Opposition from villagers can justify a refund for un-excavated sand under the applicable sand excavation policy, despite the allottee's acceptance of contract terms.

JUDGMENT :

M.M. Sathaye, J.

1. Rule. Rule made returnable forthwith. Learned Assistant Government Pleader for the Respondent Nos. 1 to 5/State waives service. Heard finally by consent.

2. By this petition under Article 226 and 227 of the Constitution of India, the Petitioner is challenging the order dated 04.04.2022 issued by the Respondent No.3, by which the request of the Petitioner for refund of amount of un-excavated sand, is rejected.

3. The case of the Petitioner in short is as under:

3.1 In November 2015, the Petitioner was declared as successful bidder for sand excavation in 5 villages on banks of river Kukadi. On 04.01.2016, the Petitioner addressed a letter to Respondent No.4 stating that there are newspaper reports about opposition of villagers for sand excavation and since the Petitioner had not taken possession of the sand-ghats, a request was made to check the situation. The Respondent-Collector, in turn addressed a letter to Respondent No.5 (Tahsildar, Junnar) for inquiry and report. On 07.01.2016, the sand- ghats were allotted to the Petitioner after deposit of offset price and agreement was executed and the Petitioner was directed to take possession of the sand-ghats through the Tahsildar.

3.2 The Petitioner, thereafter issued a letter to the Collector for grant of permission to use suction pump and Poclain machine. It is the case of the Petitioner that the Senior Scientist, Groundwater Survey and Development, Pune has issued a letter dated 11.01.2016 mentioning that there is 8 to 10 meters of water in river Kukadi and therefore usage of suction pump was recommended. The concerned Tahsildar had asked report from the Circle Officer, which was submitted, indicating that out of 5 villages, 4 villages have taken negative stand towards sand excavation and only village Sultanpur was ready. The Tahsildar in turn submitted report to the Collector indicating the said position. In February, 2016, the Petitioner again requested for permission to use suction pump.

3.3 Finally on 02.03.2016, the Petitioner took possession of the sand- ghats for the purpose of excavation. In June 2016, the Petitioner reminded the Collector that till date, permission for use of suction pump is not accorded and therefore the Petitioner was not able to utilise full potential of sand-ghats. According to the Petitioner, from March 2016 to September 2016, he excavated only 7298 brass of sand out of permitted 10,570 brass with the available aid of workers. Ultimately, after the period of allotment was over, the Petitioner handed over the possession of the sand-ghats to the Government in the presence of the Circle Officer, Talathi and Panchas. The Petitioner thereafter demanded refund for un-excavated 3272 brass of sand. On 25.06.2018, the District Collector, rejected the request for refund.

3.4 The Petitioner approached Respondent No.1/State with the same request, however by order dated 17.07.2019, the concerned Additional Secretary rejected the claim of the Petitioner. The Petitioner filed review under Section 258 of the Maharashtra Land Revenue Code, 1966 and by order dated 20.07.2021, the Minister for Revenue partly allowed the review, thereby setting aside the order dated 17.07.2019 and remanded the matter for de novo hearing before the District Level Committee headed by Respondent No.4 Collector. On 06.10.2021, the said Committee rejected the Petitioner’s claim and based on this rejection report the Respondent No.1 State has finally passed the impugned order dated 04.04.2022 rejecting the Petitioner’s claim for refund for un-excavated sand. In these circumstances, the Petitioner has filed the present petition.

4. The Deputy Secretary, Revenue and Forest Department has filed Affidavit-in-Reply dated 19.10.2023 contending inter alia that as per the condition No. 17-C-(22) of applicable Government Resolution dated 12.03.2013 (for short ‘the said GR’), the Petitioner’s request for use of suction pump was not accepted. That the Petitioner was issued 132 re