Bombay High Court
M/S. J. K. Traders Thr. Proprietor ... vs State Of Maharashtra In Thr ... on 29 June, 2016
Bench: V.A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3256/2016
PETITIONER: M/s. J.K. Traders,
Through its Proprietor Shri Javed Iqbal Khan,
R/o Mahal Ward, Bhandara, Tah. and
District - Bhandara.
...VERSUS...
RESPONDENTS : 1. State of Maharashtra, through its Secretary,
In the Ministry of Revenue and Forest,
Mantralaya, Mumbai - 32.
2. District Collector, Bhandara,
Tah. and Distsrict - Bhandara.
3. Sub Divisional Officer,
Bhandara, Tah. and Distsrict - Bhandara.
4. Tahsildar, Pauni, Tah. Pauni,
District - Bhandara.
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Shri V.S. Kukday, Advocate for petitioner
Shri S.M. Ghodeswar, AGP for respondents
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CORAM : SMT. VASANTI A. NAIK, AND
MRS. SWAPNA JOSHI, JJ.
DATE : 29.06.2016
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
Rule. Rule made returnable forthwith. The petition is heard
finally with the consent of the learned Counsel for the parties.
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By this writ petition, the petitioner had challenged the order
of the respondent no.2 - District Collector, Bhandara, dated 25.4.2016
forfeiting the security deposit and the bank guarantee of the petitioner, as
also the order of the Tahsildar, dated 17.5.2016 imposing penalty of
Rs.2,06,02,400/- on the petitioner.
In pursuance of a tender floated by the respondents for
excavation of the sand from the Sand Ghat at Pauni, the petitioner
participated in the tender and was allotted the Sand Ghat. The petitioner
deposited the entire amount as per the bid and was excavating the sand,
when it was informed by the respondent no.4 that the petitioner was
found to be illegally excavating the sand by poclain machine and
therefore, it was liable for action. The petitioner was asked to show cause
by the notice, dated 4.4.2016 as to why the security deposit should not be
forfeited and why the allotment of the Sand Ghat should not be cancelled.
The petitioner furnished its explanation denying the allegations levelled
against it. By an order, dated 25.4.2016 the Collector forfeited the
security deposit of Rs.6,72,570/- and the bank guarantee of
Rs.1,60,000/-. By the said order, the Collector also directed the
respondent no.3 - Sub Divisional Officer, Bhandara to release the JCB
machine seized by him and to grant permission to the petitioner to
operate the Sand Ghat after the petitioner furnishes a fresh bank
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guarantee and security deposit. It is the case of the petitioner that though
the petitioner was ready to furnish a fresh bank guarantee and also
deposit the amount towards security deposit again, the respondent -
Tahsildar without issuance of show-cause-notice to the petitioner and
without granting an opportunity of hearing to it, by the impugned order,
dated 17.5.2016 imposed a penalty of Rs.2,06,02,400/- on the petitioner
under the provisions of Section 48 (7) of the Maharashtra Land Revenue
Code.
Shri Kukday, the learned Counsel for the petitioner
submitted that though the petitioner had challenged the order of the
Collector, dated 25.4.2016, forfeiting the bank guarantee and the security
deposit and asking the petitioner to redeposit the said amount, in the writ
petition, the petitioner gives up the said prayer and the grievance of the
petitioner would stand redressed, if the impugned order of the Tahsildar,
dated 17.5.2016 under Section 48 (7) of the Maharashtra Land Revenue
Code, is quashed and set aside. It is stated that the petitioner is ready to
refurnish the bank guarantee. It is stated that the security amount is again
deposited by the petitioner in terms of the order of the Collector, dated
25.4.2016 and the said order is implemented as far as the petitioner is
concerned, though the Sub Divisional Officer has not permitted the
petitioner to operate on the Sand Ghat by accepting a fresh bank
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guarantee. It is stated that though the petitioner has given up the
challenge to the order of the Collector, dated 25.4.2016, the petitioner
has seriously challenged the order of the Tahsildar, dated 17.5.2016,
under Section 48 (7) of the Maharashtra Land Revenue Code. It is stated
that the impugned order of the Tahsildar is clearly illegal, inasmuch as,
the Tahsildar did not grant any opportunity whatsoever to the petitioner
before imposing a huge amount on the petitioner towards penalty. It is
stated that it was necessary for the Tahsildar to have, at least issued a
show-cause-notice to the petitioner. It is stated that the order of the
Tahsildar is passed in violation of the principles of natural justice and the
same is liable to be set aside.
Shri Ghodeswar, the learned Assistant Government Pleader
appearing on behalf of the respondents, on instructions from the
Tahsildar, fairly admits that before passing the order imposing the
penalty, dated 17.5.2016, the petitioner was not served with a show-
cause-notice. It is stated that the petitioner was not granted any
opportunity before passing the impugned order of imposition of penalty.
It is stated that an appropriate order may be passed, in the circumstances
of the case.
On hearing the learned Counsel for the parties, we find that
the order of the Tahsildar, dated 17.5.2016 is clearly illegal and cannot be
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sustained. Before imposition of penalty under Section 48 (7) of the code,
it would be necessary for the authority to at least issue a show-cause-
notice to the person concerned. It is held by this Court time and again
that before passing an order under Section 48 (7) and (8) of the
Maharashtra Land Revenue Code in regard to the imposition of penalty, it
would be necessary for the revenue authorities to at least serve a
show-cause-notice. Admittedly, since the Tahsildar had not served a
show-cause-notice on the petitioner before imposition of the penalty, the
impugned order is liable to be quashed and set aside. In the circumstances
of the case, it would be necessary for the Sub Divisional Officer to
implement the order of the respondent no.2 - District Collector, dated
25.4.2016. The said order still subsists and it would be necessary for the
Sub Divisional Officer to release the JCB machine of the petitioner and
permit it to operate on the Sand Ghat (without the help of the JCB
machine), as the petitioner is ready to refurnish the bank guarantee.
Hence, for the reasons aforesaid, the writ petition is
allowed. The impugned order of the Tahsildar, dated 17.5.2016 is
quashed and set aside. The Tahsildar is free to take appropriate action
against the petitioner, in accordance with law. The concerned respondent
should immediately accept the fresh bank guarantee from the petitioner
and ensure that the order of the Collector is implemented immediately.
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Rule is made absolute in the aforesaid terms with no order
as to costs.
Steno copy of this judgment is granted.
JUDGE JUDGE
Wadkar
