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WP1921.2022

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 1921 OF 2022

Aadesh Sayub Pathan,

aged about 31 years,

r/o. Babhulgaon, Tahsil Babhulgaon,

District Yavatmal.

….

PETITIONER

VERSUS

1) State of Maharashtra,

through its Secretary, Revenue and

Forest Department, Mantralaya,

Mumbai – 32.

2) The Additional Collector,

Yavatmal, District – Yavatmal.

3) The Sub-Divisional Officer,

Ralegaon, Tahsil – Ralegaon,

District – Yavatmal.

4) The Tahsildar, Kalamb,

Tq. Kalamb, District – Yavatmal.

5) Police Station Officer,

Police Station Kalamb,

Tahsil Kalamb, District Yavatmal

….

RESPONDENTS

______________________________________________________________

Mr. A.R. Ingole, Counsel for the petitioner,

Mr. S.M. Ukey, Addl.GP for the respondents 1 to 5/State.

______________________________________________________________

CORAM :

ROHIT B. DEO, J.

DATED : 2 ^nd May,

20

22

ORAL JUDGMENT :

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WP1921.2022

The affidavit filed by the State is taken on record.

2.

Heard. Rule. Rule made returnable forthwith. The petition is

heard finally with consent of the learned Counsel appearing for the

parties.

3.

The petitioner is assailing the order dated 22.11-2021 rendered

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

4.

The petitioner allegedly excavated and transported sand

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 for Rs.1,20,600/- (Rupees One

Lac Twenty Thousand Six Hundred) for illegal transportation of sand.

5.

The other part of the order impugned is the imposition of

penalty of Rs. 2,00,000/- (Rupees Two Lac) in purported exercise of

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

transportation of sand.

6.

Learned Counsel for the petitioner Mr. A.R. Ingole submits that

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

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

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WP1921.2022

order impugned within the next ten days. However, Mr. A.R. Ingole

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

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 extent only, the

im