1 jg.w.p. 148.2022.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, AT NAGPUR.

Writ Petition No. 148 of 2022

Shaikh Afsar Shaikh Hifzul

Aged : Major, Occ. : Business,

R/o. Iftekhar Plot, Akot,

Taluka Akot, District : Akola.

… Petitioner

… Versus …

(1) The State of Maharashtra,

Through its Secretary,

Revenue and Forest Department,

Mantralaya, Mumbai – 400 032.

(2) Sub Divisional Officer,

Akot, Tq. Akot,

District – Akola.

(3) The Tahsildar, Tq. Akot,

District : Akola.

… Respondents

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Mr. V. B. Bhise, Advocate for the petitioner

Mr. S. M. Ukey, Addl. G. P. for the respondents

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CORAM : ROHIT B. DEO, J.

DATED : 24

- 2 -202

2

ORAL JUDGMENT

Rule. Rule made returnable forthwith. The petition is

heard finally with consent of the learned counsel appearing for the

parties.

2 jg.w.p. 148.2022.odt

2.

The petitioner is assailing the order dated 17-9-2021

rendered by the Tahsildar, Akot. The order impugned is in two parts.

3.

The petitioner allegedly excavated and transported murum

illegally. The Tahsildar was pleased to act under the provisions of

Section 48(7) of the Maharashtra Land Revenue Code, 1966 (Code)

and saddled the petitioner with royalty and penalty of Rs. 31,800/-

(Rupees Thirty One Thousand Eight Hundred).

4.

The other part of the order impugned is the imposition of

penalty of Rs. 1,00,000/- (Rupees One Lac) in purported exercise of

power under Section 48(8) of the Code for illegal use of vehicle for

transportation of murum.

5.

Learned counsel for the petitioner, Mr. Bhise submits that in

so far as royalty and penalty on transportation of murum is concerned,

the petitioner is not pressing the challenge and shall comply with the

order impugned within the next seven days. However, Mr. Bhise points

out that the other part of the order which imposes penalty as regards

the allegedly illegal vehicular use for transportation of the minor

mineral, is without jurisdiction as held by the Division Bench in Writ

Petition No. 7165/2018 (Harihar s/o Mahadev Puri Vs. State of

3 jg.w.p. 148.2022.odt

Maharashtra and anr.) dated 15-3-2019. The relevant paragraph of the

said decision reads thus :

“10.

The third submission of the learned counsel for the

petitioner is that by the impugned order penalty in respect of

illegal transport of the sand as well as the means of convenience

employed for such illegal transport has been imposed under

Section 48(7) by the Tahsildar, but it is not permissible for him

to do so. Upon perusal of subsections (7) and (8) of Section 48

we find that there is substance in the argument of learned

counsel for the petitioner. What can be imposed by way of a

penalty by the Tahsildar by invoking his power under sub-

section (7) of Section 48 of MLR Code is only that penalty

which is for illegal transportation of sand only to the extent of

five times of the market value of the minerals transported in

addition to the amount of royalty and nothing more. But, in the

present case the penalty imposed by the Tahsildar is of

composite nature, one for the transportation of the minerals as

such and the other for the user of the vehicle in question for

such transport. For the later part of the offence, the penalty can

be imposed only by the Collector or any officer not below the

rank of a Deputy Collector specifically authorized in this behalf

by the Collector himself. This is under Section 48(8)(2) of the

MLR Code. It is here that the impugned order has made itself

vulnerable to law and to this ex