IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.02.2011 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.34840 of 2003 and W.V.M.P.No.561 of 2004 D.Raja .. Petitioner vs. The District Collector Tiruvannamalai District Tiruvannamalai. .. Respondent Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari to call for the records of the respondent relating to the order passed in the proceedings Ref.RC.No.224/Karimam/97 dated 21.10.2003 and quash the same as stated therein. For petitioner : Mr.V.Sanjeevi For respondent : Mr.R.Thirugnanam,Spl.G.P. .. ORDER The 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. https://hcservices.ecourts.gov.in/hcservices/ 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 he 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ Regulation) Act, 1957 and the vehicle TNW 7446 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 Thatchur 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 Cheyyar river 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 Thatchur 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 was not 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 seigniorage 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 https://hcservices.ecourts.gov.in/hcservices/ 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 petition or 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. The respondent has specifically admitted in the counter affidavit that during field inspection there was no pit https://hcservices.ecourts.gov.in/hcservices/ 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 12.4.1997 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 https://hcservices.ecourts.gov.in/hcservices/ 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 be held 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 another vs. District Collector, Thiruvallur and another [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 https://hcservices.ecourts.gov.in/hcservices/ 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, https://hcservices.ecourts.gov.in/hcservices/ 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 vs. 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 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