Neha D/O. Anil Agre vs State Of Maharashtra Thr. ...
2017 Latest Caselaw 9773 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



                 CRIMINAL WRIT PETITION NO.1105 OF 2017



  Neha d/o. Anil Agre,
  Aged 23 years, Occ. Business,
  r/o. 302, Anand Palace,
  Bhandara Road, Nagpur.                  ..........      PETITIONER



       // VERSUS //



  1.  State of Maharashtra,
       Through its Secretary, 
       Deptt. of Revenue and
       Forest, Mantralaya,
       Mumbai.

  2.  The Collector,
       Collectorate Administrative
       Building, Amgaon Rd.,
       Fulchur Tola, Gondia 441 601.




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  3.  Nilesh Gaund,
       The Naib-Tahsildar, 
       Tumsar, District Bhandara.

  4.  M/s.S.R.Traders,
       Through its Proprietor,
       Shiv Bansal, r/o. Ghatkuroda,
       Tq. Tirora, Distt. Gondia.

  5.  Sub-Divisional Magistrate,
       Tq.Tirora, Distt. Gondia.

  6.  Senior Police Officer,
       Tumsar Police Station,
       Tq.Tirora, Distt. Gondia.

  7.  Deputy Superintendent of
       Police, Anti Corruption Bureau,
       Distt. Bhandara.

  8.  Taluka Magistrate & Tahsildar,
       Tumsar, Tq. Tumsar, Distt.
       Bhandara.

  9.  Sub-Divisional Officer and 
       Magistrate, Tumsar, Tq.
       Tumsar, Distt. Bhandara.

  10.Gajendra Balpande,
       Taluka Magistrate and 
       Tahsildar, Tumsar, Tq.
       Tumsar, Distt. Bhandara.

  11.Smt.Shilpa K. Sonale,
       Sub-Divisional Officer and
       Magistrate, Tumsar, Tq.
       Tumsar, Distt.Bhandara.              ..........       RESPONDENTS




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  ____________________________________________________________  
              Mr.S.P.Bhandarkar, Advocate for the Petitioner.
       Mr.S.S.Doifode, A.P.P. for Respondent Nos.1, 2, 5, 6 and 7.
               Mr.N.B.Bargat, Advocate for Respondent No.3.
  ____________________________________________________________


                                         CORAM     :  R.K.DESHPANDE 
                                                              AND
                                                              M.G.GIRATKAR, JJ.

DATED : 19th December, 2017.

ORAL JUDGMENT (Per R.K.Deshpande, J) :

1. Rule made returnable forthwith. Heard finally with the

consent of the learned Counsel appearing for the respective parties.

2. The petitioner is seeking a direction to the respondents

to release a vehicle bearing Registration No.MH-20-AK-7558 carrying

sand of one brass in excess of the weight permitted to be carried out

by the vehicle in question. By way of amendment, the order dated

2.11.2017 passed by the Tahsildar, Tumsar and the order dated

24.11.2017 passed by the Sub-Divisional Officer, Tumsar confirming

the action of Naib-Tahsildar, Tumsar of seizure and confiscation of

vehicle in question in exercise of power under sub-section (8) of

Section 48 of the Maharashtra Land Revenue Code, 1966 are

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challenged. By the impugned orders, the petitioner is directed to pay

an amount of Rs.2,400/- towards the royalty in respect of extraction

of six brass of sand and penalty of Rs.60,000/- for unauthoised

transportation.

3. The contention of Mr.S.P.Bhandarkar, learned Counsel

appearing for the petitioner is that the action of seizure and

confiscation of vehicle along with sand and recovery of royalty and

penalty as contemplated by the impugned order cannot be justified

under the provisions of sub-section (7) and sub-section (8) of Section

48 of the Maharashtra Land Revenue Code. He has urged that

seizure and confiscation of the vehicle said to be unauthorisedly

carrying the sand, made by Naib-Tahsildar on 2.11.2017 was without

any authority. He further submits that, in fact, the said provisions are

not at all attracted, unless and until there is a show cause notice

issued to the sand ghat owner for unauthorised extraction of sand,

which has not been assigned to him by the State Government.

4. In the affidavit filed by the respondents - the Authorities

of the State Government, it is admitted that seizure and confiscation

of the vehicle in question along with the sand carried in it was by the

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Naib-Tahsildar. For that purpose, reliance is placed upon the order

dt.25.8.2016 issued by the Tahsildar, Tumsar authorising the flying

squad consisting of Naib-Tahsildar to seize and confiscate the sand,

which is minor mineral, if it is found to be unauthorisedly extracted

and transported.

5. To deal with the contentions raised by the petitioner, we

have to consider as to whether the provisions of sub-sections (7) and

(8) of Section 48 of the Code are attracted in the present case. The

provisions of sub-section (7) and (8) of Section 48 of the

Maharashtra Land Revenue Code, 1966 are reproduced below :

"48. Government title to mines and minerals :

(1) to (6) .........

(7) Any person who without lawful authority extracts, removes, collects, replaces, picks up or disposes of any mineral from working or derelict mines, quarries, old dumps, fields, bandhas (whether on the plea of repairing or constructions of bund of the fields or any other plea), nallas, creeks, river-beds, or such other places wherever situate, the right to which vests in, and has not been assigned by the State Government, shall, without

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prejudice to any other mode of action that may be taken against him, be liable, on the order in writing of the Collector, to pay penalty not exceeding a sum determined, at three times the market value of the minerals so extracted, removed, collected, replaced, picked up or disposed of, as the case may be :

Provided that, if the sum so determined is less than one thousand rupees the penalty may be such larger sum not exceeding one thousand rupees as the Collector may impose.

(8) Without prejudice to the provision in sub-section (7), the Collector may seize and confiscate any mineral extracted, removed, collected, replaced, picked up or disposed of from any mine, quarry or other place referred to in sub-section (7) the right to which vests in, and has not been assigned by, the State Government."

6. The aforesaid provisions are not at all attracted in case,

where any person extracts or removes mineral i.e. sand in question,

with lawful authority. It is attracted where extraction of minor

mineral by any person, is without assignment of such right by the

State Government. It is attracted if extraction is from the area in

excess of one, which is assigned by the State Government. If the

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transporter of mineral is different than the assignee of rights of

extraction then he cannot be booked under the said provisions for

unauthorisedly carrying the sand extracted, unless it is shown that

the extraction of sand by assignee is unauthorsed and illegal. The

provision does not empower the respondents to seize and confiscate

the vehicle carrying minerals in excess of weight permitted to be

carried by the vehicle in question.

7. It is not in dispute that the respondent no.4-

M/s.S.R.Traders was the assignee, authorised by the State

Government to extract the sand from the ghat in question. The

petitioner was employed by the respondent no.4 to render services of

transportation of sand from the ghat. There is neither any show cause

notice issued nor any action is taken against the respondent no.4 for

unauthorised or illegal extraction of sand nor any penalty is imposed

for that purpose. In view of this, the petitioner, who is found to be

transporting the extracted sand, cannot be booked for payment of

royalty or fine. The provisions of sub-sections (7) and (8) are,

therefore, not at all attracted and the action taken by respondents to

seize and confiscate the minerals and the vehicle under the said

provisions cannot be sustained.

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8. It is not necessary for us to deal with the contention

about the authority of Naib-Tahsildar to seize and confiscate the

vehicle in question along with the sand under sub-section (7) and (8)

of Section 48 of the Maharashtra Land Revenue Code and we leave

such question open to be decided in the appropriate proceedings.

9. In view of above, this Writ Petition is allowed. The

orders dt.2.11.2017 and 24.11.2017 passed by the Tahsildar and Sub-

Divisional Officer respectively confirming the action of Naib-Tahsildar

of confiscation and seizure of vehicle in question along with the sand

on 2.11.2017 and recovering royalty and penalty are hereby quashed

and set aside. The respondents are directed to forthwith release the

vehicle along with the sand in question to the petitioner.

10. The petitioner shall be at liberty to file Civil Suit for

claiming damages, as is permissible in law and to that extent the

prayer made in the petition does not survive.

11. On 14.12.2017, this Court has passed the order granting

liberty to the petitioner to amend the petition and join the concerned

Authorities as party/respondents. The learned Counsel appearing for

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the petitioner Mr.S.P.Bhandarkar had earlier submitted that the said

order was not uploaded on that date, but we find that the order in

fact was uploaded on that date itself. Hence, for making such a

statement, the learned Counsel to pay costs of Rs.5000/- to the High

Court Bar Association, Nagpur.

Rule is made absolute in the aforesaid terms. No order as

to costs.

                               JUDGE                       JUDGE
      
     [jaiswal]





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