Full Judgment Text
2021:BHC-AS:18648-DB
wp.7390.10.doc
Ajay/Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7390 OF 2010
P. S.C. Pacific
A Registered Partnership Firm having its
registered office at PSC House,
CTS No. 111 + 112, Anand Colony,
Dr. Ketkar Road, Pune 411 004
Through Partner,
Paranjape Scheme Construction Ltd.
A Registered Company, having its
registered office at PSC House,
CTS No. 111 + 112, Anand Colony,
Dr. Ketkar Road, Pune 411 004
through its Director
Shri. Shrikant Purshottam Paranjape
Address - PSC House,
CTS No. 111 + 112, Anand Colony,
Dr. Ketkar Road, Pune 411 004
.. Petitioner
[[
Versus
1. The State of Maharashtra,
Through its Principal Secretary to thereafter
Ministry of Revenue, Mantralaya,
Mumbai - 400 032.
2. The Divisional Commissioner, Pune
Division, Pune, having office
at Raj Bhavan, Pune.
3. The Collector, Pune, having office
at Pune, Dist. Pune.
4. Sub-Divisional Officer, Mulshi Subdivision,
Dist. Pune, having office at Mulshi.
5. Tahsildar, Taluka - Mulshi, Dist. Pune.
having office at Mulshi.
6. Circle Officer, Mulshi, Taluka Mulshi.
Dist. Pune. .. Respondents
................…
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Mr. Girish S. Godbole a/w. Drupad S. Patil for the Petitioner.
Ms. M.P. Thakur, AGP for the Respondents - State.
...................
CORAM : S.J. KATHAWALLA &
MILIND N. JADHAV, JJ.
RESERVED ON : 23 NOVEMBER, 2021
PRONOUNCED ON : 09 DECEMBER, 2021
JUDGEMENT (PER : S.J. KATHAWALLA & MILIND N. JADHAV, JJ.)
. By the present Writ Petition, the Petitioner has prayed for
the following reliefs:
" (a) That this Hon'ble Court may be pleased to issue
a Writ of Mandamus or any other Writ, Order or
direction in the nature of Mandamus thereby directing
the Tahsildar, Taluka Mulshi Respondent No.5 herein to
forthwith withdraw and / or cancel the impugned order
11/8/2010 issued to the Petitioner in purported
exercise of powers conferred by section 48 of the M.L.R.
Code, 1966 being Exhibit Q to this Writ Petition;
(b) That this Hon'ble Court may be pleased to issue
a Writ of Certiorari or any other Writ, Order or
Direction in the nature of Certiorari thereby quashing
and setting aside the impugned order dated 11/8/2010
issued by the Tahsildar Mulshi, Respondent No.5 herein
to the Petitioner in purported exercise of powers
conferred under Section 48 of the M.L.R.Code, 1966;
being Exhibit Q respectively to this Writ Petition;
(c) That it be held and declared that the Tahasildar,
Taluka Mulshi, Respondent No.5 herein does not have
any authority and jurisdiction to levy and demand
royalty and / or penalty for the material excavated from
the lands of Village Hinjewadi, Taluka Mulshi, District
Pune for the purpose of laying down foundation and /
or plinth and construction of basement when such work
is being undertaken pursuant to the valid Development
Permission issued by the Planning Authority u/s. 18 of
the Maharashtra Regional & Town Planning Act, 1966
and after obtaining permission for NA use u/s. 44 of the
M.L.R. Code, 1966 being permission dated 14/5/2008
which is at Exhibit 'L' to this Writ Petition.
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C(I) This Hon'ble Court may be pleased to issue a
Writ of Certiorari and / or any other Writ, Order or
direction in the nature of Writ of Certiorari thereby
quashing and setting aside the impugned order
purportedly dated 31.1.2011 passed by Circle Officer,
Mulshi being Exh. "T" to this Writ Petition;
C(II) "This Hon'ble Court may be pleased to issue
Writ of Mandamus and / or any other Writ, Order or
direction in the nature of Writ of Mandamus thereby
directing Respondent No. 6 herein, Circle Officer,
Mulshi to forthwith withdraw and / or cancel the
impugned order purportedly dated 31.1.2011 being
Exh. "T" to this Writ Petition."
2. The Petitioner is challenging the show-cause notices dated
14.03.2009 and 23.12.2009 and order dated 11.08.2010 issued by the
Respondent No.5 - Tahsildar, Mulshi, inter alia, calling upon the
Petitioner to pay royalty and penalty of Rs. 1,36,33,194.00 for
excavating minor minerals while laying down foundation of the
building and construction of basement and plinth undertaken by the
Petitioner pursuant to valid development permission issued by the
planning authority. The Petitioner has also challenged the order dated
31.01.2011 passed by the Respondent No. 6 Circle Officer, Mulshi
cancelling Mutation Entry No. 7741 recording the name of the
Petitioner as owner of land which is the subject matter of the present
petition.
3. Briefly stated the facts are as under:
3.1. On 14.05.2008, the Collector, Pune being the planning
authority granted development permission under Section 18 of the
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Maharashtra Regional and Town Planning Act, 1966 (for short "the
said Act") to the Petitioner along with permission for Non-Agricultural
user under Section 44 of the Maharashtra Land Revenue Code, 1966
(for short "the MLR Code, 1966") in respect of lands bearing several
survey numbers totally admeasuring 35750 sq. mtrs. situated at village
Hinjewadi , Taluka Mulshi, District Pune (for short "the said lands").
3.2. On 13.08.2008, the Petitioner submitted an application
before the Tahsildar, Mulshi to seek permission for commencement of
excavation on the said lands in terms of the building permission
granted to the Petitioner. However, the Petitioner received no reply
from the Respondent No.5 - Tahsildar.
3.3. Petitioner commenced development / construction work
on the said lands in accordance with the development permission
granted on the said lands.
3.4. On 14.03.2009, Respondent No.5 - Tahsildar issued a
show-cause notice to the Petitioner stating that the Petitioner had
allegedly excavated minor minerals amounting to 12183 brass without
valid permission. This show-cause notice was based upon panchnama
dated 22.01.2009 prepared by the Circle Officer, Thergaon. The
Petitioner replied to the show-cause notice on 01.04.2009. On
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23.12.2009, Petitioner received a second show-cause notice dated
23.12.2009 for alleged excavation of minor minerals pursuant to
panchanama dated 01.09.2009 prepared by the Circle Officer, Male.
The Petitioner filed reply dated 22.02.2010 to the second show cause
notice. On 11.08.2010, after hearing the Petitioner, Respondent No.5
Tahasildar passed an order directing the Petitioner to pay an amount
of Rs. 1,36,33,194.00 towards royalty, penalty, TDS, education taxes
and rent for alleged excavation of minor minerals amounting to 12183
brass without valid permission.
3.5. On 06.09.2010, the Petitioner filed the present Writ
Petition to challenge the two show-cause notices and order.
3.6. On 31.01.2011, the Respondent No.6, Circle Officer,
Mulshi passed an order directing cancellation of Mutation Entry No.
7741 in the record of rights standing in the name of the Petitioner qua
the said lands.
3.7. On 13.04.2011, this Court admitted the present Petition
and granted ad-interim order in terms of prayer clause 'e' restraining
the Tahsildar from enforcing the impugned notices and order.
3.8. On 03.12.2014, the Apex Court allowed Civil Appeal No.
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10717 of 2014 filed by the Promoters and Builders Association, Pune
against the State of Maharashtra.
3.9. On 11.05.2015, the State Government notified an
amendment to the Maharashtra Minor Mineral Extraction
(Development and Regulation) (Amendment) Rules, 2015 by
introducing a proviso to Rule 46(a)(i), inter alia, providing that no
royalty shall be required to be paid on earth which is extracted while
developing a plot of land and if utilized on the very same plot for land
levelling or any work in the process of development of such plot.
4. Shri. G.S. Godbole, learned counsel appearing for the
Petitioner has submitted that in the present case the Petitioner has
excavated the minor minerals and used the same on the said lands for
development / while developing the said lands; Respondent No.5 -
Tahsildar, Mulshi has not disputed the above stand of the Petitioner in
his Affidavit-in-Reply; thus if the extracted minor minerals are used on
the same plot while developing the said plot, then no royalty is
payable by the Petitioner; hence the impugned show-cause notices /
demand order issued by the Tahsildar are bad in law and deserve to be
set aside. He submitted that the Supreme Court in the case of
1
Promoters and Builders Association of Pune vs. State of Maharashtra
1 (2015) 12 SCC 736
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has held that the purpose of excavation of minor minerals is required
to be looked into by the authority and if the excavation is merely for
construction / formation of plinth, it cannot be termed as mining
activity and the developer cannot be forced to pay royalty for the
same. He submitted that the Government of Maharashtra vide
notification dated 11.05.2015 amended the Minor Mineral Extraction
(Development and Regulation) Rules, 2013 and as per the amended
Rule No.46 royalty is not payable for excavation of earth while
developing a plot of land if the said earth is utilized on the very same
plot for land levelling or any work in the process of development of
such plot. He submitted that even though the impugned show-cause
notices were issued prior to the enactment of the above amended
Rule, by order dated 13.04.2011 this Court had stayed the impugned
action.
4.1. Shri. Godbole submitted that the impugned action of
levying royalty and penalty on the Petitioner for excavation of minor
minerals for the purpose of laying down the foundation / plinth and
construction of basement is clearly illegal in as much as the said
activity of construction was carried out pursuant to grant of valid
building permission under the provisions of the said Act by the
planning authority.
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4.2. Shri. Godbole further submitted that the applicability of
the provisions of Section 48(7) of the MLR Code, 1966 is in respect of
lands vested in the Government which are used for the purpose of
mining operations, similarly placed allied operations; excavation of
digging up of land for the purpose of laying down foundation of a
building and/or construction of plinth or basement cannot be
considered as mining activity if the said excavated material is used on
the same plot for levelling and development and consequently no
royalty is payable. Shri. Godbole submitted that Section 48 of the
MLR Code, 1966 deals with lands, the title of which is vested in the
Government and cannot apply to privately owned lands which are
developed under valid development permission granted by the
planning authority under the provisions of the said Act; the words
"......or such other place wherever situate......" as appearing in sub-
section 7 of Section 48 of the MLR Code, 1966 will have to be read
"ejusdem generis" with the words "Mines, quarries" etc.; the provisions
of Section 48 apply only in the case of excavation or disposal of any
minerals from such mines, quarries and not to excavation on the
surface of the land in the case of development / construction;
provisions of sub-section 2 of Section 48 clearly reflect the intention of
the legislature that the words "right to all mines and quarries" is
related to the principal activity of mining and quarrying; excavation of
land temporarily for the purpose of laying down foundation and
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development cannot amount to excavation of minor minerals
especially if the same are used on the same plot as in the present case
and there is no material evidence to show that there is any
transportation of minor minerals after excavation from the said lands
so as to pay the requisite royalty and penalty under the said Rules. He
submitted that after the Petition was filed, solely relying on the order
dated 11.08.2010, the Respondent No.6, Circle Officer, Mulshi by
order dated 31.01.2011 cancelled the Mutation Entry No. 7741
recording the name of the Petitioner as owner of the said lands; such
action of the Respondent No.6 being patently illegal and deserves to
be set aside.
5. Ms. M.P. Thakur, learned AGP appearing for the
Respondent(s) - State has referred to the affidavit-in-reply dated
04.09.2021 filed by Shri. Abhay Shivajirao Chavan, Tahsildar, Taluka
Mulshi, District Pune and contended that the Petitioner has illegally
excavated sand and murum to the extent of 12183 brass without prior
permission as can be seen from the panchnamas carried out by the
Circle Officers of Thergaon and Male on 27.01.2009 and 01.09.2009;
in view thereof, action under the provisions of sub-section 7 of Section
48 of the MLR Code, 1966 has been initiated.
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5.1. Advocate Ms. Thakur submitted that in the present case
the Petitioner has been heard by the appropriate authority and a
speaking order has been passed which is appellable under the MLR
Code, 1966; the Petitioner ought to exhaust the appellate remedy
available under the statute rather than press the present Petition under
Article 226 of the Constitution of India.
5.2. Advocate Ms. Thakur has referred to the judgment of the
Apex Court in the case of United Bank of India Vs. Satyawati Tondon
2
and Others and contended that the Petitioner can be directed to
exhaust the alternate remedy of going before the appellate authority.
She has also attempted to distinguish paragraph No.16 of the
judgment in the case of Promoters and Builders Association of Pune
(supra) passed by the Apex Court along with the provisions of sub-
section 7 of Section 48 of the MLR Code, 1966 and submitted that the
action initiated by the Respondent No.5 - Tahsildar under the said
provisions was correct in law. She has therefore prayed for dismissal
of the present Writ Petition.
6. We have perused the Writ Petition as well as the affidavit-
in-reply filed on behalf of the Respondent - State, considered the
submissions made by the learned Advocates for the parties and the
2 (2010) 8 SCC 110
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case law relied upon by them.
7. Admittedly in the present case, the Petitioner has been
granted a composite permission dated 14.05.2008 by the Collector,
Pune acting as Planning Authority under Section 18 of the said Act
whereby the Petitioner has been granted development permission and
permission for non-agricultural user under the provisions of Section 44
of the MLR Code, 1966. There is no dispute in respect of this
permission. Further in paragraph 3(a), the Petitioner has made the
following averments:-
" (a) 14/5/2008 - The Collector, Pune who acts as
Planning Authority under 18 of MR & TP Act,
1966 granted a Development Permission to the
Petitioner under section 18 of the MR & TP Act,
1966. Said permission is composite permission
also granting permission for N.A. User under
section 44 of Maharashtra Land Revenue Code
1966 in respect of an area admeasuring 35750
Sq mtrs. Hereto annexed and marked Exhibit 'L'
is a copy of the said Order dated 14/5/2008.
According to the said Development Permission
the Petitioner has undertaken the work of
Construction. For the purpose of the laying
down foundation and / or plinth and for the
purpose of construction of basement, the
Respondent was required to excavate the plinth
areas in the plot. Said work of excavation of
plinth areas is done by using machineries /
equipment without using any explosives or
special mining machines upto the requisite
depth, the foundation is laid by using steel and
RCC and thereafter the excavated material
remains, the said is used within the same plot or
for the purpose of landscaping and / or land
filling activity."
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7.1. In paragraph 5(a) of the Petition, the Petitioner has stated
thus:-
"5(a) The Petitioner states that Petitioner has been
carrying on construction activities of laying
down foundation and / or plinth and
construction of basement after obtaining the
requisite permission for non-agricultural use as
contemplated by Section 44 of the M.L.R. Code,
1966 and Building / Development Permission
u/s 18 of the Maharashtra Regional & Town
Planning Act, 1966. The Petitioner states that
pursuant to such valid Development Permission
and for construction of Roads for the purpose of
implementation of the sanctioned layout,
Petitioner is required to excavate the surface of
the land to some extent. The said activity does
not involve any activity of mining and does not
amount to "winning" or "mining" the minor
minerals. The Petitioner has never sold the said
excavated material. In any case, the activity of
excavation of surface of land for the purpose of
landscaping, levelling, laying down foundation
and / or plinth and construction of basement,
which amounts to the activity of Development of
land pursuant to a valid permission can never be
construed to be a mining activity nor can be
construed as excavation of minor minerals u/s
48 of the M.L.R. Code, 1966 or Mines and
Minerals Act, 1957 or Rules framed under the
M.L.R. Code, 1966."
7.2. The case of the Petitioner in the aforesaid paragraphs of
the Writ Petition has not been controverted in the affidavit-in-reply
filed by the Tahsildar. It is also not the case of the Respondents that
the Petitioner is guilty of transportation of the excavated earth / minor
minerals and as such is therefore liable to pay royalty and penalty
under the provisions of sub-section (7) of Section 48 of the MLR Code,
1966 or Rules framed thereunder read with the Mines and Minerals
Act, 1957. The order dated 11.08.2010 does not refer to or gives any
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finding based on evidence that the Petitioner has transported the
excavated minor minerals from the site.
8. We may usefully quote the findings of the Supreme Court
in the case of Promoters and Builders Association of Pune (supra)
which squarely cover the facts of the present case. Paragraphs 12 to
15 of the said judgment are relevant and read thus:-
"12. It is not in dispute that in the present appeals
excavation of ordinary earth had been undertaken by
the appellants either for laying foundation of buildings
or for the purpose of widening of the channel to bring
adequate quantity of sea water for the purpose of
cooling the nuclear plant. The construction of buildings
is in terms of a sanctioned development plan under the
MRTP Act whereas the excavation/widening of the
channel to bring sea water is in furtherance of the
object of the grant of the land in favour of the Nuclear
Power Corporation. The appellant-builders contend that
there is no commercial exploitation of the dug up earth
inasmuch as the same is redeployed in the construction
activity itself. In the case of the Nuclear Power
Corporation it is the specific case of the Corporation
that extract of earth is a consequence of the use of the
land for the purposes of the grant thereof and that there
is no commercial exploitation of the excavated earth
inasmuch as "the soil being excavated for "Intake
Channel" was not sent outside or sold to anybody for
commercial gain".
13. None of the provisions contained in the MRTP
Act referred to above or the provisions of Rule 6 of the
Rules of 1968 would have a material bearing in judging
the validity of the impugned actions inasmuch as none
of the said provisions can obviate the necessity of a
mining license/permission under the Act of 1957 if the
same is required to regulate the activities undertaken in
the present case by the appellants. It will, therefore, not
be necessary to delve into the arguments raised on the
aforesaid score. Suffice it would be to say that unless
the excavation undertaken by the appellant-builders is
for any of the purposes contemplated by the
Notification dated 3.2.2000 the liability of such builders
to penalty under Section 48(7) of the Code would be in
serious doubt.
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14. Though Section 2(j) of the Mines Act, 1952
which defines 'mine' and the expression "mining
operations" appearing in Section 3(d) of the Act of 1957
may contemplate a somewhat elaborate process of
extraction of a mineral, in view of the Notification
dated 3.2.2000, insofar as ordinary earth is concerned,
a simple process of excavation may also amount to a
mining operation in any given situation. However, as
seen, the operation of the said Notification has an
inbuilt restriction. It is ordinary earth used only for the
purposes enumerated therein, namely, filling or
levelling purposes in construction of embankment,
roads, railways and buildings which alone is a minor
mineral. Excavation of ordinary earth for uses not
contemplated in the aforesaid Notification, therefore,
would not amount to a mining activity so as to attract
the wrath of the provisions of either the Code or the Act
of 1957.
15. As use can only follow extraction or excavation
it is the purpose of the excavation that has to be seen.
The liability under Section 48(7) for excavation of
ordinary earth would, therefore, truly depend on a
determination of the use/purpose for which the
excavated earth had been put to. An excavation
undertaken to lay the foundation of a building would
not, ordinarily, carry the intention to use the excavated
earth for the purpose of filling up or levelling. A blanket
determination of liability merely because ordinary earth
was dug up, therefore, would not be justified; what
would be required is a more precise determination of
the end use of the excavated earth; a finding on the
correctness of the stand of the builders that the
extracted earth was not used commercially but was
redeployed in the building operations. If the
determination was to return a finding in favour of the
claim made by the builders, obviously, the Notification
dated 3.2.2000 would have no application; the
excavated earth would not be a specie of minor mineral
under Section 3(e) of the Act of 1957 read with the
Notification dated 3.2.2000."
8.1. In the present case, it is clearly not in dispute that the
Petitioner has undertaken excavation of the earth on the said lands for
laying foundation of the buildings i.e. for development and
construction. The construction of buildings is in terms of the
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sanctioned development permission dated 14.05.2008 under the
provisions of Section 18 of the said Act read with permission for non-
agricultural user under the provisions of Section 44 of the MLR Code,
1966. The Respondents have also not alleged that there is commercial
exploitation of the excavated earth / minor minerals i.e. the earth
being excavated was sent outside or sold to anybody or transported by
the Petitioner. As held by the Supreme Court, the purpose of
excavation therefore needs to be considered. Any liability under the
provisions of Section 48(7) of the MLR Code, 1966 for excavation of
ordinary earth would truly depend on determination of the use /
purpose for which the excavated earth has been put to. An excavation
undertaken to lay the foundation of a building would therefore
ordinarily carry the intention to use the excavated earth / material for
the purpose of filling up or levelling as has been done in the present
case.
8.2. As observed by us, in the present case the excavated
material has been used by the Petitioner for the purposes of filling up
and levelling; digging of the earth is inbuilt in the course of building
operations; the activity so undertaken, therefore, cannot be
characterized as one of excavation of minor minerals as contemplated
under the Mines and Minerals (Development and Regulation) Act,
1957. We have considered and followed the decision pronounced by
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the Supreme Court in the case of Promoters and Builders Association
of Pune (supra) which has held that mere extraction of earth does not
invite the levy of royalty. In the said case, Promoters and Builders
Association of Pune had urged that the earth which is dug up for the
purposes of laying of foundation of buildings is intended for filling up
or levelling purposes as digging of the earth is inbuilt in the course of
building operations, the said activity cannot be characterized as one of
excavation of minor minerals and more particularly there was no
commercial exploitation of the excavated earth involved; neither there
was any sale or transfer of the excavated earth and the same was
incidental to the purpose of development / construction under a valid
development permission. The Supreme Court after analyzing the
provisions contained in Section 48(7) of the MLR Code, 1966 in
unequivocal terms held that the 'ordinary earth' used for filling or
levelling purposes in construction of embankments, roads, railways,
buildings though is a minor mineral, the liability under Section 48(7)
for excavation of ordinary earth would truly depend on a
determination of the use / purpose for which the excavated earth had
been put to. A blanket determination of liability merely because
ordinary earth was dug up, therefore, would not be justified; what
would be required is a more precise determination of the end use of
the excavated earth; a finding on the correctness would be required on
the stand of the builders that the extracted earth was not used
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commercially but was indeed redeployed in the building operations on
the same plot.
8.3. We may also state that the aforesaid decision of the
Supreme Court has been followed by a coordinate Bench of this Court
in the case of BGR Energy System Ltd, Khaparkheda Vs. Tahsildar,
3
Saoner wherein the Petitioner had challenged the order of the
Tahsildar directing the Petitioner to pay royalty and penalty for illegal
excavation of earth while executing the work of construction of a
thermal power project at Khaparkheda. This Court after following the
decision in the case of Promoters and Builders Association of Pune
(supra), quashed and set aside the order of the Tahsildar holding, inter
alia, that use of the excavated earth to fill up the dug pits and any
construction of the project did not fall within the ambit of the
Notification dated 03.02.2000 and thus, the Tahsildar could not have
passed the order under Section 48(7) of the MLR Code, 1966. It is,
therefore, evident that the Supreme Court had enunciated in clear and
unambiguous terms that excavation of ordinary earth for construction
of building purposes / development would not attract levy of royalty
and penalty under the provisions of Section 48(7) of the MLR Code,
1966, especially when the excavated earth has been used for levelling
and development on the same plot.
3 2018(1) Mh.L.J. 332
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9. Respondent(s) have failed to place on record any
panchnama / evidence in order to justify the charge / claim made in
the notices dated 14.03.2009 and 23.12.2009 which state that the
Petitioner has unauthorizedly removed 12183 brass of earth, exploited
it commercially and transported the same. In the written submissions
filed on behalf of the State, the learned AGP in paragraph No.6 has
stated that the impugned notice dated 14.03.2009 clearly specified
that the Petitioner has not only excavated but also illegally transported
the excavated material which meant that the excavated soil / murum
was not utilized by the Petitioner to lay down the foundation of the
building. Therefore, according to the learned AGP, the ratio of the
Apex Court judgment in the case of Promoters and Builders
Association of Pune (supra) was not applicable to the Petitioner's case.
10. We have carefully perused the pleadings and annexures
placed before us by the parties. We do not find any evidence
pertaining to the Petitioner illegally transporting the excavated minor
minerals / materials from the construction site. Though it is alleged
that the Petitioner has excavated 12183 brass of minor minerals,
positive evidence is required to be placed on record to show that the
Petitioner has illegally transported the said minor minerals. The two
panchnamas dated 22.01.2009 and 01.09.2009 prepared by the Circle
Officer, Thergaon and the Circle Officer, Male have not been produced
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before us. There is no material evidence on record to show that the
Petitioner has transported or removed any earth / minor minerals
from the construction site. The Authorities, it appears have proceeded
on the premise that the very excavation of ordinary earth by the
Petitioner was subject to levy of royalty de-hors the use for which it
was put to. In view of the judgment of the Supreme Court in the case
of Promoters and Builders Association Pune (supra) we are not
inclined to accept the submissions made on behalf of the
Respondent(s).
11. In so far as the grievance of the Petitioner in respect of
challenge to the impugned order dated 31.01.2011 is concerned,
though it may be stated that the Petitioner has alternate efficacious
remedy to challenge the said order passed by the Circle Officer, Mulshi
before the Appellate Authority under the MLR Code, 1966, according
to us no purpose shall be served to relegate the Petitioner to the
Appellate Authority in the facts and circumstances of the present case.
We have perused the order dated 31.01.2011 which is annexed at
Exhibit "T" to the Writ Petition. The said order has been passed solely
relying on the order dated 11.08.2010 passed by the Respondent No. 5
Tahsildar, Mulshi, inter alia, levying royalty, penalty and other charges
against the Petitioner despite the fact that the present petition was
pending on the date of passing of the said order. Though it is seen
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that ad-interim order was granted in the petition on 13.04.2011, the
act of cancellation of mutation entry by order dated 31.01.2011
recording the name of the Petitioner as owner of the said lands by
solely relying on the impunged order dated 11.08.2010 is not justified.
12. In view of the above discussion and findings, the
impugned show-cause notices dated 14.03.2009 and dated 23.12.2009
and the impugned order dated 11.08.2010 need to be interfered with
and deserve to be quashed and set aside. Since the order dated
11.08.2010 deserves to be quashed and set aside, the subsequent
order dated 31.01.2011 passed by the Respondent No.6 Circle Officer,
Mulshi solely relying upon the order dated 11.08.2010 also needs to
be interfered with and is required to be quashed and set aside.
Therefore, the Petition deserves to be allowed.
13. In view of the above, we pass the following order:
(i) The impugned show-cause notices dated
14.03.2009 and 23.12.2009 and order dated
11.08.2010 (being Exhibit Nos. "M", "O" and "Q" to
the Petition) issued / passed by the Respondent
No.5 Tahsildar, Taluka Mulshi, District Pune are
hereby quashed and set aside;
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(ii) The order dated 31.01.2011 (Exhibit "T" to the
Petition) passed by Respondent No.6 Circle Officer,
Mulshi is also quashed and set aside. The Mutation
Entry No. 7741 is directed to be restored in the
Record of Rights within a period of 4 weeks from
the date of this order being uploaded;
(iii) However, there shall be no order as to costs.
14. The above Writ Petition stands allowed in the above
terms.
[ MILIND N. JADHAV, J. ] [ S.J. KATHAWALLA, J. ]
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Ajay/Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7390 OF 2010
P. S.C. Pacific
A Registered Partnership Firm having its
registered office at PSC House,
CTS No. 111 + 112, Anand Colony,
Dr. Ketkar Road, Pune 411 004
Through Partner,
Paranjape Scheme Construction Ltd.
A Registered Company, having its
registered office at PSC House,
CTS No. 111 + 112, Anand Colony,
Dr. Ketkar Road, Pune 411 004
through its Director
Shri. Shrikant Purshottam Paranjape
Address - PSC House,
CTS No. 111 + 112, Anand Colony,
Dr. Ketkar Road, Pune 411 004
.. Petitioner
[[
Versus
1. The State of Maharashtra,
Through its Principal Secretary to thereafter
Ministry of Revenue, Mantralaya,
Mumbai - 400 032.
2. The Divisional Commissioner, Pune
Division, Pune, having office
at Raj Bhavan, Pune.
3. The Collector, Pune, having office
at Pune, Dist. Pune.
4. Sub-Divisional Officer, Mulshi Subdivision,
Dist. Pune, having office at Mulshi.
5. Tahsildar, Taluka - Mulshi, Dist. Pune.
having office at Mulshi.
6. Circle Officer, Mulshi, Taluka Mulshi.
Dist. Pune. .. Respondents
................…
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Mr. Girish S. Godbole a/w. Drupad S. Patil for the Petitioner.
Ms. M.P. Thakur, AGP for the Respondents - State.
...................
CORAM : S.J. KATHAWALLA &
MILIND N. JADHAV, JJ.
RESERVED ON : 23 NOVEMBER, 2021
PRONOUNCED ON : 09 DECEMBER, 2021
JUDGEMENT (PER : S.J. KATHAWALLA & MILIND N. JADHAV, JJ.)
. By the present Writ Petition, the Petitioner has prayed for
the following reliefs:
" (a) That this Hon'ble Court may be pleased to issue
a Writ of Mandamus or any other Writ, Order or
direction in the nature of Mandamus thereby directing
the Tahsildar, Taluka Mulshi Respondent No.5 herein to
forthwith withdraw and / or cancel the impugned order
11/8/2010 issued to the Petitioner in purported
exercise of powers conferred by section 48 of the M.L.R.
Code, 1966 being Exhibit Q to this Writ Petition;
(b) That this Hon'ble Court may be pleased to issue
a Writ of Certiorari or any other Writ, Order or
Direction in the nature of Certiorari thereby quashing
and setting aside the impugned order dated 11/8/2010
issued by the Tahsildar Mulshi, Respondent No.5 herein
to the Petitioner in purported exercise of powers
conferred under Section 48 of the M.L.R.Code, 1966;
being Exhibit Q respectively to this Writ Petition;
(c) That it be held and declared that the Tahasildar,
Taluka Mulshi, Respondent No.5 herein does not have
any authority and jurisdiction to levy and demand
royalty and / or penalty for the material excavated from
the lands of Village Hinjewadi, Taluka Mulshi, District
Pune for the purpose of laying down foundation and /
or plinth and construction of basement when such work
is being undertaken pursuant to the valid Development
Permission issued by the Planning Authority u/s. 18 of
the Maharashtra Regional & Town Planning Act, 1966
and after obtaining permission for NA use u/s. 44 of the
M.L.R. Code, 1966 being permission dated 14/5/2008
which is at Exhibit 'L' to this Writ Petition.
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C(I) This Hon'ble Court may be pleased to issue a
Writ of Certiorari and / or any other Writ, Order or
direction in the nature of Writ of Certiorari thereby
quashing and setting aside the impugned order
purportedly dated 31.1.2011 passed by Circle Officer,
Mulshi being Exh. "T" to this Writ Petition;
C(II) "This Hon'ble Court may be pleased to issue
Writ of Mandamus and / or any other Writ, Order or
direction in the nature of Writ of Mandamus thereby
directing Respondent No. 6 herein, Circle Officer,
Mulshi to forthwith withdraw and / or cancel the
impugned order purportedly dated 31.1.2011 being
Exh. "T" to this Writ Petition."
2. The Petitioner is challenging the show-cause notices dated
14.03.2009 and 23.12.2009 and order dated 11.08.2010 issued by the
Respondent No.5 - Tahsildar, Mulshi, inter alia, calling upon the
Petitioner to pay royalty and penalty of Rs. 1,36,33,194.00 for
excavating minor minerals while laying down foundation of the
building and construction of basement and plinth undertaken by the
Petitioner pursuant to valid development permission issued by the
planning authority. The Petitioner has also challenged the order dated
31.01.2011 passed by the Respondent No. 6 Circle Officer, Mulshi
cancelling Mutation Entry No. 7741 recording the name of the
Petitioner as owner of land which is the subject matter of the present
petition.
3. Briefly stated the facts are as under:
3.1. On 14.05.2008, the Collector, Pune being the planning
authority granted development permission under Section 18 of the
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Maharashtra Regional and Town Planning Act, 1966 (for short "the
said Act") to the Petitioner along with permission for Non-Agricultural
user under Section 44 of the Maharashtra Land Revenue Code, 1966
(for short "the MLR Code, 1966") in respect of lands bearing several
survey numbers totally admeasuring 35750 sq. mtrs. situated at village
Hinjewadi , Taluka Mulshi, District Pune (for short "the said lands").
3.2. On 13.08.2008, the Petitioner submitted an application
before the Tahsildar, Mulshi to seek permission for commencement of
excavation on the said lands in terms of the building permission
granted to the Petitioner. However, the Petitioner received no reply
from the Respondent No.5 - Tahsildar.
3.3. Petitioner commenced development / construction work
on the said lands in accordance with the development permission
granted on the said lands.
3.4. On 14.03.2009, Respondent No.5 - Tahsildar issued a
show-cause notice to the Petitioner stating that the Petitioner had
allegedly excavated minor minerals amounting to 12183 brass without
valid permission. This show-cause notice was based upon panchnama
dated 22.01.2009 prepared by the Circle Officer, Thergaon. The
Petitioner replied to the show-cause notice on 01.04.2009. On
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23.12.2009, Petitioner received a second show-cause notice dated
23.12.2009 for alleged excavation of minor minerals pursuant to
panchanama dated 01.09.2009 prepared by the Circle Officer, Male.
The Petitioner filed reply dated 22.02.2010 to the second show cause
notice. On 11.08.2010, after hearing the Petitioner, Respondent No.5
Tahasildar passed an order directing the Petitioner to pay an amount
of Rs. 1,36,33,194.00 towards royalty, penalty, TDS, education taxes
and rent for alleged excavation of minor minerals amounting to 12183
brass without valid permission.
3.5. On 06.09.2010, the Petitioner filed the present Writ
Petition to challenge the two show-cause notices and order.
3.6. On 31.01.2011, the Respondent No.6, Circle Officer,
Mulshi passed an order directing cancellation of Mutation Entry No.
7741 in the record of rights standing in the name of the Petitioner qua
the said lands.
3.7. On 13.04.2011, this Court admitted the present Petition
and granted ad-interim order in terms of prayer clause 'e' restraining
the Tahsildar from enforcing the impugned notices and order.
3.8. On 03.12.2014, the Apex Court allowed Civil Appeal No.
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10717 of 2014 filed by the Promoters and Builders Association, Pune
against the State of Maharashtra.
3.9. On 11.05.2015, the State Government notified an
amendment to the Maharashtra Minor Mineral Extraction
(Development and Regulation) (Amendment) Rules, 2015 by
introducing a proviso to Rule 46(a)(i), inter alia, providing that no
royalty shall be required to be paid on earth which is extracted while
developing a plot of land and if utilized on the very same plot for land
levelling or any work in the process of development of such plot.
4. Shri. G.S. Godbole, learned counsel appearing for the
Petitioner has submitted that in the present case the Petitioner has
excavated the minor minerals and used the same on the said lands for
development / while developing the said lands; Respondent No.5 -
Tahsildar, Mulshi has not disputed the above stand of the Petitioner in
his Affidavit-in-Reply; thus if the extracted minor minerals are used on
the same plot while developing the said plot, then no royalty is
payable by the Petitioner; hence the impugned show-cause notices /
demand order issued by the Tahsildar are bad in law and deserve to be
set aside. He submitted that the Supreme Court in the case of
1
Promoters and Builders Association of Pune vs. State of Maharashtra
1 (2015) 12 SCC 736
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has held that the purpose of excavation of minor minerals is required
to be looked into by the authority and if the excavation is merely for
construction / formation of plinth, it cannot be termed as mining
activity and the developer cannot be forced to pay royalty for the
same. He submitted that the Government of Maharashtra vide
notification dated 11.05.2015 amended the Minor Mineral Extraction
(Development and Regulation) Rules, 2013 and as per the amended
Rule No.46 royalty is not payable for excavation of earth while
developing a plot of land if the said earth is utilized on the very same
plot for land levelling or any work in the process of development of
such plot. He submitted that even though the impugned show-cause
notices were issued prior to the enactment of the above amended
Rule, by order dated 13.04.2011 this Court had stayed the impugned
action.
4.1. Shri. Godbole submitted that the impugned action of
levying royalty and penalty on the Petitioner for excavation of minor
minerals for the purpose of laying down the foundation / plinth and
construction of basement is clearly illegal in as much as the said
activity of construction was carried out pursuant to grant of valid
building permission under the provisions of the said Act by the
planning authority.
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4.2. Shri. Godbole further submitted that the applicability of
the provisions of Section 48(7) of the MLR Code, 1966 is in respect of
lands vested in the Government which are used for the purpose of
mining operations, similarly placed allied operations; excavation of
digging up of land for the purpose of laying down foundation of a
building and/or construction of plinth or basement cannot be
considered as mining activity if the said excavated material is used on
the same plot for levelling and development and consequently no
royalty is payable. Shri. Godbole submitted that Section 48 of the
MLR Code, 1966 deals with lands, the title of which is vested in the
Government and cannot apply to privately owned lands which are
developed under valid development permission granted by the
planning authority under the provisions of the said Act; the words
"......or such other place wherever situate......" as appearing in sub-
section 7 of Section 48 of the MLR Code, 1966 will have to be read
"ejusdem generis" with the words "Mines, quarries" etc.; the provisions
of Section 48 apply only in the case of excavation or disposal of any
minerals from such mines, quarries and not to excavation on the
surface of the land in the case of development / construction;
provisions of sub-section 2 of Section 48 clearly reflect the intention of
the legislature that the words "right to all mines and quarries" is
related to the principal activity of mining and quarrying; excavation of
land temporarily for the purpose of laying down foundation and
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development cannot amount to excavation of minor minerals
especially if the same are used on the same plot as in the present case
and there is no material evidence to show that there is any
transportation of minor minerals after excavation from the said lands
so as to pay the requisite royalty and penalty under the said Rules. He
submitted that after the Petition was filed, solely relying on the order
dated 11.08.2010, the Respondent No.6, Circle Officer, Mulshi by
order dated 31.01.2011 cancelled the Mutation Entry No. 7741
recording the name of the Petitioner as owner of the said lands; such
action of the Respondent No.6 being patently illegal and deserves to
be set aside.
5. Ms. M.P. Thakur, learned AGP appearing for the
Respondent(s) - State has referred to the affidavit-in-reply dated
04.09.2021 filed by Shri. Abhay Shivajirao Chavan, Tahsildar, Taluka
Mulshi, District Pune and contended that the Petitioner has illegally
excavated sand and murum to the extent of 12183 brass without prior
permission as can be seen from the panchnamas carried out by the
Circle Officers of Thergaon and Male on 27.01.2009 and 01.09.2009;
in view thereof, action under the provisions of sub-section 7 of Section
48 of the MLR Code, 1966 has been initiated.
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5.1. Advocate Ms. Thakur submitted that in the present case
the Petitioner has been heard by the appropriate authority and a
speaking order has been passed which is appellable under the MLR
Code, 1966; the Petitioner ought to exhaust the appellate remedy
available under the statute rather than press the present Petition under
Article 226 of the Constitution of India.
5.2. Advocate Ms. Thakur has referred to the judgment of the
Apex Court in the case of United Bank of India Vs. Satyawati Tondon
2
and Others and contended that the Petitioner can be directed to
exhaust the alternate remedy of going before the appellate authority.
She has also attempted to distinguish paragraph No.16 of the
judgment in the case of Promoters and Builders Association of Pune
(supra) passed by the Apex Court along with the provisions of sub-
section 7 of Section 48 of the MLR Code, 1966 and submitted that the
action initiated by the Respondent No.5 - Tahsildar under the said
provisions was correct in law. She has therefore prayed for dismissal
of the present Writ Petition.
6. We have perused the Writ Petition as well as the affidavit-
in-reply filed on behalf of the Respondent - State, considered the
submissions made by the learned Advocates for the parties and the
2 (2010) 8 SCC 110
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case law relied upon by them.
7. Admittedly in the present case, the Petitioner has been
granted a composite permission dated 14.05.2008 by the Collector,
Pune acting as Planning Authority under Section 18 of the said Act
whereby the Petitioner has been granted development permission and
permission for non-agricultural user under the provisions of Section 44
of the MLR Code, 1966. There is no dispute in respect of this
permission. Further in paragraph 3(a), the Petitioner has made the
following averments:-
" (a) 14/5/2008 - The Collector, Pune who acts as
Planning Authority under 18 of MR & TP Act,
1966 granted a Development Permission to the
Petitioner under section 18 of the MR & TP Act,
1966. Said permission is composite permission
also granting permission for N.A. User under
section 44 of Maharashtra Land Revenue Code
1966 in respect of an area admeasuring 35750
Sq mtrs. Hereto annexed and marked Exhibit 'L'
is a copy of the said Order dated 14/5/2008.
According to the said Development Permission
the Petitioner has undertaken the work of
Construction. For the purpose of the laying
down foundation and / or plinth and for the
purpose of construction of basement, the
Respondent was required to excavate the plinth
areas in the plot. Said work of excavation of
plinth areas is done by using machineries /
equipment without using any explosives or
special mining machines upto the requisite
depth, the foundation is laid by using steel and
RCC and thereafter the excavated material
remains, the said is used within the same plot or
for the purpose of landscaping and / or land
filling activity."
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7.1. In paragraph 5(a) of the Petition, the Petitioner has stated
thus:-
"5(a) The Petitioner states that Petitioner has been
carrying on construction activities of laying
down foundation and / or plinth and
construction of basement after obtaining the
requisite permission for non-agricultural use as
contemplated by Section 44 of the M.L.R. Code,
1966 and Building / Development Permission
u/s 18 of the Maharashtra Regional & Town
Planning Act, 1966. The Petitioner states that
pursuant to such valid Development Permission
and for construction of Roads for the purpose of
implementation of the sanctioned layout,
Petitioner is required to excavate the surface of
the land to some extent. The said activity does
not involve any activity of mining and does not
amount to "winning" or "mining" the minor
minerals. The Petitioner has never sold the said
excavated material. In any case, the activity of
excavation of surface of land for the purpose of
landscaping, levelling, laying down foundation
and / or plinth and construction of basement,
which amounts to the activity of Development of
land pursuant to a valid permission can never be
construed to be a mining activity nor can be
construed as excavation of minor minerals u/s
48 of the M.L.R. Code, 1966 or Mines and
Minerals Act, 1957 or Rules framed under the
M.L.R. Code, 1966."
7.2. The case of the Petitioner in the aforesaid paragraphs of
the Writ Petition has not been controverted in the affidavit-in-reply
filed by the Tahsildar. It is also not the case of the Respondents that
the Petitioner is guilty of transportation of the excavated earth / minor
minerals and as such is therefore liable to pay royalty and penalty
under the provisions of sub-section (7) of Section 48 of the MLR Code,
1966 or Rules framed thereunder read with the Mines and Minerals
Act, 1957. The order dated 11.08.2010 does not refer to or gives any
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finding based on evidence that the Petitioner has transported the
excavated minor minerals from the site.
8. We may usefully quote the findings of the Supreme Court
in the case of Promoters and Builders Association of Pune (supra)
which squarely cover the facts of the present case. Paragraphs 12 to
15 of the said judgment are relevant and read thus:-
"12. It is not in dispute that in the present appeals
excavation of ordinary earth had been undertaken by
the appellants either for laying foundation of buildings
or for the purpose of widening of the channel to bring
adequate quantity of sea water for the purpose of
cooling the nuclear plant. The construction of buildings
is in terms of a sanctioned development plan under the
MRTP Act whereas the excavation/widening of the
channel to bring sea water is in furtherance of the
object of the grant of the land in favour of the Nuclear
Power Corporation. The appellant-builders contend that
there is no commercial exploitation of the dug up earth
inasmuch as the same is redeployed in the construction
activity itself. In the case of the Nuclear Power
Corporation it is the specific case of the Corporation
that extract of earth is a consequence of the use of the
land for the purposes of the grant thereof and that there
is no commercial exploitation of the excavated earth
inasmuch as "the soil being excavated for "Intake
Channel" was not sent outside or sold to anybody for
commercial gain".
13. None of the provisions contained in the MRTP
Act referred to above or the provisions of Rule 6 of the
Rules of 1968 would have a material bearing in judging
the validity of the impugned actions inasmuch as none
of the said provisions can obviate the necessity of a
mining license/permission under the Act of 1957 if the
same is required to regulate the activities undertaken in
the present case by the appellants. It will, therefore, not
be necessary to delve into the arguments raised on the
aforesaid score. Suffice it would be to say that unless
the excavation undertaken by the appellant-builders is
for any of the purposes contemplated by the
Notification dated 3.2.2000 the liability of such builders
to penalty under Section 48(7) of the Code would be in
serious doubt.
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14. Though Section 2(j) of the Mines Act, 1952
which defines 'mine' and the expression "mining
operations" appearing in Section 3(d) of the Act of 1957
may contemplate a somewhat elaborate process of
extraction of a mineral, in view of the Notification
dated 3.2.2000, insofar as ordinary earth is concerned,
a simple process of excavation may also amount to a
mining operation in any given situation. However, as
seen, the operation of the said Notification has an
inbuilt restriction. It is ordinary earth used only for the
purposes enumerated therein, namely, filling or
levelling purposes in construction of embankment,
roads, railways and buildings which alone is a minor
mineral. Excavation of ordinary earth for uses not
contemplated in the aforesaid Notification, therefore,
would not amount to a mining activity so as to attract
the wrath of the provisions of either the Code or the Act
of 1957.
15. As use can only follow extraction or excavation
it is the purpose of the excavation that has to be seen.
The liability under Section 48(7) for excavation of
ordinary earth would, therefore, truly depend on a
determination of the use/purpose for which the
excavated earth had been put to. An excavation
undertaken to lay the foundation of a building would
not, ordinarily, carry the intention to use the excavated
earth for the purpose of filling up or levelling. A blanket
determination of liability merely because ordinary earth
was dug up, therefore, would not be justified; what
would be required is a more precise determination of
the end use of the excavated earth; a finding on the
correctness of the stand of the builders that the
extracted earth was not used commercially but was
redeployed in the building operations. If the
determination was to return a finding in favour of the
claim made by the builders, obviously, the Notification
dated 3.2.2000 would have no application; the
excavated earth would not be a specie of minor mineral
under Section 3(e) of the Act of 1957 read with the
Notification dated 3.2.2000."
8.1. In the present case, it is clearly not in dispute that the
Petitioner has undertaken excavation of the earth on the said lands for
laying foundation of the buildings i.e. for development and
construction. The construction of buildings is in terms of the
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sanctioned development permission dated 14.05.2008 under the
provisions of Section 18 of the said Act read with permission for non-
agricultural user under the provisions of Section 44 of the MLR Code,
1966. The Respondents have also not alleged that there is commercial
exploitation of the excavated earth / minor minerals i.e. the earth
being excavated was sent outside or sold to anybody or transported by
the Petitioner. As held by the Supreme Court, the purpose of
excavation therefore needs to be considered. Any liability under the
provisions of Section 48(7) of the MLR Code, 1966 for excavation of
ordinary earth would truly depend on determination of the use /
purpose for which the excavated earth has been put to. An excavation
undertaken to lay the foundation of a building would therefore
ordinarily carry the intention to use the excavated earth / material for
the purpose of filling up or levelling as has been done in the present
case.
8.2. As observed by us, in the present case the excavated
material has been used by the Petitioner for the purposes of filling up
and levelling; digging of the earth is inbuilt in the course of building
operations; the activity so undertaken, therefore, cannot be
characterized as one of excavation of minor minerals as contemplated
under the Mines and Minerals (Development and Regulation) Act,
1957. We have considered and followed the decision pronounced by
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the Supreme Court in the case of Promoters and Builders Association
of Pune (supra) which has held that mere extraction of earth does not
invite the levy of royalty. In the said case, Promoters and Builders
Association of Pune had urged that the earth which is dug up for the
purposes of laying of foundation of buildings is intended for filling up
or levelling purposes as digging of the earth is inbuilt in the course of
building operations, the said activity cannot be characterized as one of
excavation of minor minerals and more particularly there was no
commercial exploitation of the excavated earth involved; neither there
was any sale or transfer of the excavated earth and the same was
incidental to the purpose of development / construction under a valid
development permission. The Supreme Court after analyzing the
provisions contained in Section 48(7) of the MLR Code, 1966 in
unequivocal terms held that the 'ordinary earth' used for filling or
levelling purposes in construction of embankments, roads, railways,
buildings though is a minor mineral, the liability under Section 48(7)
for excavation of ordinary earth would truly depend on a
determination of the use / purpose for which the excavated earth had
been put to. A blanket determination of liability merely because
ordinary earth was dug up, therefore, would not be justified; what
would be required is a more precise determination of the end use of
the excavated earth; a finding on the correctness would be required on
the stand of the builders that the extracted earth was not used
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commercially but was indeed redeployed in the building operations on
the same plot.
8.3. We may also state that the aforesaid decision of the
Supreme Court has been followed by a coordinate Bench of this Court
in the case of BGR Energy System Ltd, Khaparkheda Vs. Tahsildar,
3
Saoner wherein the Petitioner had challenged the order of the
Tahsildar directing the Petitioner to pay royalty and penalty for illegal
excavation of earth while executing the work of construction of a
thermal power project at Khaparkheda. This Court after following the
decision in the case of Promoters and Builders Association of Pune
(supra), quashed and set aside the order of the Tahsildar holding, inter
alia, that use of the excavated earth to fill up the dug pits and any
construction of the project did not fall within the ambit of the
Notification dated 03.02.2000 and thus, the Tahsildar could not have
passed the order under Section 48(7) of the MLR Code, 1966. It is,
therefore, evident that the Supreme Court had enunciated in clear and
unambiguous terms that excavation of ordinary earth for construction
of building purposes / development would not attract levy of royalty
and penalty under the provisions of Section 48(7) of the MLR Code,
1966, especially when the excavated earth has been used for levelling
and development on the same plot.
3 2018(1) Mh.L.J. 332
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9. Respondent(s) have failed to place on record any
panchnama / evidence in order to justify the charge / claim made in
the notices dated 14.03.2009 and 23.12.2009 which state that the
Petitioner has unauthorizedly removed 12183 brass of earth, exploited
it commercially and transported the same. In the written submissions
filed on behalf of the State, the learned AGP in paragraph No.6 has
stated that the impugned notice dated 14.03.2009 clearly specified
that the Petitioner has not only excavated but also illegally transported
the excavated material which meant that the excavated soil / murum
was not utilized by the Petitioner to lay down the foundation of the
building. Therefore, according to the learned AGP, the ratio of the
Apex Court judgment in the case of Promoters and Builders
Association of Pune (supra) was not applicable to the Petitioner's case.
10. We have carefully perused the pleadings and annexures
placed before us by the parties. We do not find any evidence
pertaining to the Petitioner illegally transporting the excavated minor
minerals / materials from the construction site. Though it is alleged
that the Petitioner has excavated 12183 brass of minor minerals,
positive evidence is required to be placed on record to show that the
Petitioner has illegally transported the said minor minerals. The two
panchnamas dated 22.01.2009 and 01.09.2009 prepared by the Circle
Officer, Thergaon and the Circle Officer, Male have not been produced
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before us. There is no material evidence on record to show that the
Petitioner has transported or removed any earth / minor minerals
from the construction site. The Authorities, it appears have proceeded
on the premise that the very excavation of ordinary earth by the
Petitioner was subject to levy of royalty de-hors the use for which it
was put to. In view of the judgment of the Supreme Court in the case
of Promoters and Builders Association Pune (supra) we are not
inclined to accept the submissions made on behalf of the
Respondent(s).
11. In so far as the grievance of the Petitioner in respect of
challenge to the impugned order dated 31.01.2011 is concerned,
though it may be stated that the Petitioner has alternate efficacious
remedy to challenge the said order passed by the Circle Officer, Mulshi
before the Appellate Authority under the MLR Code, 1966, according
to us no purpose shall be served to relegate the Petitioner to the
Appellate Authority in the facts and circumstances of the present case.
We have perused the order dated 31.01.2011 which is annexed at
Exhibit "T" to the Writ Petition. The said order has been passed solely
relying on the order dated 11.08.2010 passed by the Respondent No. 5
Tahsildar, Mulshi, inter alia, levying royalty, penalty and other charges
against the Petitioner despite the fact that the present petition was
pending on the date of passing of the said order. Though it is seen
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that ad-interim order was granted in the petition on 13.04.2011, the
act of cancellation of mutation entry by order dated 31.01.2011
recording the name of the Petitioner as owner of the said lands by
solely relying on the impunged order dated 11.08.2010 is not justified.
12. In view of the above discussion and findings, the
impugned show-cause notices dated 14.03.2009 and dated 23.12.2009
and the impugned order dated 11.08.2010 need to be interfered with
and deserve to be quashed and set aside. Since the order dated
11.08.2010 deserves to be quashed and set aside, the subsequent
order dated 31.01.2011 passed by the Respondent No.6 Circle Officer,
Mulshi solely relying upon the order dated 11.08.2010 also needs to
be interfered with and is required to be quashed and set aside.
Therefore, the Petition deserves to be allowed.
13. In view of the above, we pass the following order:
(i) The impugned show-cause notices dated
14.03.2009 and 23.12.2009 and order dated
11.08.2010 (being Exhibit Nos. "M", "O" and "Q" to
the Petition) issued / passed by the Respondent
No.5 Tahsildar, Taluka Mulshi, District Pune are
hereby quashed and set aside;
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(ii) The order dated 31.01.2011 (Exhibit "T" to the
Petition) passed by Respondent No.6 Circle Officer,
Mulshi is also quashed and set aside. The Mutation
Entry No. 7741 is directed to be restored in the
Record of Rights within a period of 4 weeks from
the date of this order being uploaded;
(iii) However, there shall be no order as to costs.
14. The above Writ Petition stands allowed in the above
terms.
[ MILIND N. JADHAV, J. ] [ S.J. KATHAWALLA, J. ]
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