N.J. Jamadar, J.

The challenge in this petition is to a notice dated 4th December 2017 issued by the Tehsildar, Dahanu, District Palghar, Maharashtra whereby a penalty of Rs.34,80,744/- was proposed to be levied for excavation of minor mineral, i.e., ordinary earth, without obtaining requite permission.

2. The petition arises in the backdrop of the following facts :-

The petitioner No.1 is a Public Sector Undertaking of the Ministry of Railways. The petitioner No.1 is executing construction of 186 km. long Dedicated Freight Corridor Project from Vaitarna to Sachin, which is a part of the Western Dedicated Freight Corridor. The petitioner Nos.2 to 5 have been engaged by petitioner No.1 as sub-contractors for the execution of the said work. As a part of the project, the petitioners are required to cut and level the ground along the 186 km. stretch. In the process, if the earth extracted is scientifically found to be of suitable quality, it is used for embankment. However, if the earth is not found to be of suitable quality, the petitioners dump the earth at alternate locations.

3. On 17th November 2017, the respondent No.3-Tehsildar, Dahanu visited one of the worksites and, thereafter, issued the impugned notice proposing to levy penalty of Rs.34,80,744/- under Section 48(7) of the Maharashtra Land Revenue Code, 1966 ('the Code of 1966'). Though a suitable reply was submitted by the petitioners, the respondent No.3 threatened to pursue the action in pursuance of the impugned notice. Contending that the action of the respondents is in contravention of the provisions contained in Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'the said Act, 1957') and the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013, the petitioners have preferred this petition.

4. The respondents have contested the claim of the petitioners by filing counter, sworn by Rahul Arun Sarang, Tahsildar Dahanu, Dist. Palghar. The respondent No.3 contends that the persons who were found in the possession of the ordinary earth, extracted from the worksite of the petitioners, have given statements to the effect that the said work was obtained from the worksite of the petitioners, i.e., Ambevadi, Taluka Dahanu. Since the extraction of the ordinary earth and its end use, as ascertained, brings action of the petitioners within the ambit of the said Act, 1957, the petitioners cannot deny the liability to pay the royalty, as stipulated in the Code, 1966.

5. In the backdrop of the aforesaid factual setting of the matter, we have heard Shri V. Sridharan, the learned Senior Advocate for petitioners and Shri R.S. Pawar, the learned AGP for respondent Nos.1 to 3-State at some length.

6. The learned counsel for the petitioners urged with a degree of vehemence that the action of the respondents to pursue with the impugned notice and threaten the recovery as an arrear of land revenue under the Code, 1966 is wholly arbitrary, illegal, and thus, unsustainable. The respondent No.3 has not at all adverted to the nature of the activity being carried out by the petitioners and the use of the ordinary earth excavated while digging the ground for laying the freight corridor, urged the learned counsel for the petitioners. What exacerbates the highhandedness on the part of the authorities is the audacity with which the authorities are pursuing the action despite the legal position, including the judgment of the Supreme Court in the case of Promoters and Builders Association of Pune Vs. The State of Maharashtra & Ors., (2015) 12 SCC 736, being specifically brought to their notice.

7. Per contra, the learned AGP stoutly submitted that the respondent No.3 was within his rights in initiating action to levy the royalty. It was submitted that there is no dispute that the petitioners have excavated the ordinary earth, while executing the project. In view of the Notification issued by the Central Government on 3rd February 2000, in