IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.2.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.37039 of 2003 J.Joshuva .. Petitioner Vs. The Revenue Divisional Officer Tirunelveli .. Respondent PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records of the respondent relating to his proceedings issued in Ref.Na.Ka.No.A1/7722/99, dated 30.5.2002 and quash the same. For Petitioner : Mr.V.Sanjeevi For Respondent : Mr.R.Thirugnanam Special Government Pleader ORDER
The writ petition is directed against the order of the respondent dated 30.5.2002, by which the respondent has issued a show cause notice proposing to impose seigniorage charges, apart from penalty, to the tune of Rs.14,38,800/-, on the basis that the petitioner has quarried stones in the place other than the place where lease was granted.
2.1. The petitioner was granted renewal of lease to quarry stones (Kundukkal and Jelly) by proceedings of the Collector dated 18.5.1994 in the poromboke land bearing S.F.No.315, in an extent of 2 Acres in Madathupatti Village, Sankarankoil Taluk, Tirunelveli District for a period of five years from 1.7.1994 to 30.6.1999. The lease deed was executed on 11.7.1994 and the lease period expired on 30.6.1999 and thereafter, the lease has been given to third parties.
2.2. It is stated that after three years, the respondent has issued the impugned show cause notice on the ground that on a field inspection it was found that the petitioner has quarried 4796 units of Kundukkal from non lease hold area, which is an offence under the Tamil Nadu Minor Mineral Concession Rules, 1959 (for short, “the Rules”), and therefore, it is proposed to recover an amount of Rs.14,38,800/-.
2.3. The show cause notice refers about the inspection of the area by the Assistant Geologist (Mines) in the report dated 24.7.1999, apart from the District Collector’s letter dated 7.9.1999, copies of which were not enclosed. The petitioner has sent a representation on 18.6.2002 requesting to furnish the said documents. However, the copies were not served, except stating in the memorandum dated 28.1.2002 that the petitioner can inspect the documents during the working days. It is the case of the petitioner that he never extended the quarrying operation beyond the lease hold area.
2.4. It is stated that along with the memorandum dated 28.11.2003, the respondent has sent copies of the report of the Assistant Geologist (Mines) dated 24.7.1999 and letter of the District Collector dated 7.9.1999 and the District Collector’s letter is abrupt saying that the amount has to be collected on or before 30.9.1999 without enquiry and the report of the Assistant Geologist also shows as if the petitioner has quarried in non lease hold area, directing to levy penalty for removal of rough stones from non permitted area.
2.5. According to the petitioner, the respondents have pre-determined the issue for imposing the penalty and hence, the present writ petition is filed challenging the show cause notice on various grounds, including that the letters of the District Collector as well as the Assistant Geologist are pre-determined and the show cause notice issued by the respondent is only a formality, especially when the District Collector, being the higher authority of the respondent, has already taken a decision; that the show cause notice is against the principles of natural justice, since the same is not real and it has foreclosed the entire issue by even calculating the amount liable to paid; that the show cause notice is without jurisdiction, especially when the lease granted in respect of SF.No.315, to an extent of 2 Acres has already expired on 30.6.1999, while the impugned show cause notice has been issued nearly after three years on 30.5.2002 in the absence of any incriminating materials; that the inspection report itself has been prepared in the absence of the petitioner and behind his back and that cannot be basis for the purpose of issuing show cause notice; and that the Assistant Geologist (Mines), Tirunelveli himself has no jurisdiction to inspect the mines, survey and measure the mines, since under Section 24 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short, “the Act”), it only authorises the Central Government or any person authorised by it to inspect the mines or by the State Government by general order and the Assistant Geologist is not authorised by the Central Government.
3.1. In the counter affidavit of the respondent, it is stated that the impugned show cause notice cannot be challenged by the petitioner and since a final order has not been passed, the petitioner has to only give his reply and at this stage filing of the writ petition is premature and as on date, the petitioner has no grievance.
3.2. It is stated that even though the copies referred to in the show cause notice were not intended to be given, in the case of the petitioner they have been given and in spite of it the petitioner has not chosen to give reply and the petitioner has filed this writ petition on surmises and unless the authorities pass final order, there is no cause of action for this writ petition.
4. Mr.V.Sanjeevi, learned counsel appearing for the petitioner would rely upon various orders passed by this Court to substantiate his contention that the report prepared by the authorities behind the back of the petitioner cannot be used against him in the show cause notice.
5. It is significant to note that in all those cases referred to by Mr.V.Sanjeevi, learned counsel, either the orders have been passed by the authority under the Rules without giving due opportunity to the petitioners concerned or show cause notices were issued without furnishing materials which are relied upon. It was in those circumstances, on many occasions, the matter has been remitted to the authority concerned for the purpose of deciding afresh by following the principles of natural justice.
6. On the facts of the present case, it is not in dispute that the respondent is yet to pass a final order. But the contention is that even without passing order under the guise of show cause notice, the respondent has in fact arrived at a conclusion, viz., the respondent has quantified the penalty amount even without deciding the issue.
7. It is his further submission that when the contract itself has come to an end in the year 1999, based on certain reports of the year 1999, nearly after three years the show cause notice is issued and at this late point of time, it is not possible for the petitioner to prove the case, especially when during the course of his lease period there was no complaint entertained from any source to the effect that the petitioner has quarried outside the lease hold area.
8. He would submit that show cause notice can be subject to jurisdiction of the writ petition, even though the remedy is available by way of giving objection and then waiting for an order. He added that on a preconceived notion, no useful purpose will be served in giving reply and in this regard, he would rely upon the judgement of the Supreme Court in Siemens Ltd. v. State of Maharashtra and others, [2006] 12 SCC 33 and Pancham Chand and others v. State of Himachal Pradesh and others, [2008] 7 SCC 117.
9. A reference to the impugned show cause notice shows that the respondent has satisfied himself that the petitioner has committed violation of Rules 36A(1), 36A(3), 36A(4) and 36A(5) of the Rules. Rule 36A of the Rules deals with penalties for violation. Under Rule 36(5)(e) of the Rules, which is as follows:
“Rule 36. General restrictions in respect of quarrying operations:-
(1) to (4) ….
(5) …
(e) Any person who has been permitted to quarry under a quarrying permit or quarrying lease in any area under these rules shall use the area only for the purpose of quarrying the mineral specified in the quarrying permit or quarrying lease. If any error or wrong description of the mineral is found in the order granting the quarrying permit or lease or in the lease deed or agreement, it is liable to be corrected at any time and the permit holder or the lessee shall not claim any right whatsoever based on any such error or wrong description of the mineral found in the order granting quarrying permit or quarrying lease or in the lease deed or agreement.”
the licensee has to quarry only the place for which license has been granted. For violation of Sections 4(1) and 4(1A) of the Act, which contemplate the mining operation to be carried on as per the terms and conditions of a reconnaissance permit or license, seigniorage fees up to 15 times can be imposed, as it is seen under Rule 36A(1) of the Rules.
10. Likewise, under Rule 36A(3) of the Rules, when a person raises without any lawful authority any mineral from any land, the District Collector or the District Forest Officer can recover the mineral so raised or the price thereof, and may also recover seigniorage fee or tax for the period for which he has occupied without lawful authority.
11. Again, under Rule 36A(4) of the Rules, for the contravention of Rule 10 of the Rules for keeping unlawful possession of any land, the Director of Geology and Mining or the Chief Conservator of Forests, or the District Collector or the District Forest Officer, after giving notice, can recover double the rate of the lease amount, etc.
12. Under Rule 36A(5) of the Rules, for contravention of Rule 10 of the Rules, penalty can be imposed which can be by way of punishment 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 the period of contravention. These are the penal provisions available under the Rules.
13. For the purpose of appreciation of the implication of the show cause notice, it is relevant to extract Rules 36A(1), 36A(3), 36A(4) and 36A(5) of the Rules, which are as follows:
“Rule 36A. Penalties.
(1) Whenever any person contravenes the provisions of sub-sections (1) and (1-A) of section 4 of the Act in any land, enhanced seigniorage fee upto a maximum of fifteen times the normal rate subject to a minimum of twenty-five thousand rupees shall be charged and recovered from that person by the District Collector or the District Forest Officer, as the case may be, or in the alternative, he shall be liable to be punished as provided in sub-section (1) of Section 21 of the Act:
Provided that in respect of minor minerals, namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay, the powers and duties exercisable and dischargeable by the District Collectors under this sub-rule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.
(3) Whenever any person raises without any lawful authority any mineral from any land, the District Collector or the District Forest Officer, as the case may be, may recover from such person the mineral so raised or where such mineral has already been disposed of, the price thereof, and may also recover from such person, area assessment, seigniorage fee or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority:
Provided that in respect of minor minerals, namely, building and road construction stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay, the powers and duties exercisable and dischargeable by the District Collectors under this sub-rule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.
(4) Whenever any person contravenes the provisions of sub-rule (1) of rule 10 and in unlawful possession of any land, the Director of Geology and Mining or the Chief Conservator of Forests, as the case may be, or the District Collector or the District Forest Officer, as the case may be, shall after giving notice, charge and recover from that person double the rate of the lease amount where the area was held under lease through public auction or its renewal or tender or double the total seigniorage fee where the area was held under lease through any other provisions of these rules, or in the alternative, shall 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:
Provided that in respect of minor minerals, namely, building and road constitution stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay, the powers and duties exercisable and dischargeable by the District Collectors under this sub-rule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.
(5) Whenever any person contravenes any provisions other than sub-rule (1) of rule 10 of these rules or conditions of a quarrying permit or quarrying lease granted under these rules, the Director of Geology and Mining or the Chief Conservator of Forest, as the case may be, or the District Collector or the District Forests Officer, as the case may be, shall after giving notice, charge and that person and recover from him enhanced seigniorage fee upto a maximum of fifteen times the normal rate subject to a minimum of twenty-five thousand rupees or in the alternative, he shall be 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:
Provided that in respect of minor minerals, namely, building and road constitution stones including gravel, ordinary sand, earth and turf, ordinary clay including silt, brick and tile clay, the powers and duties exercisable and dischargeable by the District Collectors under this sub-rule shall be exercisable and dischargeable by the Revenue Divisional Officer concerned within their respective jurisdiction.”
14. On a reference to the Rules, it is clear that for the purpose of charging enhanced seigniorage fees for violation or imposing penalty for contravention, the authorities are entitled to issue a show cause notice followed by an enquiry and final order of adjudication. It is at the time of passing the final order of imposing penalty or punishment or enhanced seigniorage fee, etc., the authority comes to a conclusion about the extent of penalty, etc., and therefore, at the time of issuing of show cause notice, certainly it is not possible for the authority to arrive at a precise conclusion about the proposal. At the most the authority, on the basis of any inspection, information or complaint, can come to a conclusion that prima facie there is contravention of terms and conditions of license by the licensee, in which event fairness requires the authority to furnish the materials which are relied upon along with the show cause notice, so as to enable the licensee, who is stated to have committed contravention, to give his reply. By arriving at a conclusion like that of the impugned show cause notice herein even in respect of the minute details about the quantum of penalty and the nature and extent of violation, without even furnishing any report, which should have been prepared legally in the presence of the petitioner, and without even conducting an enquiry calling upon the petitioner to explain, is certainly a preconceived notion.
15. The principles of natural justice does not enable the authority to jump to a conclusion even before the enquiry is initiated to find out as to whether any contravention has been committed by the petitioner or not. Such preconceived notion certainly makes inroads into the concept of fairness. In fact, the principles of natural justice should have been very carefully followed in a case like this, where, after admittedly the petitioner left the place of quarry as early as in the year 1999 and the contract has been given to a third party, in the year 2002 a show cause notice is issued finding fault with the petitioner as if during the period of license, the petitioner has quarried in a non lease hold area. Such decision taken in the show cause notice as if the petitioner has quarried during the license period outside the area of lease hold right has to be held only as preconceived, which cannot be approved in any common sense.
16. It is not as if the respondent has no jurisdiction to proceed against the petitioner, if really the petitioner has committed violation. But that only requires fairness, which is the foundation of the concept of principles of natural justice. In addition to that, such powers shall be within the four corners of the Rules and statutes.
17. Therefore, simply because it is a show cause notice issued and the petitioner has got every right to reply, it does not mean that the jurisdiction of this Court under Article 226 of the Constitution of India will be ousted. When there is a patent and glaring violation of the principles of law, it cannot be said that the impugned notice is only a show cause notice and therefore, the petitioner should be permitted to give a reply and wait for a decision. Such a concept will not apply at least to the present impugned show cause notice wherein there is a clear preconceived notion, viz., the minute details and consequences have been arrived at by the respondent even before the reply is received.
18. In Siemens Ltd. v. State of Maharashtra and others, [2006] 12 SCC 33, the Supreme Court has held that even in cases where show cause notices are given, if such notices are given with premeditation, the authority having formed an opinion regarding the liability, the writ petition is maintainable. In that case before the Supreme Court under a purported show cause notice, the appellant was directed to make payment with interest and also requested to attend for a hearing. The Supreme Court while narrating about the post-decisional hearings, has decided about the jurisdiction of this Court under Article 226 of the Constitution of India in respect of show cause notices as follows:
“9. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr., [1987] 2 SCC 179, Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr., [2004] 3 SCC 440 and Union of India and Anr. v. Kunisetty Satyanarayana, [2006] 12 SCC 28, but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Ors. v. Union of India and Ors., [1987] 4 SCC 431]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause.
10. The said principle has been followed by this Court in V.C. Banaras Hindu University and Ors. v. Shrikant, [2006] 11 SCC 42, stating:
“48. The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondent herein. A post decisional hearing given by the High Court was illusory in this case.
49. In K.I. Shephard v. Union of India this Court held:
“It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose.” [See also Shri Shekhar Ghosh v. Union of India and Anr., (2007) 1 SCC 331 and Rajesh Kumar and Ors. v. D.C.I.T. and Ors., [2007] 2 SCC 181].”
11. A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show cause notice. The writ petition, in our opinion, was maintainable.”
19. The Constitutional limitation with which the authorities are expected to function whatever may be the status of such Constitutional functionary came to be explained by the Supreme Court in Pancham Chand and others v. State of Himachal Pradesh and others, [2008] 7 SCC 117. While dealing with the grant of stage carriage permit under the Motor Vehicles Act, wherein the Chief Minister of a State, who has no jurisdiction under the Act, has issued certain instructions, the Supreme Court has heavily come down against the interference with the independent functioning of the quasi-judicial authorities as follows:
“18. The Act is a self contained Code. All the authorities mentioned therein are statutory authorities. They are bound by the provisions of the Act. They must act within the four corners thereof. The State, although, have a general control but such control must be exercised strictly in terms of Article 162 of the Constitution of India. Having regard to the nature and the manner of the control specified therein, it may lay down a policy. Statutory authorities are bound to act in terms thereof, but per se the same does not authorize any Minister including the Chief Minister to Act in derogation of the statutory provisions. Constitution of India does not envisage functioning of the Government through the Chief Minister alone. It speaks of Council of Ministers. The duties or functions of the Council of Ministers are ordinarily governed by the provisions contained in the Rules of Business framed under Article 166 of the Constitution of India. All governmental orders must comply with the requirements of a statute as also the constitutional provisions. Our Constitution envisages a rule of law and not rule of men. It recognizes that, how so ever high one may be, he is under law and the Constitution. All the constitutional functionaries must, therefore, function within the constitutional limits.
…
20. Factual matrix, as indicated hereinbefore, clearly goes to show that the fourth respondent filed the application before the Chief Minister straightaway. Office of the Chief Minister communicated the order of the Chief Minister, not once but twice. Respondent No. 2 acted thereupon. It advised the Regional Transport Authority to proceed, after obtaining a proper application from respondent No. 4 in that behalf. This itself goes to show that prior thereto no proper application was filed before the Regional Transport Authority. Such an interference on the part of any authority upon whom the Act does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme. It interferes with the independent functioning of a quasi judicial authority. A permit, if granted, confers a valuable right. An applicant must earn the same.”
20. E.Padmanabhan,J., as He then was, in K.Subba Reddy v. The State of Tamil Nadu, and others, (W.P.Nos.8207 of 1997, etc. batch, order dated 27.7.1999), under similar circumstances when a show cause notice was issued with great details about various violations, while setting aside the show cause notice, has given permission to the respondents to proceed afresh by issuing proper notices after conducting inspection in the presence of the petitioners concerned. The operative portion of the order is as under:
“52. In the circumstances, the impugned show cause notices issued by the second respondent in all the writ petitions are quashed. The writ petitions are allowed. However it is made clear that it is open to the respondents to proceed afresh by issuing proper notices, communicating copy of the reports and copy of various reports as well as inspection report of the Inspecting Authority and calling upon the petitioners to state their objections, besides conducting inspection and collecting materials or taking measurements in the presence of the writ petitioners or their representatives.”
21. P.Sathasivam,J., as His Lordship then was, in S.Karunakaran v. The District Collector, Sivagangai District (W.P.No.32829 of 2002, order dated 10.9.2003), while considering about the cancellation of lease by the District Collector without furnishing the copy of any report and collecting materials behind the back of the petitioner, has interfered with such impugned order by remanding the matter to the authority, with the following direction:
“.. Inasmuch as the petitioner was not given notice for the inspection made on 24.7.2002 by the Assistant Director (Geology and Mining), that too after the completion of the personal enquiry on 22.7.2002 and also of the fact that a copy of the said report was not furnished to the petitioner, in the light of the decisions referred to above, I hold that the materials that have been collected behind the back of the petitioner cannot be used against the petitioner which vitiates the ultimate decision taken by the first respondent. On this ground, the impugned order of the District Collector dated 01.08.2002 is quashed, and the matter is remitted to the respondent for a fresh disposal.”
22. If there are some acceptable materials like the petitioner having caught red-handed at the time of effecting quarrying operation in a non lease hold area or seizure of materials while removing the sand or stones illegally quarried, that would stand on a different footing.
23. On the factual matrix, even though after the show cause notice was issued and after repeated requests made by the petitioner, the respondent is stated to have submitted the report of the Assistant Geologist dated 24.7.1999 and the letter of the District Collector dated 7.11.1999, admittedly, those letters came to reveal that the reports were prepared by the said Assistant Geologist as well as the District Collector behind the back of the petitioner during the fag end of the period of lease of five years. There is no evidence of any complaint received from any person. There is absolutely nothing on record to show that during the time when the agreement for quarrying was in operation, the petitioner was found caught red-handed while quarrying in a non lease hold area, or when such operation was done by the petitioner or on behalf of the petitioner by some other persons an inspection was done. There are absolutely no particulars even in the show cause notice as to in which area other than the agreed place such alleged act was done by the petitioner.
24. If the Collector or the Assistant Geologist are the authorities entitled to hear the appeal, it is not known as to how such reports can be relied upon by a subordinate officer, viz., the respondent, in the show cause notice. In the absence of any survey number for the allegation of illegal quarrying, it is not known as to how a proper explanation can be given by the petitioner.
25. The petitioner has also raised a jurisdictional issue that in the year 1999, the Assistant Geologist was not the authority competent to inspect and such power has been given only afterwards by virtue of G.O.Ms.No.63, Industries (MMA.1), dated 11.5.2005 and the delegation was given only from 27.7.2005 and the power of the State Government itself as per Section 24 of the Act came to be given only with effect from 18.12.1999 by virtue of the Amendment Act 39 of 1999. The delegation of power as per the Act has been done by the notification of the Tamil Nadu Government in G.O.Ms.No.63, Industries (MMA.1), dated 11.5.2005, which is as follows:
“Under sub-section (1) of Section 24 of the Mines and Minerals (Development and Regulation) Act, 1957 (Central Act 67 of 1957), the Governor of Tamil Nadu hereby authorises the following officers for the purpose of the said Section of the said Act, namely:-
(1)All the District Collectors including Chennai District within their jurisdiction.
(2)All the District Revenue Officers, Revenue Divisional Officers and Tahsildars within their jurisdiction.
(3)Deputy Director (Geology and Mining), Assistant Director (Geology and Mining), Assistant Geologist (Geology and Mining) and Special Tahsildar (Mines) of the Department of Geology and Mining in the respective districts within their jurisdiction.
(4)Director of Geology and Mining, Additional Director of Geology and Mining, Joint Directors, Deputy Directors, Assistant Directors and Assistant Geologists functioning in the Head Officer of the Department of Geology and Mining, at Chennai shall have the jurisdiction for the whole of Tamil Nadu.”
Therefore, it is the duty on the part of the respondents to produce under what authority such inspection has been done and hence, on the face of it, the reliance placed on the report of the Assistant Geologist, as it is referred to in the impugned show cause notice, has no legal basis to stand.
26. In any event, the report of the Assistant Geologist is admittedly not after giving notice to the petitioner and not in the presence of the petitioner and therefore, that cannot be put against the petitioner at all. Moreover, the copy of the report of the Assistant Geologist stated to have been furnished to the petitioner subsequently, which is as follows:
“The area of SF.No.315 of Madathupatti Village, Sankarankoil Taluk on 24.7.99 alongwith Special Deputy Tahsildar (Mines), Tirunelveli, Special Revenue Inspector (Mines).
Thiru.Josuvah, Ayyapuram, got a lease for quarrying Roughstone over an extent of 2.00 acres in SF.No.315 of Madathupatti as per Collector’s proceedings M3/1006/94, dated 18.5.94 and the lease period was expired on 30.6.99. Tahsildar, Sankarankoil, in his letter A6/2036/97, dated 30.7.98 reported that the lessee had quarried more than the area granted to him. The Commissioner of Geology and Mining, Chennai has also instructed to levy penalty for the removal of Roughstone non permitted area.
In this regard, the area was inspected and found that the illicit mining was noticed that the lessee h as quarried as follows: in the area of non permitted.
(1) On the northern side of leased out portion:
(a) 40 metres x 10 metres x 11 metres: 4,400 cu.m.
(b) 22 metres x 27 metres x 11 metres: 6,534 cu.m.
(2) On the southern side of leased out portion:
24 metres x 10 metres x 11 metres: 2,640 cu.m.
Total quantity quarried : 13,574 cu.m.
which is equal to 4,79,646 cft. – ie. 4,79,600 cft. ie.4796 Unit.
It is proved that the Ex-lessee Thiru.Josuvah has illicitly removed a quantum of 4,796 Units of Roughstone without any valid permission in non permitted area. Hence appropriate penalty may be levied against the illicit offender”
reveals an astounding factor that the report, which has been admittedly prepared behind the back of the petitioner, is bereft of particulars and can be only termed as vague in all fairness.
27. Even though this Court is conscious of the fact that as against the show cause notice the jurisdiction under Article 226 of the Constitution of India is very restricted and it is in the rarest of rare and exceptional cases only interference by this Court is possible, as it was held by the Supreme Court in Union of India and another v. Kunisetty Satyanarayana, [2006] 12 SCC 28, certainly on the factual matrix, this is an exceptional case, where I am of the considered view that interference has to be made by this Court under Article 226 of the Constitution of India for the purpose of establishing fairness in public function by the statutory authorities. I am of the firm opinion that the impugned show cause notice cannot stand the scrutiny of law and has to be interfered with by this Court on various grounds, including the violation of principles of natural justice; pre-determination of the issue; reliance on the report of an authority who is incompetent at the time when such report was given as per the provisions of the Act, apart from many other infirmities. I have, therefore, no hesitation to come to a conclusion that the show cause notice has to go. But, at the same time, it is not as if the respondent being the authority empowered under the Rules has to be denied its jurisdiction to conduct enquiry to find out its correctness and if really the petitioner is involved in quarrying in a place which is other than the contract place, the law has to take its course and the petitioner has to face the consequences. But the problem is such a decision must be taken in accordance with law. Unfortunately, the respondent has gone on a wrong side in issuing show cause notice not following the legal norms and therefore, while setting aside the impugned show cause notice, liberty is given to the respondent, if so advised, to proceed in accordance with law by giving proper show cause notice to find out the truth.
Accordingly, the writ petition stands allowed and the impugned show cause notice is set aside with liberty to issue fresh show cause notice, if so advised, in accordance with law. No costs. Consequently, W.P.M.P.No.44961 of 2003 is closed.
sasi
To:
The Revenue Divisional Officer
Tirunelveli