IMPORTANT POINT
Ordinary earth, if not excavated for purposes enumerated in Notification dt 3.2.2000 will not be minor mineral in terms of section 3(d) of Mines and Minerals Act, 1957 and will not attract section 48(7) of the Revenue Code.

JUDGMENT

RANJAN GOGOI, J.

1. Leave granted in all the special leave petitions.

2. The appellant in the first batch of appeals before us is an Association representing individual builders of the State of Maharashtra who carry out construction activities in the normal course of business. The Association and also the individual builders are aggrieved by the judgment of the Bombay High Court dated 8.10.2010, inter alia, holding that “excavation activity even for the purposes of laying foundation of the building would still attract rigours of Section 48(7) of the Revenue Code”. Under the aforesaid provision of the Code extraction of minerals by any person without assignment of any right by the State Government makes such person liable to penalty, as prescribed.

3. The Nuclear Power Corporation, the second appellant before us is a Government Company engaged in the construction, maintenance and operation of nuclear power station in India. It is aggrieved by the fact that though an issue similar to the one raised by the builders had been raised by it before the High Court the writ proceeding instituted by the Corporation has been dismissed on the ground that statutory remedy under the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as ‘the Code’) had not been resorted to by the Corporation.

4. The relevant facts may, at the outset, be alluded to.

In the first set of appeals, digging of earth for the purpose of laying of foundation of a building is an integral part of the building activities undertaken by the appellants. According to the appellant-builders, the earth excavated or dug up is redeployed in the building itself at a particular stage of the construction. On the basis that such activity amounts to mining of a “minor mineral” i.e. ordinary earth and that the same is without due permission/lease or assignment of the right to do so, the respondent authorities have invoked the power under Section 48(7) of the Code to levy penalty by the order(s) impugned before the High Court. The challenge having resulted in the findings of the High Court, as extracted above, the present appeals have been filed by the Association of the Builders and also by some of the builders themselves.

5. The facts in the appeal filed by Nuclear Power Corporation of India Limited are largely similar. In consonance with its objects, the Corporation in whose favour the grant of land was made had carried out digging activities for the purpose of widening of the water channel through which sea water is drawn for the purposes of cooling the nuclear plant in the Tarapur Atomic Power Station. The Corporation categorically denies any commercial use of the extracted earth.

6. On behalf of the appellants it is pointed out that to attract Section 48(7) of the Code, the activity undertaken has to be unlawful. The building operations undertaken by the appellant-builders are pursuant to a final development plan sanctioned under Section 31 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter for short ‘the MRTP Act’). In this regard the attention of the Court has also been drawn to the provisions of Section 2(7) of the MRTP Act which define “development” to mean “carrying out of buildings, engineering, mining or other operations in or over or under, land ……..”. It is also pointed out that by Notification dated 3.2.2000 issued under Section 3(e) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter for short referred to as ‘the Act of 1957’) ordinary earth has been declared to be a minor mineral but only if it is used for filling or levelling purposes in construction of embankments, roads, railways, buildings etc. According to the learned counsel for the appellant-builders, the earth which is dug up for the purposes of laying of foundation of buildings is not intended for filling up or levelling purposes; digging of the earth is inbuilt in the course of building operations. The activity undertaken, therefore, cannot be ch