Bombay High Court
M/S Waghchaure And Company, ... vs The State Of Maharashtra And ... on 3 March, 2016
Bench: S.V. Gangapurwala
(1) W. P. No. 2148 of 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 2148 of 2013
District : Ahmednagar
M/s. Waghchaure and Company,
Aurangabad, through its Proprietor
Kiran Janardhan Waghchaure,
R/o. Aurangabad,
Taluka & District : Aurangabad,
Through his General Power of Attorney,
Machindra s/o. Babanrao Choudhari,
Age : 42 years,
Occupation : Agriculture & Business,
R/o. Nagardevale,
Taluka & District : Ahmednagar. .. Petitioner.
versus
1. The State of Maharashtra,
through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai.
2. The Collector, Ahmednagar,
District : Ahmednagar.
3. The Tahsildar,
Rahuri, Taluka : Rahuri,
District : Ahmednagar. .. Respondents.
.........................
Mr. V.D. Hon, Senior Advocate, holding for
Mr. A.D. Shinde, Advocate, for the petitioner.
Ms. S.S. Raut, Asst. Government Pleader, for
respondent nos.1 to 3.
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(2) W. P. No. 2148 of 2013
..........................
CORAM : S.V. GANGAPURWALA &
A.M. BADAR, JJ.
DATE : 3RD MARCH 2016
ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :
1. Mr. Hon, the learned Senior Counsel for the petitioner,
submits that pursuant to the proclamation inviting tenders for excavation
of sand from river bed of Mula at village Aradgaon [Taluka : Rahuri,
District : Ahmednagar], the petitioner had filled in the tender.
ig The
petitioner being highest bidder, was allotted sand spot so as to excavate
sand to the extent of 10,300 brass for Rs. 51,00,000/-. The petitioner had
deposited amount of Rs. 51,00,000/- and thereafter was issued order to
excavate sand of the quantity allotted to the petitioner i.e. 10,300 brass.
The learned Senior Counsel submits that the petitioner was not permitted
to excavate sand by the villagers. Time to time, applications were given.
Thereafter, Tahsildar called for the meeting. Subsequently, the villagers
agreed to permit the petitioner to excavate the sand. The petitioner started
excavation of sand actually on 30-5-2011 in accordance with the terms and
conditions of the tender. The learned Senior Counsel submits that on 20th
June 2011, a surprise visit was made by the Assistant Engineer. He carried
out Panchanama in which it was mentioned that on 20th June 2011, the
petitioner excavated sand to the extent of 4,474 brass. The learned Senior
Counsel further submits that it was learnt by the petitioner that the flying
squad had made a surprise visit and Panchanama was drawn in between
6.00 p.m. to 9.00 p.m. in dark. The said measurement was behind back of
the petitioner and it is stated that the petitioner had excavated sand to the
(3) W. P. No. 2148 of 2013
extent of 17817 brass and the petitioner was directed to pay towards
license fee and penalty amount to the tune of Rs. 7,94,40925/-. According
to the learned Senior Counsel, the petitioner approached this Court. This
Court had set aside the order on the ground of non-observance of
principles of natural justice and directed the authority to re-consider the
case.
2. The learned Senior Counsel for the petitioner further submits
that the petitioner subsequently filed detail say to the show cause notice
and lastly the respondents on the basis of the Panchanama came to the
conclusion that the petitioner excavated sand to the extent of 7678.66
brass, whereas the petitioner was issued 75 transit pass-books could
excavate sand to the tune of 7,500 brass. As such, the petitioner was
directed to pay penalty of Rs. 16,46,825/-. According to the learned
Senior Counsel, 25 % of waste material from excavation has not been
deducted by the respondents. It is further submitted that the measurement
which was carried out after a long delay would not be correct
measurement. The petitioner was entitled to excavate sand to the extent of
10,300 brass and even according to the respondents, the petitioner has
excavated sand to the extent of 7678.66 brass. According to the learned
Senior Counsel, the measurement is per se illegal. There is no authenticity
of the same after a long delay. The said measurement is much after the
excavation of sand was started.
3. Ms. Raut, the learned Asst. Government Pleader for the
respondents, submits that the petitioner was issued 75 transit pass-books
and as per the same, it is recorded that the petitioner has excavated sand to
(4) W. P. No. 2148 of 2013
the extent of 7500 brass. 25 % deduction of waste material has already
been done initially when the contract is awarded. The learned Asst.
Government Pleader further submits that the Government Resolution dated
5th September 2003 specifically lays down that if any vehicle is carrying
sand more than its capacity or more than what has been recorded, then
excavation of excess sand is illegal and which invites penal action. The
same has been rightly taken. As per the record, the petitioner has
excavated 7,500 brass of sand. However, on measurement it is found that
the petitioner has excavated 7678.66 brass of sand i.e. 178.66 brass in
excess, for which penalty of Rs. 16,46,825/- has been rightly imposed.
4.
We have considered the submissions canvassed by the learned
Senior Counsel for the petitioner and the learned Asst. Government
Pleader for the respondents.
5. The fact that the petitioner was successful bidder and was
allotted sand spot to excavate sand to the extent of 10,300 brass is not
disputed. It is also not disputed that the petitioner has deposited amount of
Rs. 51,00,000/- for excavation of the said sand to the tune of 10,300 brass.
Even according to the respondents, the petitioner has excavated sand to the
extent of 7678.66 brass. The only contention of the respondents is that the
petitioner has been issued 75 transit pass-books and as recorded, he has
excavated sand to the extent of 7,500 brass. On measurement, it is found
that the petitioner has excavated 7678.66 brass of sand i.e. at the time of
second measurement. As per the earlier measurement dated 24-6-2011, it
was stated that the petitioner has excavated sand to the extent of 17,817
brass, whereas the second Panchanama / measurement is dated 1st
(5) W. P. No. 2148 of 2013
September 2012 which is more than one year after the excavation was
done. It is stated that when second measurement was done, there was not
much flow of water in the river. However, the same would be on
presumption. How far the second measurement can be said to be correct
and can be taken into account, is a question. There was vast difference
between two measurements, the one which was done on 24-6-2011 and
another on 1-9-2012. No reason is forthcoming for such vast difference
between two measurements and the said excavation is below 10,300 brass
of sand i.e. the quantum of the sand which the petitioner was entitled to
excavate. The measurement dated 1-9-2012 does not inspire confidence
for more than one reason i.e. there is a major variance between earlier
measurement and subsequent measurement. So also, the same is almost
after one year of the excavation wherein the sand spot could have
undergone change because of one more rainy season.
6. Considering the aforesaid conspectus of the matter and the
material on record, it cannot be said that the petitioner has excavated the
sand beyond permissible limit.
7. In the result, the Writ Petition is allowed.
(a) The impugned order dated 4-2-2013 passed by respondent no.3 i.e.
Tahsildar, Rahuri, is quashed and set aside.
(b) It is submitted that the petitioner has deposited amount of Rs.
15,00,000/- in this Court as per order dated 23rd May 2012 in Writ
Petition No. 4423 of 2012. In case, the said amount is lying with this
(6) W. P. No. 2148 of 2013
Court, the petitioner is permitted to withdraw the same along with accrued
interest, if any.
8. Rule is made absolute in the above terms. No costs.
( A.M. BADAR ) ( S.V. GANGAPURWALA )
JUDGE JUDGE
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puranik / WP2148.13
