Village for a period of three years; thereafter, he has not applied for renewal of lease from 29.03.1988 onwards; after a lapse of two-and-a-half years i.e., on 15.09,1990, he sent a petition, requesting for grant of extension of time for carrying operations in the said area; the site was inspected on 05.04.1991 by the Special Tahsildar (Mines) and other officials; during the course of inspection, it was noticed that the petitioner removed large quantity of rough stone from the land in S.F.No.30/2B of Puthur Village, which is a Government land; as https://hcservices.ecourts.gov.in/hcservices/ there were enormous illicit quarrying operations, the quantity of materials quarried illicitly was assessed and the Collector, in his proceedings, dated 08.11.1991, ordered the petitioner to pay a penalty of Rs.12,16,800/- besides the material cost of Rs.3,12,000/- under Rules 3 and 21 of the Tamil Nadu Minor Mineral Concession Rules,1959; against the said order, the petitioner filed a Writ Petition before this High Court in W.P.No.17229 of 1991, wherein orders were passed, observing that an opportunity should be given to the petitioner to explain his case; accordingly, the Collector directed the petitioner to appear for an enquiry on 10.02.1992 and the petitioner appeared for the said enquiry, on which date he has not produced the accounts; in the meanwhile, the petitioner moved the Court of Subordinate Judge, Tiruchirapalli, in O.S.No.133 of 1992, stating that he used the land in S.F.Nos.29,33/2A and 1A and 33/4A1, which is not correct, whereas the petitioner carried on illicit quarrying in the Government lands in S.F.Nos.30/1 and 30/2B; as the petitioner did not produce the accounts on the date of enquiry, he was again given an opportunity to appear for another enquiry on 25.02.1992 and produce the accounts, for which he produced a letter stating that in view of the suit filed all the documents were filed in the Court and requested to drop further proceedings and by initiating the court proceedings, the petitioner has adopted dilatory tactics to delay the proceedings of the Collector, evading payment of penalty imposed for illicit quarrying. 6. The counter further goes to the effect that inasmuch as the petitioner has not respected the direction of the High Court in availing the opportunities given to him to represent his case, the Government has every right to prevent illicit quarrying and to realise the seigniorage fee due to it for the illicit quarrying done; on 03.03.1992 and 05.03.1992, a fresh assessment was made and the Collector, by his proceedings dated 11.03.1992, passed orders directing the petitioner to pay the penalty of Rs.15,73,680/- and Rs.4,03,509/- towards the cost of the materials; after receiving the orders, without paying the penalty, the petitioner filed W.P.No.5748 of 1992 and this Court, on 23.04.1992, granted interim stay of the operation of the order of the respondent dated 11.03.1992, pending disposal of the writ petition and directed the petitioner not to quarry in the lands in question; in the said Writ Petition, the order passed by the Collector, dated 11.03.1992, was set aside, directing the Collector to hold a fresh enquiry on 30.08.1999 and pass orders after hearing the petitioner on merits, further directing the petitioner to appear before the Collector on the said date; accordingly, the enquiry was conducted on 30.08.1999 and the petitioner appeared before the Collector and gave a statement, requesting to calculate the quantity of illicit quarrying in his presence, pursuant to which, a site inspection was conducted by https://hcservices.ecourts.gov.in/hcservices/ the officials on 24.09.1999 and 03.11.1999, on which basis the District Collector passed an order, dated 13.03.2000, directing the petitioner to remit a sum of Rs.20,82,101/-, which is the subject matter of challenge in this Writ Petition. 7. We have heard the learned counsel for the parties and also gone through the records. 8. Admittedly, the petitioner has entered into an agreement with the Government of Tamil Nadu on 29.03.1985 for quarrying an extent of 4.64 acres in S.F.No.29,33/2-A-1 and 33/4 AT of Puthur Village, Tiruchirapalli Taluk, for a period of three years and the said lands belong to him. On expiry of the said agreement on 28.03.1988, the petitioner made several representations for renewal, pursuant to which the said lands were inspected by the Deputy Director, Geology and Mines, Trichy, along with other officials. During the course of inspection, it was noticed that the petitioner removed large quantity of rough stone from the land in S.F.No.30/2B of Puthur Village, which is a Government land. As there were enormous illicit quarrying operations, the quantity of materials quarried illicitly was assessed and the Collector, in his proceedings, dated 11.03.1992, passed orders directing the petitioner to pay the penalty of Rs.15,73,680/- and Rs.4,03,509/- towards the cost of the materials. Without paying the penalty, the petitioner filed W.P.No.5748 of 1992 and this Court, on 23.04.1992, granted interim stay of the operation of the order of the respondent dated 11.03.1992, pending disposal of the writ petition and directed the petitioner not to quarry in the lands in question. In the said Writ Petition, the order passed by the Collector, dated 11.03.1992, was set aside, directing the Collector to hold a fresh enquiry on 30.08.1999 and pass orders after hearing the petitioner on merits, further directing the petitioner to appear before the Collector on the said date. Accordingly, the enquiry was conducted on 30.08.1999 and the petitioner appeared before the Collector and gave a statement, requesting to calculate the quantity of illicit quarrying in his presence, pursuant to which, a site inspection was conducted by the officials on 24.09.1999 and 03.11.1999, on which basis the District Collector passed an order, dated 13.03.2000, directing the petitioner to remit a sum of Rs.20,82,101/-. 9. During the pendency of this Writ Petition, on 10.10.2000, a learned single Judge granted interim stay of the impugned order on condition that the petitioner should pay 50% of the amount demanded. Not content with that, the petitioner filed Writ Appeal No.1971 of 2000. https://hcservices.ecourts.gov.in/hcservices/ 10. When the Writ Appeal came up for hearing on 13.09.2001, the First Bench of this Court, in order to ascertain whether the appellant/petitioner was quarrying in his own land or encroaching upon the adjoining Government land unauthorisedly, appointed Mr.S.M.Loganathan, as the Advocate Commissioner, to inspect the land and to report to the Court as to whether the appellant/petitioner had quarried the stone covered by S.F.No.30/2B of Puthur Village, Tiruchirapalli Taluk, and if the answer was in the affirmative, what was the extent of the material quarried. It was also directed in the order that the commission work had to be carried out in the presence of both the parties and after due notice to them i.e., the appellant or his nominee could be present so also the Deputy Director of Geology and Mining, Tiruchirapalli. Accordingly, the Advocate Commissioner inspected the property and submitted a report. From the said report, the following facts would emanate : 10.1. During the course of inspection, the Advocate Commissioner could not find any survey stones demarcating the sub- division of S.F.No.30, Puthur Village. The petitioner/appellant pointed out certain yellow paint marks, to be measured as S.F.No.30/2B. The Advocate Commissioner made a request to the Assistant Director of Survey to assist him in localising the property in S.No.30/2B and also the Tahsildar to summon the Village Administrative Officer of Puthur Village with Field Map Book and also other servants to assist him in measuring the disputed area. Since no survey stones were available in S.F.No.30 anywhere, the Advocate Commissioner requested the Assistant Director to survey S.F.No.410.30 from the northern side, which forms the border of Pandamangalam Village. The boundary of S.No.30/2B is bounded on the north by S.No.30/2A (approved patta land); south by S.No.33 (approved patta land); east by S.No.28 and west by S.No.29 (Oyyakondan Channel). The various sub-divisions from the northern boundary of S.F.No.30 have been measured, S.F.No.30/2B has been identified and measurement taken. 10.2. The petitioner raised an objection that the lands that are measured are not within S.F.No.30/2B and that the measurement is taken by including the patta lands in S.F.No.30/2B of the petitioner on the western side. The second objection is that the measurement taken while localising the S.F.No.30/2B on the southern side is that the measurement taken while localising the S.F.No.30/2B on the southern side overlaps his patta land covered in S.F.No.33 and the third objection is to the effect that the uniform measurement can be adopted while taking the measurement in the passage in S.F.No.30/2B. https://hcservices.ecourts.gov.in/hcservices/ 10.3. With regard to the first objection that the measurements taken had extended into the patta lands of the petitioner on the western side, the Advocate Commissioner would state that during the course of survey, not a single survey stone is available to demarcate the patta land of the petitioner on the western side and the northern side and, it is because of that, on his request, the Assistant Director surveyed the entire S.F.No.30 of Puthur Village, demarcating the lands of the petitioner in S.F.No.30/2A on northern side, which is the northern boundary of S.F.No.30/2B Government poramboke land. 10.4. As regards the second objection that on the southern side, the measurement has overlapped the patta lands of the appellant comprised in S.F.No.33, the Advocate Commissioner would submit that he requested the officers to survey S.F.No.30/2B on the southern side; the petitioner insisted upon to rely upon the stone which cannot be construed as a survey stone and if the contention of the petitioner is taken to be correct, the measurement of disputed land comprised in S.F.No.30/2A would further lie away on the northern side in which case the petitioner would not have quarried in his patta land at all. Therefore, he rejected the objection on the other ground that there are no survey stones in S.F.No.33 and the patta lands in S.F.No.33 would begin only after the Government poramboke land in S.F.No.30/2B. 10.5. On the third objection that a uniform measurement has to be adopted while taking the measurement, the Advocate Commissioner submits that at the starting point of the passage in S.F.No.30/2B, where the depth is lesser, uniform depth should not be adopted; the petitioner insisted that the passage should be referred to as a road, leading to his patta land on the western side; he has taken a different depth at 15 metres; the reason for referring it as a passage is, the entire Survey No.30/2B is a prime rock and is known as Cholan Parai or Cholan Rock in the revenue records; there are no land owners except the petitioner; the passage is the only way to reach the quarry of the petitioner in S.No.30/2A and the prime rocks have been cut on either side to carve out the passage; therefore, the objection made by the petitioner has been taken into consideration while conducting the survey; the measurements have been taken on the basis of the Field Map Book of Puthur Village relating to field No.30 by relying upon the rock marks found on the rock which is also found in the Field Map Book; measurements have been taken for demarcating each of the sub-divisions in S.F.No.30 and the total extent has also tallied and, therefore, the area covered under S.F.No.30/2B, as measured, is correct. https://hcservices.ecourts.gov.in/hcservices/ 10.6. During the inspection and survey on 26.09.2001, the petitioner's men and women were carrying quarry operations on the southern side of S.F.No.30/2B. Hence, it is no doubt true that the petitioner has quarried and is quarrying in S.F.No.30/2B. Further, the petitioner did not localise either his patta lands on western and northern side in S.F.No.30/2B nor in S.F.No.33. Survey No.30/2B is bounded by the lands belonging to the petitioner only. Accordingly, the Advocate Commissioner concluded that the petitioner was quarrying in S.F.No.30/2B, which is a Government poramboke land. 10.7. Further, as per the direction of the Court, the Advocate Commissioner also proceeded to find out the total quantity of mineral mined in S.F.No.30/2B. He calculated the exploitation in three parts viz., (1) Slope Area, (2) Pit No.1 and (3) Pit No.2 to the quantities of 4270, 24640 and 9560 cubic metres respectively, totalling to 38,470 cubic metres. 11. Pursuant to the filing of the report by the Advocate Commissioner, the Writ Appeal underwent several adjournments and, finally, when it was taken up for disposal on 30.07.2008 by this Bench, it was represented by the learned Additional Government Pleader that the conditional order of stay was not complied with by the petitioner. Hence, the Writ Appeal was disposed of, observing that Writ Petition itself should be heard and disposed of at an early date. Accordingly, the Writ Petition is taken up for final disposal. 12. Where the Advocate Commissioner has taken careful and painstaking efforts to measure the metes and bounds and physical features of the disputed portion and is invovled in a laborious task of preparing his report, the scope of interfering with his report is limited. The Commissioner's Report can be used only as a guiding factor in the process of decision-making and can never be used as the basis for decision-making. In the instant case, the Commissioner's report has guided the Court to arrive at a proper conclusion and there is no reason to disbelieve the same, when the same has been made in the presence of all the parties, particularly, the Assistant Director of Survey. While preparing the Commissioner's report, it appears that the land in question, for which penalty has been imposed, is found to be a Government poramboke land. Therefore, the impugned proceedings, in levying the penalty, cannot be found fault with. https://hcservices.ecourts.gov.in/hcservices/ 13. The necessary corollary of the report of the Advocate Commissioner is that petitioner has quarried in S.F.No.30/2B, which is a Government poramboke land, thereby causing a mammoth loss to the State exchequer. Further, it is very unfortunate to notice from the report of the Advocate Commissioner that the petitioner has made efforts through his personal Clerk to influence the Advocate Commissioner. But, we are not inclined to deliberate upon the same. 14. The above acts are incongruous on the part of the petitioner and the same have to be highly deprecated. The said findings of the Advocate Commissioner, in the considered opinion of this Court, cannot be disbelieved. 15. As the issue in this Writ Petition is as to whether the petitioner is quarrying in his own land or encroaching upon the adjoining Government land and quarried the same unauthorisedly and the unauthorised quarrying has been proved by a proper survey through the report of the Advocate Commissioner, this Court finds the petitioner guilty of unauthorised quarrying that too by encroaching the Government land, to which he has to pay the cost by way of penalty. Further, it is seen from the records that as per the direction of this Court in W.P.No.5748 of 1992, the District Collector held a fresh enquiry on 30.08.1999, on which date the petitioner also participated in the enquiry and gave a statement, requesting to calculate the quantity of illicit quarrying in his presence, pursuant to which, a site inspection was conducted by the officials on 24.09.1999 and 03.11.1999, on which basis the District Collector passed an order, dated 13.03.2000, directing the petitioner to remit a sum of Rs.20,82,101/-, which request of the petitioner is a res ipsa loquitor for the unauthorised quarrying. As such, no interference is called for in the order impugned. 16. While arriving at the above conclusion, we are conscious of the fact that this Court appointed the Advocate Commissioner and he has taken careful and painstaking efforts to measure the metes and bounds and physical features, based on which he submitted a detailed report. It is seen that an initial remuneration has been granted to the Advocate Commissioner and he had an occasion to go to the places faced with many difficulties and after making sincere efforts, he has submitted a report, which is a guiding factor in the process of decision making. Therefore, we award an additional remuneration of Rs.25,000/- (Rupees Twenty Five Thousand only) to the Advocate Commissioner. The petitioner is directed to pay the said amount to the Advocate Commissioner within a period of four weeks. https://hcservices.ecourts.gov.in/hcservices/ 17. In the light of the above discussion and upon considering the entire materials and the submissions made by the learned counsel, we see no infirmity in the impugned order, passed by the respondent. Therefore, this Writ Petition does not deserve any merit consideration and the same is dismissed accordingly. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. dixit To The Collector of Tiruchirapalli, Tiruchirapalli. 1 cc to Mr.R.Parthiban, Advocate, SR. 48706 W.P.No.16479 OF 2000 SP (CO) kk 6/9 https://hcservices.ecourts.gov.in/hcservices/