IMPORTANT POINT
The excavation of earth for public works projects, when reused on the same plot, does not attract royalty under Section 48(7) of the Maharashtra Land Revenue Code, unless there is evidence of commercial exploitation.

JUDGMENT

Somasekhar Sundaresan, J. - Rule. With the consent of the parties, rule is made returnable forthwith and the writ petition is taken up for final disposal.

2. This writ petition challenges the imposition of penalty and charge of royalty by revenue officials of the State of Maharashtra, under Section 48(7) of the Maharashtra Land Revenue Code, 1966 ('MLRC'), in connection with the alleged unauthorized excavation of earth during implementing a sewerage pipeline network in Thane. For the reasons set out in this judgment, we have no hesitation in allowing the writ petition.

Factual Matrix:

3. A brief overview of the facts relevant for the effective disposal of these proceedings is summarized below:

(a) Petitioner No.1 is a company and Petitioner No.2 is a shareholder of Petitioner No.1. For the sake of convenience, they are hereinafter referred to as the 'Petitioner'. The State of Maharashtra is Respondent No.1. The Collector, the Tahsildar, and the Circle Officer; are Respondent Nos.2 to 4 respectively. The Thane Municipal Corporation ( 'TMC') is Respondent No.5. After filing of the above Petition, one Mr. Vishal Madhukar Jadhav was joined as Respondent No.6 pursuant to an amendment directed by this Court vide its order dated 3rd May, 2017.

(b) The Petitioner was the successful bidder in a tender floated by the TMC to implement an underground sewerage pipeline network in Thane. A contract for laying pipelines was awarded to the Petitioner in February 2009. Under this contract, the Petitioner was required to dig and excavate the earth; store the excavated earth in a designated spot; lay reinforced concrete pipes for carrying the sewerage; thereafter refill the land with the excavated earth; and dump the excess soil in a location designated by the TMC;

(c) In 2011, one Mr. Vishal Madhukar Jadhav (Respondent No.6) filed an application under the Right to Information Act, 2005 seeking information about the earth excavated by the Petitioner and thereafter made complaints about alleged violation of the provisions of the MLRC on account of nonpayment of royalty for excavation of 'minor minerals' (allegedly the earth removed for purposes of laying the sewerage pipeline);

(d) Eventually, on 13th October, 2011, the Circle Officer of Thane issued a notice to the Petitioner stating that approximately 21,222 brass,[A 'brass ' is a unit of measure for volume of mineral excavated - essentially, 100 cubic feet constitutes 1 brass'.] of earth was excavated without authority, and consequently asked the Petitioner to show cause as to why proceedings under Section 48(7) of the MLRC must not be initiated ('SCN');

(e) On 17th October, 2011, the Petitioner wrote to the revenue officials asserting that it was merely implementing a public works project, and that the excavated earth was being used for refilling the trenches. The letter also stated that the estimation of the earth excavated appeared to be erroneous.

(f) Despite this letter of the Petitioner, on 29th November, 2011, the Tahsildar, Thane, passed an order stating that a penalty of Rs.1.47 Crores and royalty of Rs.49.18 Lakhs (aggregating to Rs.1.96 Crores), would be payable by the Petitioner in respect of the earth excavated;

(g) On 2nd March, 2013, Respondent No.3 issued a notice demanding that the royalty amount claimed must be paid within seven days. This led to Writ Petition No. 5775 of 2013 being filed before this Court impugning imposition of penalty and charge of royalty. Vide order dated 28th January, 2014, the said writ petition was disposed of granting liberty to avail of the statutory remedies under the MLRC, keeping all contentions on merits open;

(h) Thereafter, the Sub-divisional Officer, Thane passed an order dated 3rd November, 2014 dismissing the Appeal under Section 247 of the MLRC. On 30th July, 2015, the Second Appeal of the Petitioner also came to be rejected. Further round of an unsuccessful Appeal followed. It is in these circumstances, the present writ petition was filed as