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Judgment
K. Chandru, J.—The Petitioner who is a resident of Gomathiapuram, Melur Taluk, filed the writ petition seeking to challenge an order of the
second Respondent District Collector, dated 2.7.2009 and after setting aside the same seeks for a direction to Respondents 1 and 2 to conduct a
fresh enquiry on the basis of the complaint, dated 26.11.2008.
When the matter came up on 26.10.2009, notice was taken by the official Respondents by the learned Government Pleader and also Ms.
J.Maria Roselline for private Respondent (R-5). Subsequently, Mr. Vijay Karthikeyan , learned Counsel took notice for 6th Respondent
Commissioner of Customs, Thoothukudi. After notice, a counter affidavit was filed by the District Collector, dated 6.10.2009. Subsequently, the
Petitioner has filed an additional affidavit, dated 30.9.2009 and second additional affidavit, dated 10.11.2010. On behalf of the fifth Respondent, a
supplementary affidavit, dated 12.11.2010 and second additional counter affidavit, dated 15.11.2010 was also filed.
The case of the Petitioner was that the fifth Respondent was granted permit for quarrying 22 Granite mines in Madurai District. From the year
2004-05 to 2007-08, they had exported large number of Granite blocks. He sent a complaint, 3 dated 26.11.2008 to the first Respondent, i.e.
Commissioner for Geology and Mines to take action against the fourth Respondent Assistant Geologist, Department of Geology and Mines,
Madurai District for suppressing certain transactions. The first Respondent after considering his letter, dated 23.12.2008 had given instructions to
the second Respondent District Collector to enquire about his complaint and directed to submit a detailed report about the export and stock of
granite blocks within 15 days. But no inspection was done by the second Respondent District Collector. Thereafter, the Petitioner got an
information under the Right to Information Act from the office of the Deputy Director, Department of Geology and mines regarding the export
details of the fifth Respondent for the year 2004-05 to 2007 to 2008. The report showed that the exported granite stones was to the volume of
69490.188 Cubic meter. He also got export details along with CD report from the sixth Respondent Customs Department which showed that the
quantity of export of granite blocks exported through Customs for the relevant year was 114543.008 CBM.
The Petitioner had sent a complaint to the Chief Minister''s Grievance cell on 10.2.2009. It was thereafter, the first Respondent gave instructions
to the second Respondent to appoint a Special Team and to conduct an enquiry to verify the accounts of the fifth Respondent. Again, there was no
action. On 6.3.2009, the second Respondent District Collector sent a communication to the fifth Respondent to submit relevant accounts for the
aforesaid years. The fifth Respondent had submitted accounts which showed that the total exported quantity of granite was 1,35,975.226 CBM.
But the details obtained from the sixth Respondent Customs Department showed that the volume of granite block exported was 1,14,095.700
CBM. Thus there was difference between the details furnished by the fifth Respondent and the sixth Respondent to an extent of 21977.526 CBM.
Even the Department of Geology 4 and Mines for the said year gave two different reports regarding the volume of exports made by the fifth
Respondent. The second Respondent on 6.6.2009 called the Petitioner and the fifth Respondent to attend an enquiry on 15.6.2009. Since the
Petitioner had filed all details with the second Respondent, he did not attend the enquiry. But it appears that the fifth Respondent had appeared for
the enquiry and submitted their own accounts. The second Respondent by the impugned order on the basis of those accounts had rejected the
case of the Petitioner and gave the findings that there was no loss of revenue to the State Government as alleged by the Petitioner in his complaint.
There was also no basis for his complaint and the export made by the fifth Respondent was proper and after obtaining permission and as per the
fees paid by them. It is under these circumstances, aggrieved by the impugned order, the Petitioner filed the present writ petition.
It was stated by him that under the Tamil Nadu Minor Mineral Concessions Rules, 1959, the lessee has to execute the lease deed with the
District Collector and must got it registered as per the rules. The registered holder must keep correct accounts and send it to the District Collector
from time to time showing the quantities and other particulars of minerals. The second Respondent did not conduct any spot enquiry. Whereas the
details obtained from the Customs Department showed huge difference between the volume of Granites actually exported and the amount of fees
paid by the fifth Respondent to the State Government. It is under these circumstances, the Petitioner has demanded for a fresh enquiry.
In the counter affidavit filed by the District Collector, it was stated that on the basis of the complaint filed by the Petitioner, a detailed in-depth
enquiry was conducted. There was no merit in his complaint. It was stated that though the 5 Petitioner alleged 4,00,000 Cbm of Granite blocks
were exported, subsequently, the Petitioner on the basis of the report from the sixth Respondent had only stated that it was 1,14,543.008 Cbm
which itself shows that there was no prima facie truth in the allegations made by the Petitioner. The Petitioner had willfully absented himself for the
enquiry fixed on 15.6.2009. Thereafter, the second Respondent volunteered that the Petitioner was faced with damage suit at the hands of the fifth
Respondent which is pending before the First Additional District Court in O.S. No. 109 of 2009 wherein the fifth Respondent had claimed Rs. 10
lakhs damages as compensation for causing mental agony and damage to their reputation as well as for defamation. Hence in order to prevent the
suit from being tried, the Petitioner had instituted the present writ petition. The alleged difference found in the details was solely attributable to the
report supplied by the Customs department. It was a computer generated CD report which did not include the export transactions made by the
fifth Respondent while computer system was on default. It is also denied that the department had filed two different export details.
In the additional affidavit filed by the Petitioner, he had submitted that the total quantity of export of granites and the seignior age fee paid
worked out to 1,69,659.518 Cbm which include granites purchased from TAMIN. The report given by the sixth Respondent regarding the fifth
Respondent''s activities for the year 2004 to 2008 did not tally with the impugned order. Therefore, he had given the details of conversion factor of
various sizes of granites and alleged that definitely 26515 Cbm was exported without payment of seignior age fees.
In the second additional affidavit, dated 10.11.2010, the Petitioner claimed that one Arumugam had received notice sent to the Excise
Department, Madurai as well as to the Deputy Commercial Tax Officer, Melur with an 6 endorsement ""received"". On enquiry, it was found that
the said Arumugam was working with the fifth Respondent. It only showed that even the letters sent to the official Respondents were received by
the fifth Respondent''s agent. As per the information received under the Right to Information Act from the office of the Commercial Tax
Department, the export accounts of fifth Respondent were audited only for the first two years, i.e. 2004-05 and 2005-06. Therefore, the fifth
Respondent''s claim that he had presented the audit accounts up to 2008 was a false statement. It was also stated that the fifth Respondent was
operating two different registration numbers with the Commercial Tax Department. The Enforcement Wing of the Commercial Tax Department
had conducted Audit on several days. It shows that the fifth Respondent has arrears of Rs. 96,32,696/-, but yet the District Collector had certified
the fifth Respondent with clean chit. While the fifth Respondent is operating 22 granite quarries in Madurai District alone, the Information Officer
attached to the second Respondent had informed that no details were available with him. If no particulars are available with the second
Respondent''s office, then it was surprising that the second Respondent should certify the transactions of the fifth Respondent as clean.
In the supplementary affidavit filed by the fifth Respondent, dated 12.11.2010, it was alleged that the writ petition filed by the Petitioner was not
maintainable. If he is aggrieved against the order passed by the second Respondent, he has remedy by way of an appeal. It was also stated that
there were patent errors in the additional affidavit filed by the Petitioner regarding the calculation of cubic meters. There has been error in
converting the square feet into cubic meter. Because of these errors, it was made to appear that there has been a large scale of evasion of actual
export.
In the second additional counter affidavit filed by the fifth Respondent, it was further stated that the said Arumugam was the Chief Accounts
Officer of the fifth Respondent. He was dealing with the case of the fifth Respondent with various offices. The allegations made that he received the
letters of Excise Department and the Commercial Tax Department was false. Proper returns were submitted to the Commercial Tax Department.
From the year 2006, VAT Act has come into force. Returns are filed under VAT Act and not under the TNGST Act. The Assessing Authority will
take assessment on the basis of random selection by the system. It was also stated that the two sales tax registrations related to two different
activities. One number related to civil contract in the name of P.R.P. Exports which is a different entity. The business of the civil contract was also
closed. The allegation that there was arrears of commercial tax was also not correct. Therefore, he had sought for dismissal of the Petitioner''s
case.
Mr. T. Lajapathi Roy, learned Counsel appearing for the Petitioner referred to the petition sent by his client under the RTI Act seeking for
details of quarrying operations made by the fifth Respondent. In their letter, dated 28.07.2009, in question Nos. 3 to 6, the Petitioner had asked
for the following details:
What is the length, breadth and depth and the volume of the Granite excavated?
What is the present stock in their quarry?
How much waste materials available in the quarry?
In respect of all the above questions, separate answer should be given.
In his reply, dated 27.08.2009 the Public Information Officer attached to the Deputy Director of Geology and Mining had stated that the
details requested by the Petitioner was not available in their office records. Similarly, the report of the CTO, Madurai sent to the Joint
Commissioner (Enforcement), Madurai dated 4.1.2010 shows the revenue impact of loss for the non payment of commercial tax 8 worked out
nearly a Crore rupees. Notice sent to the Commercial Tax Department was not received by them as informed by the Information Officer of the
Commercial Tax Department, Melur. The Petitioner also enclosed a letter received from the District Collector, dated 25.6.2010, wherein one N.
Nagarajan of Pathinettamkudi village was removing granites from the quarry even without subsisting permit and proper criminal action was directed
to be taken. The District Collector in his complaint to the Deputy Superintendent of Police, Melur, dated 30.6.2010 stated that in respect of
Pathinettamkudi village in S. No. 163/2, Granites have been removed without permission. Therefore, it was directed to make an investigation.
Similarly, the Central Excise Department also informed the Petitioner that they were not in receipt of notice sent from the Collector ate and it was
received by some one else. The Petitioner also referred to the report appeared in the Indian Express, a Daily English Newspaper, dated 4.9.2010
stating that fake permits are used for granite exports and hardly any worthwhile investigation was conducted. Therefore, he submitted that his client
has made bona fide statement against the fifth Respondent''s export activities and defrauded the State Government in not paying the legitimate
revenue due.
It was further submitted that the District Collector has power to conduct on-spot inspection. On the other hand, he was receiving reply from
the fifth Respondent and adopting the said reply as the reason in the impugned order. Since the Petitioner wanted only an investigation by the
District Collector and having supplied all prima facie materials, it was unnecessary for him to appear before the District Collector. The District
Collector on the basis of the prima facie materials should have conducted a proper enquiry into the affairs of the fifth Respondent. On such
investigation, if he found that there was large scale defrauding of the revenue, 9 he should have taken an appropriate action against the fifth
Respondent. An attempt by the second Respondent to make it appear that as if there is lis between the Petitioner and the fifth Respondent itself is
trying to divert the real issue before him. The learned Government Pleader had supported the stand in the impugned order and had stated that there
was no necessity for ordering any enquiry.
In the present case, in respect of the mining activity is concerned, it is only the first, third and fourth Respondents will be in a position to decide
the extent of volume available and also to an extent of mines done by the fifth Respondent. After calculating the debris they can really arrive at the
correct figure. No counter affidavit has been filed on behalf of the first Respondent till date despite notice was taken on behalf of the official
Respondents by the learned Government Pleader. Coupled with the fact that the fifth Respondent had also launched defamation suit against the
Petitioner in O.S. No. 109 of 2009, claiming damages only on the basis of the impugned order passed by the District Collector shows that there is
an attempt to silence the Petitioner from pursuing his remedy. It was rather surprising that the District Collector in his counter affidavit in paragraph
11 referred to the suit filed by the fifth Respondent, especially when he was not a party to the suit. It was unnecessary for him to have come up
with the contention that the Petitioner''s attempt was to bring complaints against the fifth Respondent in order to forestall the suit pending before the
District Court. It was purely a private civil dispute for which the second Respondent was in no way concerned. On the other hand, prima facie
materials under which the suit was filed is based upon the findings rendered by the District Collector stating that there was no loss caused to the
State and that the allegations of the Petitioner were false.
Curiously, the impugned order of the District Collector is also 10 appended to the suit filed in O.S. No. 109 of 2009 as document No. 22.
This is a strange coincidence between the suit filed and the reliance placed upon the District Collector''s report as the basis for claiming damages.
The District Collector''s contention that the attempt of the Petitioner by filing the writ petition is to forestall the continuance of the suit was uncalled
for. In any event, the attitude of the District Collector in referring to the private civil dispute in his official counter affidavit do not inspire confidence.
Mr. V. Ramachandran, learned Senior Counsel appearing for Ms. Maria Roseline took pains to explain the discrepancies found in the
complaint on account of the conversion factor from square feet into cubic meter. He tried to explain that there was no actual loss. The District
Collector merely went by the very same explanation in the impugned order and tried to come up with a theory that there was no actual loss. In
order to verify whether the second Respondent has discharged his obligation to find out the truth of the allegations made by the Petitioner, this
Court had directed the original files to be produced. In fact, in the notes file, the District Collector had recorded his noting on 15.6.2009 which
reads as follows:
The Petitioner has refused to appear. Thiru Palanisamy appeared. Perused the original records of the Customs Dept & the Sales Tax Dept and
also the permit issued details of Mines & Geology Dept. M/s.P.R.P. Exports have also produced their export & import details and the royalty
remittance details. In addition we may get the conversion facts from the Asst. Geologist of Dy. Dir. (Mines), Madurai office authenticatively. Pl. put
up with the report of A.G.
In the note file approving the draft of the impugned order, a paragraph which is not found in the impugned order showed that the District
Collector had recorded the Petitioner''s complaint as false complaint made with a view to bringing bad name to the fifth Respondent''s organization.
Hence no further action need be 11 taken on his complaint.
In the present case, the Petitioner is an individual, who on being charged with the desire to bring large scale revenue evasion had made the
complaint to appropriate authorities. The District Collector had treated the said complaint as if it was a private dispute between the Petitioner and
the fifth Respondent. It was as if he was sitting and hearing the dispute as an umpire. Even a perusal of the impugned order clearly shows that
passage after passage were borrowed from the information supplied by the fifth Respondent and there was no independent consideration. There
was also no independent attempt made to find out with the available infrastructure to arrive at the actual quarrying done and the amount of money
paid towards seigniorage fee. When a citizen of this Country brings to the notice of a public authority about any alleged fraud, the same has to be
treated as a valuable input. Thereafter, the authorities who were empowered to determine the issue must take all actions under their power to find
out the truth or otherwise about the allegations. The complaint cannot be treated as a statutory appeal as if it was to be heard by a quasi judicial
authority.
On the other hand, the District Collector being empowered to take actions on violation of conditions of mining lease can take all steps which
are necessary to find out the truth or otherwise of the allegations. He has at his disposal information from the Commercial Tax Department, Excise
Department and Central Customs Department. In fact, the allegation that letters sent to the Commercial Tax Department and Excise Department
were received by some unauthorised persons is not denied. Similarly, the concern expressed by the Commercial Tax Department that a large scale
evasion of commercial tax was also not gone into. When the Petitioner sought for information under the RTI Act regarding the actual excavation 12
of granites in that area, the offices of the Department of Geology and Mines had expressed their inability to furnish such information stating that
those records are not available in their office. An attempt to explain the actual export from the details furnished by the Customs Department by
conversion table cannot satisfy the various irregularities pointed out by the Petitioner. The District Collector in this regard had miserably failed to go
into the larger issue about the unauthorized export of granites which resulted in loss of revenue to the State. Even the District Collector himself had
made a complaint to the Deputy Superintendent of Police regarding the unauthorized removal of Granites from a particular quarry in
Pathinettamkudi village in S. No. 163/2 belonging to one Nagarajan. Merely because the Petitioner did not attend the enquiry before the District
Collector will not disqualify him from pursuing the case. There will be no use in filing any appeal as contended by R-5 as the order passed by the
authority is not a statutory order, but only based on a direction given by the first Respondent in the light of large scale complaints received.
Mr. V. Ramachandran, learned Senior Counsel referred to a recent judgment of the Supreme Court in State of Uttaranchal Vs. Balwant Singh
Chaufal and Others, and stated that the Public Interest Litigation if it is for the purpose of misuse or abuse that has to be curtailed and that the
Petitioner''s case must not only be dismissed, but he must be imposed with heavy cost. However, in the very same judgment, the Supreme Court
had also held that the courts must encourage genuine and bona fide PIL and pass directions. The following passage found in paragraph 178 of the
said judgment may be usefully reproduced below:
We must abundantly make it clear that we are not 13 discouraging the public interest litigation in any manner, what we are trying to curb is its
misuse and abuse. According to us, this is a very important branch and, in a large number of PIL petitions, significant directions have been given by
the courts for improving ecology and environment, and the directions helped in preservation of forests, wildlife, marine life, etc. etc. It is the
bounden duty and obligation of the courts to encourage genuine bona fide PIL petitions and pass directions and orders in the public interest which
are in consonance with the Constitution and the laws.
Though the learned Counsel referred to certain other decisions based on the same lines, it is unnecessary to refer to each one of them as in the
Balwant Singh Chaufal''s case (cited supra) all the previous case laws have been referred to and were analysed.
When the court is of the opinion that the second Respondent had not discharged his duty in unraveling the truth by gathering materials from all
relevant department by acting on his own and not treat the complaint made by the Petitioner as part of an adversarial procedure, the only course
open to this Court is not to accept the alleged conclusions reached by the second Respondent. In the additional counter affidavit filed, the fifth
Respondent themselves have stated that the Petitioner should have filed an appeal under the relevant procedure. Even assuming that there was an
appeal provision and the first Respondent is the appellate authority under the relevant rules, this Court is of the opinion that the first Respondent
should be directed to enquire into the complaint made by the Petitioner in all aspects of the case by keeping an open mind. He should also summon
necessary records and not to wait for the Petitioner to prove his case as the allegation related to large scale revenue loss to the State.
In view of the above, the writ petition will stand allowed. The impugned order of the second Respondent will stand set aside. The first
Respondent is directed to call for the entire records from the file of the second Respondent and thereafter 14 proceed to issue notice to all
appropriate authorities and pass an appropriate order on the complaint made by the Petitioner. If necessary, he should also conduct a field
inspection and get the actual measurements from the field. This exercise shall be undertaken within a period of three months from the date of
receipt of the copy of the order. The Petitioner is also directed to cooperate in the said enquiry. However, there will be no order as to costs.
Consequently, connected miscellaneous petition stands closed.