Shri Santosh Gulabchand Laddha vs The Tahasildar And Ors
2017 Latest Caselaw 1760 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION
                      WRIT PETITION NO.7036 OF 2016



 Shri Santosh Gulabchand Laddha                                   ..       Petitioner
       Vs
 The Tahasildar,
 Taluka Niphad, Dist-Nashik and Others.                           ..       Respondents
       -

Ms. Sneha G. Sanap for the Petitioner.

Ms. Aparna Vhatkar, AGP for the Respondents.

-

                                  CORAM  :        A.S. OKA & A.K. MENON, JJ 

                                  DATED    :      17TH APRIL 2017


 ORAL JUDGMENT: (PER A.S.OKA, J)

1. Rule. The learned AGP waives service for the Respondents.

Forthwith taken up for final disposal.

2. By this Petition under Article 226 of the Constitution of

India, the Petitioner has challenged the Circular dated 17 th February

2011 issued by the District Collector of Nashik. The said Circular deals

with the issue of fixing royalty on the minor minerals generated by use

of stone crusher. The Circular provides that royalty will be charged on

the basis of the consumption of electricity by the stone crusher machine.

On 18th September 2013, a letter was addressed by the Additional

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Collector to the present Petitioner calling upon him to deposit a sum of

Rs.21,09,510/- by way of royalty on minor minerals.

3. There are two affidavits filed by Shri Prashant Tamanna

Kore, the District Mining Officer, Nashik, on behalf of the State

Government. One is of dated 31 st August 2016 and the other is dated

13th December 2016.

4. The main contention raised in this Petition under Article

226 of the Constitution of India is that the effect of the impugned

Circular is that the quantity of minor minerals extracted will be

calculated on the basis of the electricity consumed by the stone-crusher

machine and royalty will be charged on that basis. The contention is

that this method is completely contrary to the provisions of the Bombay

Minor Mineral Extraction Rules, 1955 (for short "the said Rules of

1955") and the Maharashtra Minor Minerals Extraction (Development

and Regulation) Rules, 2013 (for short "the Rules of 2013"). It is

contended that the method adopted for calculating the quantity of

minor minerals extracted is completely illegal.

5. In the first affidavit dated 31st August 2016 filed by Shri

Prashant Kore, the District Mining Officer, Nashik, a reference is made

to a Civil Suit filed by the Petitioner. Reliance is placed on the order

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dated 7th July 2016 passed by the Sub-Divisional Officer in an Appeal

preferred by the Petitioner. A copy of the said judgment and order in

the Appeal is also annexed to the said affidavit.

6. In the second affidavit filed by Shri Kore, in Paragraph 4,

he has dealt with the impugned Circular. Paragraph 4 of the said

affidavit reads thus:

"4. I say and submit that, the Circular dated 17.02.2011 issued by the Collector, Nashik is true, legal & correct. I say and submit that, said Circular has been issued by the Collector, Nashik by conducting actual verification on crusher sites, and by measuring electricity consumption for crushing of stones. I say and submit that, assessment of royalty of stone crushing of all Stone Crushers have been carried through above method as well as by conducting volumetric measurement of spot from the Public Works Department of the State of Maharashtra. I say and submit that, the method adopted by aforesaid Circular is based on the actual demonstration conducted by these Respondents, hence, if the Petitioner has any grievance about the Circular an alternative method or the option of volumetric measurement will be used by these Respondents for assessment of the Petitioner's royalty. I say and submit that, in this regard the Collector, Nashik has passed the order on 17.03.2016 and accordingly issued letters dated 19.03.2016, 16.04.2016, 10.05.2016 and 20.05.2016 to the Section Engineer, Public Works Department, Sub-Division, Niphad. It is therefore submitted that, the objection raised by the Petitioner as to the Circular Exhibit "A" is devoid of any merits."

(underlines supplied)

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7. In Paragraph 5 of the said affidavit, a reliance is placed on

the judgment and order dated 20 th October 2010 passed by a Division

Bench of this Court in Writ Petition No.2640 of 20101.

8. The learned counsel appearing for the Petitioner submitted

that the royalty will have to be calculated on the basis of the minor

minerals actually extracted and not on the basis of artificial calculation

made on the basis of the electricity consumed. The learned AGP relied

upon written instructions given by Shri Kore, the District Mining Officer,

Nashik to the Office of the Government Pleader on 13 th December 2016

in which he has justified the impugned Circular.

9. We have considered the submissions. The Respondents

have relied upon the order dated 7 th July 2016 passed by the Sub-

Divisional Officer, Niphad in the Appeal preferred by the Petitioner

being RTS Appeal No.228 of 2016 under Section 247 of the

Maharashtra Land Revenue Code, 1966. The said Appeal does not

decide the issue of the legality of the method adopted for determining

the royalty and the validity of the impugned Circular. In fact, the Sub-

Divisional Officer, Niphad, could not have gone into the said issue as the

impugned Circular has been issued by his Superior Officer. In fact, in

Paragraph 3 of the first affidavit, Shri Kore has stated that the Appeal 1 ( Ibrahimsahib Burhansaheb Kokni v. The State of Maharashtra & Another.)

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was dismissed on the ground that the assessment will be made by

conducting volumetric measurement. In fact, in Paragraph 4 of the

subsequent affidavit dated 13th December 2016, the said District Mining

Officer has stated in so many words that if the Petitioner has any

grievance about the impugned Circular, the option of volumetric

measurement will be used by the Respondents for assessing the royalty

payable by the Petitioner. We accept the said statement. In view of this

statement, royalty payable by the Petitioner will have to be calculated

on the basis of the volumetric measurement and not on the basis of the

electricity consumption.

10. We may note here that the judgment and order dated 20 th

October 2010 in Writ Petition No.2640 of 2010 does not decide the

issue of the validity of the impugned Circular. In the said Petition, what

was challenged was the Circular dated 12th November 2005.

11. In view of the categorical statement made by the District

Mining Officer in his both the affidavits, it is not necessary to quash the

impugned Circular. However, the Respondents will have to give a

similar option to the similarly placed persons.

12. Accordingly, we dispose of the Petition by passing the

following order:

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                                              ORDER : 



                  (a)          We direct the  Respondents not to calculate  royalty 

payable by the Petitioner on the basis of the Circular

dated 17th February 2011. We accept the aforesaid

statement made by the District Mining Officer,

Nashik, in Paragraph 4 of the affidavit dated 13 th

December 2016;

(b) In view of the aforesaid statement, assessment of the

royalty payable by the Petitioner shall be made only

on the basis of the volumetric measurement of the

minor minerals extracted;

(c) Quantification of the royalty shall not be made on

the basis of the electricity consumption;

(d) Needless to add that similarly placed persons who

are aggrieved by the impugned Circular shall be

given similar option of calculating the royalty

payable on the basis of the volumetric measurement;

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                  (e)          If   any   notices   are   already   issued   demanding   the 

royalty calculated on the basis of the impugned

Circular, the Respondents shall withdraw such

notices and shall issue fresh notices to the Petitioner

after calculating the royalty on the basis of the

volumetric measurement;

(f) Rule is partly made absolute on above terms;

(g) All concerned to act upon an authenticated copy of

this order.

           (A.K. MENON, J )                                          ( A.S. OKA, J )