M/S Bhandara Traders Thr. Prop. ... vs State Of Maha., In The Ministry Of ...
2017 Latest Caselaw 6549 Bom

 Judgment                                           1                                wp4401.17.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 4401  OF 2017


 M/s. Bhandara Traders,
 Through its Proprietor,
 Abdul Siddique Patel,
 Aged 60 years, Occ.: Business,
 R/o. Jamnalal Bajaj Ward, 
 Bhandara. 

                                                                        ....  PETITIONER.

                                     //  VERSUS //


 1. State of Maharashtra,
    In the Ministry of Revenue and Forest,
    Mantralaya, Mumbai-32.

 2. District Collector, Bhandara. 

 3. Additional District Collector,
    Bhandara. 

 4. Tehsildar, Paoni,
    Tehsil Paoni, District : Bhandara. 


                                                               .... RESPONDENTS
                                                                                     .
  ___________________________________________________________________
 Shri   S.V.Manohar,   Senior   Advocate   a/b.   Shri   V.S.Kukday,   Advocate   for
 Petitioner. 
 Shri S.M.Ukey, Addl. G.P. for Respondents. 
 ___________________________________________________________________


                              CORAM : S.C.GUPTE, J.

DATED : AUGUST 28, 2017.

ORAL JUDGMENT :

Judgment 2 wp4401.17.odt

1. Learned Additional Government Pleader seeks leave to delete

paragraph No.15 of the reply of respondent Nos.2 and 3, dated 15 th July,

2017.

Leave granted. The deletion be carried out forthwith.

2. Heard learned Senior Advocate for the petitioner and learned

Additional Government Pleader for the respondents.

3. RULE. Taken up for hearing forthwith by consent of counsel.

4. The present petition challenges an order passed by Additional

District Collector, Bhandara. By the impugned order, the Additional

Collector has imposed penalty of Rs.1,69,84,000/- on the petitioner and

forfeited its security deposit, holding the stock of sand stored by the

petitioner to be illegal and stopping activities of the petitioner at the sand

ghat till a fresh amount of security deposit is paid.

5. The petitioner holds a sand excavation licence. An agreement

dated 22nd November, 2016 has been executed between the petitioner and

respondents, in terms of which the petitioner was handed over possession of

the sand ghat and permitted to excavate about 28268 brass sand. By three

show cause notices dated 25/05/2017, 01/06/2017 and 06/06/2017, Sub-

Divisional Officer, Bhandara alleged that the petitioner had made illegal

Judgment 3 wp4401.17.odt

stock of sand on field Gut No. 30 of Mouza : Walani and called upon him to

show cause why action should not be taken against it. The show cause

notices alleged three separate lapses/ breaches of agreement for excavation

of sand on the part of the petitioner. Firstly, it was alleged that the

petitioner had stored the excavated sand at a place which did not have a

non-agriculture permission. Secondly, it was alleged that the petitioner had

transported the sand from the place of excavation to the place of storage

(about ½ km away) without any authorization or permit. Thirdly, it was

alleged that, contrary to the terms and conditions of the agreement between

the parties, the petitioner had excavated sand by use of a Poclain machine.

The petitioner filed its replies to the show cause notices. By his impugned

order dated 23rd June, 2017, the Additional Collector levied penalty of

Rs.1,69,84,000/- towards unauthorized stock of 8492 brass sand. The

Additional Collector also ordered forfeiture of the security deposit kept by

the petitioner with the respondents and called upon it to make a fresh

security deposit, allowing the petitioner to carry out the work of sand

excavation at the sand ghat only after such deposit. The Additional Collector

also directed seizure of the Poclain machine by which the petitioner had

purportedly excavated sand and directed the Sub-Divisional Officer to take

steps in relation to the machine in accordance with the relevant provisions,

namely, sections 47(7) and (8) of the Maharashtra Land Revenue Code,

1966.

Judgment 4 wp4401.17.odt

6. It is not disputed before this Court that the first ground of the

show cause notice, namely, storage of sand at an unauthorized place, i.e.

land which did not have non-agriculture permission, does not hold good. It

is an admitted position now between the petitioner and the respondents that

the place of storage had a non-agriculture permission. As far as the second

ground urged against the petitioner is concerned, it is the case of the

petitioner that no permit is required for transportation of sand between the

place of excavation and the place of storage (the place of storage being

merely ½ km. away from the place of excavation) and that as a matter of

practice, no permits were being issued by the respondents for transportation

of sand from the place of excavation to the place of storage throughout the

State. On the other hand, it is the case of the respondents that there were

indeed permits issued for such transportation, with further transportation

(i.e. between the place of storage and the place of sale) to be affected by

another permit known as zero permit. This is, of course, a submission made

across the bar. There is no issue joined by the respondents in this behalf in

the affidavit in reply filed in the petition. As far as the third ground is

concerned, it is an admitted position that the ground itself is based on, and

considered by the Additional Collector in the light of, a drone recording of

the excavation work. It is also an admitted fact that this evidence was not

shown to the petitioner or its explanation on the basis of this evidence was

called for.

Judgment 5 wp4401.17.odt

7. In the light of the fact that the impugned order directs

forfeiture and penalty without either considering in terms the defence of

non-issuance of permits for transportation between the place of excavation

and the place of storage as a matter of practice or without making the

petitioner privy to the evidence of drone recording which is used against the

petitioner, it is in the interest of justice that the impugned order be quashed

and set aside and the matter be remanded to the District Collector for a fresh

hearing according to law. It is ordered accordingly. The respondents shall

make available to the petitioner the drone recording of the excavation work

in possession of the respondents and allow the petitioner to offer an

explanation thereon. The Collector shall while passing an order deal with

the ground urged by the petitioner.

8. All grounds urged by the petitioner in support of his reply to

the show cause notices including the ground that as a matter of practice no

permits were issued for transportation of sand between the place of

excavation and the place of storage and also the explanation of the petitioner

on the drone recording referred to above, shall be considered by the

Collector before deciding the show cause notices.

A compact disc / pen drive containing the drone recording

referred to above shall be furnished by the respondents to the petitioner by

31st August, 2017.

Judgment 6 wp4401.17.odt

The petitioner will submit its explanation latest by 4 th

September, 2017. The Collector shall decide the show cause notice latest by

8th September, 2017.

Rule is made absolute and the petition is disposed of in the

above terms. No order as to costs.

9. A copy of this judgment, duly authenticated by the Sheristedar

of this Court, shall be produced by the petitioner before the Collector.

JUDGE

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