Criminal Writ Petition No.1105 of 2017

19th December, 2017

Petitioner Counsel: Mr. S.P. BHANDARKAR
Respondent Counsel: Mr. S.S. DOIFODE, Mr. N.B. BARGAT

JUDGMENT

R. K. Deshpande, J. :- Rule made returnable forthwith. Heard finally with the consent of the learned Counsel appearing for the respective parties.

2. The petitioner is seeking a direction to the respondents to release a vehicle bearing Registration No.MH-20-AK-7558 carrying sand of one brass in excess of the weight permitted to be carried out by the vehicle in question. By way of amendment, the order dated 2.11.2017 passed by the Tahsildar, Tumsar and the order dated 24.11.2017 passed by the Sub-Divisional Officer, Tumsar confirming the action of Naib-Tahsildar, Tumsar of seizure and confiscation of vehicle in question in exercise of power under sub-section(8) of Section 48 of the Maharashtra Land Revenue Code, 1966 are challenged. By the impugned orders, the petitioner is directed to pay an amount of Rs.2,400/- towards the royalty in respect of extraction of six brass of sand and penalty of Rs.60,000/-for unauthoised transportation.

3. The contention of Mr.S.P.Bhandarkar, learned Counsel appearing for the petitioner is that the action of seizure and confiscation of vehicle along with sand and recovery of royalty and penalty as contemplated by the impugned order cannot be justified under the provisions of sub-section(7) and sub-section(8) of Section 48 of the Maharashtra Land Revenue Code. He has urged that seizure and confiscation of the vehicle said to be unauthorisedly carrying the sand, made by NaibTahsildar on 2.11.2017 was without any authority. He further submits that, in fact, the said provisions are not at all attracted, unless and until there is a show cause notice issued to the sand ghat owner for unauthorised extraction of sand, which has not been assigned to him by the State Government.

4. In the affidavit filed by the respondents-the Authorities of the State Government, it is admitted that seizure and confiscation of the vehicle in question along with the sand carried in it was by the Naib-Tahsildar. For that purpose, reliance is placed upon the order dt.25.8.2016 issued by the Tahsildar, Tumsar authorising the flying squad consisting of Naib-Tahsildar to seize and confiscate the sand, which is minor mineral, if it is found to be unauthorisedly extracted and transported.

5. To deal with the contentions raised by the petitioner, we have to consider as to whether the provisions of sub-sections(7) and (8) of Section 48 of the Code are attracted in the present case. The provisions of sub-section(7) and (8) of Section 48 of the Maharashtra Land Revenue Code, 1966 are reproduced below :

"48. Government title to mines and minerals :

(1) to (6) .........

(7) Any person who without lawful authority extracts, removes, collects, replaces, picks up or disposes of any mineral from working or derelict mines, quarries, old dumps, fields, bandhas (whether on the plea of repairing or constructions of bund of the fields or any other plea), nallas, creeks, riverbeds, or such other places wherever situate, the right to which vests in, and has not been assigned by the State Government, shall, without prejudice to any other mode of action that may be taken against him, be liable, on the order in writing of the Collector, to pay penalty not exceeding a sum determined, at three times the market value of the minerals so extracted, removed, collected, replaced, picked up or disposed of, as the case may be :

Provided that, if the sum so determined is less than one thousand rupees the penalty may be such larger sum not exceeding one thousand rupees as the Collector may impose.

(8) Without prejudice to the provision in sub-section(7), the Collector may seize and confiscate any mineral extracted, removed, collected, replaced, picked up or disposed of from any mine, quarry or other place referred to in sub-section(7) the right to which vests in, and has not been assigned by, the State Government."

6. The aforesaid provisions are not at all attracted in case, where any person extracts or removes mineral i.e. sand in question, with lawful authority. It is attracted where extraction of minor mineral by any person, is without assignment of such right by the State Government. It is attracted if extraction is from the area in excess of one, which is assigned by the State Government. If the transporter of mineral is different than the assignee of rights of extraction then he cannot be booked under the said provisions for unauthorisedly carrying the sand extracted, unless it is shown that the extraction of sand by assignee is unauthorsed and illegal. The provision does not empower the respondents to seize and confiscate the vehicle carrying minerals in excess of weight permitted to be carried by the vehicle in question.

7. It is not in dispute that the respondent no.4M/ s.S.R.Traders was the assignee, authorised by the State Government to extract the sand from the ghat in question. The petitioner was employed by the respondent no.4 to render services of transportation of sand from the ghat. There is neither any show cause notice issued nor any action is taken against the respondent no.4 for unauthorised or illegal extraction of sand nor any penalty is imposed for that purpose. In view of this, the petitioner, who is found to be transporting the extracted sand, cannot be booked for payment of royalty or fine. The provisions of sub-sections(7) and (8) are, therefore, not at all attracted and the action taken by respondents to seize and confiscate the minerals and the vehicle under the said provisions cannot be sustained.

8. It is not necessary for us to deal with the contention about the authority of NaibTahsildar to seize and confiscate the vehicle in question along with the sand under sub-section(7) and (8) of Section 48 of the Maharashtra Land Revenue Code and we leave such question open to be decided in the appropriate proceedings.

9. In view of above, this Writ Petition is allowed. The orders dt.2.11.2017 and 24.11.2017 passed by the Tahsildar and Sub-Divisional Officer respectively confirming the action of NaibTahsildar of confiscation and seizure of vehicle in question along with the sand on 2.11.2017 and recovering royalty and penalty are hereby quashed and set aside. The respondents are directed to forthwith release the vehicle along with the sand in question to the petitioner.

10. The petitioner shall be at liberty to file Civil Suit for claiming damages, as is permissible in law and to that extent the prayer made in the petition does not survive.

11. On 14.12.2017, this Court has passed the order granting liberty to the petitioner to amend the petition and join the concerned Authorities as party/respondents. The learned Counsel appearing for the petitioner Mr.S.P.Bhandarkar had earlier submitted that the said order was not uploaded on that date, but we find that the order in fact was uploaded on that date itself. Hence, for making such a statement, the learned Counsel to pay costs of Rs.5000/- to the High Court Bar Association, Nagpur.

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

Petition allowed.