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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J.Kathawalla, Milind N.Jadhav, JJ.
P.S.C. Pacific - Appellant
Versus
State Of Maharashtra - Respondent
Writ Petition No. 7390 of 2010
Decided On : 09-12-2021
Excavation - Minor Minerals - M.L.R. Code, 1966 - The court quashed and set aside the impugned 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, and the order dated 31.01.2011 passed by the Respondent No.6 Circle Officer, Mulshi. The court found that the excavation of ordinary earth for construction purposes did not attract levy of royalty and penalty under the provisions of Section 48(7) of the M.L.R. Code, 1966, especially when the excavated earth was used for levelling and development on the same plot. The court also noted that there was no evidence to show that the Petitioner had illegally transported the excavated minor minerals from the construction site.
Fact of the Case:
The Petitioner challenged show-cause notices and orders issued by the Tahsildar, Mulshi, calling upon the Petitioner to pay royalty and penalty for excavating minor minerals while laying down foundation of the building and construction of basement. The Petitioner had obtained valid development permission and permission for Non-Agricultural user for the said lands.
Finding of the Court:
The court found that the excavation of ordinary earth for construction purposes did not attract levy of royalty and penalty under the provisions of Section 48(7) of the M.L.R. Code, 1966, especially when the excavated earth was used for levelling and development on the same plot. The court also noted that there was no evidence to show that the Petitioner had illegally transported the excavated minor minerals from the construction site.
Issues: The issues revolved around the validity of the show-cause notices and orders issued by the Tahsildar, Mulshi, calling upon the Petitioner to pay royalty and penalty for excavating minor minerals while laying down foundation of the building and construction of basement, and the cancellation of Mutation Entry No. 7741 recording the name of the Petitioner as owner of the land.
Ratio Decidendi: The court held that the excavation of ordinary earth for construction purposes did not attract levy of royalty and penalty under the provisions of Section 48(7) of the M.L.R. Code, 1966, especially when the excavated earth was used for levelling and development on the same plot. The court also noted that there was no evidence to show that the Petitioner had illegally transported the excavated minor minerals from the construction site.
Final Decision: The court quashed and set aside the impugned 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, and the order dated 31.01.2011 passed by the Respondent No.6 Circle Officer, Mulshi. The Mutation Entry No. 7741 was directed to be restored in the Record of Rights within a period of 4 weeks from the date of the order.
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 sec. 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 and 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
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