IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 16.11.2010 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NOS.7742 AND 7743 OF 1999 1.The District Collector Tirunelveli District Tirunelveli. 2.State of Tamil Nadu Rep.by its Secretary to Government Industries Department Secretariat, Chennai  600 009. .. Petitioners (P-2 impleaded as per order dated 09.07.2010 (in both W.Ps.) in W.P.M.P.Nos.400 & 401 of 2010 in W.P.Nos.7742&7743/1999) Versus 1.Union of India Rep.by its Secretary Steel and Mines Department New Delhi. 2.M.Ramesh .. Respondents (in both W.Ps.) PRAYER in W.P.No.7742/1999: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified mandamus, calling for the records of the 1st respondent relating to its final order No.66/98 dated 15.07.1998 and to quash the same and thereby to uphold the order of the first petitioner issued in his proceedings Rco.M2/2567/94 dated 30.01.1995 and to direct and 2nd respondent to remit a sum of Rs.7,53,85,000/- as the cost of 60.308 Metric Tonnes of Garnet sands illicitly mined by Thiru.T.Manickam father of the 2nd respondent herein from his patta lands with 24% interest as per rules. PRAYER in W.P.No.7743/1999: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified mandamus, calling for the records of the 1st respondent, in final orShivji Nathubai v. Union of India and Others (1960) 2 SCR 775der No.65/98 dated 15.07.1998 and quash the same and to uphold the order of the first petitioner for the recovery of the royalty as provided in section 21(5) of the Act. For Petitioners : Mr.P.Wilson Additional Advocate General Asst. by Mr.A.Arumugam Special Government Pleader For Respondent - 1 : Mr.Achuthan For Respondent  2 : Mr.V.T.Gopalan in W.P.No.7742/1999 Senior Counsel For Respondent  2 : Mr.P.Kumar in W.P.No.7743/1999 Senior Counsel Asst. by Mr.V.Sanjeevi * * * * * C O M M O N O R D E R A common order is passed in both the writ petitions, considering the fact that the issues and the parties are one and the same. 2.Facts in brief: 2.1.One Shri.T.Manickam, father of the respondent No.2, filed six applications, dated 22.10.1985 and 10.02.1996, seeking mining lease for Garnet and Limenite over an extent of 22.21 acres of patta lands in Karaichuthuputhur Village, Radhapuram Taluk, Tirunelveli District, for a period of 20 years. By the Government Orders in G.O.Ms.No.261, Industries, dated 15.04.1987 and G.O.Ms.No.262, Industries, dated 15.04.1987, two mining leases were granted to Shri.T.Manickam in Survey No.26/2 with an extent of 1.70 acres and Survey Nos.93/9B, 93/10 to the extent of 0.15 and 0.60 hectares respectively, for a period of three years. 2.2.In the Government Order passed in G.O.Ms.No.96, Industries (MMD2) Development, dated 22.01.1990, Shri.T.Manickam was granted mining leases for the remaining four mining lease applications, for a period of five years, in survey Nos.23/1, 22/7, 8, 9A, 9B, 10, 92/3, 157/1-I, J, M, N, O, Q, to the extent of 6.83, 6.07, 2.80 and 2.96 acres respectively. Shri.T.Manickam, thereafter made another mining application which was forwarded by the first petitioner, in and by his letter dated 27.03.1992 for mining Garnet in respect of Survey Nos.158, 159, 594 to the second petitioner through the Director of Geology and Mining. Again, the first petitioner, in and by his letter dated 11.05.1992 has forwarded the mining lease application to the second petitioner in respect of Survey Nos.90/1, 90/2, 91/2, 93/3B, 4, 5A, 5B, 6, 7, 8 through the Director of Geology and Mining. Shri.T.Manickam has also made an application on 09.07.1993 for mining lease in Survey Nos.158, 159, 594. 2.3.During the routine inspection conducted by the Deputy Director of Geology and Mining on 12.12.1993, a lorry belonging to Shri.T.Manickam was seized on the ground that it was carrying illicit mined Garnet of about 10 Metric Tonnes from Survey Nos.93/5A and 93/5B. Complaints were also received from various quarters against Shri.T.Manickam alleging illicit mining including the then Member of the Legislative Assembly of Thiruvattur Constituency and one Thiru.S.Sankaralingapandian. A legal notice was sent by Shri.T.Manickam, dated 17.12.1993 requesting to compound the offence for the release of the vehicle. A Criminal case was also registered in Crime No.223 of 1993 before the Ovari Police Station against Shri.T.Manickam. 2.4.On 20.12.1993, the Joint Secretary to Government has inspected the first petitioner to take appropriate action on the allegations made in the complaints. The first petitioner has ordered for joint inspection by the Sub-Collector, Cheranmahadevi on 04.01.1994. A joint inspection team comprising of the Sub-Collector, Cheranmahadevi, Deputy Director (G&M), Assistant Director (Survey and Land Records), Tirunelveli. Inspector of Survey, Tirunelveli, Taluk Deputy Surveyor, Taluk Sub-Inspector of Survey, Radhapuram, Firka Surveyor, Tisaiyanvilai, Village Administrative Officer, Karaichuthupudur made an inspection on 19.01.1994. It measured the pits where illegal mining was said to have been carried out in the non-leased out areas belonging to Shri.T.Manickam. The representative of Shri.T.Manickam was also present during the inspection. A quantum of about 1,77,694.15 Metric Tonnes of Garnet has been reported by the joint inspection team as the illicitly quarried Garnet. 2.5.On 11.02.1994, the first petitioner has requested the Commissioner of Geology and Mining to send a team of technical persons to quantify the exact quantum of illicit mining. On 21.06.1994, the Sub-Collector, Cheranmahadevi, gave a report based upon the inspection dated 19.01.1994 to the first petitioner. A second inspection was made on 23.06.1994 by various officials, in which, Shri.T.Manickam was present along with his staff. The illegally mined Garnet was quantified adopting 25% as recovery instead of 50% taken earlier, by taking into consideration of the depth of the Garnet deposit to about 1.5 metres. A further inspection was made on the factory premises and 28,379 Metric Tonnes of Garnet was also found as excess stock. The respondent No.2/Shri.T.Manickam has also made a statement after inspection by the technical team on 23.06.1994. 2.6.The Director of Geology and Mining by his letter dated 29.06.1994 requested the first petitioner to ensure that the excess quantity was not transported and an order was passed by the first petitioner on 02.07.1994 to seize the excess quantity. 2.7.In pursuant to the order passed by the Honourable Court in W.P.No.12029 of 1994, a show cause notice was issued on 23.11.1994 as to why penalty, royalty and cost of the mineral should not be imposed for the illegal mining. A reply was given by Shri.T.Manickam dated 28.11.1994. Final orders were passed by the first petitioner dated 30.11.1994 imposing a sum of Rs.9,18,315/- towards royalty and another sum of Rs.10,000/- as penalty for the excess stock of Garnet found in the factory premises. Final orders were also passed on 30.01.1995 by the first petitioner imposing a sum of Rs.7,53,85,000/- towards the cost of mineral illicitly mined. 2.8.Shri.T.Manickam filed two revision petitions, challenging the orders passed by the first petitioner, under Rule 54 of the Mineral Concession Rules, 1960. After filing the revision petitions Shri.T.Manickam expired on 20.07.1997. Thereafter, the orders have been passed by the respondent No.1 in final order Nos.65 of 1998 and 66 of 1998 on 15.07.1998 setting aside the orders passed by the first petitioner and remitting the matters back for first consideration. While passing the said orders, the respondent No.1 has set aside the findings rendered by the first petitioner. 2.9.The second petitioner directed the first petitioner to file writ petitions in and by his letter dated 16.12.1998. A subsequent letter was sent on 16.03.1999 in this regard. Accordingly, the first petitioner has filed the present writ petitions. The writ petitions were admitted and orders of stay were granted by this Court. 3.An objection was raised by the respondent No.2 to the effect that the writ petitions filed by the first petitioner are not maintainable in law. Thereafter, applications were filed to implead the second petitioner as the petitioner in the writ petitions along with the first petitioner. This Honourable Court in and by its order dated 09.07.2010 in W.P.M.P.Nos.400 and 401 of 2010 has allowed those applications permitting the second petitioner herein to be impleaded as writ petitioner leaving open the issue of maintainability of the writ petitions. 4.Submissions on behalf of the petitioners: 4.1.Shri.P.Wilson, learned Additional Advocate General, submitted that the first respondent has committed jurisdictional errors in remitting the matters after setting aside the findings on the ground that there is a failure of principles of natural justice in as much as Shri.T.Manickam has not been given a proper opportunity. The report of the Sub-Collector relied upon by the respondent No.1 is not conclusive and the observations contained therein cannot be a basis for coming to the conclusion. The authority to decide the illegal mining and the consequential levy of penalty is the 1st petitioner and therefore, the Sub-Collector's report has got no relevancy. The report of the Sub- Collector has been misconstrued. In as much as the pits have been found as a matter of fact on the patta lands belonging to the respondent No.2, the onus is on him to substantiate his case. The reasons assigned on the inspection reports and the compounding orders also cannot be sustained. 4.2.It was further contended that in an administrative action which involves an inspection, there is no question of principles of natural justice involved in as much as the provisions of the enactment and the rules do not contemplate the prior intimation before inspection. The inspection has been done by the authorities concerned during which time the representative of the respondent No.2 was present. 4.3.The power exercised by the first petitioner is only an administrative power having its civil consequences, the said power is not a quasi-judicial power and therefore, the orders passed by the respondent No.1 is amenable to challenge. The Minerals having belongs to the petitioners, it is the petitioners who can protect their interest. Section 21(5) of the Mines and Minerals (Development and Regulations) Act, 1957 provides for a method to recover the value of the Minerals extracted illegally. The decision has been arrived at by the first petitioner based upon the relevant materials including the documents belonging to Shri.T.Manickam. 4.4.The learned Additional Advocate General has relied upon the judgment of the Honourable Apex Court in STATE OF ORISSA v. UNION OF INDIA [(1995) SUPP(2) SCC 154] in support of his contention that the petitioners being the owners of the Minerals can always approach this Court challenging the orders of the respondent No.1. The learned Additional Advocate General has made further reliance on the judgment in GANESH SANTA RAM SIRUR v. STATE BANK OF INDIA [(2005) 1 SCC 13], STATE BANK OF INDIA v. LUTHER KONDHPAN [(1999) 9 SCC 268], to substantiate the contention that the principles of natural justice cannot be put in a straight jacket. A further reliance has also made on the judgments of the Honourable High Court in S.A.No.797 of 1994 dated 02.02.1999 and S.A.No.928 of 2006 dated 08.02.2007 on the contention that no notice is required prior to the inspection and the element of surprise is required for the above said inspection. It is further submitted that there is no procedural violation in the inspection and the search made and even assuming it is so the same would not vitiate the proceedings. Therefore it is prayed that these writ petitions will have to be allowed by setting aside the orders passed by the respondent No.1. 5.Submissions on behalf of the Respondent No.2:- 5.1.Per contra, Shri.V.T.Gopalan, learned senior counsel appearing for the respondent No.2 in W.P.No.7742 of 1999 submitted that the writ petitions are not maintainable at the instance of the petitioners. The petitioners being quasi-judicial authorities cannot invoke the jurisdiction of the Honourable High Court. In the absence of any provision enabling the petitioners to challenge the orders of the respondent No.1, the writ petitions cannot be maintained. The orders passed by the first petitioner are quasi-judicial ones. 5.2.In support of the above said contentions, the learned senior counsel made reliance upon the judgment of the Honourable Supreme Court in DHARAM CHAND JAIN v. THE STATE OF BIHAR [(1976) 4 SCC 427], STATE OF ASSAM v. OM PRAKASH MEHTA [(1973) 1 SCC 584], DIRECTOR OF ENFORCEMENT v. RAMA ARANGANNAL [(1981) 1 MLJ 64], THE REGIONAL TRANSPORT AUTHORITY, NAMAKKAL REGION v. THE STATE TRANSPORT APPELLATE TRIBUNAL, MADRAS AND 3 OTHERS [(1994) 1 LW 509], and MOHTESHAM MOHD. ISMAIL v. SPL. DIRECTOR, ENFORCEMENT DIRECTORATE [(2007) 8 SCC 254] and submitted that in the absence of any provision enabling the petitioners to challenge the orders of the respondent No.1, the writ petitions as filed cannot be maintained. In as much as the power of remand is available to the respondent No.1 Section 30 of the Mines and Minerals (Development and Regulations) Act, 1957 coupled with Rule 55 of the Mineral Concession Rules, 1960 no interference needs to be called for. 5.3.The learned senior counsel also submitted that the judgment relied upon by the petitioner in STATE OF ORISSA v. UNION OF INDIA [(1995) SUPP(2) SCC 154] is per incuriam in as much as the earlier judgments have not been taken into consideration. The learned senior counsel has made reliance upon the various judgments passed by this Court in W.P.No.8207 of 1997 etc., dated 27.07.1999, W.P.No.2647 of 2001, dated 19.09.2001, W.P.No.32829 of 2002 dated 10.09.2003, W.P.No.2066 to 2071 of 1998, dated 17.10.2003, W.P.No.32030 of 2004, dated 30.10.2006, W.P.No.27845 of 2007, dated 30.06.2008 and W.P.No.26650 of 2005 etc., dated 07.01.2009, in support of his contention that an inspection done behind the back of the petitioner cannot be used against him and a report based upon such an inspection also cannot be used. Therefore, the learned senior counsel submitted that the writ petitions will have to be dismissed. 6.Shri.P.Kumar, learned senior counsel appearing for the respondent No.2 in W.P.No.7743 of 1999 submitted that the writ petitions will have to be dismissed in as much as the second petitioner has got impleaded only at the time of final hearing of the writ petition. Hence, the inordinate delay and laches in the dismissal of the writ petition. The learned senior counsel further raised the following issues: "1.Can the first inspection report pursuant to the inspection made on 19.01.1994 be relied upon, since it was without notice to the 2nd respondent's father which renders the first report incurably defective in view of the several judgments of this Hon'ble Court i.e., (i)W.P.No.8207 of 1997 etc., dated 27.07.1999, (ii) W.P.No.32829 of 2002 dated 10.09.2003, (iii) 2006 (5) C.T.C. 857 and (iv) 2009 (2) MLJ Page 577 ? 2.Is the second inspection made on 23.06.1994 also invalid, as it has relied upon and based its decision on the first inspection report ? 3.If both the reports are to be eliminated, whether there is any other material on which the conclusion of illicit mining can be arrived at ? 4.Additionally, if the second inspection report also without jurisdiction, as the persons who inspected were incompetent and not authorized to exercise the power under Section 24(1) of the Mines and Minerals (Development and Regulations) Act, 1957. 5.Is the show cause notice dated 23.11.1994 for the second case (W.P.No.7743 of 1999) ex-facie illegal, since the mineral found in the factory if illegally mined garnet sand which has already come from the lands and form part of the first show cause notice proceedings dated 23.11.1994 (W.P.No.7742 of 1999) ? 6.Is not the show cause notice also invalid, since it seeks to levy royalty on the materials described as garnet fye;j kzy;, hence royalty is leviable on garnet abrasive alone ? 7.In any event, will not the declaration of available stock of garnet (abrasive) alone in the quantity of 7,972.260 Metric Tonnes would adequately cover the quantity of 28,379.260 Metric Tonnes of garnet sand found at the factory and consequently there is no excess of garnet available over and above the declared stock ? 8.Apart from the above, the issue whether the show cause notices are liable to be set aside and all the proceedings are to be declared invalid on the ground that from the show cause notice itself, it is apparent that the District Collector has prejudged the issue and as such the proceedings are invalid and more so in view of the judgment of the Hon'ble Supreme Court of India reported in (2006) 12 SCC page 33 (Siemens Case)." 7.The learned senior counsel submitted that the materials required for arriving at a final decision are already available with the respondent No.1 on record and therefore instead of remanding the matters, the respondent No.1 has to look into all the aspects adduced not only by the petitioners but also by the respondent No.2. The points raised by the respondent No.2 before this Court will have to be looked into by the respondent No.1. 8.Heard Shri.P.Wilson, learned Additional Advocate General, Assisted by Shri.A.Arumugam, learned Special Government Pleader, appearing for the petitioners, Shri.Achuthan, learned counsel appearing for the respondent No.1, Shri.V.T.Gopalan, learned Senior Counsel appearing for the respondent No.2 in W.P.No.7742 of 1999 and Shri.P.Kumar, learned Senior Counsel, Assisted by Shri.V.Sanjeevi, appearing for the respondent No.2 in W.P.No.7743 of 1999. 9.The core issues to be decided in these two writ petitions are as to whether the writ petitions filed by the petitioners are maintainable in law and the orders of remand passed by the respondent No.1 being the revisional authority are justified and warranted on the facts and circumstances of the case. 10.Maintainability of the writ petitions:- 10.1.It is not in dispute that the petitioners are the owners of the Minerals. The very fact lease deeds were executed by the petitioners in favour of the respondent No.2 in accordance with the Mineral Concession Rules, 1960 itself would exemplify the fact that the petitioners are the owners of the Minerals and there cannot be any other persons other than the petitioners who are interested in the same. If the petitioners are of the view that the respondent No.1 has passed orders contrary to their interests and to the development of the Minerals, it is always open to them to challenge the said orders before the competent Court of law. In STATE OF ORISSA v. UNION OF INDIA [(1995) SUPP(2) SCC 154], the Honourable Apex Court has observed as follows: "12.In this connection, it is necessary to note that in the first place, the State Government is not merely an authority subordinate to the Central Government which would, undoubtedly, be bound by the revisional orders of the superior authority. It is also the owner of the mines and minerals in question. If it is directed to issue a mining lease in favour of any party, it has locus standi to challenge that order under Article 226 of the Constitution of India." 10.2.The said judgment of the Honourable Apex Court dealing with Rule 54(1) of the Mineral Concession Rules, 1960 would make it clear that the writ petitions filed by the petitioners are maintainable in law. In the judgments relied upon by the learned senior counsel for the respondent No.2 in W.P.No.7742 of 1999, Shri.V.T.Gopalan, the issue involved was the maintainability of an appeal filed by the adjudicating authority in the absence of any provisions of law. The facts involved in the present case are totally different. In the present case on hand, the petitioners being the owners of the Minerals have got every right to protect their interest. In the case involved in DHARAM CHAND JAIN v. THE STATE OF BIHAR [(1976) 4 SCC 427], the issue was as to whether by ignoring the earlier directions of the Central Government can the State Government proceed to challenge it in a subsequent proceedings. The Honourable Apex Court under those circumstances was pleased to hold that an order passed by the Central Government is binding on the Central Government. Therefore, the said judgment relied upon by the learned senior counsel has got no relevancy to the present case on hand. 11.Similarly in MOHTESHAM MOHD. ISMAIL v. SPL. DIRECTOR, ENFORCEMENT DIRECTORATE [(2007) 8 SCC 254], the question was as to whether a quasi-judicial authority can prefer an appeal in the absence of any provision. The said judgment cannot be made applicable in as much as the petitioners are neither quasi-judicial authorities nor they seek to file statutory appeals against the orders passed by the respondent No.1. Therefore, this Court is of the view that the petitioners are well within their right to invoke the powers of this Court under Article 226 of the Constitution of India by challenging the orders passed by the respondent No.1. Accordingly, it is hereby held that writ petitions are maintainable in law before this Court. 12.Powers of the first petitioner vis-a-vis the respondent No.1:- 12.1.A perusal of the Section 21(5) of the Mines and Minerals (Development and Regulations) Act, 1957 would show that the petitioners can recover the price, from such person who raises any mineral without lawful authority, apart from rent, royalty or tax. The above said provision makes it very clear that it is a mechanism or method by which a recovery can be resorted from a person who unlawfully occupies a land by raising minerals. Such a procedure for recovery is an administrative one having its civil consequences. Therefore, while holding that before exercising the power under Section 21(5) of the Mines and Minerals (Development and Regulations) Act, 1957 an opportunity of hearing is mandated considering the civil consequences, the same cannot be construed to hold that such a power is a quasi-judicial power. What is required under Section 21(5) to be done by the 1st petitioner is to decide as to whether there is any unlawful raising of the mineral by the person to whom a recovery is sought to be made. Even though Section 21 of the Act speaks about penalties, it should be construed only as a mode of recovery by way of compensation. The said position of law has been considered by the Honourable Supreme Court in KARNATAKA RARE EARTH v. SENIOR GEOLOGIST, DEPARTMENT OF MINES & GEOLOGY [(2004) 2 SCC 783], wherein it has been held as follows: "7.In our opinion, the demand by the State of Karnataka of the price of the mineral cannot be said to be levy of penalty or a penal action. The marginal note of the section  "penalties", creates a wrong impression. A reading of Section 21 shows that it deals with a variety of situations. Sub-sections (1), (2), (4), (4-A) and (6) are in the realm of criminal law. Sub-section (3) empowers the State Government or any authority authorized in this behalf to summarily evict a trespasser. Sub-section (5) empowers the State Government to recover rent, royalty or tax from the person who has raised the mineral from any land without any lawful authority and also empowers the State Government to recover the price thereof where such mineral has already been disposed of inasmuch as the same would not be available for seizure and confiscation. The provision as to recovery of price is in the nature of recovering the compensation and not penalty so also the power of the State Government to recover rent, royalty or tax in respect of any mineral raised without any lawful authority can also not be called a penal action. The underlying principle of sub-section (5) is that a person acting without any lawful authority must not find himself placed in a position more advantageous than a person raising minerals with lawful authority. 8......... 9......... 10........ 11.In the facts of this case, in spite of the judgment of the High Court, if the appellants would not have persuaded this Court to pass the interim orders, they would not have been entitled to operate the mining lease and to raise and remove and dispose of the minerals extracted. But for the interim orders passed by this Court, there is no difference between the appellants and any person raising, without any lawful authority, any mineral from any land, attracting applicability of sub-section (5) of Section 21. As the appellants have lost from the Court, they cannot be allowed to retain the benefit earned by them under the interim orders of the Court. The High Court has rightly held the appellants liable to be placed