K.Mahendran v. The Revenue Divisional Officer, Thenkasi, Tirunelveli Dist.2. The Assistant Director of Mines

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.08.2007CORAMTHE HONOURABLE MR. JUSTICE S. MANIKUMARWrit Petition No.1337 of 2003K.Mahendran..Petitionervs.1. The Revenue Divisional Officer, Thenkasi, Tirunelveli Dist.2. The Assistant Director of Mines, Dept. Of Geology and Mines, Tirunelveli...Respondents-----Petitions filed under Article 226 of the Constitution of Indiapraying for the relief as stated therein. For petitioner : Mr.M.SureshkumarFor respondents : Mr.A.Arumugam, AGP.----- O R D E RWrit Petition has been filed praying to issue a writ ofcertiorari, calling for the records relating to the proceedings inNo.A5/7830/02 dated 12.11.2002 of the first respondent, by whichseigniorage fee and penalty of Rs.77,115/= has been levied, and toquash the same.2. The brief facts leading to the filing of the writ petitionare as follows :Pursuant to the tender notification in respect of sand quarry inriver poramboke measuring an extent of 10.00.0 hectares in S. Nos.282,288/1 and 302/2 in Tirumalapuram Village, Sivagiri Taluk, TirunelveliDistrict, the petitioner was declared as the highest bidder forRs.1,13,22,000/-. The District Collector, by order dated 20.9.2001,confirmed the auction in favour of the petitioner and granted leasefor a period of three years from the said date. Accordingly, the https://hcservices.ecourts.gov.in/hcservices/ petitioner paid the entire bid amount and also a sum of Rs.11,32,200/=towards security deposit and executed the lease agreement. When thepetitioner was carrying on quarry operations, the second respondentcreated problems, whenever he had approached him for the issuance oftransport permit and therefore, the petitioner was constrained tofile W.P.No.43431/02 for a Mandamus to forbear the second respondentfrom insisting on production of such recommendations/certificates fromvarious authorities for issuance of transport permits. By order dated16.12.2002, this Court allowed the writ petition.3. It is the further case of the petitioner that on the basis ofa report of the second respondent alleging that the petitioner hadquarried outside the leasehold area, a notice dated 27.7.2002 wasissued by the District Collector indicating certain violationscommitted on the part of the petitioner. The first respondent alsoissued a notice dated 5.8.2002 stating that the respondents haveconducted a joint inspection on 17.7.2002 and found that 159 units ofsand had been removed from outside the leasehold area. The petitionerwas directed to appear for a personal hearing on 19.9.2002 and thepetitioner had appeared for enquiry and offered his explanation.Thereafter, the impugned order was passed, levying seigniorage fee andpenalty, in all totalling a sum of Rs.77,115/-, holding that thepetitioner had quarried 159 units of sand outside the leasehold area.Challenging the same, the present writ petition has been filed.4. On behalf of the respondents, a counter affidavit has beenfiled denying the averments made in the writ petition. It is statedthat Condition No.12 of the lease agreement provides for inspection ofthe lease area by the officials of Mines and Revenue Departments atany time and the accounts can also be verified. As per ConditionNo.13, the lease area shall be peg-marked correctly and sign boardsshould also be put up at the main entrance of the quarry. ConditionNos.17 and 18 contemplate that the lessee shall carry out quarryingoperation only within the lease area and if any additional area isfound to have been quarried, the lease is liable to be cancelled andthe government will recover the losses or cost of arbitration, if any,due to quarrying by the lessee in an unauthorized area. The leaseagreement also includes penal provisions as well as prosecution forviolation of the lease conditions.5. The respondents have further submitted that as instructed bythe District Collector, Tirunelveli, by his proceedings dated1.7.2002, a Joint inspection was conducted on 17.7.2002 and it wasfound that the lessee had quarried in S.No.84, which is classified asriver poramboke, totalling an extent of 0.54.0 hectares, i.e. outsidethe lease area measuring 60m x 15m x 0.5m : 159 units. Thereafter, anotice dated 6.8.2002 was issued calling upon the petitioner to submithis explanations during the enquiry on 19.8.2002 and accordingly, thepetitioner appeared for enquiry and submitted his explanations. Even https://hcservices.ecourts.gov.in/hcservices/ after submission of explanation, there were many complaints againstthe petitioner. Therefore, the District Collector, Tirunelveli,inspected the quarry on 30.10.2002 and found that the petitioner hadviolated condition Nos.13, 30, 32, 18, 40 of the lease agreement.Moreover, on the date of inspection, one Murugesan, a representativeof the lessee, informed that 31 lorries/tractors have gone to thequarrying site and there were no records to that effect in theregisters.6. The petitioner was called upon for a personal hearing on6.1.2002 and he offered his explanation. He was strictly warned andgiven 15 days' time to rectify the violations pointed out by theCollector that no sand should be transported till 19.11.2002. Byorder dated 12.11.2002, the explanation offered by the lessee wasover-ruled stating that one Murugesan, the representative of thelessee, was present at the time of the Joint inspection held on17.7.2002 and he agreed with the measurements noted therein. Both theJoint inspection remarks and the statement given by the said Murugesanwere considered and the records revealed that unauthorised quarryingwas done and 159 units of sand were transported illicitly fromS.No.84, i.e., outside the leasehold area. Therefore, the lessee wasordered to pay a sum of Rs.77,115/- under Rule 36(A)(1) of the TamilNadu Minor Minerals Concession Rule, 1959. It is further stated thatthough the lessee was given an opportunity to prefer an appeal beforethe Collector under Rule 36-C, he has failed to do, and instead,chosen to file the present writ petition without exhausting thealternative remedy available to him, as per the Rules. For the abovesaid reasons, the respondents have prayed for dismissal of the writpetition.7. Learned counsel for the petitioner submitted that Murugesan,said to be a representative of the petitioner as per the counteraffidavit, is in no way connected with the petitioner's quarry and thepetitioner's authorised representative is a person by name S.Angappan. Therefore, he submitted that the impugned order, based onthe inspection held by the authorities in the absence of either thepetitioner or his authorised representative, is illegal and unlawful.He further submitted that the respondents are not empowered to levypenalty equivalent to the cost price of the sand, and as per theRules, they can levy only seigniorage fee, which comes to aboutRs.13,515/-.8. Learned Additional Government Pleader submitted that as thepetitioner has violated the conditions of lease and quarried in anunauthorised area, he is liable for penal action as per the Rules.As the matter involves question of facts, he submitted that this Courtneed not delve into that aspect.9. Heard the learned counsel appearing for the parties and https://hcservices.ecourts.gov.in/hcservices/ perused the materials available on record.10. Before adverting to the facts of the case, it is relevant toextract the provision dealing with penal consequences for violation ofthe provisions of the Tamil Nadu Minor Minerals Concessions Rules andthe conditions of lease. Rule 36-A contemplates collection ofseigniorage fee, levy of penalty on any person for contravention ofthe provisions of the Act and penal action.11. Rule 36-A(5) contemplates that whenever a person contravenesany provision other than sub-rule(1) of Rule 10 of these rules or theconditions of a quarrying permit or a quarrying lease granted underthese rules, the Director of Geology and Mining or the ChiefConservator of Forests, as the case may be, or the District Collectoror the District Forest Officer, as the case may be, shall, aftergiving notice, charge that person and recover from him enhancedseigniorage fee upto a maximum of fifteen times the normal ratesubject to a minimum of (twenty-five thousand rupees) or in thealternative, such person shall be liable to be punished withimprisonment for a term which may extend to one year or with finewhich may extend to five thousand rupees or with both and in the caseof continuing contravention, with additional fine, which may extend tofive hundred rupees for every day, during which such contraventioncontinues after conviction for the first such contravention.12. As per Condition No.12 of the lease agreement, the officialsof the Mines and Revenue Department can inspect the mines and verifythe registers any time and it is not necessary to give any advancenotice to the petitioner before inspection. It is evident from thepleadings that the authorities have inspected the quarry site andnoted down the violations, viz., the petitioner has quarried in anunauthorised site, particularly the river promboke. It is furtherevident that for the violations noticed, the petitioner had also beenwarned. Therefore, there is sufficient materials available on recordfor the authorities to come to the conclusion that the petitioner hadviolated the conditions of lease. As the petitioner has been affordedadequate opportunity, there is no violation of the principles ofnatural justice. Though the authorities are empowered to recover fromthe petitioner an enhanced seigniorage fee to a maximum of 15 times ofthe normal rate, they have demanded seigniorage fee of Rs.77,115/-only and the quantum fixed by the Department is within the permissiblelimits under the Mines and Minerals Rules. Further, the petitioner hasnot availed the alternative remedy provided under Rule 36-C of theTamil Nadu Minor Minerals Concessions Rules. Courts have consistentlyheld that questions of fact cannot be gone into in writ proceedings,unless the finding is perverse. https://hcservices.ecourts.gov.in/hcservices/

13. In the above circumstances, I do not find any irregularity inthe impugned order passed by the authorities concerned. Therefore,this writ petition fails and is dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrargs.To1. The Revenue Divisional Officer, Thenkasi, Tirunelveli Dist.2. The Assistant Director of Mines, Dept. of Geology and Mines, Tirunelveli.+1cc to Mr.M.Suresh Kumar, Advocate Sr 50654+1cc to Govt. Pleader Sr 50036CU (CO)km/19.12.W.P. No.1337 of 2003