Writ Petition No.3383 of 2011

5th July, 2017.

Petitioner Counsel: Shri A.C. DHARMADHIKARI
Respondent Counsel: Shri K.L. DHARMADHIKARI, Shri D.M. KALE

Cases Cited:
Promoters and Builders Association of Pune Vs. State of Maharashtra & Others., 2015(2) ALL MR 426 (S.C.)=2015 (12) SCC 736 [Para 3,5]

JUDGMENT

VASANTI A NAIK, J. :- By this writ petition, the petitioner challenges the order of the Tahsildar, dated 08.06.2011 directing the petitioner to pay the royalty and penalty for the illegal excavation of earth, under Section 48(7) of the Maharashtra Land Revenue Code, 1966.

2. The petitioner was awarded a contract by the respondent no.3Maharashtra State Power Generation Company Limited for the construction of 1X500 MW Thermal Power Project at Khaparkheda. In terms of the contract, the petitioner was required to erect buildings and structures for setting up of the power project. While erecting the structures as per the contract, the petitioner was required to dig the project site and excavate the earth for the purpose of laying the foundation of the structures. It is the case of the petitioners and it is not disputed by the respondents that the excavated earth was utilized in the construction of the project and the dug up pits were filled. When the project reached the stage of completion, the Tahsildar served a notice on the petitioner asking it to show cause as to why penalty should not be imposed on the petitioner for illegally excavating the earth from the construction site without permission. The petitioner replied to the said notice and denied the liability. The respondent no.1Tahsildar by the impugned order, dated 08.06.2011 directed the petitioner to pay the royalty of Rs.2,88,63,600/- and the penalty of Rs.16,37,82,168/-. The petitioner has challenged the order of the Tahsildar in the instant petition.

3. Shri A.C. Dharmadhikari, the learned counsel for the petitioner, submitted that the Tahsildar was not justified in directing the petitioner to pay the royalty and penalty as per the impugned order. It is submitted that since the ordinary earth that was dug up by the petitioner for laying the foundation of the structures while setting up the power project was utilized for refilling the dug up pits, the provisions of Section 48(7) of the Maharashtra Land Revenue Code, 1966 would not be attracted as the earth utilized for the aforesaid purpose cannot be a 'minor mineral'. It is submitted that ordinary earth was not included within the term "minor mineral" till the same was brought into its fold by the notification issued by the Central Government on 03.02.2000 under Section 3(e) of the Mines and Minerals (Development and Regulation) Act, 1957. It is submitted that as per the said notification, earth used only for filling or levelling purpose in construction of embankments, roads, railways, buildings would be considered as a minor mineral and the earth that is not used for the said purpose cannot be included within the fold of the term 'minor mineral'. It is submitted that earth was excavated by the petitioner for digging up the pits for laying the foundation of the thermal project and the excavated earth was utilized for filling up the pits and the areas that were dug up for laying the foundation. It is submitted that in almost similar set of facts, the Hon'ble Supreme Court has, in the judgment reported in 2015(12) SCC 736 : [2015(2) ALL MR 426 (S.C.)] (Promoters and Builders Association of Pune Versus State of Maharashtra & Others) quashed a similar order passed by the revenue authorities under the provisions of Section 48(7) of the Maharashtra Land Revenue Code.

4. Shri K.L. Dharmadhilari, the learned Assistant Government Pleader appearing for the revenue authorities, supported the order of the Tahsildar. It is submitted that earth was also included in the term 'minor mineral' from the year 2000 and since the petitioner had excavated the earth while undertaking the construction for the thermal project, without the permission of the revenue authorities, the petitioner was liable to pay the royalty and penalty under the provisions of Section 48(7) of the Maharashtra Land Revenue Code. It is, however, not disputed by the learned Assistant Government Pleader on the basis of the affidavit-in-reply filed on behalf of the Tahsildar that the petitioner had utilized the earth that was excavated for laying the foundation, for filling up the pits that were dug up. It is submitted that the penalty is imposed upon the petitioner for excavating the earth which is a minor mineral, without permission.

5. On hearing the learned counsel for the parties and on a perusal of the judgment of the Hon'ble Supreme Court reported in 2015(12) SCC 736 : [2015(2) ALL MR 426 (S.C.)] (Promoters and Builders Association of Pune Versus State of Maharashtra & Others) as also the impugned order, it appears that the order of the Tahsildar cannot be sustained. Ordinary earth was not included within the definition of the term 'minor mineral' till it was brought within the fold of the said term by the notification, dated 03.02.2000 issued by the Central Government under the provisions of Section 3(e) of the Mines and Minerals (Development and Regulation) Act. It would be worthwhile to refer to the notification of the Central Government, dated 03.02.2000 which reads thus:-

NOTIFICATION

"GSR 95(E).-- In exercise of the powers conferred by clause (e) of Section 3 of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957), the Central Government hereby declared the 'ordinary earth' used for filling or levelling purposes in construction of embankments, roads, railways, buildings to be a minor mineral in addition to the minerals already declared as minor minerals hereinbefore under the said Clause."

It is apparent from a reading of the notification of the Central Government dated 03.02.2000 that ordinary earth used for filling or levelling purposes in construction of embankments, roads, railways, buildings, etc. is to be considered as a minor mineral in addition to the minerals already declared as such, under the provisions of Section 3(e) of the Act. The notification dated 03.02.2000 only includes the ordinary earth used for the purposes mentioned in the notification to be a minor mineral and the ordinary earth that is used for any purpose other than the ones mentioned in the notification is not to be considered as a minor mineral. It is not the case of the respondentTahsildar or the State Government that the petitioner had utilized the earth for filling or levelling purposes in construction of embankments, roads, railways, buildings, etc. In the instant case just like the appellant in the case before the Hon'ble Supreme Court, earth was dug for the purpose of laying a foundation of the building and the earth so excavated or dug up was redeployed in the building itself at a particular stage of the construction. In the instant case also, the petitioner had excavated the earth while digging the pits for laying the foundation of the building for the thermal project and the earth so excavated was utilized by the petitioner in the building itself, i.e. for refilling the dug up pits after the foundation was laid. The Tahsildar has not disputed that the petitioner has utilized the earth excavated from the site for refilling the pits that were dug up for the purpose of laying the foundation of the building for the thermal project. In the case before the Hon'ble Supreme Court, since the earth excavated for the purpose of laying the foundation of the building was deployed in the building itself, just like in the present case, the Hon'ble Supreme Court held that the earth so excavated would not fall within the term 'minor mineral'. It was observed by the Hon'ble Supreme Court that where the excavated earth was utilized for the purpose like the one in this case, the notification, dated 03.02.2000 would have no application as the excavated earth in such a case would not be a species of minor mineral under Section 3(e) of the Mines and Minerals (Development and Regulation) Act. As per the Hon'ble Supreme Court, the end use of the earth that is excavated for laying the foundation or for any other purpose, would determine whether the excavated earth could be brought within the fold of the term 'minor mineral'. If the excavated earth is not used for filling or levelling in construction of embankments, roads, railways, buildings, etc., the said earth would not be a 'minor mineral' within the definition of the term under Section 3(e) of the Mines and Minerals (Development and Regulation) Act. It is apparent from the impugned order that the Tahsildar has not imposed the penalty on the petitioner for excavating any mineral other than the earth and the same is passed due to the excavation of the earth to the extent of 144318 Brass. Since the earth excavated by the petitioner cannot be brought within the fold of the term 'minor mineral', the Tahsildar could not have passed the impugned order under Section 48(7) of the Maharashtra Land Revenue Code as it could not be said that the petitioner had excavated 'minor mineral' without seeking the requisite permission.

Hence, for the reasons aforesaid, the writ petition is allowed. The impugned order of the Tahsildar is quashed and set aside.

Rule is made absolute in the aforesaid terms with no order as to costs.

Petition allowed.