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P. Shanmugam, J.—The Petitioner is the holder of a lease to quarry and remove sand from his patta land. He challenges the appellate order of the Commissioner of Geology and Mining, remitting back the case for fresh examination (sic) for the disposal of the writ petition are as follows:
The Petitioner has got a lease to quarry sand from his patta land for the period from 4.4.97 to 3.2.2000. The Petitioner''s land happens to be situated adjoining a river. Alleging that the Petitioner, in violation of the Minor Mineral Concession Rules, was taking sand from the river bed instead of taking from his patta land, a show cause notice dated 15.7.97/ was issued from the office of the District Collector. The Petitioner submitted his reply on 15.9.97 denying the allegation. The District Collector, by an order dated 5.10.97, on finding of removal of sand from the river bed, imposed a penalty of Rs. 1,00,000/-. As against this order, the Petitioner preferred a statutory appeal under Rule 36 (2)(c) of the Minor Mineral Concession Rules before the Commissioner of Geology and Mining. By an order dated 5.10.98, the Appellate Authority remanded the matter back to the District Collector for fresh examination with certain directions. The writ petition is preferred against this order.
Learned Counsel for the Petitioner raised the following points:
(i) The order of the Appellate Authority was passed without hearing the Petitioner in person, when there was a specific request made in his memorandum of grounds, and therefore, the said order is liable to be quashed on the grounds of violation of principles of natural justice.
(ii) The Appellate Authority ought to have allowed the appeal straightaway and the remand will enable the first authority to fill up the lucana found in that order.
(iii) The order of the District Collector should stand or fall on its own leg and the same cannot be substituted or improved upon by subsequent addition that may be permitted to be made in future, by the order of remand.
(iv) The Appellate Authority, by virtue of this remand order, has permitted a roving enquiry.
(v) The order of the District Collector is unsustainable, since there are no materials as to the measurement with regard to the number of vehicles ceased, so as to come to the conclusion that the Petitioner had committed illegal quarrying.
In support of his legal contention that the Petitioner ought to have been heard in person, the Learned Counsel for the Petitioner had referred to the decision of the Honourable Supreme Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , wherein it is held that even when the statute is silent, the law may, in a given case, make implication and apply the principle of audi alteram partem. In Management of M.S. Nally Bharat Engineering Co. Ltd. Vs. State of Bihar and Others, , the Supreme Court held that withdrawing or pending reference and transferring it to another Labour Court without giving opportunity is a fatal flaw in the decision of the Government. Their Lordships have also observed that fairness has no set of form or procedure. It depends upon the facts of each case. In Union of India and Others Vs. Anand Kumar Pandey and Others, , the Supreme Court held that rules of natural justice cannot be put in strait jacket. Applicability of these rules depends upon the facts and circumstances relating to each particular given situation.
In Swadeshi Cotton Mills Vs. Union of India (UOI), , the Supreme Court, in reference to taking over of undertaking without investigation, held that hearing at pre-decisional stage must be given. According to the Supreme Court, the core of it is that the person affected must have reasonable opportunity of being heard. Their Lordships observed that this rule will depend upon the degree of urgency, if any, evident from the facts and circumstances of particular case.
In B.B. & D. Mfg. Co. v. L.K. Bose the Supreme Court held that while considering the question of breach of natural justice, the court should proceed as if there are any inflexible rules of natural justice of universal application. The court has to consider in the light of the facts and circumstances of the case.
In The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another Vs. Ramjee, , their Lordships observed as follows:
Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. Where consequent on an accident in a Coal Mine, the Regional Inspector after holding an enquiry recommends cancellation of certificate of the concerned "shot firer, and the shot firer sends his explanation in the form of an appeal to the Board, and the Board on consideration of the Regional Inspector''s report and the explanation cancels the certificate, the cancellation cannot be challenged on ground of violation of principles of natural justice.
In F.N. Roy Vs. Collector of Customs, Calcutta, the Supreme Court held that there is no rule of natural justice that at every stage, a person is entitled to personal hearing. In that same the Petitioner complained of failure to give personal hearing in the appeal.
In Union of India (UOI) and Another Vs. P.K. Roy and Others, the Supreme Court held that the extent and application of the doctrine of natural justice cannot be imprisoned within the straight locket of a rigid formula.
In Fedco (P) Ltd. and Another Vs. S.N. Bilgrami and Others, , the Supreme Court held that the decision on reasonable opportunity will necessarily depend upon the peculiar facts and circumstances of each, including the nature of the action proposed, the materials on which the allegations are based, the attitude of the party, the nature of plea in reply, the request for further opportunity and all other matters.
Keeping in view of the facts and applying the principles in this case, failure to give personal hearing will not amount to violation of principles of natural justice.
In so far as the merits of the impugned order is concerned, the Appellate Authority has called for the remarks from the District Collector, and it could be seen that the Petitioner had earlier moved a writ petition No. 9275/98 to quash the order of the Director of Geology and Mining, refusing to grant the stay or the order of the District Collector and for a direction to issue transport permit. This Court, by an order dated 20.7.98, directed the Appellate Authority to dispose of the appeal within 12 weeks from the date of receipt of copy of the order. There was no specific direction to afford a personal hearing to the Petitioner. It is also not in dispute that the statutory (sic) for a personal hearing of the appeal. The Appellate Authority called for the remarks from the District Collector on the memorandum of appeal grounds. According to the Commissioner''s order, the District Collector proceeded on the presumption that the Appellant had been removing and after obtaining despatch slips without making an actual quarrying from the patta lands. According to the appellate order, there is no document available from the records to show that the District Collector has done any verification as to the utilisation of the despatch slips obtained for leasehold area for removing the sand from the adjacent Amaravathi river poramboke. According to the appellate order, technically speaking, the evaluation of the quantum of sand removed from any area can be calculated only by the actual measurements. Documentary evidence available is not sufficient to come to the conclusion that the District Collector has assessed the quantity of the minerals removed from this area before fixing the liability on the Petitioner. Consequently, the Appellate Authority decided that a fresh consideration is needed, and therefore, remanded the matter back to the District Collector for fresh examination with specific directions to re-examine issue by measuring the pits alleged to have been found in the river poramboke, and also to find out whether the Petitioner had utilised the despatch slips issued to him in reference to his patta land.
After going through the order carefully and considering the arguments of the Learned Counsel, I am of the view that the appellate order cannot be faulted. There is a field report that the area adjoining the Petitioner''s land had been quarried. It is also reported that a road has been formed for the purpose of quarrying sand in that area. It is also found, as a matter of fact, that the Petitioner had been granted 98 lorry load slips for removing the sand. It is also further reported that in so far as the patta land of the Petitioner is concerned, there is no quarrying. However, the exact quantity that is quarried had not been determined by taking measurements from the river bed. It is also to be verified whether the despatch slips carried in the vehicles contained the particulars of the area of the quarry, and that, was there any other vehicles against whom action has been initiated for illegal quarrying from the river bed. Rule 36(5) allows the leaseholder to quarry from the area where quarrying is permitted. Rule 36(5) (d) enables the officer authorised to enter upon any area where quarrying is carried on, examine the area, the adjoining area and the quarry accounts and registers and also the vehicles used for transportation of minerals from the quarrying area at any place, to find out violations of these rules or the conditions. Thus, the statutory Rules permit and provide for such an investigation.
In the light of the factual position, the Appellate Authority found it fit to remand the matter for fresh examination. It is open to the Appellate Authority to adopt such a course of action. The argument of the Learned Counsel for the Petitioner that it will permit the first authority to improve his case and fill up the lacuna cannot be accepted in the light of the facts stated above. Any order of remand, shall not mean that the District Collector has to confirm the earlier order of penalty. If the District Collector is not in a position to determine the issue as directed by the Appellate Authority after fresh examination, appropriate order may have to be passed and it need not necessarily be against the Petitioner. In my view, what the Appellate Authority has attempted is only to re-examine the matter and to pass order with additional and sufficient materials before imposing a penalty on the Petitioner. The Petitioner cannot have any grievance if the authorities were to measure the pit adjoining the Petitioner''s land in the river bed and also to investigate and find out about the misuse of dispatch slips by other lorry owners and to verify any such illegal quarry. Therefore, factually, I am unable to agree with the contention that this will (sic) and that there cannot be any scope for remand at all in this matter.
For the reasons, I do not find any ground to interfere with the order passed by the Appellate Authority. Hence, the writ petition is dismissed. Consequently W.M.P. No. 5931/99 is also dismissed.