IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 15-07-2011 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.11421 of 2011 and M.P.Nos.1 to 3 of 2011 S.Raj Ganesh .. Petitioner. Versus 1.The Director, Geology and Mining, Villupuram District, Villupuram. 2.The District Collector, Villupuram District, Villupuram. 3. The Principal Secretary to Government, Industrial Department, Fort St. George, Chennai-600 009. .. Respondents. Prayer: Petition filed seeking for a Writ of Certiorarified Mandamus, calling for the records of the order in Na/P&Su/928/2008, dated 14.8.2009, of the second respondent and G.O.(D).No.164, dated 13.9.2010, of the third respondent confirming the said order, dated 14.8.2009, of the second respondent and quash the same and to direct the respondents to release the lorry of the petitioner bearing Registration No.TN 20 X 7893. For Petitioner : Ms.S.Rajeni Ramadass For Respondents : Mr.R.Rajeswaran Special Government Pleader O R D E R 1. Heard the learned counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondents. 2. It is stated that the petitioner is the owner of the lorry bearing Registration No.TN-20 X 7893. On 14.4.2008, Nedumaran, the manager of M/s.Enterprising Enterprises, a https://hcservices.ecourts.gov.in/hcservices/ company, which is carrying on business in quarrying of granites at Kunnam Village, had approached the petitioner, through his driver, for hiring the lorry for the transportation of black granites to SBS Granites, Poonamallee. 3. The petitioner had been informed that the permit for transporting the black granites would be handed over to the driver of the lorry, at Tindivanam. While the lorry was transporting the black granites, on 14.4.2008, it had been seized by the Tahsildar, Villupuram District, for illegal transportation of the black granites, without a proper permit 4. It had been further stated that the District Collector, Villupuram District, had called the petitioner for an enquiry, on 2.6.2008. When the petitioner had gone to attend the enquiry he was informed that the enquiry had been postponed and that he would be intimated about the next date of enquiry. However, the petitioner was made to sign in some blank sheets, under threat. Thereafter, the petitioner had not been called to attend the enquiry. However the petitioner had received an order, dated 15.7.2008, from the second respondent, asking the petitioner to pay a sum of Rs.10,24,486/-, as penalty. The petitioner had found that the respondents had made use of the blank sheets signed by the petitioner to show that the petitioner had accepted that the black granites had been transported, illegally, without a valid permit. 5. In such circumstances, the petitioner had filed a writ petition before this Court, in W.P.No.19992 of 2008, to release the lorry in question. The writ petition had been disposed of by this Court, by its order, dated 20.8.2008. Further, the petitioner had filed an appeal, dated 15.9.2008, before the first respondent, to set aside the order of the second respondent, dated 15.7.2008. The petitioner had also filed a writ petition, in W.P.No.27880 of 2008, to direct the first respondent to dispose of the appeal filed by the petitioner. This Court had directed the first respondent to dispose of the appeal filed by the petitioner, within a period of eight weeks from the date of receipt of a copy of the order passed by this Court. 6. Thereafter, the first respondent had dismissed the appeal filed by the petitioner, by an order, dated 29.5.2009, on the ground of delay. Aggrieved by the order passed by the first respondent, the petitioner had preferred an appeal before the third respondent. While so, the second respondent had passed an https://hcservices.ecourts.gov.in/hcservices/ order, dated 14.8.2009, directing the petitioner to pay Rs.10,24,486/-, as penalty. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 7. The main contention of the learned counsel appearing for the petitioner is that the impugned orders of the second respondent, dated 15.7.2008 and dated 14.8.2009, are contrary to Articles 19(1)(g) and 21 of the Constitution of India. The impugned orders have been passed, without perusing the records available on record and without application of mind. 8. A penalty of Rs.10,24,486/-, had been imposed on the petitioner, who had only transported black granites, without a valid permit. However, no penal action had been initiated against the actual owner of the black granites, which was being transported through the lorry belonging to the petitioner. 9. The learned counsel appearing on behalf of the petitioner had also submitted that there is no provision of law giving the power or the authority to the respondents to impose a penalty on the owner of the vehicle, who had transported the black granites, innocently, without knowing that it was a serious irregularity. 10. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of her contentions: 10.1. In Sub Divisional Forest Officer Vs. Vijay B.Gulati (1998 AIHC 5029), it had been held as follows: "6. Forfeiture of the vehicle under the Act is a penal provision. Such penal provision has to be strictly construed and wherever there is a doubt, the benefit should go to the owner of the vehicle. It would not be proper for us to extend the scope of that provision by reading into it words which are not there and thereby widen the scope of the provision relating to confiscation. The words referrable to the owner of the vehicle and the word 'or' used therein are all disjunctive and cannot be read in conjunction. They do not connote that all of them have to collectively prove their innocence with regard to want of knowledge or consent of commission of forest offence. They have to be understood in the context in which they are used having regard to the object and intendment of the Act. https://hcservices.ecourts.gov.in/hcservices/ The owner may drive the vehicle and in that event he has to prove the want of knowledge and consent of the commission of the offence. If he is not accompanying the vehicle and his agent is accompanying, then the said agent has to prove his want of knowledge and innocence. If the owner or his agent are not accompanying the vehicle, but only the driver is there in the vehicle driving it, then the driver has to prove his want of knowledge or innocence. The words ".....that each of them have taken all reasonable and necessary precautions against such use" cannot be understood to mean that all of them have to prove their want of knowledge or innocence collectively, but individually in any manner indicated above. If the driver accompanying the vehicle proves his innocence, question of referring the matter to either the owner or his agent docs not arise at all. If the owner is not directly involved in the matter of consenting for transportation at the original point and entrusted,to his agent and if the agent does not have knowledge of the commission of forest offence or did not consent or connive, then also the vehicle cannot be confiscated regardless of the culpability of the driver. Even if both the driver and the agent are culpable, but the owner is innocent of the commission of the forest offence and if he did not consent or connive in the said offence, then also the vehicle cannot be confiscated. For criminal offence, anyhow the person incharge of the vehicle will be proceeded against, but in so far as civil consequences are concerned, it is the owner who loses the property and if the commission of forest offence taken place without his knowledge or consent and if he had no role to play in the said offence, then it would highly be unreasonable to punish him by confiscation of his vehicle, which would be arbitrary violating Article 14 of the Constitution of India and also will be an unreasonable restriction of his fundamental right guaranteed under Article 19 (1)(g) of the Constitution and ultimately it may breach the constitutional guarantee under Article 300- A. Authority of law does not mean enactment of law providing for confiscation, but such enactment should conform to the fundamental rights guaranteed in Part III of the Constitution of India as also the constitutional guarantee under Article 300A, May be contextually the word 'or' may have to be read as 'and' and sometimes the word 'and' may have to be read 'or'. 'But the above legal provision involved for interpretation in the instant case can be given a plain meaning understanding 'or' as 'or' only and https://hcservices.ecourts.gov.in/hcservices/ fastening liability of proving innocence on the owner, agent and driver not collectively but individually and even if there is a failure of proving innocence on the part of the driver or agent and if the owner proves innocence, his vehicle cannot be confiscated. It is too unreasonable to fasten liability to the owner to foresee all such events even illegal in the entire course of transportation miles and miles away from his place of residence of business where he may not have any semblance of control over his driver or agent. It is sufficient if the owner proves that at the time when the vehicle was entrusted to his agent or driver, if he was not accompanying, to see that all legal formalities for the transportation of the vehicle were complied with and he had entrusted the transportation to the agent or driver by taking all reasonable precautions and once such steps have been taken by the owner, his responsibility and liability ceases and when vehicle leaves his control and is in the control of the agent or the driver and if the said agent or driver commits any offence like the one in the instant case, then such owner cannot be made liable for confiscation of his vehicle. We are not unaware of the common law liabilities of the principal for the lapses of the agent or that of the master for the lapses of the servant. In no case, however, where the principal or the master, as the case may be, is innocent can be made liable for the lapses of the agent or the servant as the case may be. Unless it is shown that the owner of the vehicle shared the culpability of the agent or the servant, as the case may be, or that the agent or the servant indulged in culpable acts with the knowledge of the owner of the vehicle it would amount to punishing the innocent. Confiscation of a vehicle which is used for unlawful purposes in normal course can be ordered only if the owner connived or had the knowledge of the unlawful use of the veliicle or that his agent did only such things as the owner desired and thus agent's culpability was shared by the owner and in the case of the servant namely the driver in particular only when it is shown that he was carrying out the desires of the owner. This is the proposition we hold on this point to set at rest the controversy." 10.2. In Assistant Forest Conservator Vs. Sharad Ramchandra Kate (AIR 1998 SC 2927), it had been held as follows: "2. The truck of the respondent was ordered to be confiscated by the Assistant Conservator of Forest, as it was found involved in commission of a forest https://hcservices.ecourts.gov.in/hcservices/ offence. The order was confirmed by the Conservator of Forest. Against this order, the respondent preferred an appeal to the Session Court but it was dismissed. Therefore, he approached the High Court with a petition under Article 227 of the Constitution. The High Court set aside the order of confiscation on the ground that the authorities had failed to establish that the owner of the truck had any knowledge that his truck was likely to be used for carrying forest produce in contravention of the provision of the Forest Act. This finding was based upon the evidence on the record. Therefore, we do not consider it proper interfere with such finding." 11. In the counter affidavit filed on behalf of the respondents, it has been stated that the Revenue Divisional Officer, Villupuram, had intercepted a lorry, bearing Registration No.TN-20 X 7893, on 14.4.2008, during the raids conducted to prevent illegal transportation of minerals, with the help of the Tahsildar, Vanur. The vehicle in question was found carrying 25 numbers of black granite blocks of various sizes, at Perumupakkam Village, on Vanur-Mailam Road. As the driver of the vehicle had not produced any valid permit, it had been seized, along with the granite blocks and it had been handed over to Mailam Police Station, for safe custody. 12. It had been further stated that, based on the inspection report filed by the Assistant Geologist (Mines), the petitioner was given an opportunity of personal hearing, on 2.6.2008. A written statement had also been obtained from him. In the said statement, the petitioner had accepted that he had committed the offence and had consented to pay the amount, as fixed by the authorities concerned. He had further stated that his lorry had been engaged by one Arul, for transporting the granite blocks, from Kunnam Village to SBS Granites, Poonamallee. He had further stated that he was under the belief that the permit would be given to him on the way, during the course of the transportation of the granites. 13. The second respondent having considered the statements made by the petitioner, as well as the other records available before him, including the inspection report submitted by the Deputy Director of Geology and Mining, Villupuram, had passed an order, imposing a penalty of Rs.10,24,486/-. The petitioner had preferred a writ petition before this Court, in W.P.No.19992 of 2008 to release the vehicle in question. This Court had granted liberty to the petitioner to move the appropriate forum. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the petitioner had preferred an appeal to the Commissioner of Geology and Mining, Chennai, belatedly. Thereafter, the petitioner had obtained an order from this Court, dated 24.11.2008, in W.P.No.27880 of 2008, directing the disposal of the appeal, within eight weeks from the date of receipt of a copy of the said order. The Commissioner of Geology and Mining, Chennai, had passed an order rejecting the appeal, as time barred. 14. Aggrieved by the order passed by the Commissioner of Geology and Mining, Chennai, dated 29.5.2009, the petitioner had filed an appeal, before the third respondent. By an order, dated 13.9.2010, the third respondent had rejected the appeal stating that the petitioner had not denied that he had transported the mineral in question, without a valid permit, and that ignorance of the rules cannot be sighted as a reason to absolve the petitioner from the offence committed by him. 15. In view of the averments made in the affidavit filed in support of the writ petition and in the counter affidavit filed on behalf of the second respondent, and in view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, it is found that the petitioner had submitted a written statement before the District Collector, Villupuram, the second respondent herein, on 2.6.2008, stating that the vehicle in question had transported granite blocks, without a valid permit. 16. Based on the report of the Revenue Divisional Officer, Villupuram, as well as the statement of the petitioner, made on 2.6.2008, the second respondent had held that the petitioner had contravened Section 4(1-A) of the Tamil Nadu Mines and Minerals (Development and Regulation) Act 1957, and had levied a penalty of Rs.10,24,486/-, as per Rule 36-A of the Tamil Nadu Minor Mineral Concession Rules, 1959. 17. Aggrieved by the order of the second respondent, dated 15.7.2008, the petitioner had filed an appeal before the first respondent, on 15.9.2008. The first respondent by his order, dated 29.5.2009, had dismissed the appeal on the ground that it had not been filed, within 30 days from the date of receipt of the order of the second respondent, dated 15.7.2008. However, it had been stated in the said order of the first respondent that it would be open the petitioner to prefer an appeal before the Principal Secretary to Government, Industries Department, Chennai, within a period of 30 days from the date of receipt of https://hcservices.ecourts.gov.in/hcservices/ the said order. Hence, the petitioner had preferred a further appeal before the third respondent, on 2.7.2009. 18. By a cryptic order in G.O.(D) No.164, Industries (MMB.2) Department, dated 13.9.2010, the third respondent had rejected the second appeal preferred by the petitioner, stating that the petitioner had not denied the unlawful transportation of mineral, without a valid permit. Ignorance of rules on the part of the driver and the owner of the vehicle would not absolve them of the liability. Hence, the petitioner had preferred the present writ petition. 19. From the facts and circumstances of the case, it is clear that the impugned orders had been passed against the petitioner, without giving sufficient reasons and without, a proper analysis of the records available before the authorities concerned. The impugned orders had been passed, merely, based on the statement made by the petitioner, on 2.6.2008, before the second respondent. 20. Admittedly certain granite blocks had been transported using the vehicle belonging to him, without a valid permit. However, it is clear that no proper opportunity had been given to the petitioner to explain the circumstances under which the said transportation of the mineral had taken place. However the appeal filed by the petitioner before the first respondent had been dismissed only on the ground of delay. Thereafter, the second appeal filed by the petitioner before the third respondent had also been dismissed, by a cryptic order, dated 13.9.2010. 21. In spite of the order passed by this Court, on 24.11.008, in W.P.No.27880 of 2008, directing the first respondent to consider the appeal of the petitioner, dated 15.9.2008, in accordance with law, after providing a reasonable opportunity to all the parties concerned, by following the procedure contemplated under the relevant rules, the first respondent had passed an order, dated 29.5.2009, stating that the appeal filed by the petitioner was beyond the period of thirty days prescribed by Rule 36-(C)(2) of the Tamilnadu Minor Mineral Concession Rules, 1959. No proper reasons had been given by the first respondent for rejecting the appeal filed by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 22. In such circumstances, this Court is of the considered view that it would be appropriate to set aside the impugned orders and to remit the matter back to the first respondent to pass an order on the appeal filed by the petitioner, on 15.9.2008, on merits and in accordance with law, after giving a reasonable opportunity of hearing to the petitioner and the other parties concerned, if any, within a period of eight weeks from the date of receipt of a coy of this order. The writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar csh To 1.The Director, Geology and Mining, Villupuram District, Villupuram. 2.The District Collector, Villupuram District, Villupuram. 3. The Principal Secretary to Government, Industrial Department, Fort St. George, Chennai-600 009. + 1 cc to Mr. Rajan Ramdoss SR.42647 + 1 cc to Government Pleader SR.42489 Writ Petition No.11421 of 2011 MG(CO) Eu 8.8.11 https://hcservices.ecourts.gov.in/hcservices/