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2018 Supreme(Bom) 1302
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
R.M. Borde, A.M. Dhavale, JJ.
Dhannu s/o Vitthal Phapal – Petitioner
Versus
The State of Maharashtra, through the Secretary, Revenue & Forest Department and Ors. – Respondents
Wriit Petition No. 4258, 5124, 5265, 5266, 5267, 5268, 5269, 5270, 5366, 5369, 5440, 5441, 5495, 5507, 6839, 6840, 6841, 6842, 6946, 6950, 7049, 7057, 7059, 7076, 7077, 7133, 7142, 7143, 7235, 7725, 7726, 7728, 7732, 4195, 4194, 4188, 4187, 4186, 4185, 4184, 4210, 8174, 8170, 5726, 8061, 5145, 5262, 5263, 5264, 5271, 5272, 5273, 5274, 5275, 5276, 5534, 5541, 5601, 5745, 5848, 5849, 5936, 5937, 6107, 6150, 6231, 6508, 6653, 6827, 8205, 8206, 8207, 8208, 8209, 7842, 7540, 7539, 7538, 7537, 7464, 7869, 7425, 8017, 8012, 7997, 8015, 8020, 7873, 7868, 7852, 7877, 7576, 7590, 7589, 7588, 7587, 7586 of 2018
Decided On : 02-08-2018
For the Petitioner:Mr. S.G. Dodya, advocate with Mr. P.N. Mule, advocate
For the Respondent: Mr. P.N. Kutti, A.G.P.
Headnote:
Maharashtra Land Revenue – Rule 9 - Mines and Minerals (Development and Regulation) Act, 1957 - Section 48(7) - Code of 1966 - Section 48(1) - Imposition of penalty for unauthorised transportation – Challenge - Petitioners contend that it is not permissible for Tahsildar or any other revenue official to impose penalty in respect of minor mineral which has been excavated out of an area leased out validly by State Government - They have not excavated unauthorisedly sand from an area forming part of property vested in State - Petitioners contend that since source of minor mineral is an area leased out by State under policy framed in that regard, provisions of Code of 1966 would not be attracted and act alleged amounts to contravention of any provision, that would fall within ambit of Mines and Minerals (Development and Regulation) Act, 1957 - Section 48(1) of Code of 1966 provides that right to all minerals at whatever place found, whether on surface or underground, including all derelict or working mines and quarries, old dumps, pits, fields, bandhas, nalas, creeks, river beds and such other places, is declared to be expressly reserved and shall vest in State Government which shall have all powers necessary for proper enjoyment of such rights - It is clear that right to all minerals at whatever place found vests in State Government - It is for State Government under sub-section (3) of Section 48 to assign to any person its right over any minerals, mines or quarries, and in case for proper enjoyment of such right, it is necessary that all or any of powers specified in sub-sections (1) and (2) should be exercised, Collector may, by an order in writing, subject to such conditions as reservations as he may specify, delegate such powers to person to whom right has been assigned – Held, Revenue officers, before directing imposition of penalty other than in respect of minor minerals or for unauthorised use of vehicle for transportation of minor minerals or excavation of same, are duty bound to extend an opportunity of hearing to person who has committed violation; and to transporter of minor minerals or to owner of machinery - Revenue officials are bound to observe principles of natural justice before passing adverse orders against transporter or owners of machinery - Adverse orders passed by revenue officials are liable to be challenged before appellate forum provided under Code of 1966 and it would be open for petitioners or aggrieved parties to raise objection to order, as permissible in law - Challenge raised to provisions of Rule 9 of Maharashtra Land Revenue Rule 1968, published in notification stands rejected - Petitioners, against whom an order in respect of imposition of penalty for vehicle is levied, are liable to pay amount as specified in order subject to availability of appellate remedies and orders, those may be passed by appellate forum - Disposed of.
R.M. Borde, J.
1. Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned counsel for respective parties.
2. In this group of petitions, petitioners are objecting to the orders passed by the Tahsildar or any other revenue officials directing imposition of penalty for unauthorised transportation or excess quantity of minor mineral or transportation of minor mineral without valid permit or transportation of minor mineral on the basis of invalid and fabricated permit. Apart from this, the orders, directing imposition of penalty in respect of vehicles, is also a matter of challenge.
3. Primary objection of the petitioners, in this petition, is in respect of applicability of Section 48(7) and (8) of the Maharashtra Land Revenue Code, 1966 (for short “Code of 1966).
4. Relying upon the judgment in the matter of Vijay Dashrath Shirbhate Vs. State of Maharashtra and another, 2010(1) All M.R. 842, it is contended that since the minor mineral i.e. sand is excavated with lawful authority, provisions of Section 48(7) are not attracted. Petitioners contend that it is not permissible for the Tahsildar or any other revenue official to impose penalty in respect of minor mineral which has been excavated out of an area/plot leased out validly by the State Government. According to the petitioners, they have not excavated unauthorisedly sand from an area forming part of the property vested in the State. Petitioners contend that since the source of minor mineral is an area leased out by the State under the policy framed in that regard, provisions of Code of 1966 would not be attracted and if, at all, the act alleged amounts to contravention of any provision, that would fall within the ambit of Mines and Minerals (Development and Regulation) Act, 1957. Section 48(1) of the Code of 1966 provides that the right to all minerals at whatever place found, whether on surface or underground, including all derelict or working mines and quarries, old dumps, pits, fields, bandhas, nalas, creeks, river beds and such other places, is and is hereby declared to be expressly reserved and shall vest in the State Government which shall have all powers necessary for the proper enjoyment of such rights. It is, thus, clear that the right to all minerals at whatever place found vests in the State Government. It is for the State Government under sub-section (3) of Section 48 to assign to any person its right over any minerals, mines or quarries, and in case for proper enjoyment of such right, it is necessary that all or any of the powers specified in sub-sections (1) and (2) should be exercised, the Collector may, by an order in writing, subject to such conditions as reservations as he may specify, delegate such powers to the person to whom the right has been assigned.
5. Sub-sections (7) and (8) of Section 48 of the Code of 1966 are relevant for consideration, which are reproduced herein below :
S.48. Government title to mines and minerals :
(7) Any person who without lawful authority extracts, removes, collects, replaces, picks up or disposes of any mineral from working or derelict mines, quarries, old dumps, fields, bandhas (whether on the plea of repairing or constructions of bund of the fields or an any other plea), nallas, creeks, riverbeds, or such other places wherever situate, the right to which vests in, and has not been assigned by the State Government, shall, without prejudice to any other mode of action that may be taken against him, be liable, [on the order in writing of the Collector, or any revenue officer not below the rank of Tahsildar authorised by the collector in this behalf to pay penalty on of an amount [upto five times] the market value of the minerals so extracted, removed, collected, replaced, picked up or disposed of, as the case may be :
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[(8) (1) Without prejudice to the provisions of sub-section (7), the Collector or any revenue officer not below the rank of Tahsildar authorised by the Collector in this be
