Bombay High Court
Abdul Razik S/O Abdul Rashid And ... vs State Of Maharashtra Thr. The ... on 21 November, 2016
Bench: V.A. Naik
wp.4726.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 4726/2016
1) Abdul Razik s/o Abdul Rashid
Aged about 35 years, occu: Business
R/o Bichchu Tekdi Camp, Near Vita bhatti
Amravati.
2) Samrat s/o Sanjay Sarode
Aged about 25 years, occu: business
R/o Kewal colony, Shegaon Ward
Amravati. ..PETITIONERS
v e r s u s
1) State of Maharashtra
Through the Collector
Amravati.
2) The Tahsildar,
Tahsil office, Amravati.
3) Regional Transport Officer
Regional Transport Office
Amravati. ...RESPONDENTS
...........................................................................................................................
Shri T. H. Bewali, Advocate for petitioners
Shrimati Bharati Dangre, Government Pleader for with Mr.
A.M.Balpande, Asst. Government Pleader for respondents 1 to
..........................................................................................................................
CORAM: SMT. VASANTI A. NAIK &
MRS . SWAPNA JOSHI, JJ
.
DATED : 21 November, 2016
st
ORAL JUDGMENT: (PER SMT. VASANTI A. NAIK, J.)
wp.4726.16
Rule. Rule made returnable forthwith. The petition is heard
finally, with the consent of the learned counsel for the parties.
2. By this Writ Petition, the petitioners have impugned the action
on the part of the Naib Tahsildar of seizing the vehicle of the petitioners. The
petitioners have sought a direction against the Naib Tahsildar to release the
vehicle of the petitioners. The petitioners have also challenged the order of the
Naib Tahsildar, dated 24/5/2016 imposing penalty under the provisions of
Section 48(7) of the Maharashtra Land Revenue Code, 1966.
3. The Naib Tahsildar seized the vehicle of the petitioners on
19.5.2016 by resorting to the provisions of Section 48(8) of the Code for
illegal transportation of sand. The penalty proceedings were initiated against
the petitioners under the provisions of Section 48(7) of the Act and the
impugned order imposing the penalty was passed by the Naib Tahsildar on
24/5/2016.
4. Shri T.H.Bewali, the learned counsel for the petitioners
submitted that on a plain reading of the provisions of Section 48(8) of the
Code, it is clear that only the Collector or a Revenue Officer who is not below
the rank of Tahsildar, authorised by the Collector, may seize and confiscate the
vehicle in which the sand is transported illegally. It is stated that in the instant
case, the seizure is by a Naib Tahsildar. It is stated that since the rank of Naib
wp.4726.16
Tahsildar is below the rank of the Tahsildar, the Collector could not have
authorized the Naib Tahsildar to seize and confiscate the vehicle of the
petitioners. It is stated that an order imposing penalty could have been passed
under Section 48(7) only by the Collector or any Officer not below the rank of
the Tahsildar, who is authorized by the Collector to pass the order. It is stated
that since the rank of Naib Tahsildar is below the rank of the Tahsildar, the
Collector could not have authorized the Naib Tahsildar to pass the order under
section 48(7) of the Code. It is stated that the order under section 48(7) is
passed by the Naib Tahsildar on 24.5.2016 and hence the order is liable to be
set aside.
5. The learned Government Pleader has, on the other hand,
supported the orders of seizure and imposition of penalty. It is stated that
since the Tahsildar of the concerned Tahsil was on leave from 9.5.2016 to
20/5/2016 the Naib Tahsildar was asked to hold the charge of the Tahsildar
during the said period. It is stated that the Naib Tahsildar while acting as
Tahsildar during his absence, has seized the vehicle of the petitioners and
has passed the impugned order imposing penalty on 24/5/2016. It is however
fairly admitted that before 24/5/2016 the Tahsildar had joined his duties.
The learned Government Pleader stated that if this Court is desirous of setting
aside the order imposing penalty, permission may be granted to the
respondents to take up appropriate proceedings against the petitioner under
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section 48(7) of the Code, for imposition of penalty.
6. It appears on reading of the provisions of Section 48(7) and
48(8) of the Code that only the Collector or an Officer not below the rank of
a Tahsildar who is authorised by the Collector could seize and confiscate the
vehicle carrying illegal sand or pass an order imposing penalty u/s 48(7) of
the Code. Admittedly, the rank of the Naib Tahsildar is below the rank of the
Tahsildar. In view of the provisions of Section 48(7) and 48(8) of the Code,
the Collector can pass an order under section 48(7) or seize or confiscate the
vehicle or material u/s 48(8) or authorise any other Officer who is not below
the rank of Tahsildar to do so. Between 9.5.2016 to 20.5.2016 the Tahsildar
was on leave and the Naib Tahsildar was asked to hold the charge of the
Tahsildar. Either the Collector should have seized the vehicle of the petitioners
or should have authorized the Sub-Divisional Officer or any other officer who
is not below the rank of Tahsildar to do so. Merely because the Naib Tahsildar
was holding the charge of the Tahsildar, the Naib Tahsildar could not have
been considered to be holding the rank of the Tahsildar. Since the Collector is
empowered by the provisions of Section 48(8) to authorize a person, not
below the rank of the Tahsildar to seize and confiscate the material or the
vehicle, the Naib Tahsildar could not have seized the vehicle of the petitioner.
So also, since the Tahsildar had resumed his duties from 21st May 2016, the
Naib Tasildar could not have passed the order imposing penalty under section
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48(7) of the Code. Even otherwise, the Naib Tahsildar, being an officer of the
rank, below the rank of Tahsildar, could not have been autorized by the
Collector to pass an order u/s 48(7) of the Code. Thus, the orders of seizure
as well as the order imposing penalty are liable to be quashed and set aside.
In the circumstances of the case, since it is the case of the respondents that
the petitioners were illegally carrying excess sand in the vehicle, the
respondents are free to take up appropriate action against the petitioners
under section 48(7) of the Code.
7. Hence for the reasons aforesaid, the Writ Petition is partly
allowed. It is hereby declared that the Naib Tahsildar was not empowered to
seize the vehicle of the petitioners and the action on the part of the Naib
Tahsildar of seizing the vehicle is illegal. The respondents are directed to
hand over the seized vehicle to the petitioners within one week. Though we
hereby quash and set aside the impugned order imposing penalty u/s 48(7) of
the Code, the respondents are free to take up appropriate action against the
petitioners under the said provisions, in accordance with law.
Rule is made absolute in the aforesaid terms, with no orders as
to costs.
JUDGE JUDGE
sahare
