P.Mariadoss Vs. the District Collector. - Court Judgment

Excerpt:
[mr.m.y.eqbal; t.s.sivagnanam, jj.] mines and minerals (regulations and development) act, 1957 - section 21(1) -- the petitioner submitted his tender in time. when quarry no.9 was allotted to the petitioner, the nearby quarries viz., quarry nos.10 & 11 were also in operation. the 3rd respondent in turn issued a show cause notice dated 28.09.2010 asking the petitioner to submit his explanation within 7 days. challenging the same, the petitioner has preferred the above stated writ petition. challenging the same the petitioner has preferred the above stated writ petition. aggrieved against the impugned order the petitioner has filed the above stated writ petition. there is no violation of procedure before imposing penalty on the writ petitioners. deputy director (geology and mining),.....o r d e rthe honble chief justice & t.s.sivagnanam, j.1. these writ petitions have been filed by the petitioners herein challenging the penalty imposed on them by the respondents on the ground of alleged illicit quarrying made by them. since, common questions of facts and law are involved in all these writ petitions, they have been heard together and disposed of by this common order.2. a summation and summarization of the relevant facts, which are necessary and germane for the disposal of these writ petitions, are as follows:-(i) w.p.no.1015 of 2011it is stated that in the year 2002, a stone quarry being quarry no.9 to an extent of 5.00.0 hectares in s.no.99, keerappakkam village was brought for auction through public tender and a notification dated 14.12.2002 was issued by the district.....

Judgment:

O R D E R

The Honble Chief Justice & T.S.Sivagnanam, J.

1. These writ petitions have been filed by the petitioners herein challenging the penalty imposed on them by the respondents on the ground of alleged illicit quarrying made by them. Since, common questions of facts and law are involved in all these writ petitions, they have been heard together and disposed of by this common order.

2. A summation and summarization of the relevant facts, which are necessary and germane for the disposal of these writ petitions, are as follows:-

(i) W.P.No.1015 of 2011

It is stated that in the year 2002, a stone quarry being Quarry No.9 to an extent of 5.00.0 hectares in S.No.99, Keerappakkam Village was brought for auction through public tender and a notification dated 14.12.2002 was issued by the District Collector/1st respondent in this regard. The petitioner submitted his tender in time. The tender was opened on 08.01.2003 and the petitioner was declared as the successful bidder in respect of Quarry No.9. Since, it was a virgin quarry, the lease was granted for a period of 10 years as per the proceedings of the District Collector, Kancheepuram dated 18.09.2003, and also a lease deed was executed for a period of ten years on 18.09.2003. When Quarry No.9 was allotted to the petitioner, the nearby quarries viz., Quarry Nos.10 & 11 were also in operation. The petitioner exclusively formed a connecting road with the length of more than 300 ft., and also altered and rectified the dilapidated existing road. It is stated that the 4th respondent   Tahsildar, Chengalpattu Taluk conducted an inspection on 06.05.2010, considered the views of the villagers and categorically endorsed the report of the Revenue Inspector of Guduvancherry for the grant of quarry lease to one M/s.Roman Tarmat Ltd. According to the petitioner, either at the time of inspection by the Tahsildar on 06.05.2010 or prior to that, no allegation of illicit quarrying made by him was pointed out. But, the 4th respondent in his proceedings dated 28.06.2010 has falsely referred to about the alleged incident of illegal mining. In the complaint dated 18.06.2010 given by a stranger, it is stated that the workers of the petitioner-quarry operator were allegedly engaged in the drilling work within the boundary of Quarry No.8 and they have allegedly prevented the Firka Surveyor to measure the land on 18.06.2010. The report of the Firka Surveyor dated 28.06.2010 is very clear, but the 4th respondent by misusing and abusing his official power prepared a false report dated 28.06.2010. Before finalising the report, the 4th respondent did not give any opportunity to the petitioner to explain his position. It is stated that after the petitioner s challenge to the order dated 14.06.2010 made in R.C.No.164/2010/Q3 making allotment of a quarry in favour of M/s.Roman Tarmat Ltd., the respondents 2 and 3 started victimizing the petitioner. It appears that the 3rd respondent had received an order in CGM Lr.No.7298/PM-1/2010 dated 12.07.2010, wherein the Commissioner of Geology and Mining, Guindy, Chennai has deputed a team of two surveyors to undertake the survey for demarcating the leasehold boundaries of the stone queries. Accordingly, the two surveyors stated to have carried out survey work between 12.07.2010 and 20.09.2010. But, it is alleged by the petitioner that no such inspection or survey had been conducted by the surveyors. However, the Assistant Geologist has served a notice dated 08.07.2010 on 12.07.2010 at 7.30 pm informing the petitioner that from the report of the 4th respondent he came to know of the illicit mining by the petitioner, and therefore, he asked the petitioner to be present at the quarry site on 13.07.2010 at 11 a.m. for giving his explanation at the time of joint inspection to be conducted by the respondents 2 and 3. But, on the said date no such visit/inspection was conducted nor any demarcation of boundaries was made. However, the petitioner submitted his representation dated 13.07.2010 to the respondents 2 to 4. According to the petitioner there was no such survey between 12.07.2010 and 29.07.2010. However, the 3rd respondent issued the impugned show cause notice dated 08.09.2010 stating that the existing lease holders had indulged in the illicit quarrying over the adjoining Government poromboke land, and on the basis of the undisclosed survey reported dated 13.07.2010, the 3rd respondent quantified the volume of minerals quarried on the Northern and Eastern side of Quarry No.9, which is against the established principles of law. On the basis of the said quantification the 2nd respondent by his communication dated 08.09.2010 addressed to the 3rd respondent requested the 3rd respondent to initiate action against the petitioner and other such persons, set out therein, for the alleged violation of illicit mining, under Rule 36A of the Tamil Nadu Minor Mineral Concession Rules, 1959 r/w Section 21(1) of the Mines and Minerals (Regulations and Development) Act, 1957. The 3rd respondent in turn issued a show cause notice dated 28.09.2010 asking the petitioner to submit his explanation within 7 days. On receipt of the said show cause notice the petitioner sent his representation dated 06.10.2010 inter alia disputing the very inspection and also requesting particulars such as copy of the alleged inspection report and the details and method of calculation worked out to quantify the mineral exploited. But, there was no response on the side of the respondents. Thereafter, the petitioner sent reminders on 06.12.2010 and on 04.01.2011, but in the meantime, he was served with the impugned order dated 03.01.2011 on 08.01.2011 directing him to pay a penalty of Rs.4,88,53,800/- within 15 days from the date of receipt of a copy of the said communication. According to the petitioner he quarried minerals only from his leasehold area, and hence, he moved the present writ petition challenging the penalty imposed on him.

(ii) W.P.No.1030 of 2011

In this writ petition, the petitioner participated the tender-cum-auction held on 23.11.2004, and he being the highest bidder, was allotted Quarry No.1B in Survey No.68 part admeasuring 2.50.0 Hectares in Edayankodumanthangal Village, Chengalpattu Taluk, Kancheepuram District for a period of 5 years vide proceedings in Na.Ka.1480/2004-Q3 dated 16.03.2007. Lease deed was executed on 16.03.2007 for a period of 5 years commencing from 16.03.2007 to 15.03.2012. It is stated that according to the petitioner, he was complying with all the conditions of lease and the provisions of Tamil Nadu Minor Mineral Concession Rules, 1959, and his quarrying operation is confined only to the leasehold area. But, to his shock and surprise the sole respondent in this writ petition viz., the Revenue Divisional Officer, Chengalpattu sent a notice to the petitioner in Ref.Na.Ka.3153/2010/m dated 28.09.2010 alleging that a report was received about the violation of rules in connection with the petitioner s leasehold area for illegal quarrying of 1,007 lorry loads. With the said allegation, he was asked to submit his explanation within 7 days from the date of receipt of the said notice. The said notice was pursuant to the letter of the Deputy Director of Geology and Mining, Kancheepuram in Ref.No.Na.Ka.271/2010/Q1 dated 08.09.2010. In pursuant to the above stated notice the petitioner appeared before the respondent on 11.10.2010 and submitted his explanation that his quarry operation was confined only to the demarcated area by the officials, and he has not committed any violation of the rules. The respondent without holding any enquiry passed the impugned order dated 03.01.2010 imposing a penalty of Rs.27,18,900/- for quarrying 1007 lorry loads in the non-leasehold area. Challenging the same, the petitioner has preferred the above stated writ petition. (iii) W.P.No.1113 of 2011

In this writ petition the petitioner was allotted Quarry No.2 in Survey No.68 part admeasuring 4.00.0 Hectares in Edayankodumanthangal Village, Chengalpattu Taluk, Kancheepuram District for a period of 10 years after conducting a valid tender-cum-auction held on 08.10.2003. The lease agreement was entered into between the parties on 18.04.2003 for a period of 10 years commencing from 18.04.2003 to 17.03.2013. According to the petitioner he was complying with all the terms and conditions of lease and the provisions of the Tamil Nadu Minor Mineral Concession Rules, 1959. It is stated that his quarrying operations are confined only to his leasehold area, and the officials of the Department of Geology and Mining have also ensured this during their periodical inspections, and they do not find any illegality or irregularity during such inspections. But, to his shock and surprise, the petitioner was issued with a notice in Ref. Na.Ka.3153/2010/m dated 28.09.2010 alleging that a report was received about the violation of rules in connection with his leasehold area for quarrying 21,067 lorry loads. The said notice was based on the letter dated 08.09.2010 addressed by the Deputy Director of Geology and Mining to the respondent   Revenue Divisional Officer, Chengalpattu. Pursuant to the notice dated 28.09.2010, the petitioner appeared before the respondent on 11.10.2010 and submitted his explanation that his quarrying operation was confined only with his leasehold area and he did not commit any violation of the rules. At the time of his personal appearance he also requested for re-survey of the land to ascertain the actual and factual position. But, ignoring his explanation and without holding any enquiry, the respondent passed the impugned order imposing a penalty of Rs.5,68,80,000/- for quarrying 21,067 lorry loads in the non-lease hold area. In the impugned order it was stated that the pursuant to the order of the Commissioner of Geology and Mining, Chennai dated 12.07.2010, a survey by sub-inspectors of the Department of Geology and Mining specially deputed from Theni and Krishnagiri districts was conducted on 20.07.2010 and on 29.07.2010 in the presence of the lessee and his workers, that the Revenue Divisional Officer has not acted in an arbitrary manner, and that the petitioner quarried the said 21,067 lorry loads of stones from the non-leasehold area violating the rules and regulations and incurring loss to the exchequer. According to the petitioner, the impugned order of the respondent is not in consonance with the show cause notice dated 28.09.2010, because the show cause notice dated 28.09.2010 refers to the letter of the Deputy Director of Geology and Mining, Kancheepuram dated 08.09.2010, whereas in the ultimate impugned order reliance was placed on the inspection of the sub-inspectors (survey) of Theni and Krishnagiri Districts. The materials referred to and relied upon in the impugned order are not disclosed in the show cause notice. Hence, the impugned order of the respondent is in utter violation of the basic principles of natural justice. Challenging the same the petitioner has preferred the above stated writ petition.

(iv) W.P.No.1989 of 2011

In this case the petitioner was allotted with Quarry No.3 in Survey No.68 part admeasuring 4.00.0 Hectares in Edayankodumanthangal Village, Chengalpattu Taluk, Kancheepuram District for a period of 10 years by a tender-cum-auction held on 08.01.2003. Lease deed was entered into between the parties on 01.06.2003 for a period of 10 years commencing from 01.06.2003 to 31.05.2013. It is stated that the petitioner was quarrying stones fully complying with all the conditions of lease and the provisions of the Tamil Nadu Minor Mineral Concession Rules, 1959. According to him, his quarrying operation is confined only to his leasehold area and this was ensured with by the periodical inspection held by the officials of the Department of Geology and Mining, Kancheepuram. While being so, the petitioner was issued with the impugned order imposing penalty for the alleged illicit quarrying of stones. He came to know that such type of order was served on the lessees of the adjacent leasehold areas also. On enquiry, the petitioner came to know that the order sent to him was returned undelivered. It seems that it was sent to his old address. Therefore, the petitioner requested the sole respondent viz.,The Revenue Divisional Officer, Chengalpattu, to furnish a copy of the said order by his letter dated 12.01.2011. The respondent by his letter dated 12.01.2011 sent the impugned order dated 03.01.2011, whereby a penalty of Rs.96,17,400/- was imposed on the petitioner for the alleged illicit quarrying of stone to the extent of 3562 lorry loads. According to the petitioner, there is no whisper in the impugned order as to from which area the said alleged quantity of stones is quarried. In the impugned order it is stated that the Deputy Director of Geology and Mining, Kancheepuram in his letter No.271/2010(Q1) dated 08.09.2010 informed the violation of the Rules in connection with the petitioner s leasehold area for quarrying to the extent of 3562 lorry loads of stones unauthorisedly, that the Deputy Director of Geology and Mining, Kancheepuram by his letter dated 08.09.2010 required the respondent to levy penalty and also initiate criminal proceedings, and that the notice issued to the petitioner in Na.Ka.No.3153/2010/m dated 28.09.2010 was returned to the office undelivered on 21.10.2010 and the affixture was made in the village. It is stated that the petitioner has informed the respondent s office about his change of address and even in the Clearance Certificate issued by the Deputy Director of Geology and Mining, Kancheepuram his old and new addresses were mentioned. Therefore, the petitioner claimed that the impugned order was passed behind his back, ignoring the basic principles of natural justice. According to the petitioner, his quarry site was being visited by the officials of the Geology and Mining Department, Kancheepuram periodically and they did not found any illicit quarrying. The allegation that 3562 lorry loads were quarried from the non-leasehold area is illogical, without any legal basis and unreasonable. The working sheet enclosed along with the impugned order is erroneous and does not reflect the correct position. Aggrieved against the impugned order the petitioner has filed the above stated writ petition. (v) W.P.No.3806 of 2011

In this writ petition the writ petitioner was allotted with Quarry No.1A situated in Survey No.68 part in Edayankodumanthangal Village, Kancheepuram Taluk, Kancheepuram District by way a valid bid for a period between 22.05.2007 and 21.05.2012. After execution of the lease deed the petitioner started with his quarrying operations. According to the petitioner, he quarried stones in his leasehold area alone after complying with all the conditions of lease and the provisions contained in the Tamil Nadu Minor Mineral Concession Rules, 1959. But, to his shock and surprise, he was issued with a show cause notice dated 28.09.2010 by the 1st respondent alleging that a report was received from the Deputy Director of Geology and Mining, Kancheepuram intimating about the violation of rules in connection with the leasehold area for quarrying 1272 lorry loads and further directing to take action by way of imposing penalty for violation of rules and also to initiate criminal proceeding. For the said show cause notice the petitioner sent a letter dated 18.10.2010 seeking some documents to reply in detail. Thereafter, the 1st respondent sent a communication dated 15.12.2010 along with a report of Deputy Director of Mines dated 08.09.2010. On receipt of the said report, the petitioner sent a detailed explanation on 05.01.2011, but before the receipt of the above said explanation the 1st respondent passed the impugned order dated 03.01.2011 imposing a penalty of Rs.34,34,400/-. Aggrieved against the said order, the petitioner preferred an appeal before the District Collector, Kancheepuram District viz., the 2nd respondent herein, but till date the 2nd respondent did not pass any order on the appeal. Hence, the petitioner has approached this Court by way of present writ petition.

3. The Revenue Divisional Officer, Chengalpattu has filed a counter in three of the writ petitions viz., W.P.Nos.1030, 1989 and 3806 of 2011. The sum and substance of the stand taken by the Revenue Divisional Officer, Chengalpattu in his three counters are stated herein below:-

The allotment of quarry and the period of lease in each of the writ petitions were not denied. It is stated that on the allegation of illicit mining the Commissioner of Geology and Mining, Guindy, Chennai in his letter No.7298/PM/2010 dated 12.07.2010 has deputed Special Team of Surveyors drafted from Theni and Krishnagiri Districts to undertake survey and demarcate the leasehold boundaries of stone quarries situated in Kancheepuram District. The Special Survey Team carried out its survey work from 12.07.2010 and completed the work on 29.07.2010. The writ petitioners  quarries were also inspected by the team on those days in the presence of the lessees or representatives, and found violation of the rules and illicit quarrying. They submitted their detailed report appended with demarcated sketch clearly indicating the leasehold areas as well as illicit quarry areas with different indication. The Deputy Director of Geology and Mining, Kancheepuram in his Letter No.271/2010 (Q1) dated 08.09.2010 has reported that 6 lessees in Chengalpattu Taluk and 2 lessees in Alandur Taluk have allegedly doing illicit quarry and requested to take action by levying penalty under Section 37(A) of the Tamil Nadu Minor Mineral Concession Rules, 1959 besides taking criminal action under Section 379 of the Indian Penal Code for damaging the government property. From the report it is revealed that there are existing eight government poromboke leaseholders indulging in illicit quarrying by exceeding their leasehold boundaries to the adjoining government poromboke land. Based on the findings and factual report of the Special Survey Team and as per the direction of the Deputy Director, Geology and Mining, Kancheepuram in his letter dated 08.09.2010, the writ petitioners were issued with show cause notices highlighting all details in a tabular form giving 7 days time to offer their explanation, failing which why action should not be taken against them for the lapses noticed. The details of violation, illicit quarrying, kind of minerals and quantum of lorry loads have been furnished in the show cause notice itself. Therefore, the stand taken by the petitioners that they were not provided with the details is absolutely false and baseless. The impugned orders were passed by fully observing the principals of natural justice. The writ petitioners want to side track the entire issue and trying to avoid payment of penalty imposed on them. It is stated that the quantity of lorry loads of illicit mining is arrived at by adopting Theodlite Survey Instrument, and therefore, the petitioners cannot claim that it is illogical and improper. There is no violation of procedure before imposing penalty on the writ petitioners. The authorities have initiated uniform action against all errant lessees in the District of Kancheepuram and it cannot be said that they adopted pick and chose method only to punish the writ petitioners. The penalty was imposed in order to realise the loss of revenue to the Government made out by the petitioners based on the findings and factual report of Special Team of Survey, and there is no violation of procedure before imposing penalty on the writ petitioners. The authorities have exercised their powers within their jurisdiction for levying penalty against the writ petitioners. As far as W.P.No.3806 of 2011 is concerned, it is stated in the counter that since the appeal preferred by the petitioner therein is still pending with the Appellate Authority, the writ petition is not maintainable on the ground of non-exhaustion of the statutory alternative remedy. On the above stated grounds, the respondents prayed for the dismissal of the writ petitions.

4. Mr.V.T.Gopalan, the learned Senior counsel appearing for the petitioner raised a preliminary contention, stating that by posting the writ petitions before a Division Bench, the vested right of appeal conferred under the Letters Patent has been taken away and and in the light of the recent decision of the Supreme Court in Dayaram vs. Sudhir Batham, (2012) 1 SCC 333, the same is impermissible. The learned counsel referring to the relevant paragraphs of the said judgment, submitted that the right to file a writ appeal is a vested right to any person filing a writ petition and that right can be taken away only by an express amendment to the Act or by the repeal of that Act and such right of appeal to a Division Bench made available to a party cannot be taken away by a judicial order.

5. Before we examine the instant cases on merit, we would like to mention the facts of the case on the basis of which the Supreme Court has decided the issue in Dayaram's case (supra). In the case before the Supreme Court the caste certificates issued in favour of respondents 1 to 3 were challenged by the appellant, who was the President of the Scheduled Caste Employees Association. On enquiry, the Collector recorded a finding that the caste certificates produced by respondents 1 to 3 were false. The said report was challenged by the respondents 1 to 3 in W.P.No.2666 of 2000 before the Madhya Pradesh High Court. The High Court directed that the caste certificates be verified by the State Level Scrutiny Committee. The State Level Scrutiny Committee held an enquiry and made an order holding that respondents 1 to 3 did not belong to Dhobi caste and directed cancellation of their caste certificates. Aggrieved by the said order the respondents 1 to 3 again approached the High Court. The learned single Judge by his order allowed the writ petition and quashed the order of the scrutiny committee and declared that respondents 1 to 3 belong to scheduled caste. The said order was challenged by the appellant by filing Letters Patent Appeal, which was dismissed by the Division Bench as not maintainable in view of the Direction No.13 in respect of the caste verification procedure evolved in Madhuri Patil's case (1994 (6) SCC 241. In Madhuri Patil's case (supra) Direction No.13 was that when a writ petition challenging the decision of the scrutiny committee is decided by a single Judge of a High Court, then no further appeal would lie against that order before the Division Bench but subject to Special Leave under Article 136 of the Constitution of India. The State of Madhya Pradesh enacted the Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 conferring right of appeal before the Division Bench against the judgment of the single Judge exercising jurisdiction under Article 226 of the Constitution of India. Considering the decision in Madhuri Patil's case (supra) and the law enacted by the State of Madhya Pradesh, the Supreme Court in Dayaram's Case (supra) held that a remedy by way of appeal provided expressly by a statute cannot be taken away by an executive fiat or judicial order. It further held that any judgment made by the single Judge be subject to an appeal to that Court under the Letters Patent of that High Court.

6. Before a Full Bench of this Court in the case of Mayavaram Financial Corporation Limited, Mayiladuthurai Vs. The Registrar of Chits, Pondicherry, 1991 2 L.W. 80 (FB) a similar question arose and the Full Hench held that the Hon'ble The Chief Justice has inherent power to allocate the judicial business of the High Court including which of the Judges should sit alone and who should constitute a Bench of two or more Judges and no Judge or a Bench of Judges will assume jurisdiction, unless the cases allotted to him or them under the orders of the Hon'ble The Chief Justice. The High Court has framed Rules for the appellate side and notified in the gazette on 18.08.1965 and the rules being  Rules of the High Court, Madras, Appellate side, 1965 . Order I of the Rules deals with 'Constitution of Benches' and for the purpose of this case, Rule 1A inserted by notification, dated 24.04.1985 would be relevant. R.1-A. Every petition under Article 226 of the Constitution except that specified in Rule 2(4) shall be posted before a single judge or a larger Bench, as the Chief Justice may direct.

7. In R.Gandhi and another vs. Union of India, 1997 (3) CTC 255, one of the question which was raised, was that the Hon'ble The Chief Justice has no power to withdraw matters posted before a learned Single Judge and post them before a Division Bench and suo-moto action divests the right of appeal inhering in favour of the petitioners which causes prejudice to the cause of justice. The Division Bench considered the question and after taking note of the various decisions of the Supreme Court as well as the decision of the Full Bench referred supra, held that the administrative order withdrawing and posting the writ petitions before a Division Bench cannot be stated to be without jurisdiction and also rejected the contention that a right of appeal is lost since all actions do not get fructified into a judgment before their withdrawal from a learned Single Judge and posting them before a Division Bench and as such the accrual of the right of appeal does not get mature.

8. In Gopal Raju. S vs. Mr.Justice M.S.Liberhan, The Hon'ble Chief Justice and another, 2000-2-L.W.28, the writ petitioner prayed for a direction against the Hon'ble The Chief Justice and Registrar to restrain them from enquiring into the batch of writ petitions, challenging a Government order relating to the constitution of three Special Courts to exclusively try certain criminal cases. While considering the said writ petition, a learned Single Judge of this Court considered the Rule making power under Article 225 of the Constitution and the effect of Order I of the Appellate Side Rule and held as follows:-

5. Let us dispose of this preliminary objection first. Article 225 of the Constitution confers power: of the High Court regarding framing of Rules for both the Original and the appellate sides. Article 225 runs as follows.

Subject to the provisions of this constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this constitution, the jurisdiction of, and the law administered in, any existing High Court and the respective powers of the judges thereof in relation to the administration of justice in the court including any power to make rules of court and to regulate the sittings of the court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this constitution. Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection, thereof was subject immediately before the commencement of this constitution shall no longer apply to the exercise of such jurisdiction. 

7. The words power to make rules together with Article 372 (1) save the Rules made by the High Courts, which were in existence at the commencement of the constitution. (In re Putta Ranganayakulu and others) AIR 1956 Andhra 161 FB). They have the force of law unless ultra vires the enactment under which they were made.

9. Order 1 of the Rules framed for the Appellate Side by our High Court provides for constitution of Benches. Order 1 Rule 1(a) framed to govern proceedings under Article 226 runs as follows.

  1 (a) Every petition under Article 226 of the Constitution except that specified in Rule 2 (4) shall be posted before a single judge or a larger Bench as the Chief Justice may direct

 every application for a direction, order or writ in the nature of habeas corpus shall be heard and determined by a Bench of two Judges.

Appendix IV has been introduced as the Rules to regulate proceedings under Article 226 of the Constitution. Rule 4 in Appendix IV runs as follows:

 Petition for a direction, order of writ in the nature of habeas corpus shall be posted before a Bench of two Judges. All other petitions shall be posted before a single judge or a larger Bench as the Chief Justice may direct .

10. No doubt, in the arrangements for the sittings of the Hon'ble judges, it is stated that in respect of Public Interest Litigation (PIL), urgent motions and admissions are to be posted before the first Bench. However, this is subject to the qualification contained in 2 (vii) in bold letters, which is as follows;

The above arrangements are subject to modification .

11. The learned counsel is unable to point out any order or rule which enjoins the posting of the case only before a Division Bench. Thus, the preliminary objection cannot be sustained.

12. Apart from the above, as has been held in the The Mayavaram Financial Corporation Ltd. Mayiladuthurai v. The Registrar of Chits, Pondicherry (1991-2 L.W. 80)

It is thus clear from the judgment of the Supreme Court in National Thread Co. Ltd. v. James Chadwick and Brothers Ltd. (AIR 1953 S.C. 357= 1953 SCR 1028) that the rule making power (of the High Court) under Section 108 of the Government of India Act, 1915 read with the corresponding

provision in the Government of India Act, 1935 and under Article 225 of the Constitution of India remained unaffected and so is the power of the Hon'ble the Chief Justice to decide who amongst the judges be assigned the work as a judge sitting alone or a judge sitting in a Division Bench of two or three judges.

13. It has been held by the Supreme Court in Indermani and others v. Matheshwari Prasad and others (1996 6 SCC 587) that

 It is the prerogative of the Chief Justice to constitute benches of his High Court and to allocate work to such benches. Judicial discipline requires that the puisne judges of the High Court comply with directions given in this regard by their Chief Justice. In fact, it is their duty to do so .

27. In a topical article  Anent the Powers of the Chief Justice  by Mr. S. Subramania Iyer, High Court Vakil, Madras, dated 13th March, 1923 reported in (1923-17 L.W. 61 J.S. reproduced in 1991 -2 LAV. 89 J.S.) it is stated that,

 It thus being within the power of Chief Justice to provide every day as to which of the Judges shall do what business, he can before a particular Bench takes up a particular case dissolve that Beach or reconstitute it. This power conceded, the other power to withdraw a case from a Bench and assign it to another bench must follow. There is nothing in either the Acts, or the Rules, or the Letters patent, which would seem to deny or take away the power of the Chief Justice to interfere with the sittings even when particular Bench or Judge is in the midst of a part-heard case.

That being so, it seems to us that even if a particular case is taken up by a particular Bench and remains part heard, the Chief Justice can by a re-arrangement of a Bench or otherwise assign that case for determination by another Bench. After all, the arrangement of sittings and the allotment of work are part of the domestic administration of the High Court and the Chief Justice must, it would appear, by virtue of his very position as the head of the tribunal possess the authority to arrange for an ordain the transaction of business as he thinks fit.

42. In the latest decision of the Supreme Court in State of Rajasthan v. Prakashchand and others (1998 1 SCC 1= 1998 Cri. L.J. 2012) the Supreme Court referring to the Rajasthan High Court Ordinance, 1949, observed as follows:

 A careful reading of the aforesaid provisions of the Ordinance and Rule 54 (supra) shows that the administrative control of the High Court vests in the Chief Justice of the High Court alone and that it is his prerogative to distribute business of the High Court both judicial and administrative. He alone, has the right and power to decide how the Benches of the High Court are to be constituted: which judge is to sit alone and which cases he can and is required to hear as also as to which judges shall constitute a division Bench and what work those Benches shall do. In other words, the judges of the High Court can sit alone or in Division Benches and do such work only as may be allotted to them by an order of or in accordance with the directions of the Chief Justice. That necessarily means that it is not within the competence or domain of any single or Division Bench of the court to give any direction to the Registry in that behalf which will run contrary to the directions of the chief justice. Therefore in the scheme of things judicial discipline demands that in the event a single judge or a Division Bench considers that a particular case requires to be listed before it for valid reasons, it should direct the Registry to obtain appropriate orders from the Chief Justice. The puisne judges are not expected to entertain any request from the advocates of the parties for listing of case which does not strictly fall within the determined roster. In such cases, it is appropriate to direct the counsel to make a mention before the Chief Justice and obtain appropriate orders. This is essential for smooth functioning of the court. Though on the judicial side, the Chief Justice is only the first amongst the equals, on the administrative side in the matter of constitution of Benches and making of roster, he alone is vested with the necessary powers. That the power to make roster, exclusively vests in the Chief Justice and that a daily cause list is to be prepared under the directions of the Chief Justice as is borne out from Rule 73 which reads as follows. Daily Cause List The Registrar shall subject to such directions as the Chief Justice may give from time to time cause to be prepared for each day on which the court sits, a list of cases which may be heard by the different Benches of the Court. The list shall also state the hour at which and the room in which each Bench shall sit. Such list shall be known as the day's list .

This is the consistent view taken by some of the High courts. The Chief Justice has the authority and jurisdiction to refer even a part-heard case to a Division Bench for its disposal in accordance with law and rules so demand. The Supreme Court quoted the views of Benjamin Cardozn, the great Jurist in this behalf :  The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise discretion, informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. It must be remembered that it is the duty of every member of the legal fraternity to ensure that the image of the judiciary is not tarnished and its respectability eroded.

43. Thus, with regard to allocation or allotment of work and constitution of Benches, the Chief Justice is the ultimate authority. The matter at issue essentially relates to formation of Benches and the same is best left to the Chief Justice. Absolutely, no case has been made out by the writ petitioner for the relief he has prayed for.

9. In the light of the above referred decisions, the Hon'ble The Chief Justice has inherent power to allocate judicial business of the High Court including who of the Judges should sit alone and who should constitute the Bench of two or more Judges and has power to post the matters before a Division Bench by virtue of the power conferred under Rule IA of the Appellate Side Rules.

10. As stated above, the case of Dayaram, relied on by the learned Senior counsel for the petitioner, the question which was referred to a larger Bench of the Supreme Court, doubting the legality and validity of the direction issued in Madhuri Patil vs. Commissioner, Tribal Development (1994) 6 SCC 241, the direction contained in paragraph 13 of the judgment of the two Judges Bench of the Supreme Court in Madhuri Patil's case was subject matter of reference and the observation in paragraph 13 of the judgment is as follows:- (13)The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136'.

11. The correctness of the direction that no further appeal will lie against the decision of a Single Judge to a Division Bench was doubted and the matter was referred to a Larger Bench. The Larger Bench of the Supreme Court answered the reference by giving the following conclusion:- In view of the above, we hold that the second sentence of clause 13 providing that where the writ petition is disposed of by a single judge, no further appeal would lie against the order of the division bench (even when there is a vested right to file such intra-court appeal) and will only be subject to a special leave under Article 136, is not legally proper and therefore, to that extent, is held to be not a good law. The second sentence of direction No.(13) stands overruled. As a consequence, wherever the writ petitions against the orders of the scrutiny committee are heard by a single judge and the state law or Letters Patent permits an intra-court appeal, the same will be available.

12. The Supreme Court held that the right of appeal to a Division Bench made available to a party to a writ petition under the Letters Patent cannot be taken away by a judicial order. The said decision was in the light of the observation/direction given in para 13 of Madhuri Patil's case, observing that no further appeal would lie against the order of a Single Judge to a Division Bench. This direction was held to be incorrect. However, in the instant case, the writ petitions have not been disposed of and since the case related to allegation of illicit mining and levy of penalty, the matter were directed to be tagged together, since the issue was brought to light in a public interest writ petition being W.P.No.3905 of 2011 and all the writ petitions related to stone quarries in the same area in Kancheepuram District and penalties have been imposed pursuant to a common inspection conducted by the authorities. Therefore, direction was issued to club these matters. Thus, the decision of the Supreme Court in Dayaram's case, would have no application to the facts of the present cases and the right of intra Court appeal has not been taken away after the writ petitions were disposed of and as held by the Division Bench in R.Gandhi, supra, clause 15 is made applicable only when a judgment is rendered by a Single Judge and not until then and all these actions do not get fructified into a judgment before their withdrawal from a learned Single Judge and posting them before a Division Bench. Therefore, the preliminary objection/contention raised by the learned Senior counsel is rejected.

13. Now we proceed to consider the case of the petitioners on merits. The learned Additional Government Pleader appearing for the respondent raised a preliminary objection as regards the maintainability of the writ petition on the ground of availability of alternate remedy of appeal and that the petitioners without availing such remedy are not entitled to approach this Court by way of these writ petition. While replying to the said preliminary objection, Mr.V.Sanjeevi, the learned counsel for the petitioners contended that when there has been violation of principles of natural justice, there is no bar for invoking the jurisdiction of this Court under Article 226 of the Constitution and writ petitions are maintainable. The learned counsel submitted that the impugned orders are ex facie illegal wholly unsustainable and totally vitiated as being violative of the basic principles of natural justice. It is submitted that the show cause notice was based upon a letter of the Deputy Director of Geology and Mining, Kancheepuram, dated 08.09.2010, and the copy of which was not furnished. It is further contended that the inspection alleged to have been made by the Special Team of Officials has been conducted behind the back of the petitioner and without any notice whatsoever. Further, it is stated that the impugned order of penalty is not in consonance with the materials disclosed in the show cause notice and therefore, vitiated. It is further submitted that the officials pertaining to the Department of Geology and Mining in Theni and Krishnagiri Districts are not empowered to make inspection and it is contrary to G.O.Ms.No.63, Industries Department, dated 11.05.2005. It is submitted that the said Government order authorises certain officers for conducting inspection and the survey officials are not authorised to conduct the alleged inspection. Further, it is submitted that the respondent, the Revenue Divisional Officer, acted on the direction of the Deputy Director of Geology and Mining and did not independently take any decision. It is further submitted that in W.P.No.1989 of 2011, the petitioner has not been served with any show cause notice. The learned counsel in support of his contention, placed reliance on the decisions in W.P.No.8297 of 1997 etc batch, dated 27.07.1999; W.P.No.2647 of 2001, dated 19.09.2001; W.P.No.32829 of 2002, dated 10.09.2003; W.P.No.2066 to 2071 of 1998, dated 17.10.2003; W.P.No.32030 of 2004, dated 30.10.2006; and W.A.Nos.3016 to 3018 of 2002, dated 20.09.2007 and the reported decisions of the learned Single Judges of this Court in Sonai.R vs. The District Collector, Madurai District, 2006 (5) CTC 857; V.S.O.Balakrishnan vs. District Collector, 2009 2 MLJ 577; and S.Selvarajan vs. The Revenue Divisional Officer, 2010 (6) CTC 73.

14. The learned Additional Government Pleader by relying upon the counter affidavit filed in the writ petitions, submitted that full and effective opportunity was granted to the petitioners and there is no violation of principles of natural justice and the Special Survey Team was drafted from the other Districts as per the directions of the Commissioner of Geology and Mining as illicit quarrying was being done in the area and as such constituting a Special Inspection Team is well within the jurisdiction of the Commissioner of Geology and Mining and the records clearly established that the illicit mining was done and therefore, penalty was imposed on the petitioners. It is further submitted that since disputed questions of fact are involved, the same cannot be adjudicated in a writ petition and the petitioners have to avail the alternate remedy.

15. It is a settled legal principle that remedy under Article 226 of the Constitution being discretionary, the High Court may refuse to grant it, where there exists an alternate remedy, which is efficacious and adequate. The onus is on the petitioner to establish that the alternate remedy is not efficacious. It is equally well settled that existence of an alternate remedy is not an absolute bar for exercising the jurisdiction of this Court under Article 226 of the Constitution. In cases where there is complete lack of jurisdiction in the officer or authority which passed the order or when the proceedings are ultra vires or without material or where the impugned order has been made in violation of principles of natural justice, would fall within the exceptional circumstances, where the Court would exercise discretion despite existence of an alternate remedy.

16. The decisions relied on by the learned counsel for the petitioners, referred supra, invariably pertained to allegations of illicit mining and challenge was made to either show cause notices or the orders of penalty. In cases where, penalty was imposed, the petitioners therein did not prefer any appeal, but challenged the same by way of writ petitions. After examining the facts of the each case, in those decisions, it was concluded that there was serious violation of principles of natural justice and therefore, discretion was exercised and writs were issued. Therefore, the decisions relied on by the learned counsel for the petitioners cannot be made applicable in the abstract without examining the factual scenario.

17. Before, doing so, it has to be seen as to whether the inspection conducted was authorised and in accordance with G.O.Ms.No.63. The Government of Tamil Nadu in exercise of its power conferred under Section 24 (1) of the Mines and Minerals (Development and Regulation) Act, 1957, authorised the following officers for the purpose of the said section of the said Act:-

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 office of the Department of Geology and Mining, at Chennai shall have the jurisdiction for the whole of Tamil Nadu.

18. By relying upon the aforementioned Government order, the petitioners would contend that the Inspecting Team consisting of Survey officials of Theni and Krishnagiri District are not empowered to conduct inspection of the quarry. Admittedly, as per the Government order, the Revenue Officials of the District were empowered to conduct inspection. Likewise, the Deputy Director of Geology and Mining and the other officials of the department of Geology and Mining were empowered to act within their respective districts. The Director of Geology and Mining, Additional Directors, Joint Directors, Deputy Directors, Assistant Directors and the Assistant Geologists functioning in the Head office of the Department of the Geology and Mining shall have jurisdiction for the whole State of Tamil Nadu.

19. As could be seen from the report of the Deputy Director, Geology and Mining, Kancheepuram, dated 08.09.2010, that during the course of inspection and surprise raids conducted by the officials of Geology and Mining, Kancheepuram and also joint inspection by the Revenue and Police officials to curb the illicit quarry and transport of minerals of existing stone quarry in Tirusoolam village of Alandur Taluk and Keerapakkam and Edayan Kodumanthangal village of Chengalpat Taluk, the leaseholders are exceeding the leasehold area and indulging in illicit quarry in non leasehold in adjoining Government poromboke land, thereby causing loss of mineral reserves and damaging the properties belonging to the Government. In order to ascertain, the leasehold boundaries of the stone quarries of the writ petitioners and three others and in view of the difficulties faced in employing the local surveyors belonging to the Revenue Department, the Commissioner of Geology and Mining exercised its powers and constituted a team of surveyors and deputed them to undertake the survey and demarcation of the leasehold boundary by using theodolite survey instrument. Accordingly, the Commissioner of Geology and Mining, the State Authority, deputed two surveyors each from Krishnagiri and Theni Districts to conduct survey by proceedings of the Commissioner dated 12.07.2010 and this team deputed by the Commissioner carried out the survey work between 12.07.2010 till 29.07.2010. Therefore, the power under Section 24(1) of the Act, has been exercised by the State Level Authority for the purpose of ascertaining the position of the working of the mine and for which purpose, the officers so deputed by the State Authority shall be entitled to enter and inspect any mine, survey and take measurement, weigh, measure or take measurements of the stocks of mineral lying at any mine, examine any documents, book, register, etc., and order for production of any such document, book, register etc., among other things. That apart, the surprise inspection was conducted pursuant to the decision taken by the State Level Authority, since there were complaints about illicit quarrying. Therefore, we hold that the inspection team which inspected the quarries pursuant to the order passed by the Commissioner of Geology and Mining, is within the jurisdiction/authorisation under G.O.Ms.No.63, dated 11.05.2005.

20. Next aspect which has to be gone into is as to whether there has been violation of principles of natural justice and whether the petitioners were justifying in by-passing the alternate remedy. From the counter affidavit filed W.P.No.1015 of 2011, it is seen that the writ petitioner's quarry was inspected by the Special Team on 15.07.2010, 16.07.2010 and 23.07.2010. It is stated that a request was made by M/s.Roman Tarmat Limited requesting permission to lease out quarry No.8 in Survey No.99 (Part), Keerapakkam village for carrying out Government work and such request was made under Rule 7 of the Tamil Nadu Mineral Concession Rules, 1959, which enables quarrying for public purposes. The request was examined and the proposal was sent recommending grant of permission. In order to fix the boundaries, when the officials went to the site on 18.06.2010, one Panchatshram, representative of the writ petitioner and four others stopped the survey work and prevented the Government officials from discharging their official duties. The Tahsildar sent a letter to the Sub-Inspector of Police, to take action against the persons who prevented them from doing government work and also provide Police protection for conducting the survey work on 23.06.2010. It is stated that survey work was carried out on 23.06.2010, with Police protection. When the report was submitted, it came to light the petitioner was allegedly involved in illicit quarrying. Subsequently, the Inter Departmental Survey Team was formed by the Commissioner, who had jurisdiction over the whole of Tamil Nadu, to undertake survey and demarcation of the leasehold boundaries in the whole District by using theodolite survey instrument. It is stated that totally eight quarries were surveyed and demarcated during the said period. Further, it is stated that the proceedings of the Deputy Director, Geology and Mining, Kancheepuram, dated 08.09.2010, was forwarded to the petitioner, based on his request dated 06.10.2010 and 11.12.2010 and in spite of the same, the petitioner appears to have not sent any comprehensive reply to the show cause notice dated 28.09.2010. Therefore, it appears that the copy of the Inspection Report, dated 08.09.2010, has been furnished to the petitioner. Even as per the impugned order, the inspection was conducted in the presence of the lessee/his employee and it is also stated that when an earlier inspection was conducted, the employees/associates of the petitioner prevented survey being conducted.

21. The petitioners contended that no notice was given to them prior to inspection. We fail to understand as to what purpose would be served if notice is issued prior to a surprise inspection, when there has been an allegation that illicit mining is being carried on. The authorities being empowered to enter into the quarry by virtue of the power under Section 24(1) of the Central Act, the petitioners cannot insist that they should be put on prior notice before conducting the surprise inspection as in these cases. Therefore, this is not a case of denial of reasonable opportunity to the petitioners, but it is seen that the petitioner has been given show cause notice and thereafter on his request, the copy of the inspection report was also furnished and even in the impugned order as well as in the counter affidavit, there is a specific averment that the inspection was carried out in the presence of the lessee/employee. Therefore, we do not agree with the contentions raised by the learned counsel for the petitioner that there has been violation of principles of natural justice. Therefore, we find no justification for the petitioners to by-pass the appellate remedy. More so, when the issue involves serious disputed questions of fact which cannot be adjudicated in a writ petition. The allegation against the petitioners is that they exceeded their boundary limit and carried out illicit mining in Government Poromboke land. This aspect is essentially a pure question of fact and this Court cannot, based on affidavits decide whether the petitioners crossed the boundary line and did mining operations beyond the demarcated leasehold area. This is all the more a reason that the petitioner should file an appeal.

22. Similarly in W.P.Nos.1030 & 1113 of 2011, the petitioners have been issued a show cause notice and the petitioner himself has accepted in the writ petition in paragraph 4 that he appeared before the respondent on 11.10.2010 and submitted that he has not violated the Rules. It is further stated that the petitioner has also given a written representation. Therefore, this is also a case where, the petitioner has been afforded with opportunity and he has availed such opportunity and therefore, if he has any grievance on the manner of enquiry conducted by the respondent, he should agitate the same before the Appellate Authority.

23. In W.P.No.1989 of 2011, the petitioner has stated that the show cause notice issued by the respondent was not served as he had shifted his residence. From the counter affidavit, it is seen that the show cause notice sent to the writ petitioner was returned to the office of the respondent on 21.10.2010, where as, the writ petitioner's adjacent quarry lessee had received the show cause notice and the respondent also published the show cause notice by affixure in the quarry site of the writ petitioner. It is further stated that the writ petitioner knows about the show cause notice by contacting the adjacent quarry lessee and he requested for a copy of the order, which was furnished to the writ petitioner. Thus, it is seen that the manner of service of notice could not been faulted and service of notice by affixure in the quarry site shall be deemed to be proper service and thereafter, the petitioner himself has requested the copy of the order. Therefore, the petitioner cannot complain that there was violation of principles of natural justice and it is proper for the petitioner to avail the alternate remedy. Insofar as W.P.No.3806 of 2011, the petitioner has admitted that he has filed an appeal before the Appellate Authority and therefore, he should pursue such appeal and the petitioner cannot pursue parallel remedies and the writ petition is not maintainable.

24. For all the above reasons, we find no grounds to entertain the writ petitions as the petitioners have an efficacious and adequate remedy of appeal as against the impugned orders and they shall avail such remedy, more so, when the issue requires adjudication into disputed questions of fact which cannot be adjudicated in a writ petition.

25. In the result, the writ petitions fail and they are dismissed. The petitioners in W.P.Nos.1015, 1030, 1113 and 1989 of 2011, are directed to file appeal before the Appellate Authority raising all points and if such appeal is filed, the Appellate Authority shall consider the same on merits and in accordance with law, without reference to limitation. In W.P.No.3806 of 2011, since the petitioner has already preferred appeal, he shall pursue his appeal which shall be considered by the Appellate Authority on merits and in accordance with law. No costs. Consequently, connected miscellaneous petitions are closed.