IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 08.04.2011 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.Nos.29741 of 2010 and 25168 of 2009 Arun Kumar Rai ... Petitioner in both petitions Vs. 1.The District Collector, Dharmapuri District, Dharmapuri. 2.The Commissioner of Geology and Mining, Guindy, Chennai - 600 032. 3.The State of Tamil Nadu, Rep. by its Secretary to Government, Industries Department, Fort St. George, Chennai - 600 009. ... Respondents in W.P.No.29741/2010 1.The State of Tamil Nadu, Rep. by its Secretary to Government, Industries Department, Fort St. George, Chennai - 600 009. 2.The District Collector, Krishnagiri District, Krishnagiri. ... Respondent in W.P.No.25168/2009 PRAYER IN W.P.No.29741 OF 2010: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records of the respondents relating to the order dated 03.04.2002 bearing No.595 of 2002 (Mines) passed by the 1st respondent as confirmed by the 2nd respondent in his proceedings R.C.No.7283/MM5/2002, dated 20.08.2002 and further confirmed by the 3rd respondent in his proceedings G.O.(D) No.125, dated 23.07.2010 and quash the same as unconstitutional and void and pass such further orders. https://hcservices.ecourts.gov.in/hcservices/ PRAYER IN W.P.No.25168 of 2009: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the 1st respondent to pass orders on the renewal application dated 15.02.2008 submitted by the petitioner to the 1st respondent through the 2nd respondent for renewal of the lease dated 25.02.1998 for quarrying black granite in S.F.No.510/1 and 511/1 totally measuring 4.67 acres in Agalakottai Village in Denkanikottai Taluk in Dharmapuri District and pass such further orders. For Petitioner in both petitions :Mr.K.Ravi for M/s.Rugan & Arya in W.P.No.29741/2010 for Ms.C.Uma in W.P.No.25168/2009 For Respondents in both petitions :Mr.P.Subramaniam, AGP COMMON ORDER The petitioner - Arun Kumar Rai was given lease and license to quarry granite in Ryotwari lands belonging to him in S.Nos.510/1 and 511/1 in Agalakottai Village, Denkanikottai Taluk, Dharmapuri District for a period of 10 years i.e. from 25.02.1998 to 24.02.2008. Pursuant to the quarrying license granted to the petitioner, he commenced quarrying from June 1998 onwards. But, the said quarried materials could not be marketable, as they were all defective. Therefore, the petitioner said to have dumped the quarried stones near the quarry site, that is, inside the petitioner's land, but neither removed nor transported the quarried granite. Whileso, he was issued with a show cause notice dated 31.07.2001 by the Assistant Director, Department of Mines and Geology, Dharmapuri, alleging that he had quarried excess granite without obtaining permission and therefore, he was called upon to show cause within 15 days, as to why the penalty should not be levied on him for the alleged violation mentioned in the show cause notice. The petitioner, on receipt of the show cause notice, submitted his explanation denying all the allegations and explained in detail that the terms of the lease and license agreement dated 25.02.1998 and the provisions of the Tamil Nadu Minor Minerals Concession Rules, 1959, do no stipulate anywhere that granite upto a particular quantity alone could be carried and therefore, the show cause notice was thus vague and failed to convey any meaning. After submission of the explanation, he was called upon to appear for enquiry and accordingly, he appeared in person for enquiry before the enquiry officer on 27.08.2001 and brought to the notice of the enquiry officer that all the stones quarried were defective and not sale worthy and therefore, they were not taken out of the quarry site, but were dumped in the quarry land itself, which is adjacent https://hcservices.ecourts.gov.in/hcservices/ to the quarry spot. Since the whole quarry land and the surrounding area are owned by the petitioner, the stones lying around the quarrying spot would carry enough testimony to the show cause notice, that he did no transport anything in the absence of a valid license, much less, the allegations of excess quarrying seems to be vague, for the simple reason that even in the lease deed executed granting permission for the petitioner to quarry granite in Ryotwari lands of the petitioner in S.No.510/1 and 511/1, there is no mention as to the limits within which the quarrying work was permitted. Though all these aspects were recorded by the enquiry officer, no order was passed to take action against him. But, after six months, the petitioner was served with an order dated 03.04.2002 passed by the 1st respondent, levying a penalty of Rs.2,69,19,296/- on the assumption that about 284.8 cubic meters of black granite had been removed and transported from the quarry without permission. 2. Mr.K.Ravi, learned counsel appearing for the petitioner argued that the show cause notice dated 31.07.2001 issued by the Assistant Director, Department of Mines and Geology, Dharmapuri, alleging that he had quarried excess granite without obtaining permission, is absolutely unsustainable in law, since the petitioner was granted permission through lease deed for a period of 10 years, that is, from 25.02.1998 to 24.02.2008. Further, it was argued that the Tamil Nadu Minor Minerals Concession Rules, 1959, do no stipulate anywhere that granite upto a particular quantity alone could be quarried. Therefore, when there is no such limit prescribed in the lease, it is not open to the respondent to allege that the petitioner has quarried excessive quantity. Secondly, it was contended that it is not known from where the 1st respondent has got the figure that the petitioner had quarried 284.8 CBM black granite and subsequently, they were removed out. When the impugned order passed by the 1st respondent does not mention either the dates of removal or the period of removal, it is not open to the 3rd respondent to confirm the order, that was not put on notice to the petitioner, so as to give befitting reply to the respondent. Thirdly, it was contended that when the 1st respondent, ignoring the vital fact, passed the impugned order levying a penalty of Rs.2,69,19,296/- on a wrong assumption that the petitioner had quarried 284.8 CBM black granite and transported the same from quarry land, an appeal was preferred before the 2nd respondent with a delay of 5 days. The 2nd respondent, without considering the merits of the case, wrongly dismissed the appeal on the ground that there is no power under the Tamil Nadu Minerals Concession Rules, 1959, to condone the delay in filing the appeal. As against that, when the second appeal was filed, the second Appellate Authority has also wrongly, on erroneous assumption, dismissed the second appeal, confirming the order passed by the 1st respondent, accepting the https://hcservices.ecourts.gov.in/hcservices/ vague allegation, as a result, he has been put to great prejudice and irreparable loss. Under this background, again it was argued that no penalty can be levied on a ground not explicitly stated in the show cause notice, as it would otherwise amount to flagrant violation of the principles of natural justice. Adding further, it was argued that the petitioner was not given an opportunity to meet the allegation that he had transported 284.8 CBM of black granite from the quarry land without due permission. 3. In support of his submission, he has also relied upon a judgment of the Apex Court in the case of Kanwar Natwar Singh Vs. Director of Enforcement and Another ((2010) 8 MLJ 983(SC)) for a proposition that if the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence is given and what statements have been made affecting him and then he must be given a fair opportunity to correct or contradict them. 4. He further contended that change or termination of lease deed by the District Collector, who himself is a party to the agreement, cannot hold good in the eye of law for the reason that a party to the agreement cannot be an arbiter in his own cause. Interest of justice and equity require that where a party to a contract disputes the committing of any breach of conditions the adjudication should be by an independent person or body and not by the other party to the contract. In other words, he has submitted that when there was a lease agreement between the petitioner and the Collector granting the lease to quarry the granite from his own land for a period of 10 years, the District Collector/the 1st respondent herein, who was a party to the lease deed, cannot be allowed to terminate the contract, as he is a party to the agreement. With the aforesaid submissions, he has prayed for setting aside the impugned orders. 5. In reply, Mr.P.Subramaniam, learned Additional Government Pleader appearing for the respondents submitted that during the currency of the said lease, that is, from 25.02.1998 to 24.02.2008, the Surveyors and the Assistant Geologist of the respondent department, said to have inspected the subject area on 08.07.2001 and found evidences for quarrying black granite to the volume of 284.8 CBM in the leased out area. But, the quantity quarried by the petitioner in the leased out area was not available at the quarry site during the time of inspection by the Surveyors and the Assistant Geologist on 08.07.2001. The Surveyors and the Assistant Geologist, who conducted the discrete enquiry, reported this fact that no dressed black granite were available at the quarry site on the day of inspection, even though to a volume of 284.8 CBM black granite were quarried. The report further revealed the fact that the petitioner had transported all the black granite from the https://hcservices.ecourts.gov.in/hcservices/ petitioner quarry site without permission. When the petitioner had not obtained any transport permission for transporting the granite, a show cause notice was issued to the petitioner on 31.07.2001 calling upon him to submit his explanation as to why the penalty should not be levied for transportation of 284.8 CBM of black granite without obtaining valid transport permit in the leased out area. Though the explanation was given by the petitioner, neither his explanation nor his statement before the enquiry officer gave any satisfactory reply, as a result, the 1st respondent, in his proceedings dated 03.04.2002, imposed a penalty of Rs.2,69,19,296/- Subsequent to the said order, when the petitioner has preferred an appeal before the respondents 2 and 3, the same were also dismissed by the respondents 2 and 3. Therefore, no infirmity can be found against the impugned order passed by the 1st respondent 6. In his further submission, it was argued that when the inspecting officials inspected the subject land, they found one poclain machine and a dipper lorry were engaged in quarrying activities, therefore, the inspecting officers confirmed the factum of transportation of black granite without any prior permission. With the aforesaid submission, he prayed for dismissal of the writ petitions. 7. Heard the learned counsel appearing on either side and perused the materials available on record. 8. The petitioner was granted lease and license to quarry granite from his own Ryotwari lands in S.Nos.510/1 and 511/1 of Agalakottai Village, Denkanikottai Taluk, Dharmapuri District, for the period between 25.02.1998 and 24.02.2008. When the District Collector/1st respondent herein has granted lease to quarry granite and in turn, if the petitioner has violated the terms and conditions as enumerated in the lease deed, no doubt, the 1st respondent is entitled to proceed against the petitioner, like, cancelling the lease deed. But, as contended by the learned counsel for the petitioner, nowhere in the show cause notice dated 31.07.2001 issued, the Assistant Director, Department of Mines and Geology, Dharmapuri, had mentioned that the petitioner had breached the conditions prescribed with regard to a particular quantity. When there is no such condition mentioned in the lease deed as well as in the show cause notice stating that the petitioner, as against the terms and conditions prescribed in the lease deed, has crossed certain limit of quarrying the granite, it is not open to the respondents to allege that the petitioner had crossed the permissible limit of quarrying the stone, particularly, when he was having the permission for quarrying the black granite from his own patta land. Secondly, even in the counter filed by the respondent, nowhere it has been mentioned, what was the limit within which the petitioner has to quarry the granite and how much volume of stone https://hcservices.ecourts.gov.in/hcservices/ the petitioner is permitted to quarry. When there was no such terms and conditions mentioned in the lease deed, I do not find any violation as attributed by the District Collector as against the petitioner. Thirdly, the show cause notice dated 31.07.2001 does not mention anything about the transportation of the quarry stone from the petitioner's land. Further, the 1st respondent, without putting on notice the petitioner with a specified allegation calling upon him to submit his explanation, passed the impugned order holding that the petitioner had transported the black granite from the quarry site, which does not establish any nexus between the show cause notice and the impugned order. When any penalty is imposed against any person by way of punishment, he/she should be put on notice to give his explanation, because, the concept of fairness requires the Adjudicating Authority to furnish copies of those documents upon which reliance has been placed by him to issue show cause notice requiring the noticee to explain as to why an enquiry should not be initiated. A proper hearing always includes, no doubt, a fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view. Lord Denning has added: "if the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence is given and what statements have been made affecting him and then he must be given a fair opportunity to correct or contradict them" (Kanda Vs. Government of Malaya (1962) AC 322). 9. Further, it is well settled law that no rule can provide and empower the Adjudicating Authority to straight away make any enquiry into allegations of contravention against any person against whom a complaint has been received by it. In fact, every notice is required to indicate the nature of contravention alleged to have been committed by the person concerned. After taking the cause, if any, shown by such person, the Adjudicating Authority is required to form an opinion as to whether an enquiry is required to be held in the allegations of contravention. It is only then the real and substantial enquiry into allegations of contravention begins. But, in the present case, when the show cause notice dated 31.07.2001 was issued with bald and vague allegations that the petitioner had quarried excess granite, never even mentioned about the transportation of the black granite from the petitioner's land to outside the land. May be, the petitioner might have transported or might not have transported any black granite from the quarrying site, but he should have been put on notice by giving proper show cause notice calling upon him to submit his explanation as to why he has transported the black granite from his land without transport permit. But, admittedly, no such allegations were found mentioned in the show cause notice. Therefore, the impugned order holding him guilty of transportation of black granite from the petitioner's site https://hcservices.ecourts.gov.in/hcservices/ is against the principles of natural justice. 10. At this juncture, it is useful to refer to a judgment of the Apex Court in Kanwar Natwar Singh's case (cited supra), wherein paragraphs 18, 23 and 24 held thus:- 18. The Rules do not provide and empower the Adjudicating Authority to straightaway make any inquiry into allegations of contravention against any person against whom a complaint has been received by it. Rule 4 of the Rules mandates that for the purpose of adjudication whether any person has committed any contravention, the Adjudicating Authority shall issue a notice to such person requiring him to show cause as to why an inquiry should not be held against him. It is clear from a bare reading of the rule that show cause notice to be so issued is not for the purposes of making any adjudication into alleged contravention but only for the purpose of deciding whether an inquiry should be held against him or not. Every such notice is required to indicate the nature of contravention alleged to have been committed by the person concerned. That after taking the cause, if any, shown by such person, the Adjudicating Authority is required to form an opinion as to whether an inquiry is required to be held into the allegations of contravention. It is only then the real and substantial inquiry into allegations of contravention begins. 23. The right to fair hearing is a guaranteed right. Every person before an Authority exercising the adjudicatory powers has a right to know the evidence to be used against him. This principle is firmly established and recognized by this Court in Dhakeswari Cotton Mills Ltd. Vs. Commissioner of Income Tax, West Bengal (1995) 1 SCR 941. However, disclosure not necessarily involves supply of the material. A person may be allowed to inspect the file and take notes. Whatever mode is used, the fundamental principle remains that nothing should be used against the person which has not brought to his notice. If relevant material is not disclosed to a party, there is prima facie unfairness irrespective of whether the material in question arose before, during or after the hearing. The law is fairly well settled if prejudicial allegations are to be made against a person, he must be given particulars of that before hearing so that he can prepare his defence. 24.The concept of fairness may require the Adjudicating Authority to furnish copies of those documents upon which reliance has been placed by him to issue show cause notice requiring the noticee to explain as to why an inquiry under Section 16 of the Act should not be initiated. To this extent, the principles of natural justice and concept https://hcservices.ecourts.gov.in/hcservices/ of fairness are required to be read into rule 4(1) of the Rules. Fair procedure and the principles of natural justice are in built into the Rules. A noticee is always entitled to satisfy the Adjudicating Authority that those very documents upon which reliance has been placed do not make out even a prima facie case requiring any further inquiry. In such view of the matter, we hold that all such documents relied on by the Authority are required to be furnished to the noticee enabling him to show a proper cause as to why an inquiry should not be held against him though the Rules do not provide for the same. Such a fair reading of the provision would not amount to supplanting the procedure laid down and would in no manner frustrate the apparent purpose of the statute. 11. Further, one another aspect needs consideration is, when the impugned order passed merging with the report of the Surveyors and the Assistant Geologist of the respondent department, who on their inspections found that the quarrying works were carried out in the leased out area and one poclain machine and a dipper lorry were engaged in quarrying activities and further they found that the petitioner had quarried 284.8 CBM of black granite in the leased out area, but the said quantity quarried by the petitioner was not found available at the quarry site during the time of inspection, the 1st respondent should have given a copy of this report to the petitioner along with the show cause notice and should have invited an explanation on the basis of the report of the inspecting officials. Without disclosing the report of the inspecting officials, the District Collector, Dharmapuri / the 1st respondent herein has come to the conclusion that the petitioner had quarried a huge volume of 284.8 CBM of black granite, though he is entitled to quarry the black granite from his own patta land in view of the lease deed executed by the 1st respondent. But when he came to the conclusion that the said quantity of granite, after being quarried, were found missing, he has concluded that the black granite were transported without transport permit. Therefore, that allegations should have been part of the show cause notice. Without disclosing that allegations to the party, it is not legally permissible for the 1st respondent to come to a conclusion and impose a huge fine. In other words, before passing impugned order, if the relevant materials disclosed to the petitioner and for which, if there is any explanation submitted by the petitioner, then it is not possible for this Court to find fault with the impugned order. But, that procedure has not been followed. Therefore, when the 1st respondent has passed the impugned order imposing a penalty, I am of the opinion that no proper hearing was given to the petitioner before passing the impugned order and this fact was not even considered by the respondents 2 and 3, while confirming the order passed by the 1st respondent. Therefore, the impugned orders passed by the respondents are required to be interfered with and accordingly, they https://hcservices.ecourts.gov.in/hcservices/ are set aside. However, the 1st respondent is at liberty to proceed fresh against the petitioner by giving fresh show cause notice mentioning clearly the allegations against the petitioner and decide the issue in accordance with law. 12. In respect of writ petition in W.P.No.25168 of 2009, it is useful to refer to a Rule 8-C(6a) of the Tamil Nadu Minor Mineral Concession Rules, 1959, which states that the lease granted under this Rule may be renewed for a period not exceeding twenty years: Provided that renewal of lease shall be subject to satisfactory performance of the lessee in the past in fulfilling the conditions of lease. (b) The application for renewal shall be made atleast twelve months before the expiry of the lease in the Form specified in Appendix VII to these Rules to the District Collector concerned accompanied with non- refundable application fee of Rs.5000/- and with documents specified in clause (b) of sub-rule (2) and in the application form. (c) The lessee shall submit along with the application for renewal of quarrying lease, an approved mining plan/scheme valid at the time of filing the renewal application. (d) The conditions and the procedures under this Rule for grant of lease shall mutatis mutandis apply for renewal of a lease under this Rule. Therefore, if the petitioner fulfils the conditions for renewal of lease, it is open for the respondents to consider his case for renewal of lease in accordance with law as mentioned in the Tamil Nadu Minor Mineral Concession Rules, 1959 and pass necessary orders in accordance with law. 13. In the result, W.P.No.29741 of 2010 is allowed and W.P.No.25168 of 2009 is disposed of with the above direction/observation. No Costs. Consequently, connected miscellaneous petitions are closed. 14. Files received from the learned Additional Government Pleader appearing for the respondents are returned to him in the open Court. rkm Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The District Collector, Dharmapuri District, Dharmapuri. 2.The Commissioner of Geology and Mining, Guindy, Chennai - 600 032. 3.The State of Tamil Nadu, Rep. by its Secretary to Government, Industries Department, Fort St. George, Chennai - 600 009. 4.The District Collector, Krishnagiri District, Krishnagiri. + 2 ccs to M/s. Rugan & Arya, Advocate SR No.25048 MDR(CO) SR/11.4.2011 W.P.Nos.29741 of 2010 and 25168 of 2009 https://hcservices.ecourts.gov.in/hcservices/