The purpose of excavation determines liability for royalty and penalty under Section 48(7) of the MLR Code, 1966, and excavation of ordinary earth for construction purposes does not attract royalty and penalty.

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 order 11/8/2010 issued to the Petitioner in purported exercise of powers conferred by section 48 of the M.L.R. Code, 1966 being Exhibit Q to this Writ Petition;

(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 order dated 11/8/2010 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 Q respectively to this Writ Petition;

(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 14/5/2008 which is at Exhibit 'L' to this Writ Petition.

C(I) This Hon'ble Court may be pleased to issue a Writ of Certiorari and / or any other Writ, Order or direction in the nature of Writ of Certiorari thereby quashing and setting aside the impugned order purportedly dated 31.1.2011 passed by Circle Officer, Mulshi being Exh. "T" to this Writ Petition;

C(II) "This Hon'ble Court may be pleased to issue Writ of Mandamus and / or any other Writ, Order or direction in the nature of Writ of Mandamus thereby directing Respondent No. 6 herein, Circle Officer, Mulshi to forthwith withdraw and / or cancel the impugned order purportedly dated 31.1.2011 being Exh. "T" to this Writ Petition."

2. The Petitioner is challenging the show-cause notices dated 14. 03.2009 and 23.12.2009 and order dated 11.08.2010 issued by the Respondent No.5 - Tahsildar, Mulshi, inter alia, calling upon the Petitioner to pay royalty and penalty of Rs. 1,36,33,194.00 for excavating 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. The Petitioner has also challenged the order dated 31. 01.2011 passed by the Respondent No. 6 Circle Officer, Mulshi cancelling Mutation Entry No. 7741 recording the name of the Petitioner as owner of land which is the subject matter of the present petition.

3. Briefly stated the facts are as under:

3.1. On 14.05.2008, 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 Hinjewadi , Taluka Mulshi, District Pune (for short "the said lands").

3.2. On 13.08.2008, 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.

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