1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.09.2011 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No.9485 of 2011 and M.P.(MD).No.1 of 2011 Mohamad Sherif .. Petitioner Vs. 1.The Revenue Divisional Officer, Padmanabahapuram Revenue Division, Office at Thackalay, Kanyakumari District. 2.The Tahsildar, Kalkulam Taluk, Office at Thackalay, Kanyakumari District. .. Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to the order issued by the 1st respondent herein in Mu.Mu./A1/4197/2011, dated 16.08.2011 and quash the same as illegal, arbitrary and further issue a direction, directing the 1st and 2nd respondents herein to release the vehicles, two Tipper lorries bearing Registration Nos.TN-74-Z-8325 and TN-74-09-AV-3057, a Tractor bearing Registration No.TN-74-Z-9019 and two Heavy Equipments Hittachi and L& T Comatz from the custody of the 2nd respondent, which would be released by the 1st respondent herein. For Petitioner : M/s.J.Balameenakshi For Respondents : Mr.B.Pugalenthi, Special Government Pleader O R D E R Challenge in this writ petition is to an order, dated 16.08.2011 of the Revenue Divisional Officer, Kanyakumari District, the first respondent herein, directing payment of Rs.25,000/- as fine amount, for each of the vehicles bearing Registration Nos.TN-74-Z-8325 and TN-74-09- AV-3057, a Tractor bearing Registration No.TN-74-Z-9019, in two heavy equipments, Hittachi and L&T Comatz. Consequently, the petitioner has sought for release of the abovesaid vehicles. 2.It is the case of the petitioner that the vehicles were seized by the Tahsildar, Kalulam Taluk, Kanyakumari District, the second respondent herein, on 31.05.2011, alleging violation of Tamil Nadu Minor Mineral Concession Rules, 1959 and the Act. When the second respondent was approached, he had directed the petitioner to approach the Revenue Divisional Officer, Padmanabhapuram Revenue Division, Kanyakumari District, the first respondent herein, for release of the vehicles. https://hcservices.ecourts.gov.in/hcservices/ 2 Though the petitioner made representations dated 01.06.2001, 06.07.2011 and 04.08.2011 for release of the vehicles, there was no response. But, to his shock, by impugned order, dated 16.08.2011, the Revenue Divisional Officer, Padmanabhapuram Revenue Division, Kanyakumari District, the first respondent herein, passed an order directing the petitioner to pay a penalty of Rs.25,000/- each for the above said vehicles. Being aggrieved by the same, the petitioner has come forward with the present writ petition contending inter alia that the petitioner was not given an opportunity of submitting his explanation on the allegations leveled against him regarding violations of the provisions of the Tamil Nadu Minor Mineral Concession Rules, 1959. It is contented that he has not committed any violations of statutory provisions or the rules. According to the petitioner, keeping the vehicles in hot sun and rain, would cause damage and irreparable hardship. 3.When the matter came up for hearing on 23.08.2011, the learned Special Government Pleader, was directed to get instructions. On this day, when the matter came up for hearing, he submitted that the petitioner was given adequate opportunity and that the reasons contained in the representations, dated 06.07.2011 and 04.08.2011, submitted before the Revenue Divisional Officer, Padmanabhapuram Revenue Division, Kanyakumari District, the first respondent herein, were not satisfactory and therefore, the impugned order, dated 16.08.2011, has been passed imposing a fine of Rs.25,000/- in respect of each of the vehicles. According to him, the order passed under Section 36-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, is appellable to the District Collector. Therefore, the writ petition is not maintainable. Hence, he prayed for dismissal of the writ petition on the abovesaid ground. 4.Heard the learned counsel for the parties and perused the materials available on record. 5.Rule 36-A empowers the competent authorities to impose penalties, in case of contravention of Sub Section (1) and (1-A) of Section 4 of the Act and for contravention of any other provisions of the Rules or the lease granted under the Rules, after giving notice and that the competent authority shall also pass an order for payment of enhanced seigniorage fee upto a maximum of fifteen times the normal rate subject to a minimum of Rs.25,000/- or in the alternative, he shall liable to be punished with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both and in the case of continuing contravention, with additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention. 6.Needless to say that when a penal provision is provided in a statute, it is imperative on the part of the competent authority to consider the violations/contraventions of the statutory provisions, and the defence put up by the alleged violators and record a finding of guilt of contravention of the statutory rules or statutory provisions before inflicting a penalty. In the case on hand, Rule 36-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, empowers the Revenue Divisional Officer and the District Collector or the District Forests Officer, as the case may be, to impose a penalty of minimum of Rs.25,000/-. Perusal of the impugned order shows that though representations, dated https://hcservices.ecourts.gov.in/hcservices/ 3 01.06.2011, 06.07.2011 and 04.08.2011 have been submitted by the writ petitioner for release of the vehicles bearing Registration Nos.TN-74-Z- 8325, TN-74-09-AV-3057 and TN-74-Z-9019, the Revenue Divisional Officer, Kanyakumari District, without considering the nature of the contraventions, the defence offered by the writ petitioner and even without recording a finding on the alleged violations, has simply imposed a fine of Rs.25,000/- for each of the vehicles, which in the opinion of this Court does not reflect application of mind to the penal provision. The penalty cannot be imposed without recording any finding on the charges. The reason contained in the impugned order that there is no provision to release the vehicles under the statutory rules and therefore, penalty is imposed, is not tenable. 7.In the light of the above discussion, this Court is of the view that impugned order is liable to be set aside and accordingly, set aside. However, the matter is remitted back to the Revenue Divisional Officer, Padmanabhapuram Revenue Division, Kanyakumari District, the first respondent herein, for fresh consideration from the stage where the defect was crept in, after issuing notice to the petitioner. As stated supra, though notice was directed to be taken on 23.08.2011, the respondents have not come out with any reply regarding the adversity of the writ petition. In such circumstances, pending disposal of the adjudication under Section 36-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, the vehicles bearing Registration Nos.TN-74-Z- 8325, TN-74-09-AV-3057 and TN-74-Z-9019, shall be released on production of relevant documents and subject to the following conditions: (i) The petitioner shall produce deposit a sum of Rs.10,000/- (Rupees ten thousand only) for each of the vehicle, with the first respondent; (ii) The petitioner shall give an undertaking that he will not use the vehicles for any illegal activities in future and shall produce the same as and when required by the first respondent; (iii) On doing so, the vehicle in question shall be returned to the petitioner; (iv) The petitioner shall not alienate the vehicles in question till the disposal of the proceedings before the authority concerned; and (v) The first respondent is at liberty to proceed under the provisions of the Tamil Nadu Minor Mineral Concession Rules, 1959. 8. The Writ Petition is allowed as indicated above. Consequently, connected miscellaneous petition is closed. No costs. gcg Sd/- Assistant Registrar[CO] /True copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To 1.The Revenue Divisional Officer, Padmanabahapuram Revenue Division, Office at Thackalay, Kanyakumari District. 2.The Tahsildar, Kalkulam Taluk, Office at Thackalay, Kanyakumari District. Order made in W.P.(MD)No.9485 of 2011 Dated:09.09.2011 4P/3C RPB 09.09.2011 https://hcservices.ecourts.gov.in/hcservices/