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Madras High CourtWP(MD)/3588/2016allowed

V.Pandi, v. The District Collector,

2017-06-28Honourable Mr Justice C.V. Karthikeyan4 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.06.2017

CORAM

THE HONOURABLE MR.JUSTICE J.NISHA BANU W.P(MD)No.3588 of 2016 and WMP(MD)No.3212 of 2016 V.Pandi .. Petitioner Vs.

1.The District Collector, Sivagangai District, Sivagangai.

2.The Revenue Divisional Officer, Devakottai, Sivagangai District.

3.The Tahsildar, Devakottai,Sivagangai District.

4.T.Velayutha Perumal @ Ramu (R.4 was impleaded by this Court on 28.06.2017 in WMP(MD)No.5360 of 2016 ) ... Respondents PRAYER:

Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari to call for records pertaining to the order passed by the third respondent herein dated 10.02.2016 made in Na.Ka.Aa4/3271/2015 and quash the same.

For Petitioner : Mr.R.Vijayakumar For R.1 to 3 : Mr.G.Muthukannan Government Advocate For R.4 : Mr.Siva Thilakar ******

ORDER

This writ petition has been filed praying for a Writ of Certiorari to call for the records pertaining to the order passed by the third respondent herein dated 10.02.2016 made in Na.Ka.Aa4/3271/2015 and quash the same.

2.

The petitioner would aver among other things that he participated in the tender for laying of road in Devakottai Taluk,

Sivagangai District for the State Highways Department and completed the work in the year 2003 itself and received the amount for the work executed by him. While so, the respondent served upon an impugned order on the petitioner on 10.02.2016 stating that a sum of Rs.7,17,000/- has been imposed as penalty under the Tamil Nadu Minor Mineral Concession Rules,1959, for the illegal quarry carried on by him during the course of the contract and accordingly, the petitioner was directed to remit the said amount, failing which, revenue recovery proceedings would be initiated against the petitioner, against which, the present writ petition has been filed.

3. Learned counsel for the petitioner submits that before passing any order, he has not received any notice from the respondents. More over, the alleged order said to have been passed by the second respondent was also not communicated to the petitioner herein. He would further allege that the impugned order of the third respondent refers to a proceedings dated 30.01.2014 in Ne.Mu.Ka.Pa.Ve.P3/529/2014. This proceedings are referred to in an order of the third respondent dated 06.06.2014. However, in the said order, there is no reference about the levy of penalty as against the petitioner. He further states that all the proceedings annexed to the typed set of papers have been received by the petitioner through the Right to Information Act, after the impugned order was served upon the petitioner. Since there is violation of principles of natural justice, on the face of it, he prays for setting aside the order of the respondents challenged in this Writ Petition.

4.

The third respondent has filed a counter affidavit inter alia justifying their stand to recover the penalty amount in question levied against the petitioner.

5. This matter was admitted by this Court on 22.02.2016. During the course of the hearing an impleading petition came to be filed vide M.P.(MD).No.5360 of 2016 on 24.03.2016. The impleading petitioner has also filed counter affidavit on 28.04.2016, in which, he mainly alleges that the Writ Petitioner had suppressed the earlier order passed in W.P.No.30472 of 2003, on the very same subject, before the Principal Seat, High Court, Madras and according to him, the writ petitioner has not approached this Court with clean hands and hence prayed for the dismissal of the Writ Petition. 6.

The Writ Petitioner has filed a counter affidavit against the impleading petition stating that he has no locus standi to implead himself as one of the parties in the writ petition filed by him and reaffirms the contentions that has been raised in the writ petition and submission made in this Writ Petition. 7.

In a given situation, this Court has called for an affidavit made in W.P.No.30472 of 2003 from the Principal Seat,

Madras and accordingly, an affidavit has been placed before this Court. In the mean while, the impleading petitioner has also filed an order copy made in W.P(MD).No.30472 of 2003 filed before the Principal Bench of Madras High Court.

8.

In the afore-said circumstances, this Court has to cull out the factum as to whether the order of the respondents which is challenged in the writ petition is sustainable in the eye of law or not?

9.

The origin of the case starts from wayback in the year 2003, wherein, this petitioner, challenged the action of the respondent therein through W.P.NO.30472 of 2003 in imposing the penalty of Rs.7,17,100/- as charges towards cost of minerals and advance seigniorage fee for the value of the sand illegally quarried and removed by the petitioner as alleged by the respondent threin. The said Writ Petition was disposed of the Principal Seat vide its order dated 03.11.2003 by setting aside the impugned order therein with a direction to the respondents therein to furnish the copies to the petitioner, upon which, the impugned order came to be passed by the respondents. However, there is no whisper in the counter affidavit whether the direction given in the earlier writ petition has been complied with by the respondents or not.

10. While the matter stood thus, after a decade and so, the present impugned order has been passed by the respondents reiterating the penalty amount imposed on this petitioner. The present impugned order is so cryptic and there is no mention as to whether any notice was served upon the petitioner, after which, there was an enquiry by the respondents and consequently, the official respondents arrived at the penalty to be paid by the petitioner. Nothing has been placed before this Court or in the counter affidavit. The counter affidavit is totally bereft of any basic details. It is true that the petitioner has not averred in the affidavit about the earlier order made in W.P.No.30472 of 2003. On perusal of the affidavit as well as the order made in W.P.No.30472 of 2003 strengthens the case of the petitioner since the impugned order passed by the respondents therein was specifically set aside by the Principal Court. Therefore, the respondents cannot wriggle out from their responsibility without serving the documents on the petitioner as directed by this Court.

11. Apart from that, since proper order was not served upon him, the petitioner armed with the Right to Information Act, he could receive certain information from the respondents and that was annexed in the typed set of papers. When the petitioner wants an original order passed by the second respondent levying penalty on him, under the Right to Information Act, it was replied by the respondents on 16.02.2016, that all files relating to Na.Ka.B1/1202/2003 had been destroyed due to lapse of time. Hence, the petitioner disabled from defending his case in an effective manner.

12. In the light of the factual aspects of the matter, this Court has no other option but to set aside the impugned order once again passed by the third respondent. Accordingly, the order impugned in this Writ Petition stands set aside. Consequently, miscellaneous petition stands closed. No costs. However, it is made clear that the respondents will not preclude from initiating action against the petitioner, if they desire to do so, after complying with the earlier direction issued in W.P.No.30472 of 2003 followed by an opportunity of hearing to the petitioner. Sd/- Assistant Registrar(CSIII) /True Copy/ Sub-Assistant Registrar To, 1.The District Collector, Sivagangai District, Sivagangai.

2.The Revenue Divisional Officer, Devakottai, Sivagangai District.

3.The Tahsildar, Devakottai,Sivagangai District.

Bala RL/4C/4P/SKN/RSK/SAR4/24/1/2018 W.P(MD)No.3588 of 2016 28.06.2017