The end use of excavated earth determines its classification as a 'minor mineral' under the Mines and Minerals (Development and Regulation) Act, 1957.

VASANTI A NAIK, J.

1. By this writ petition, the petitioner challenges the order of the Tahsildar, dated 08.06.2011 directing the petitioner to pay the royalty and penalty for the illegal excavation of earth, under Section 48(7) of the Maharashtra Land Revenue Code, 1966.

2. The petitioner was awarded a contract by the respondent no.3Maharashtra State Power Generation Company Limited for the construction of 1X500 MW Thermal Power Project at Khaparkheda. In terms of the contract, the petitioner was required to erect buildings and structures for setting up of the power project. While erecting the structures as per the contract, the petitioner was required to dig the project site and excavate the earth for the purpose of laying the foundation of the structures. It is the case of the petitioners and it is not disputed by the respondents that the excavated earth was utilized in the construction of the project and the dug up pits were filled. When the project reached the stage of completion, the Tahsildar served a notice on the petitioner asking it to show cause as to why penalty should not be imposed on the petitioner for illegally excavating the earth from the construction site without permission. The petitioner replied to the said notice and denied the liability. The respondent no.1Tahsildar by the impugned order, dated 08.06.2011 directed the petitioner to pay the royalty of Rs.2,88,63,600/- and the penalty of Rs.16,37,82,168/-. The petitioner has challenged the order of the Tahsildar in the instant petition.

3. Shri A.C. Dharmadhikari, the learned counsel for the petitioner, submitted that the Tahsildar was not justified in directing the petitioner to pay the royalty and penalty as per the impugned order. It is submitted that since the ordinary earth that was dug up by the petitioner for laying the foundation of the structures while setting up the power project was utilized for refilling the dug up pits, the provisions of Section 48(7) of the Maharashtra Land Revenue Code, 1966 would not be attracted as the earth utilized for the aforesaid purpose cannot be a 'minor mineral'. It is submitted that ordinary earth was not included within the term “minor mineral” till the same was brought into its fold by the notification issued by the Central Government on 03.02.2000 under Section 3(e) of the Mines and Minerals (Development and Regulation) Act, 1957. It is submitted that as per the said notification, earth used only for filling or levelling purpose in construction of embankments, roads, railways, buildings would be considered as a minor mineral and the earth that is not used for the said purpose cannot be included within the fold of the term 'minor mineral'. It is submitted that earth was excavated by the petitioner for digging up the pits for laying the foundation of the thermal project and the excavated earth was utilized for filling up the pits and the areas that were dug up for laying the foundation. It is submitted that in almost similar set of facts, the Hon'ble Supreme Court has, in the judgment reported in 2015(12) SCC 736 (Promoters and Builders Association of Pune Versus State of Maharashtra & Others) quashed a similar order passed by the revenue authorities under the provisions of Section 48(7) of the Maharashtra Land Revenue Code.

4. Shri K.L. Dharmadhilari, the learned Assistant Government Pleader appearing for the revenue authorities, supported the order of the Tahsildar. It is submitted that earth was also included in the term 'minor mineral' from the year 2000 and since the petitioner had excavated the earth while undertaking the construction for the thermal project, without the permission of the revenue authorities, the petitioner was liable to pay the royalty and penalty under the provisions of Section 48(7) of the Maharashtra Land Revenue Code. It is, however, not disputed by the learned Assistant Government Pleader on the basis of the affidavit-in-reply filed on behalf of the Tahsildar that the petitioner