1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).Nos.7690, 7680 and 7708 of 2011 1.S.Periyanan ... Petitioner in W.P.(MD)No.7690/2011 2.C.Sivaraja ... Petitioner in W.P.(MD)No.7680/2011 3.A.Danraj ... Petitioner in W.P.(MD)No.7708/2011 Vs. The District Collector, Madurai District, Madurai. The Deputy Director, Geology and Mines Department, Madurai. The Assistant Director, Geology and Mines Department, Madurai. ... Respondents in W.P.(MD)Nos.7690&7708/2011 The District Collector, Theni District, Theni. The Assistant Director, Mines and Geology, Theni. The Assistant Geologist, Theni. The Revenue Inspector Mines, Theni. ... Respondents in W.P.(MD)No.7680/2011 PRAYER in W.P.(MD)No.7690/2011: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents to issue transport permit and dispatch slip to the petitioner to remove the quarried stone from the land in Survey No.1(P) of Rajakkalpatti Village, Vadipatti Taluk, Madurai District forthwith. PRAYER in W.P.(MD)No.7708/2011: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents to issue transport permit and dispatch slip to the petitioner to remove the quarried stone from the land in Survey No.1(B) of Rajakkalpatti Village, Vadipatti Taluk, Madurai District forthwith. PRAYER in W.P.(MD)No.7690/2011: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents 2 to 4 herein to issue transit permits to hold mining in Survey No.371/1 (Pudukulam Kanmaoi), Koduvillarpatti Village, Theni https://hcservices.ecourts.gov.in/hcservices/ 2 District based on the proceedings of the first respondent in Na.ka.No.7/Minerals/2011, dated 28.02.2011, till 31.01.2012. For Petitioners: Mr.G.Prabhu Rajdurai (In W.P.Nos.7690 & 7708/2011) For Petitioner : Mr.D.Sivaraman (In W.P.No.7680/2011) For Respondents: Mr.B.Pugalendhi, Special Government Pleader. COMMON ORDER In all the writ petitions, the petitioners have sought for a Mandamus directing the respondents herein to issue transit permits and dispatch slips for removal of quarry stones from the respective sites for which necessary lease agreements have been entered into between the parties. 2.Since the issue involved in all these writ petitions is common, the writ petitions are taken up together and disposed of by way of this common order. 3.Short facts as reduced from the pleadings in each of the writ petition are as follows: a)In W.P.(MD)No.7680 of 2011, the petitioner has been granted mining permit in S.No.371/1, located in Koduvilarpatti Village, Theni District for the period of lease from 28.02.2011 to 31.01.2012. Though the petitioner has been issued with transit permit periodically until 11.07.2011, the same has been refused without disclosing any reasons and no show cause notice has been issued to the petitioner regarding any adversity. As the petitioner has a legal and statutory right to quarry and transport stones from the permitted sites and as the respondents have unlawfully prevented from transporting stones by refusing to issue transport permits, he has come forward with the present writ petition for a Mandamus. b)Pleadings in W.P.(MD)No.7690 of 2011 are also on the same lines except to the extent that the quarry site is situated in S.No.1(P), measuring about 1.00.0 hectares in Rajakkalpatti village, Vadipatti Taluk, Madurai District for a period of five years from 28.09.2007 to 27.09.2012. In this case, the petitioner has submitted that though he has paid a sum of Rs.13,500/- on 20.06.2011 and has made an application to the Assistant Director of Geology and Mining, Madurai, the third respondent herein, he has not issued any transit permit and dispatch slip, till the date of filing of the writ petition. c)In W.P(MD)No.7708 of 2011, the petitioner has been permitted to quarry stone in S.No.1 (Part B) measuring about 1.00.0 hectares in Rajakkalpatti Village, Vadipatti Taluk, Madurai District for a period of five years from 03.09.2010 to 02.09.2015. According to the petitioner, transit permits have been granted periodically and after exhausting previous slips, he paid a sum of Rs.13,500/- on 20.06.2011 and made an application to the third respondent who has not issued the said permits. https://hcservices.ecourts.gov.in/hcservices/ 3 4.When the matter came up for admission, Mr.B.Pugalendhi, learned Special Government Pleader who took notice for the respondents submitted that though the petitioners were granted mining lease for different periods, there were violations of lease conditions contravention of the Tamil Nadu Minor Mineral Concession Rules, 1959 and the complaints were also received. He also submitted that the officials have intended to inspect the quarry sites and in the abovesaid circumstances, the transit permits were not granted. 5.By inviting the attention of this Court to Section 21 of the Act, learned counsel appearing for the petitioners submitted that as the petitioners were not issued with any show cause notice on the allegations made across the bar, there cannot be any restriction in transporting minerals already quarried. According to them, until the petitioners are held guilty of any contravention of the statutory provisions and lease conditions, they cannot be penalised by not issuing any transit permit. They also submitted that huge investments have been made and if the respondents find any violations of the statutory provisions, or the lease conditions, it is always open to the respondents to collect appropriate seigniorage fee and to take suitable action, but they cannot be prevented from transporting the stones already quarried. 6.Considering the rival submissions, this Court felt that as to whether the petitioners have removed minerals from the sites not permitted, under the respective leases and as to whether there was any violation of the conditions of lease, an inspection is required by the competent authorities and under such circumstances, declined to issue any interim direction to the respondents. This Court ordered the Deputy Director, Geology and Mines Department, Madurai, to inspect sites and submit a report by 14.07.2011. 7.Learned Special Government Pleader has submitted a report, dated 14.07.2011 on the inspections made on 12.07.2011, by the Deputy Director, Geology and Mines Department, Madurai, the second respondent herein and further submitted that when the officials inspected the area, there were several irregularities committed by the petitioners, large scale unauthorised quarrying and transportation of rough stones without remitting appropriate seigniorage charges and other violations were noticed. Therefore, he submitted that action under Rules 36-A(1) and 36 (5)(h) of the Tamil Nadu Minor Mineral Concession Rules, 1959 to levy penalty and for cancellation of leases granted to the petitioners is under contemplation. Learned Special Government Pleader requested this Court to refer to the details of the violations noticed. 8.In all these cases, learned Special Government Pleader submitted that in view of the contravention of statutory rules and lease conditions, appropriate action is under contemplation under Rules 36-A and 36(5)(h) of the Tamil Nadu Minor Mineral Concession Rules, 1959. 9.The reports submitted by the learned Special Government Pleader, on the inspection conducted by the Deputy Director, Geology and Mines Department, the second respondent herein in respect of each of the writ petitions are as follows: In W.P.(MD)No.7680/2011 As per the proceedings of the District Collector in his proceedings in No.7/Pu.(m)Su/2011, dated 28.02.2011, https://hcservices.ecourts.gov.in/hcservices/ 4 Thiru.C.Sivaraja, Kodivilarpatti village, Theni Taluk, Theni District has been granted lease to quarry rough stone in a limited extent in S.F.No.371/1 of Pudukulam poramboke Kanmai for a period of 11 months and the same was granted upto 28.01.2012. The lessee was granted transit permit to receive seigniorage fee from 18.04.2011 to 27.06.2011. The said lessee upto 27.06.2011 has quarried to an extent of 1473 units and has also paid a sum of Rs.36,825 towards seigniorage charges. The transit permit was not granted to the lessee of the advance amount of Rs.36,925/- paid by him. As the lessee has quarried and transported excess quantity of minerals and the telephone complaint regarding the damage of electric poles and lines in the said kanmai by the general public, the transit permit granted to him was temporarily suspended. It was decided to grant further transit permit after inspection by the competent authority. The Deputy Director Geologists (Mines) has inspected the area and reported that the lessee has done the following violations: i)The lessee has quarried in a smaller extent from the land total extent permitted him and quarried on the western side of the above referred site. ii)He has quarried in two different places in the western side of the total extent permitted to him. iii)He has not maintained the safety distance of 50m in the south north side. But he has quarried only leaving a distance of 6 metre and quarried the rough stone and thus, caused damage to the electric lines and poles. On inspection, it came to know that the above said licensee has violated the lease conditions and since action has to be taken against the said licensee, namely Mr.C.Sivaraja under Sections 36-A(1) and (3) of Tamilnadu Minor Mineral Concession Rules, 1959, Show Cause Notice has to be issued to the said licensee under Section 36(5)(h) of Tamilnadu Minor Mineral Concession Rules, 1959, as to why his licence should not be cancelled? and action has to be taken against him based on his explanation and it is submitted to the Government Pleader to inform the same to the Madurai Bench of Madras High Court. 10.In W.P.(MD)Nos.7690 and 7708/2011 The report on the inspection made on 12.07.2011 reads as follows: The area in which quarry lease had been granted to Thiru.S.Periyanan and to Thiru.A.Dhanraj to quarry rough stone in S.F.No.1 (Part A) and 1 (Part B) over an extent of 1.00.0 hectares each in Rajakalpatti village, Vadipatty Taluk, Madurai District has been inspected by this Office Assistant Geologists (mines) on 12.07.2011. At the time of inspection the Special Deputy Tahsildar (Mines), Revenue Inspector, https://hcservices.ecourts.gov.in/hcservices/ 5 Palamedu, Village Administrative Officer, Rajakkalpatti were present in the quarry site. Further the Surveyor (mines) has verified the lease boundaries with reference to the FMB sketch and measured the present working pit noticed in the above area. 1.It is submitted that, quarry lease had been granted to one N.Kathiravan to quarry stone in poramboke S.F.No.1(P) over an extent of 1.00.0 hectares of Rajakkalpatti Village, Vadipatty Taluk, Madurai District through tender cum auction system for a period of five years vide Collector's proceedings Rc.No.1934/03,Mines, dated 27.10.2003 from 14.11.2003 to 13.11.2008. 2.It is also submitted that, another part in the same S.F.No.1 (Part A) over an extent of 1.00.0 hect or Rajakkalpatti village, Vadipatty Taluk was leased out to Thiru. Periyannan to quarry stone for a period of five years through tender cum Auction System vide Collector's Proceedings R.C.No.1367/07/Mines dated 10.09.2007. The lease deed was executed on 29.09.2007 and the leased period will expire on 28.09.2012. 3.After the expiry of the lease period in S.F.No.1(P) which was leased out to Thiru.Kathiravan, the area was again leased out to Thiru.A.Dhanaraj as S.F.No.1(Part B) over an extent of 1.00.0 hect in Rajakkalpatti village of Vadipatty Taluk for a period of five years vide Collector's Proc.Rc.No.649/09/Mines dated 09.07.2010. The lease deed was executed on 03.09.2010 and the lease period is valid up to 02.09.2015. 4.It is also submitted that the Assistant Geologists (Mines) have inspected the area and reported that the lessees have done the followings violations: a.The lessees have not maintained the lease boundaries properly b.They have also not erected the name board and violated the conditions imposed at the time of grant of quarry lease. c.They have also not maintained the safety distance to the adjacent lands. d.They dumped the quarry waste in the non lease areas causing hindrance to the adjacent patta lands. e.The quarry pits of both the lease granted areas in S.F.No.1 (Part A) and (Part B) are merged as single pit and no safety distance has been maintained in between the lease granted area. f.Thiru Periyanan has encroached 0.07.0 hect on the eastern side of the lease granted are in S.F.No.(Part A) and quarried 2248 units of rough stone in the non lease area. g.Thiru.A.Dhanaraj has encroached 0.04.0 hect on the southern side of the lease granted area in S.F.No.1 (Part B) and quarried 2523 units of rough stone in the non lease area. h.Thiru.S.Periyanan has quarried and transported excess quantity of 16504 units of rough stone without remitting seigniorage charges. From this the writ petitioner has not https://hcservices.ecourts.gov.in/hcservices/ 6 paid the seigniorage charges of Rs.22,28,040/- for the quantity removed in excess to the Government and causing loss of revenue to Government. i.Thiru.A.Dhanaraj has quarried and transported excess quantity of 32619 units of rough stone without remitting seigniorage charges. From this the writ petitioner has not paid the seigniorage charges of Rs.44,03,565/- for the quantity removed in excess to the Government and causing loss of revenue to Government. 5.It is submitted that the dimension of the pit noticed in S.F.No.1 (Part B) which was leased out to Thiru Dhanaraj has been measured by the Surveyor (Mines) after detecting the topsoil thickness of 1.0m to 1.5m and given as detailed below. Length (M) Width(m) Depth(M) Volume(cbm) Quantity (Unit) 124m 50.5m 20m 125240cbm/2.83=44254 units. 6.It is submitted that on perusal of the transport permit issuance register it reveals that the lessee (Thiru.Kathiravan and Thiru A.Dhanaraj) has obtained transport permit for a quantity of 11635 units of rough stone during the year 2003 to 2011-12 upto 07.06.2011 after remitting required seigniorage charges. From this it reveals that the lessee has quarried and transported seigniorage charges. 7.It is submitted that the dimension of the pit noticed in S.F.No.1(Part A) which was leased out to Thiru.Periyanan has been measured by the Surveyor (Mines) after detecting the topsoil thickness of 1.0m to 1.5m and given as detailed below. Length (M) Width(m) Depth(M) Volume(cbm) Quantity (Unit) Pit No.I 71m 60 m 17m 72420cbm Pit No.II 29m 26 m 10 m 7540 cbm Total = 79960/2.83=28254 Units 8.It is submitted that on perusal of the transport permit issuance register it reveals that, the lessee (Thiru Periyanan) has obtained transport permit for a quantity of 11750 units of rough stone during the year 2007-8 to 2011-12 upto 10.06.2011 after remitting required seigniorage charges. From this it reveals that the lessee has quarried and transported excess quantity of 16504 units without remitting required seigniorage charges. 9.As per 36-A-1 of Tamil Nadu Minor Mineral Concession Rules, 1959, whenever any person contravenes provisions of (sub Section 1 and 1-A of Section 4) of the Act in any land, enhanced seigniroage fee upto a maximum of 15 times the normal rate subject to the minimum of (twenty five thousand rupees) shall be charged and recovered from that person by the District Collector or the District Forest Officer as the case may be, or in the alternative, he shall be liable to be punished as provided in sub Section 1 of section 21 of the Act. 10.As per 36(5) (h) of the Tamil Nadu Minor Mineral Concession Rules, 1959, in case of breach by quarrying permit- holder or quarrying lease holder or transferee or assignee of https://hcservices.ecourts.gov.in/hcservices/ 7 any of these rules or the condition of the lease, the competent authority without prejudice to any other penalty which may be imposed in respect of such breach, may cancel the lease. In view of the above, as the writ petitioner has violated the lease conditions and large scale unauthorised quarrying and transportation of rough stone has been carried out by the lessees by means of excess quantity of rough stone removed and transported from this area without remitting seigniorage charges fro the quantity of rough stone removed and hence issuance of transport permits were temporarily stopped. Hence, action will be taken as per Rule 36A-1 and 36(5)(h) of Tamil Nadu Minor Mineral Concession Rules, 1959 to levy penalty to the said offence and to cancel the lease granted to the writ petitioner". 11.Rules 36(1-A) and 36(5-h) of the Tamil Nadu Minor Mineral Concession Rules, 1959 are as follows: "Rule.36(A)(1)[Whenever any person contravenes the provisions of [sub-sections (1) and (1-A) of Section 4] of the Actin any land, enhanced seigniorage fee upto a maximum of fifteen times the normal rate subject to a minimum of [twenty- five thousand rupees] shall be charged and recovered from that person by the District Collector or the District Forest Officer, as the case may be, or in the alternative, he shall be liable to be punished as provided in sub-section (1) of section 21 of the Act] [Provided that in respect of minor minerals, namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay, the powers and duties exercisable and dischargeable by the District Collectors under this sub-rule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction]" 36 (5)(h) In case of breach by the quarrying permit- holder or quarrying lease holder or his transferee or assignee of any of these rules or of the conditions of the lease, the Director of Geology and Mining or the Chief Conservator of Forests, as the case may be, or the District Collector or the District Forest Officer, as the case may be, without prejudice to any other penalty which may be imposed in respect of such breach, may cancel the lease after granting an opportunity of hearing to the said person]". 12.Perusal of the reports extracted above, prima facie reveals that the petitioners have contravened the provisions of the Tamil Nadu Minor Mineral Concession Rules, 1959, lease conditions and excavated minerals in the sites not permitted under the leases granted to the petitioners. 13.The contentions of the learned counsel for the petitioners that the inspection reports have not been furnished to the petitioners so https://hcservices.ecourts.gov.in/hcservices/ 8 far and unless and until the petitioners are called upon to offer their explanation, on the alleged contravention of the provisions of the Tamil Nadu Minor Mineral Concession Rules, 1959 and lease conditions, withholding of transit permits and dispatch slips, even before a specific finding is recorded, after providing an opportunity, would be punitive and predetermined, are not acceptable to this Court for the reason that when there is a prima facie evidence of contravention of the Tamil Nadu Minor Mineral Concession Rules, 1959 and the conditions of lease, causing huge loss, without prejudice to the action under Rules 36-A(1) and 36(5) (h) of the Tamil Nadu Minor Mineral Concession Rules, 1959, the competent authority, shall always withhold issuance of transit permits or dispatch slips. 14.No doubt, for contravention of the provisions of the Tamil Nadu Minor Mineral Concession Rules, 1959 or breach of the lease conditions, the competent authority is empowered to charge seigniorage fee upto a maximum of fifteen times the normal rate subject to a minimum of twenty five thousand rupees and also empowered to cancel the lease, in addition to a punishment provided in sub-section (1) of Section 21 of the Act, yet this Court is of the view that when an authority is conferred with a power to issue transit permits or dispatch slips, he is also empowered to withhold the same, when contravention of the provisions of the Tamil Nadu Minor Mineral Concession Rules, 1959 and the lease conditions are noticed and which is evident from the reports. 15.As long as the lease holders engage themselves in lawful activities, it is always open to them to seek for enforcement of statutory provisions and once violations in the interest of the State and having regard to the stringent provisions in the Act and the Rules, the Competent Authority can withhold transit permits. The competent authority should be given a latitude to take appropriate action, both preventive and punitive. When the competent authorities are empowered to initiate even prosecution besides levying penalty, it is needless to state that they are powerless to withhold dispatch slips or transit permits. The question of alleged excavation of the minerals available in the quarry sites have to be ascertained and appropriate action has to be taken thereafter. Mere recommendation to issue dispatch slips or transit permits by a subordinate does not amount to acceptance of the same and if the said contentions of the petitioners are to be accepted, then there is no meaning in conferring a specific power on the authority to issue transit permit. He has to examine the recommendations and it is always open to him to reject, if he finds that there is prima facie violation. The proposition that once recommendations are made, by a subordinate official, the same should be simply accepted and that he has simply affixed his approval, would make the provisions redundant. Power to temporarily suspend the issuance of transit permits is inherent, when he is given the authority to issue and that there is no need to specifically mention in the rules. If minerals can be quarried in unauthorised places are allowed to be transported under valid permits and it would give rise to a contention that once the minerals are transported under valid dispatch slips or transit permits, no action can be taken. 16.Considering the over all aspects and in particular, the prima facie opinion, arrived at by the inspecting officers, this Court is not inclined to issue any Mandamus which can be issued only if lawful https://hcservices.ecourts.gov.in/hcservices/ 9 activities are carried on, as per the statutory rules and the conditions of lease. As appropriate action under the rules is contemplated, the competent authority is directed to strictly implement the provisions of law. 17.In such view of the matter, the writ petitions fail and the same are dismissed. No costs. Consequently, connected miscellaneous petitions are closed. sd/- Assistant Registrar (C.O) /True Copy/ Sub Assistant Registrar (C.S) To 1.The District Collector, Madurai District, Madurai. 2.The Deputy Director, Geology and Mines Department, Madurai. 3.The Assistant Director, Geology and Mines Department, Madurai. 4.The District Collector, Theni District, Theni. 5.The Assistant Director, Mines and Geology, Theni. 6.The Assistant Geologist, Theni. 7.The Revenue Inspector Mines, Theni. + 1 cc to Mr.D.Sivaraman, Advocate, SR No.2394 W.P.(MD).Nos.7690, 7680 and 7708 of 2011 15.07.2011 sms RJ/18.7.11 (IT) 9p/9c https://hcservices.ecourts.gov.in/hcservices/