A.G.L.Irudhayaraj v. The Collector of Tiruchirapalli,Tiruchirapalli

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 29-08-2008CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE V.DHANAPALANWRIT PETITION No.16479 OF 2000A.G.L.Irudhayaraj...Petitioner-vs-The Collector of Tiruchirapalli,Tiruchirapalli....RespondentPetition under Article 226 of the Constitution of India,praying for issuance of a writ of certiorari.For petitioner : Mr.P.R.Krishnan, Senior Counsel, for Mr.R.Parthiban.For respondent : Mr.D.Sreenivasan, Additional Govt.Pleader.O R D E RV.DHANAPALAN,J.Petitioner has filed this Writ Petition, praying toquash the proceedings of the respondent, dated 13.03.2000, inNa.Ka.Pi.1032/90.2. According to the petitioner, he entered into anagreement with the Government of Tamil Nadu on 29.03.1985, forquarrying an extent of 4.64 acres in S.F.No.29,33/2-A-1 and 33/4AT of Puthur Village, Tiruchirapalli Taluk, for a period of oneyear; the said lands belong to him and are patta lands; theagreement was extended for two subsequent years and had come to anend on 28.03.1988; though he made several representations for https://hcservices.ecourts.gov.in/hcservices/ renewal, the same was not considered; he was quarrying roughstones from the said lands and he had a stone crushing machine atShozhamparai in Pandamangalam, Uraiyur, Trichy; the said landswere inspected by the Deputy Director, Geology and Mines, Trichy,along with other officials, in his absence and without any notice;though he was quarrying only from the patta lands, an order, dated11.11.1991 was passed and served on him on 26.11.1991, by which apenalty of Rs.12,16,800/- was imposed and he was also ordered topay the cost of rough stone, stated to have been quarried from theporamboke land in S.F.No.30/2B, to the tune of Rs.3,12,000/-;totally he was ordered to pay a sum of Rs.15,28,800/- within aperiod of 30 days from the date of receipt of the proceedings.3. It is also the case of the petitioner that aggrievedover the said order, the petitioner filed W.P.No.17299 of 1991and, by an order dated 11.12.1991, the said Writ Petition wasallowed on the ground that the said order was in violation of theprinciples of natural justice; liberty was also given to therespondent to proceed in accordance with law; thereafter, theCollector issued a notice fixing the date of hearing on 03.03.1992at 05.30 p.m.; the notice fixing the date of hearing on 03.03.1992was received only on 04.03.1992 and, hence, he could notparticipate in the enquiry; thereafter, an order dated 11.03.1992was passed again demanding penalty; therefore, he filed anotherWrit Petition No.5758 of 1992 and the said Writ Petition was alsoallowed by an order dated 09.08.1999 on the ground of violation ofprinciples of natural justice.4. The further case of the petitioner is that on25.08.1999, he presented a petition before the respondent throughan advocate, stating that he was quarrying in the patta lands;based on the said representation, the Collector, to know whetherthe petitioner was quarrying in Government poramboke land,directed for measurement of the land; thereafter, without carryingout any inspection, the respondent passed the impugned order dated13.03.2000, levying penalty of Rs.20,82,101/-. Hence, this WritPetition.5. The respondent has filed a counter affidavit, statingthat the petitioner was given a right to remove rough stone fromhis patta lands in Puthur Village for a period of three years;thereafter, he has not applied for renewal of lease from29.03.1988 onwards; after a lapse of two-and-a-half years i.e., on15.09,1990, he sent a petition, requesting for grant of extensionof time for carrying operations in the said area; the site wasinspected on 05.04.1991 by the Special Tahsildar (Mines) and otherofficials; during the course of inspection, it was noticed thatthe petitioner removed large quantity of rough stone from the landin S.F.No.30/2B of Puthur Village, which is a Government land; as https://hcservices.ecourts.gov.in/hcservices/ there were enormous illicit quarrying operations, the quantity ofmaterials quarried illicitly was assessed and the Collector, inhis proceedings, dated 08.11.1991, ordered the petitioner to pay apenalty of Rs.12,16,800/- besides the material cost ofRs.3,12,000/- under Rules 3 and 21 of the Tamil Nadu Minor MineralConcession Rules,1959; against the said order, the petitionerfiled a Writ Petition before this High Court in W.P.No.17229 of1991, wherein orders were passed, observing that an opportunityshould be given to the petitioner to explain his case;accordingly, the Collector directed the petitioner to appear foran enquiry on 10.02.1992 and the petitioner appeared for the saidenquiry, on which date he has not produced the accounts; in themeanwhile, the petitioner moved the Court of Subordinate Judge,Tiruchirapalli, in O.S.No.133 of 1992, stating that he used theland in S.F.Nos.29,33/2A and 1A and 33/4A1, which is not correct,whereas the petitioner carried on illicit quarrying in theGovernment lands in S.F.Nos.30/1 and 30/2B; as the petitioner didnot produce the accounts on the date of enquiry, he was againgiven an opportunity to appear for another enquiry on 25.02.1992and produce the accounts, for which he produced a letter statingthat in view of the suit filed all the documents were filed in theCourt and requested to drop further proceedings and by initiatingthe court proceedings, the petitioner has adopted dilatory tacticsto delay the proceedings of the Collector, evading payment ofpenalty imposed for illicit quarrying.6. The counter further goes to the effect that inasmuchas the petitioner has not respected the direction of the HighCourt in availing the opportunities given to him to represent hiscase, the Government has every right to prevent illicit quarryingand to realise the seigniorage fee due to it for the illicitquarrying done; on 03.03.1992 and 05.03.1992, a fresh assessmentwas made and the Collector, by his proceedings dated 11.03.1992,passed orders directing the petitioner to pay the penalty ofRs.15,73,680/- and Rs.4,03,509/- towards the cost of thematerials; after receiving the orders, without paying the penalty,the petitioner filed W.P.No.5748 of 1992 and this Court, on23.04.1992, granted interim stay of the operation of the order ofthe respondent dated 11.03.1992, pending disposal of the writpetition and directed the petitioner not to quarry in the lands inquestion; in the said Writ Petition, the order passed by theCollector, dated 11.03.1992, was set aside, directing theCollector to hold a fresh enquiry on 30.08.1999 and pass ordersafter hearing the petitioner on merits, further directing thepetitioner to appear before the Collector on the said date;accordingly, the enquiry was conducted on 30.08.1999 and thepetitioner appeared before the Collector and gave a statement,requesting to calculate the quantity of illicit quarrying in hispresence, pursuant to which, a site inspection was conducted by https://hcservices.ecourts.gov.in/hcservices/ the officials on 24.09.1999 and 03.11.1999, on which basis theDistrict Collector passed an order, dated 13.03.2000, directingthe petitioner to remit a sum of Rs.20,82,101/-, which is thesubject matter of challenge in this Writ Petition.7. We have heard the learned counsel for the parties andalso gone through the records.8. Admittedly, the petitioner has entered into anagreement with the Government of Tamil Nadu on 29.03.1985 forquarrying an extent of 4.64 acres in S.F.No.29,33/2-A-1 and 33/4AT of Puthur Village, Tiruchirapalli Taluk, for a period of threeyears and the said lands belong to him. On expiry of the saidagreement on 28.03.1988, the petitioner made severalrepresentations for renewal, pursuant to which the said landswere inspected by the Deputy Director, Geology and Mines, Trichy,along with other officials. During the course of inspection, itwas noticed that the petitioner removed large quantity of roughstone from the land in S.F.No.30/2B of Puthur Village, which is aGovernment land. As there were enormous illicit quarryingoperations, the quantity of materials quarried illicitly wasassessed and the Collector, in his proceedings, dated 11.03.1992,passed orders directing the petitioner to pay the penalty ofRs.15,73,680/- and Rs.4,03,509/- towards the cost of thematerials. Without paying the penalty, the petitioner filedW.P.No.5748 of 1992 and this Court, on 23.04.1992, granted interimstay of the operation of the order of the respondent dated11.03.1992, pending disposal of the writ petition and directed thepetitioner not to quarry in the lands in question. In the saidWrit Petition, the order passed by the Collector, dated11.03.1992, was set aside, directing the Collector to hold a freshenquiry on 30.08.1999 and pass orders after hearing the petitioneron merits, further directing the petitioner to appear before theCollector on the said date. Accordingly, the enquiry was conductedon 30.08.1999 and the petitioner appeared before the Collector andgave a statement, requesting to calculate the quantity of illicitquarrying in his presence, pursuant to which, a site inspectionwas conducted by the officials on 24.09.1999 and 03.11.1999, onwhich basis the District Collector passed an order, dated13.03.2000, directing the petitioner to remit a sum ofRs.20,82,101/-.9. During the pendency of this Writ Petition, on10.10.2000, a learned single Judge granted interim stay of theimpugned order on condition that the petitioner should pay 50% ofthe amount demanded. Not content with that, the petitioner filedWrit Appeal No.1971 of 2000. https://hcservices.ecourts.gov.in/hcservices/

10. When the Writ Appeal came up for hearing on13.09.2001, the First Bench of this Court, in order to ascertainwhether the appellant/petitioner was quarrying in his own land orencroaching upon the adjoining Government land unauthorisedly,appointed Mr.S.M.Loganathan, as the Advocate Commissioner, toinspect the land and to report to the Court as to whether theappellant/petitioner had quarried the stone covered byS.F.No.30/2B of Puthur Village, Tiruchirapalli Taluk, and if theanswer was in the affirmative, what was the extent of the materialquarried. It was also directed in the order that the commissionwork had to be carried out in the presence of both the parties andafter due notice to them i.e., the appellant or his nominee couldbe present so also the Deputy Director of Geology and Mining,Tiruchirapalli. Accordingly, the Advocate Commissioner inspectedthe property and submitted a report. From the said report, thefollowing facts would emanate :10.1. During the course of inspection, the AdvocateCommissioner could not find any survey stones demarcating the sub-division of S.F.No.30, Puthur Village. The petitioner/appellantpointed out certain yellow paint marks, to be measured asS.F.No.30/2B. The Advocate Commissioner made a request to theAssistant Director of Survey to assist him in localising theproperty in S.No.30/2B and also the Tahsildar to summon theVillage Administrative Officer of Puthur Village with Field MapBook and also other servants to assist him in measuring thedisputed area. Since no survey stones were available in S.F.No.30anywhere, the Advocate Commissioner requested the AssistantDirector to survey S.F.No.410.30 from the northern side, whichforms the border of Pandamangalam Village. The boundary ofS.No.30/2B is bounded on the north by S.No.30/2A (approved pattaland); south by S.No.33 (approved patta land); east by S.No.28 andwest by S.No.29 (Oyyakondan Channel). The various sub-divisionsfrom the northern boundary of S.F.No.30 have been measured,S.F.No.30/2B has been identified and measurement taken. 10.2. The petitioner raised an objection that the landsthat are measured are not within S.F.No.30/2B and that themeasurement is taken by including the patta lands in S.F.No.30/2Bof the petitioner on the western side. The second objection isthat the measurement taken while localising the S.F.No.30/2B onthe southern side is that the measurement taken while localisingthe S.F.No.30/2B on the southern side overlaps his patta landcovered in S.F.No.33 and the third objection is to the effect thatthe uniform measurement can be adopted while taking themeasurement in the passage in S.F.No.30/2B. https://hcservices.ecourts.gov.in/hcservices/

10.3. With regard to the first objection that themeasurements taken had extended into the patta lands of thepetitioner on the western side, the Advocate Commissioner wouldstate that during the course of survey, not a single survey stoneis available to demarcate the patta land of the petitioner on thewestern side and the northern side and, it is because of that, onhis request, the Assistant Director surveyed the entire S.F.No.30of Puthur Village, demarcating the lands of the petitioner inS.F.No.30/2A on northern side, which is the northern boundary ofS.F.No.30/2B Government poramboke land. 10.4. As regards the second objection that on thesouthern side, the measurement has overlapped the patta lands ofthe appellant comprised in S.F.No.33, the Advocate Commissionerwould submit that he requested the officers to survey S.F.No.30/2Bon the southern side; the petitioner insisted upon to rely uponthe stone which cannot be construed as a survey stone and if thecontention of the petitioner is taken to be correct, themeasurement of disputed land comprised in S.F.No.30/2A wouldfurther lie away on the northern side in which case the petitionerwould not have quarried in his patta land at all. Therefore, herejected the objection on the other ground that there are nosurvey stones in S.F.No.33 and the patta lands in S.F.No.33 wouldbegin only after the Government poramboke land in S.F.No.30/2B.10.5. On the third objection that a uniform measurementhas to be adopted while taking the measurement, the AdvocateCommissioner submits that at the starting point of the passage inS.F.No.30/2B, where the depth is lesser, uniform depth should notbe adopted; the petitioner insisted that the passage should bereferred to as a road, leading to his patta land on the westernside; he has taken a different depth at 15 metres; the reason forreferring it as a passage is, the entire Survey No.30/2B is aprime rock and is known as Cholan Parai or Cholan Rock in therevenue records; there are no land owners except the petitioner;the passage is the only way to reach the quarry of the petitionerin S.No.30/2A and the prime rocks have been cut on either side tocarve out the passage; therefore, the objection made by thepetitioner has been taken into consideration while conducting thesurvey; the measurements have been taken on the basis of the FieldMap Book of Puthur Village relating to field No.30 by relying uponthe rock marks found on the rock which is also found in the FieldMap Book; measurements have been taken for demarcating each of thesub-divisions in S.F.No.30 and the total extent has also talliedand, therefore, the area covered under S.F.No.30/2B, as measured,is correct. https://hcservices.ecourts.gov.in/hcservices/

10.6. During the inspection and survey on 26.09.2001,the petitioner's men and women were carrying quarry operations onthe southern side of S.F.No.30/2B. Hence, it is no doubt true thatthe petitioner has quarried and is quarrying in S.F.No.30/2B.Further, the petitioner did not localise either his patta lands onwestern and northern side in S.F.No.30/2B nor in S.F.No.33. SurveyNo.30/2B is bounded by the lands belonging to the petitioner only.Accordingly, the Advocate Commissioner concluded that thepetitioner was quarrying in S.F.No.30/2B, which is a Governmentporamboke land.10.7. Further, as per the direction of the Court, theAdvocate Commissioner also proceeded to find out the totalquantity of mineral mined in S.F.No.30/2B. He calculated theexploitation in three parts viz., (1) Slope Area, (2) Pit No.1 and(3) Pit No.2 to the quantities of 4270, 24640 and 9560 cubicmetres respectively, totalling to 38,470 cubic metres. 11. Pursuant to the filing of the report by the AdvocateCommissioner, the Writ Appeal underwent several adjournments and,finally, when it was taken up for disposal on 30.07.2008 by thisBench, it was represented by the learned Additional GovernmentPleader that the conditional order of stay was not complied withby the petitioner. Hence, the Writ Appeal was disposed of,observing that Writ Petition itself should be heard and disposedof at an early date. Accordingly, the Writ Petition is taken upfor final disposal.12. Where the Advocate Commissioner has taken carefuland painstaking efforts to measure the metes and bounds andphysical features of the disputed portion and is invovled in alaborious task of preparing his report, the scope of interferingwith his report is limited. The Commissioner's Report can be usedonly as a guiding factor in the process of decision-making and cannever be used as the basis for decision-making. In the instantcase, the Commissioner's report has guided the Court to arrive ata proper conclusion and there is no reason to disbelieve the same,when the same has been made in the presence of all the parties,particularly, the Assistant Director of Survey. While preparingthe Commissioner's report, it appears that the land in question,for which penalty has been imposed, is found to be a Governmentporamboke land. Therefore, the impugned proceedings, in levyingthe penalty, cannot be found fault with. https://hcservices.ecourts.gov.in/hcservices/

13. The necessary corollary of the report of theAdvocate Commissioner is that petitioner has quarried inS.F.No.30/2B, which is a Government poramboke land, therebycausing a mammoth loss to the State exchequer. Further, it is veryunfortunate to notice from the report of the Advocate Commissionerthat the petitioner has made efforts through his personal Clerk toinfluence the Advocate Commissioner. But, we are not inclined todeliberate upon the same.14. The above acts are incongruous on the part of thepetitioner and the same have to be highly deprecated. The saidfindings of the Advocate Commissioner, in the considered opinionof this Court, cannot be disbelieved.15. As the issue in this Writ Petition is as to whetherthe petitioner is quarrying in his own land or encroaching uponthe adjoining Government land and quarried the same unauthorisedlyand the unauthorised quarrying has been proved by a proper surveythrough the report of the Advocate Commissioner, this Court findsthe petitioner guilty of unauthorised quarrying that too byencroaching the Government land, to which he has to pay the costby way of penalty. Further, it is seen from the records that asper the direction of this Court in W.P.No.5748 of 1992, theDistrict Collector held a fresh enquiry on 30.08.1999, on whichdate the petitioner also participated in the enquiry and gave astatement, requesting to calculate the quantity of illicitquarrying in his presence, pursuant to which, a site inspectionwas conducted by the officials on 24.09.1999 and 03.11.1999, onwhich basis the District Collector passed an order, dated13.03.2000, directing the petitioner to remit a sum ofRs.20,82,101/-, which request of the petitioner is a res ipsaloquitor for the unauthorised quarrying. As such, no interferenceis called for in the order impugned.16. While arriving at the above conclusion, we areconscious of the fact that this Court appointed the AdvocateCommissioner and he has taken careful and painstaking efforts tomeasure the metes and bounds and physical features, based on whichhe submitted a detailed report. It is seen that an initialremuneration has been granted to the Advocate Commissioner and hehad an occasion to go to the places faced with many difficultiesand after making sincere efforts, he has submitted a report,which is a guiding factor in the process of decision making.Therefore, we award an additional remuneration of Rs.25,000/-(Rupees Twenty Five Thousand only) to the Advocate Commissioner.The petitioner is directed to pay the said amount to the AdvocateCommissioner within a period of four weeks. https://hcservices.ecourts.gov.in/hcservices/

17. In the light of the above discussion and uponconsidering the entire materials and the submissions made by thelearned counsel, we see no infirmity in the impugned order, passedby the respondent. Therefore, this Writ Petition does notdeserve any merit consideration and the same is dismissedaccordingly. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dixitToThe Collector of Tiruchirapalli,Tiruchirapalli.1 cc to Mr.R.Parthiban, Advocate, SR. 48706 W.P.No.16479 OF 2000SP (CO)kk 6/9