Excavation of ordinary earth for construction purposes does not attract levy of royalty and penalty under Section 48(7) of the M.L.R. Code, 1966, especially when the excavated earth is used for levelling and development on the same plot.

JUDGMENT

1. By the present Writ Petition, the Petitioner has prayed for the following reliefs:

"(a) That this Hon'ble Court may be pleased to issue a Writ of Mandamus or any other Writ, Order or direction in the nature of Mandamus thereby directing the Tahsildar, Taluka Mulshi Respondent No.5 herein to forthwith withdraw and / or cancel the impugned show-cause / demand Notices dated 14/3/2009 and 23/12/2009 issued to the Petitioner in purported exercise of powers conferred by section 48 of the M.L.R. Code, 1966 being Exhibit M and O to this Writ Petition respectively;

(b) That this Hon'ble Court may be pleased to issue a Writ of Certiorari or any other Writ, Order or Direction in the nature of Certiorari thereby quashing and setting aside the impugned show-cause / Demand Notices dated 14/3/2009 and 23/12/2009 issued by the Tahsildar Mulshi, Respondent No.5 herein to the Petitioner in purported exercise of powers conferred under Section 48 of the M.L.R.Code, 1966; being Exhibit M and O to this Writ Petition respectively;

(c) That it be held and declared that the Tahasildar, Taluka Mulshi, Respondent No.5 herein does not have any authority and jurisdiction to levy and demand royalty and / or penalty for the material excavated from the lands of Village Hinjewadi, Taluka Mulshi, District Pune for the purpose of laying down foundation and / or plinth and construction of basement when such work is being undertaken pursuant to the valid Development Permission issued by the Planning authority u/s. 18 of the Maharashtra Regional & Town Planning act, 1966 and after obtaining permission for Na use u/s. 44 of the M.L.R. Code, 1966 being permission dated 16/5/2008 which is at Exhibit 'L' to this Writ Petition."

2. The original name of the Petitioner at the time of filing of the Petition was Matrix Developers Pvt Ltd. It has now changed to Paranjape Schemes (Construction) Limited.

3. The Petitioner is challenging the show-cause notice dated 14. 03.2009 and demand notice dated 23.12.2009 issued by the Respondent No.5 - Tahsildar, Mulshi, inter alia, calling upon the Petitioner to pay royalty and penalty of Rs. 36,32,020/- for excavating materials / minor minerals while laying down foundation of the building and construction of basement and plinth undertaken by the Petitioner pursuant to valid development permission issued by the planning authority.

4. Briefly stated the facts are as under:

4.1. On 16.05.2008, the Collector, Pune being the planning authority granted development permission under Section 18 of the Maharashtra Regional and Town Planning act, 1966 (for short "the said act") to the Petitioner along with permission for Non-agricultural user under Section 44 of the Maharashtra Land Revenue Code, 1966 (for short "the MLR Code, 1966") in respect of lands bearing several survey numbers totally admeasuring 35750 sq. mtrs. situated at village Bhugaon , Taluka Mulshi, District Pune (for short "the said lands").

4.2. On 19.08.2008, the Petitioner submitted an application before the Tahsildar, Mulshi to seek permission for commencement of excavation on the said lands in terms of the building permission granted to the Petitioner. However, the Petitioner received no reply from the Respondent No.5 - Tahsildar.

4.3. Petitioner commenced development / construction work on the said lands in accordance with the development permission granted on the said lands.

4.4. On 14.03.2009, Respondent No.5 - Tahsildar issued a show-cause notice to the Petitioner stating that the Petitioner had allegedly excavated minor minerals amounting to 7632 brass without valid permission. This show-cause notice was based upon panchnama dated 22.01.2009 prepared by the Circle Officer, Thergaon. The Petitioner replied to the show-cause notice on 04.04.2009. On 23.12.2009, Petitioner received a demand notice calling upon the Petitioner to pay an amount of Rs. 36,32,020.00 towards royalty and penalty for alleged excavation of minor minerals amounting to 7632 brass without valid permis