B.P. Dharmadhikari, J.

In all these petitions, common question involving the provisions contained in Sections 48[7] and 48[8] of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as “the MLR Code” for short] and the Maharashtra Land Revenue (Extraction and Removal of Minor Minerals) Rules, 1968, hereinafter referred to as “the Rules” framed thereunder, arise for consideration. Other set of Rules with which we are concerned are the Maharashtra Minor Mineral Extraction (Development and Regulation) Amendment Rules, 2013 as amended in 2017. These Rules are referred to as “the 2017 Rules” in this judgment.

2. Shri A.B. Patil and Shri K.A. Kothari, learned Counsel have advanced arguments on behalf of petitioners and Shri N.R. Patil, learned A.G.P. on behalf of respondents has opposed their contentions. With their consent, and considering the controversy placed for consideration, matters are taken up for final disposal. Hence, we issue Rule in all these petitions and make the same returnable forthwith.

3. The bare facts show that the Vehicle Truck belonging to respective petitioners is claimed to be caught while carrying sand illegally. Sand therefore, is seized and penalty therefor has been levied under Section 48(7). Similarly, for use of truck, the truck also has been seized and penalty as prescribed under the Rules has been charged or is being charged under Section 48(8). Basic contention therefore, was this constituted double jeopardy.

4. We need to point out that prayers made in the Writ Petitions challenge the order levying penalty under Section 48[7] of the MLR Code for illegal excavation of sand; demanding royalty and equal amount as penalty; market value of sand and amount of Rs. 2 lakh for illegal use of transport vehicle under Section 48(8) thereof, is assailed in all the petitions. There is no challenge to any statutory provisions.

5. Facts in Writ Petition No. 3105/2018 have been used and pressed into service by all to support legal submissions. In this petition, the order impugned is dated 24.05.2018, and it is passed by respondent Sub Divisional Officer. Its' perusal shows that on 19.05.2018, Tipper bearing No. MH40/AK5691 was used for transporting sand illegally. It was caught at Mouza Taregaon Khurd, and a seizure memo/japti nama was prepared. At that time, statement of driver – Gajanan Gawade, was recorded. The said driver accepted that he was not having transport permit for transporting sand, and it was being carried in said truck illegally. Sand was then measured and was found to be 4.46 brass. Hence, action under Section 48[7] of the MLR Code and Rules as amended on 12.01.2018, has been taken. The relevant Rule is Rule 9(1)(2). Respondent Sub Divisional Officer found that illegal transport of sand established and therefore, he has charged an amount of Rs.35,680/- towards illegal excavating of sand; an amount of Rs.1784/- towards Royalty. Thus, total amount of Rs. 37,464/- has been levied. Thereafter, action under amended Rule 9[1][2] (supra), has been taken, and petitioner has been asked to pay penalty of Rs. 2 lakhs. The impugned order mentions that after these amounts are deposited, separate orders shall be passed for releasing the vehicle.

6. Petitioners submit that illegal excavation of sand has not been established at all. Material on record does not show that the sand came from sand ghat or other place not assigned by the State Government, and it has not been established that the said sand was therefore, vesting in State Government. Hence, Section 48[7] of the MLR Code itself is not applicable. It is contended that Section 48[7], is not at all attracted in case of persons like petitioners, who are only operating as transporters and in no way excavate the sand.

7. It is further contended that as Section 48[7] is not applicable, Section 48[8] is also not attracted, hence, the impugned order asking petitioners to pay penalty under Section 48[7] as also Section 48[8], is bad.

8. It is claimed