IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.12.2010
Coram
The Honourable Mr.Justice S.NAGAMUTHU
W.P.No. 15357 of 2002
The District Collector
Tirunelveli District
Tirunelveli ...Petitioner
-vs-
1. Government of India
rep. By its Secretary
Ministry of Coal and Mines
Department of Mines
New Delhi.
2. N.Ramesh ...Respondents
Petition under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records of the first respondent relating to their order No. 125/ 2001 dated 26.9.2001 and quash the same and thereby to uphold the order of the petitioner issued in proceedings No. M1.3017/95 dated 10.11.99 and to direct the second respondent to remit a sum of Rs.4,26,94,855/- as the cost of 32,969 Metric Tonnes of Garnet Sand and Royalty illicitly mined by T.Manickam, father of the second respondent herein from his patta lands with 24% interest as per rules.
For Petitioner : Mr.R.Thirugnanam,
Special Government Pleader
For Respondents: Mr.R.Muthukumarasamy
Senior Counsel for
Mr.V.Sanjeev for R2
ORDER
The District Collector, Tirunelveli District is the writ petitioner. Challenge in this writ petition is to the order passed by the Central Government in Revision Application File No.27(3)2000 – RC-II dated 26.9.2001 [Final order No. 125/2001].
2. The facts of the case are as follows:-
The second respondent Mr.N.Ramesh is presently the Managing Director of Indian Ocean Garnet Sands Company Private Limited, Thoothukudi (hereinafter referred to as the Company). Previously his father T.Manickam was the Managing Director. On 2.10.1995, a lorry bearing Registration No. TN 69 2333 which was carrying garnet sand met with an accident within the police limits of Uvari police station. The Inspector of Police registered a case in respect of the said accident and seized the lorry also. The Inspector of Police in turn made a report to the District Collector regarding the sand found in the lorry. The owner of the lorry filed a writ petition before this Court seeking return of sand as well as lorry. This Court appears to have passed a conditional order for the release of sand as well as lorry on deposit of certain amount. Accordingly, they were returned. Thereafter, a show cause notice was issued to Manickam, father of the second respondent herein calling upon him to show cause as to why penalty should not be imposed under Section 21(5) of the Mines and Minerals (Development and Regulations) Act, 1957 (hereinafter referred to as the Act). Manickam submitted an explanation for the same. However, the District Collector passed an order imposing penalty of Rs.14,77,595/- against Manickam. It is stated that later on the said order was set aside by the Central Government on a revision filed by him under Section 30 of the Mines and Minerals (Development & Regulation) Act, 1957 and the same has become final.
3. In the meanwhile, records pertaining to the transactions of Indian Ocean Garnet Sands Company Private Limited were inspected by the authorities. It was found out that there were variations between the sand purchased and sold. In this regard, a show cause notice was issued by the District Collector to the said company by his proceedings in M2/3017/95 dated 22.7.1997 calling upon the company to explain as to why a sum of Rs.4,26,94,855/- should not be imposed as penalty and royalty under Section 21(5) of the Act on the ground that the sand sold by the company to the tune of 32,969 tonnes was illegally quarried. The company submitted its explanation for the same and also produced all the records. The said explanation along with records was submitted as early as 30.9.1997. Thereafter, the District Collector by his proceedings in M2-30179 dated 29.10.1997, rejected the said objections and passed an order imposing royalty of Rs.14,83,605/- and the cost of the sand at Rs.4,12,11,250/-. Thus, the total amount of Rs.4,26,94,855/- was levied with interest at the rate of 25%.
4. Challenging the said order of the District Collector, the second respondent filed a writ petition in W.P.No.19417 of 1997 before this Court. The said writ petition was allowed, the order impugned therein was set aside and the matter was remitted back to the District Collector for passing an order afresh after giving sufficient opportunity to the petitioner. The District Collector again passed an order on 10.11.1999 imposing the very same levy of Rs.4,26,94,855/-. Challenging the said order, the company preferred a revision before the Central Government under Section 30 of the Act. The Central Government by order dated 26.9.2001 [Final order No. 125/01] in Revision Application No. 27(3) 2000- RC-II allowed the revision, however, remitted the matter back to the State Government for fresh orders. In the said order, the Central Government issued a specific direction to the State Government to carefully examine the factum of illicit mining/ its storage and then decide the issue on merits and in accordance with law. The company has not challenged the said order, but the District Collector has come up with the present writ petition challenging the said remand order.
5. At the outset, the learned senior counsel appearing for the second respondent reiterating the stand taken in the counter, would question the maintainability of the writ petition. Hence, I deem it appropriate to take the question of maintainability of the writ petition at the first.
6. The learned senior counsel appearing for the second respondent raised two preliminary objections regarding maintainability. The first and foremost is that the District Collector has no locus standi to challenge the order passed by the Central Government. The second objection is that the order under challenge in this writ petition was on the revision petition filed by the company and not on any revision filed by any individual including the petitioner. Since, the beneficiary of the order impugned is the company, in the absence of the company, this writ petition cannot be entertained as any order which may be passed in this writ petition interfering with the impugned order will cause serious prejudice to the company. Thus on the ground of non impleading of necessary party in the writ petition, according to the learned senior counsel, the writ petition is liable to be dismissed.
7. But the learned Special Government Pleader would submit that the District Collector is an aggrieved person because it is his order which has been interfered by the Central Government by means of the impugned order. Therefore, being the aggrieved person, according to the learned Special Government Pleader, the District Collector has locus standi to file the present writ petition.
8. So far as the non impleading of the company as a party in the writ petition is concerned, he would submit that in the cause title, the second respondent has been described as Ramesh, Managing Director of the company. According to him, this would mean that the second respondent is only the company represented by Mr.Ramesh. Therefore, on this technical ground, the writ petition cannot be dismissed, he contended.
9. I have considered the above submissions. In respect of the first preliminary objection, the learned senior counsel would take me through Section 21 (5) of the Act, which reads as follows:-
“Whenever any person raises, without any lawful authority, any mineral from any land, the State Government 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, rent, royalty or tax, as the case may be, for the period during which the land occupied by such person without any lawful authority.”
10. Indisputably, in exercise of the power conferred under Section 26 of the Act, the Government of Tamilnadu has issued G.O.Ms. No. 626 Industries Department dated 11.6.1986, thereby delegating the power exercisable by the State Government under Sub Section 5 of Section 21 of the Act to be exercisable also by the District Collector concerned. Therefore, according to the learned senior counsel, the power conferred upon the District Collector is only to the limited extent of passing an order under Section 21(5) of the Act and the same cannot be enlarged to the extent of filing of the writ petition as against the order passed under Section 30 of the Act by the Central Government. The learned senior counsel would point out that the order passed by the delegatee shall be, in the legal sense, an order passed by the Government itself. Therefore, if at all there is one who is aggrieved by the order, it shall be only the Government and not the delegatee, viz., the District Collector. Therefore, in the absence of any authorisation or any further delegation of power to the District Collector by the Court to file writ petition before this Court challenging the order of the Central Government, according to the learned senior counsel, this writ petition at the instance of the District Collector cannot be maintained.
11. In this regard, the learned senior counsel would rely on the judgment of the Honourable Supreme court reported in ROOP CHAND v. STATE OF PUNJAB – AIR 1963 SC 1503, wherein, in paragraph 11 of the judgment, the Honourable Supreme court held as follows :
” The question then arises, when the Government delegates its power, for example, to entertain and decide an appeal under Section 21(4), to an officer and the officer pursuant to such delegation hears the appeal and makes an order, is the order an order of the officer or of the Government? We think it must be the order of the Government. The order is made under a statutory power. It is the statute which creates that power. The power can, therefore, be exercised only in terms of the statute and not otherwise. In this case the power is created by Section 21(4). That section gives a power to the Government. It would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the Act enables the Government to delegate its power but such a power when delegated remains the power of the Government, for the Government can only delegate the power given to it by the statute and cannot create an independent power in the officer. When the delegate exercises the power, he does so for the Government. It is of interest to observe here that Wills, J. said in Huth v. Clarke that the word delegate means little more than an agent. An agent of course exercises no powers of his own but only the powers of his principal. Therefore, an order passed by an officer on delegation to him under Section 41(1) of the power of the Government under Section 21(4), is for the purposes of the Act, an order of the Government. If it were not so and it were to be held that the order had been made by the officer himself and was not an order of the Government and of course it had to be one or the other then we would have an order made by a person on whom the Act did not confer any power to make it. That would be an impossible situation. There can be no order except as authorized by the Act. What is true of Section 21(4) would be true of all other provisions in the Act conferring powers on the Government which can be delegated to an officer under Section 41(1). If we are wrong in the view that we have taken, then in the case of an order made by an officer as delegate of the Governments power under Section 21(4) we would have an appeal entertained and decided by one who had no power himself under the Act to do either. Plainly, none of these things could be done.”
12. The Honourable Supreme Court has taken the view that a delegatee means, little more than an agent as held by the QUEEN’S BENCH DIVISION reported in LR (1890) 25 QBD 391 HUTH v. CLARKE. It would be worthwhile to extract the said judgment of the Queen’s Bench, at this juncture, which reads as follows:-
“….. The case really turns on the meaning of the word “delegate”, a word which has appeared on the statute book for the last thirty years, occurring, as it does, at least as far back as 24 & 25 Vict. c. 133, sched., part 2(6). Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. The best illustration of the use of the word is afforded by the maxim, Delegatus non potest delegare, as to the meaning of which it is significant that it is dealt with in Broom’s Legal Maxims under the law of contracts : it is never used by legal writers, so far as I am aware, as implying that the delegating person parts with his power in such a manner as to denude himself of his rights. If it is correct to use the word in the way in which it is used in the maxim, as generally understood, the word “delegate” means little more than an agent. The notion, therefore, that the use of the word “delegate” implies that the executive committee parted with their own authority is misconceived ……………..”
13. A close reading of the judgment of the Supreme Court as well as the Queen’s Bench Division would make it very clear that by means of delegation of the power by the Government, in exercise of its power under Section 26 of the Act, the State Government does not part with its power exercisable under Section 21(5) of the Act. In legal sense, instead of the State Government itself passing an order under Section 21(5) of the Act, it is passed by its delegate, the District Collector. Therefore, as held by the Honourable Supreme Court, though the order is passed by the delegate, it should be construed that it is an order passed only by the State Government. Therefore, the learned senior counsel was right in his submission that, if at all, there is a person who is aggrieved by the order impugned in this writ petition, it must be either the company or the State Government. The District Collector who exercises its delegated power under the statute is not exercising any administrative power. Therefore, the contention of the learned Special Government Pleader that the District Collector is an aggrieved person by the order of the Central Government cannot be countenanced at all.
14. The learned senior counsel for the second respondent would point out that in a letter sent by the State Government to the District Collector dated 10.10.2001, the Government only requested the Collector to take action accordingly and send an action taken report to Government through the Director of Geology and Mining early. The said letter reads as follows:-
“I am directed to enclose a copy of the order third cited wherein Government of India have set aside the order passed by the District Collector, Tirunelveli District imposing a fine of Rs.4,26,94,855/- against M/s. Indian Ocean Garnet Sands Co., (P) Limited in connection with the alleged taking of garnet sand unlawfully after making quarry without permission in Karaichittupurdhur, Tirunelveli District (T.N) and remanded the case back to the Government to examine the factum of illicit mining / its storage and then decide the issue on merits and in accordance with law.
I am therefore to request you to take action accordingly and sent an action taken report to Government through the Director of Geology and Mining early. ”
15. The learned senior counsel for the second respondent has drawn my attention to paragraph 7 of the affidavit, which is as follows:-
“It is submitted that the final orders 125/2001 dated 26.9.2001 were passed by the Government of India, wherein the Govenrment set aside the orders passed by the District Collector, Tirunelveli, against the levy of penalty. In their letter dated 10.10.2001 in letter No. 7559/ MMD.2/ 2000-6 Ind Dept the State Government requested the Collector to take action as per the orders passed by the Government of India and send a report through the Director of Geology and Mining, Chennai. ”
16. The learned senior counsel for the second respondent after drawing my attention to the above stated facts, would submit that the State Government has only directed the District Collector to pass appropriate order under Section 21(5) of the Act and has not at all authorised the District Collector to challenge the order of the Central Government by way of a writ petition.
17. As I have already held, it is only the State Government which could be termed as an aggrieved person by the order of the Central Government and therefore, the State Government can very well challenge the order of the Central Government. But, there is no further specific authorisation given by the State Government viz., the aggrieved person, thereby authorising the District Collector to challenge the impugned order. In this regard, I must state that a close scrutiny of the entire scheme of the Act would go to show that the order passed by the Central Government under Section 30 of the Act is final and there is no further statutory remedy. Therefore, it can be challenged by any aggrieved person under Article 226 of the Constitution of India before this Court. Of course, it is true that the State Government itself has not come up before this Court with this writ petition, instead the District Collector has filed the present writ petition. It is also true that there has been no special authorisation given by the State Government authorising the District Collector to file the writ petition. What all that the learned Special Government Pleader would submit is that the State Government was aware of the fact that the present writ petition had been filed by the District Collector. In this regard, I may state that for filing a writ petition by an aggrieved person, such aggrieved person can either do it on his own or he can do it through his agent. Regarding this legal position, absolutely there can be no second opinion.
18. Now the question is whether the District Collector is acting as agent of the State Government for the purpose of filing this writ petition or not. The answer for this question is readily available in the judgment reported in ROOP CHAND v. STATE OF PUNJAB – AIR 1963 SC 1503. This judgment was subsequently followed by the Supreme Court in ISHWARSINGH v STATE OF RAJASTHAN reported in 2005(2) SCC 334. In the said judgment the Honourable Supreme Court has stated that when the delegatee exercises power, he does so for the Government. Not stopping with that, the Honourable Supreme Court further goes on to approve the view taken by the QUEEN’S BENCH DIVISION reported in LR (1890) 25 QBD 391 HUTH v. CLARKE, wherein the QUEEN’S BENCH DIVISION has stated that the word ‘delegate’ means little more than an agent. Thereafter, the Honourable Supreme Court has further stated that the agent, of-course, exercises no powers of his own, but only on the powers of his principal. This would clearly indicate that the District Collector being a delegate acts in a better position, than a mere agent of the Government. He can very well exercise the powers of his principal viz., the Government. Such delegated power to pass order under Section 21(5) of the Act includes the incidental power to challenge the order of the Revisional Authority also. As rightly pointed out by the learned Additional Government Pleader, the Government is aware of the action taken by the delegate and this Court has not taken any exception to the same. Thus, the State Government viz., the Principal has approved the action of the delegate. The letter dated 10.10.2001 only reflects the same. Therefore, though there is no specific authorisation given by the Government to the District Collector to file the writ petition, I am of the clear view that the District Collector has locus standi to challenge the impugned order as delegate of the Government. Therefore, I hold that the first preliminary objection raised by the petitioner is only liable to be rejected.
19. Now coming to the next preliminary objection regarding maintainability, I find every force in the said argument. From the records it could be seen that the order impugned was on a revision filed by the company known as Indian Ocean Garnet Sand Company (P) Limited. It is needless to point out that the company incorporated under the Companies Act is legal person who can sue and be sued. Therefore, in the absence of the company before this Court and without affording opportunity to the company, if any order is passed thereby interfering with the impugned order, surely the same will be detrimental to the interest of the said company. Such an order would result in serious prejudice to the company. But unfortunately, the company has not been added as party to this writ petition. The explanation offered by the learned Special Government Pleader in this regard is that the second respondent Ramesh has been described as Managing Director of the said company and therefore, it should be constructed that the writ petition is filed only against the company. I regret that I am unable to persuade myself to accept the said contention. As rightly pointed out by the learned senior counsel for the second respondent, a perusal of the affidavit would go to show that the second respondent Ramesh has been described at more than one place as an individual. For example, in paragraph 3 of the affidavit, it is stated as follows:-
“It is submitted that the father of the second respondent was granted with a lease for mining Garnet Sand in S.No. 22/7, 8, 9A, 9B, 10, 23/1, 92/3, 157/I-1, J, M, N, O and Q of K.Pudur Vilalge, Radhapuram Taluk, Tirunelveli District over an extent of 18.66 acres under G.O.Ms. NO. 96, Ind. Dept. dated 22.1.90 for five years. Pursuant to the said order of the Government, four lease deeds were executed on 17.7.90 in respect of the four leases. It is submitted that the petitioner received a number of complaint petitions from time to time from the villagers and also from an Ex. M.L.A. about the illicit mining and transportation of Garnet Sand by the father of the second respondent from his non leased patta lands in K.Pudur, Radhapuram Taluk, Tirunelveli District. The competent authorities of the Revenue and Mines Department officials inspected the illicit mining area and found that illicit mining was done by the father of the second respondent. Proper action has been taken and penalties levied in several cases for the illicit mining to the father of the second respondent. ”
20. It is needless to point out that this would surely indicate that the second respondent has been added in this writ petition only in his individual capacity being the son of late Manickam and not in the capacity of Managing Director of the company. In the last paragraph of the affidavit also, it is stated that,
“……….. to direct the second respondent to remit a sum of Rs.4,26,94,855/- as the cost of 32,969 Metric Tonnes of Garnet Sand and Royalty illicitly mined by Thiru T.Manickam, father of the second respondent from his patta lands. ……….”
21. There is a vast difference between the company being sued and individual, who incidentally happens to be a person who has got some connection with the company, being sued. It is not explained as to why the company has not been sued in its name in the writ petition. It is the settled law that since remedy under Article 226 of the Constitution of India is equitable and discretionary, the High Court should dismiss the writ petition if the necessary party who will be vitally affected by the decision is not impleaded as a party to this writ petition. For this proposition, I may refer to the judgment of a Division Bench of this court in BASKARAN v. COMMR. OF COLLEGE EDUCATION (1995 (II) CTC 513), wherein in para 28 of the judgment, speaking for the Bench, Honourable M.Srinivasan (Later a Judge of the Supreme Court) has held as follows: –
“The applicant herein is a party who is directly affected by the judgment in the writ appeal. The third respondent was fully aware of the appointment of the applicant. The fact was also brought to the notice of the Court by the Directorate of Collegiate Education in the counter affidavit filed in the writ petition at the appellate stage. The Court ought to have taken note of the fact that any decision in favour of the writ petitioner would result in ousting the applicant herein from service and he was a necessary party to the said proceedings. We have already referred to the judgment of the Supreme Court in PRABODH VERMA’S case (AIR 1985 SC 167). It is categorically held in that case that the High Court should not proceed with a writ petition without insisting on persons who would be vitally affected, being made respondents. If such persons are large in number and it is difficult to implead them individually, atleast some of them could be joined as respondents in a representative capacity. The Court has clearly directed that if the writ petitioners refuses to so join them, the High Court ought to dismiss the petition for non-joinder of parties. Unfortunately in this case, the Division Bench did not take notice of the law laid down by the Supreme Court in PRABODH VERMA’S case (AIR 1985 SC 167) and insist upon the applicant herein being impleaded as a party to the proceedings. The Court ought to have dismissed the appeal for non-joinder of the applicant herein. The failure on the part of the Court to give an opportunity to the applicant herein to appear in the proceedings and he heard, is undoubtedly violation of principles of natural justice. There is no merit in the contention of the third respondent that the applicant cannot put forward any defence independent of the management. The remedy under Article 226 of the Constitution of India is equitable and discretionary and the applicant could have put forward some contentions which might not have been available to the management and requested the Court to consider the same. ”
In view of the above settled position of law, on the second preliminary objection raised by the second respondent, I find every force and on this ground, I have no option but to dismiss the writ petition.
22. In respect of other grounds raised in the writ petition, I do not want to express any opinion, as any such opinion I may express in the writ petition may tend to influence the mind of the State Government when the matter is adjudicated upon as directed by the Central Government in the impugned order.
23. In view of the above, the writ petition is dismissed as not maintainable. No costs.
bg/
To
1. Secretary
Ministry of Coal and Mines
Department of Mines
New Delhi.
2. The District Collector
Tirunelveli District
Tirunelveli