Viswanathan C v. The District Collector Palakkad; The Geologist, District Office, Department of Mining and Geology, Palakkad; The Tahsildar, Chittur Taluk, Palakkad District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY ,THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** **WP(C).No. 7395 of 2019** ## **PETITIONER:** **VISWANATHAN.C AGED 57 YEARS** **S/O CHATHU, RESIDING AT AMBATTUPARAMBU, THATHAMANGALAM.** **BY ADVS. SRI.P.R.VENKETESH SMT.ASHA P.KURIAKOSE SRI.G.KEERTHIVAS** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR PALAKKAD 678 001.** **2 THE GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, TOWN BUS STAND COMPLEX, PALAKKAD-678 014.** **3 THE TAHSILDAR, CHITTUR TALUK, PALAKKAD DISTRICT 678 101** **SRI MANURAJ K.J., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.7395/2019 -2- ## **JUDGMENT** The petitioner, who is stated to be the owner of a property in Thathamangalam Village in Chittur Taluk, covered by assignment deed No.3552/1999 of SRO, Chittur, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 show cause notice dated 16.01.2019 issued by the 2[nd] respondent Geologist and a writ of mandamus commanding the respondents to permit release of brick kiln lying in Re.survey No.143/13 of Thathamangalam Village, belonging to the petitioner, forthwith. 2. Heard learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 3. Ext.P5 notice, which is under challenge in this writ petition is only a show cause notice issued by the 2[nd] respondent Geologist. 4. In **State of U.P v. Brahm Datt Sharma [(1987) 2 SCC 179]** the Apex Court held that, when the show cause notice was issued under a statutory provision calling upon to show W.P.(C)No.7395/2019 -3- cause, the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford an opportunity of hearing and once cause is shown it is open to the authority to consider the matter in the light of the facts and submission placed before it and only thereafter a final decision in the matter could be taken. Therefore, interference by the Court before that would be premature. 5. In **Seimens Ltd v. State of Maharashtra [(2006) 12 SCC 33]** the Apex Court held that ordinarily, a writ court may not exercise its discretionary jurisdiction to entertain a writ petition questioning a notice to show cause unless the notice appears to have been without jurisdiction. 6. In **Union of India v. Vicco Laboratories [(2007) 13 SCC 270]** the Apex Court held that, normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities W.P.(C)No.7395/2019 -4- concerned and satisfy the authorities concerned about the absence of case for proceeding against the person against whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule. However, the said rule is not without exceptions. Where a show cause notice is issued either without jurisdiction or in an abuse of process of law, certainly, in that case, the writ court would not hesitate to interfere even at the stage of issuance of the show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. The mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out. 7. In view of the law laid down in the decisions referred to supra, no interference under Article 226 of the Constitution of India is warranted on a show cause notice issued under a W.P.(C)No.7395/2019 -5- statutory provision unless the notice is shown to have been issued palpably without any authority of law or that it is an abuse of process of law. The mere assertion in the writ petition that the show cause notice has been issued without any authority of law or that it is an abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, no interference of this Court in exercise of the extraordinary jurisdiction under Article 226 of the Constitution is warranted. Having considered the averments and also the grounds raised in this writ petition, this Court finds that the petitioner has not made out a case warranting interference on Ext.P5 show cause notice, in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. 8. On receipt of Ext.P5 show cause notice, the petitioner has submitted Ext.P6 explanation. Therefore, it is for the 2[nd] respondent to consider Ext.P6 explanation and take an appropriate decision in the matter. 9. Learned Government Pleader would submit that the 2[nd] respondent shall consider Ext.P6 explanation offered by the W.P.(C)No.7395/2019 -6- petitioner and take an appropriate decision within a time limit to be specified by this Court. 10. Learned counsel for the petitioner would submit that the petitioner shall appear before the 2[nd] respondent on 20.03.2019, for personal hearing. 11. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of as follows; (i) The challenge made in this writ petition against Ext.P5 show cause notice is repelled, since the petitioner has not made out a case warranting interference on that show cause notice, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. (ii) The petitioner shall appear before the 2[nd] respondent on **20.03.2019** at 11.00 am. (iii) On such appearance, the 2[nd] respondent shall consider Ext.P6 explanation offered by the petitioner to Ext.P5 show cause notice, after affording the petitioner an opportunity of being heard, and take an W.P.(C)No.7395/2019 -7- appropriate decision in the matter. (iv) The decision so taken shall be communicated to the petitioner within a further period of two weeks. Sd/- **ANIL K. NARENDRAN JUDGE** dsn -8- W.P.(C)No.7395/2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PROCEEDINGS NO F3/2016/6706/9/200/R-DIS DATED 1.3.2018 OF THE TAHSILDAR (LAND RECORDS).** **EXHIBIT P2** **TRUE COPY OF RELEVANT CHANGES BROUGHT OUT IN THE REVENUE RECORDS RELATING TO BLOCKS NO.49** - **EXHIBIT P3** **TRUE COPY OF THE FIELD MEASUREMENT BOOK** - **EXHIBIT P4** - **TRUE COPY OF THE REPRESENTATION DATED 29.8.2018 SUBMITTED BY THE PETITIONER BEFORE THE TAHSILDAR** - **EXHIBIT P5** - **TRUE COPY OF NOTICE DATED 16.1.2019 ISSUED TO THE PETITIONER BY THE GEOLOGIST** - **EXHIBIT P6 TRUE COPY OF THE REPLY DATED 11.2.2019 ADDRESSED TO THE GEOLOGIST BY THE PETITIONER** **EXHIBIT P7 TRUE COPY OF THE DOCUMENT NO 3552/1999 OF SRO CHITTUR** **RESPONDENTS' EXTS: NIL**