M/S Bgr Energy System Limited vs The Tahsildar, Saoner And Oths
2017 Latest Caselaw 4024 Bom

WP  3383/11                                             1                              Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                       WRIT PETITION No. 3383/2011

M/s BGR Energy Systems Limited,
a company incorporated under the 
provisions of the Companies Act, 1956
having its Registered Office at A-5,
Pannamgadu Industrial Estate, Ramapuram
Post, Sullur Peth Taluk, Andhra Pradesh and a
Corporate Office at 443, AnnaSalai, Teynampet
Chennai 600 018, work site - 1 X 500 MW 
Expansion Project, Mouza-Khaparkheda,
Tahsil Saoner, Dist-Nagpur - 441 102
thr. Shrinivas Neelkanntan, G.Manager
Finance & Accounts.                                                               PETITIONER

                                     .....VERSUS.....

1.    The Tahsildar, Saoner,
      Mouja Khaperkheda, Tal-Saoner,
      District Nagpur - 441 107, Maharashtra.
2.    The Sub-Divisional Officer, Saoner,
      Mouja Khaperkheda, Tahsil Saoner,
      District Nagpur 441 107, Maharashtra.
3.    Maharashtra State Power Generation
      Company Limited (MAHAGENCO),
      company incorporated under the 
      provisions of Companies Act, 1956,
      having its Registered Office at
      Prakashgad, 3rd Floor, Plot No.G-9,
      Bandra (East), Mumbai - 400 051
      Work site - MAHAGENCO-Civil
      Construction Circle, Khaparkheda,
      Dist.Nagpur, Maharashtra-441 102.
      thr.Dy.Chief Enng.Civil Construction Circle,
      Khaparkheda.
4.    State of Maharashtra,
      Department of Revenue & Forest,
      Mantralaya, Mumbai - 32.                                                  RESPONDENTS

                 Shri A.C. Dharmadhikari, counsel for the petitioner.
Shri K.L. Dharmadhikari, Assistant Government Pleader for the respondent nos.1, 2 & 4.
                  Shri D.M. Kale, cousnel for the respondent no.3.

                                        CORAM :SMT.VASANTI  A  NAIK AND
                                                       A.D. UPADHYE, JJ.                  

                                        DATE         :             5  TH           JULY,       2017.



 WP  3383/11                                           2                          Judgment

ORAL JUDGMENT (PER : SMT.VASANTI  A  NAIK, J.)

By this writ petition, the petitioner challenges the order of the

Tahsildar, dated 08.06.2011 directing the petitioner to pay the royalty

and penalty for the illegal excavation of earth, under Section 48(7) of

the Maharashtra Land Revenue Code, 1966.

2. The petitioner was awarded a contract by the respondent

no.3-Maharashtra State Power Generation Company Limited for the

construction of 1X500 MW Thermal Power Project at Khaparkheda. In

terms of the contract, the petitioner was required to erect buildings and

structures for setting up of the power project. While erecting the

structures as per the contract, the petitioner was required to dig the

project site and excavate the earth for the purpose of laying the

foundation of the structures. It is the case of the petitioners and it is not

disputed by the respondents that the excavated earth was utilized in the

construction of the project and the dug up pits were filled. When the

project reached the stage of completion, the Tahsildar served a notice on

the petitioner asking it to show cause as to why penalty should not be

imposed on the petitioner for illegally excavating the earth from the

construction site without permission. The petitioner replied to the said

notice and denied the liability. The respondent no.1-Tahsildar by the

impugned order, dated 08.06.2011 directed the petitioner to pay the

royalty of Rs.2,88,63,600/- and the penalty of Rs.16,37,82,168/-. The

WP 3383/11 3 Judgment

petitioner has challenged the order of the Tahsildar in the instant

petition.

3. Shri A.C. Dharmadhikari, the learned counsel for the

petitioner, submitted that the Tahsildar was not justified in directing the

petitioner to pay the royalty and penalty as per the impugned order. It is

submitted that since the ordinary earth that was dug up by the petitioner

for laying the foundation of the structures while setting up the power

project was utilized for refilling the dug up pits, the provisions of Section

48(7) of the Maharashtra Land Revenue Code, 1966 would not be

attracted as the earth utilized for the aforesaid purpose cannot be a

'minor mineral'. It is submitted that ordinary earth was not included

within the term "minor mineral" till the same was brought into its fold by

the notification issued by the Central Government on 03.02.2000 under

Section 3(e) of the Mines and Minerals (Development and Regulation)

Act, 1957. It is submitted that as per the said notification, earth used

only for filling or levelling purpose in construction of embankments,

roads, railways, buildings would be considered as a minor mineral and

the earth that is not used for the said purpose cannot be included within

the fold of the term 'minor mineral'. It is submitted that earth was

excavated by the petitioner for digging up the pits for laying the

foundation of the thermal project and the excavated earth was utilized for

filling up the pits and the areas that were dug up for laying the

WP 3383/11 4 Judgment

foundation. It is submitted that in almost similar set of facts, the Hon'ble

Supreme Court has, in the judgment reported in 2015(12) SCC 736

(Promoters and Builders Association of Pune Versus State of Maharashtra

& Others) quashed a similar order passed by the revenue authorities

under the provisions of Section 48(7) of the Maharashtra Land Revenue

Code.

4. Shri K.L. Dharmadhilari, the learned Assistant

Government Pleader appearing for the revenue authorities, supported

the order of the Tahsildar. It is submitted that earth was also included

in the term 'minor mineral' from the year 2000 and since the petitioner

had excavated the earth while undertaking the construction for the

thermal project, without the permission of the revenue authorities,

the petitioner was liable to pay the royalty and penalty under the

provisions of Section 48(7) of the Maharashtra Land Revenue Code.

It is, however, not disputed by the learned Assistant Government

Pleader on the basis of the affidavit-in-reply filed on behalf of the

Tahsildar that the petitioner had utilized the earth that was

excavated for laying the foundation, for filling up the pits that were

dug up. It is submitted that the penalty is imposed upon the

petitioner for excavating the earth which is a minor mineral, without

permission.

WP 3383/11 5 Judgment

5. On hearing the learned counsel for the parties and on a

perusal of the judgment of the Hon'ble Supreme Court reported in

2015(12) SCC 736 (Promoters and Builders Association of Pune Versus

State of Maharashtra & Others) as also the impugned order, it appears

that the order of the Tahsildar cannot be sustained. Ordinary earth was

not included within the definition of the term 'minor mineral' till it was

brought within the fold of the said term by the notification, dated

03.02.2000 issued by the Central Government under the provisions of

Section 3(e) of the Mines and Minerals (Development and Regulation)

Act. It would be worthwhile to refer to the notification of the Central

Government, dated 03.02.2000 which reads thus:-

NOTIFICATION

"GSR 95(E). -- In exercise of the powers conferred by clause (e)

of Section 3 of the Mines and Minerals (Development and

Regulation) Act, 1957 (67 of 1957), the Central Government

hereby declared the 'ordinary earth' used for filling or levelling

purposes in construction of embankments, roads, railways,

buildings to be a minor mineral in addition to the minerals

already declared as minor minerals hereinbefore under the said

Clause."

It is apparent from a reading of the notification of the Central

Government dated 03.02.2000 that ordinary earth used for filling or

WP 3383/11 6 Judgment

levelling purposes in construction of embankments, roads, railways,

buildings, etc. is to be considered as a minor mineral in addition to the

minerals already declared as such, under the provisions of Section 3(e) of

the Act. The notification dated 03.02.2000 only includes the ordinary

earth used for the purposes mentioned in the notification to be a minor

mineral and the ordinary earth that is used for any purpose other than the

ones mentioned in the notification is not to be considered as a minor

mineral. It is not the case of the respondent-Tahsildar or the State

Government that the petitioner had utilized the earth for filling or

levelling purposes in construction of embankments, roads, railways,

buildings, etc. In the instant case just like the appellant in the case before

the Hon'ble Supreme Court, earth was dug for the purpose of laying a

foundation of the building and the earth so excavated or dug up was re-

deployed in the building itself at a particular stage of the construction. In

the instant case also, the petitioner had excavated the earth while digging

the pits for laying the foundation of the building for the thermal project

and the earth so excavated was utilized by the petitioner in the building

itself, i.e. for refilling the dug up pits after the foundation was laid. The

Tahsildar has not disputed that the petitioner has utilized the earth

excavated from the site for refilling the pits that were dug up for the

purpose of laying the foundation of the building for the thermal

project. In the case before the Hon'ble Supreme Court, since the earth

excavated for the purpose of laying the foundation of the building was

WP 3383/11 7 Judgment

deployed in the building itself, just like in the present case, the Hon'ble

Supreme Court held that the earth so excavated would not fall within the

term 'minor mineral'. It was observed by the Hon'ble Supreme Court that

where the excavated earth was utilized for the purpose like the one in this

case, the notification, dated 03.02.2000 would have no application as the

excavated earth in such a case would not be a species of minor mineral

under Section 3(e) of the Mines and Minerals (Development and

Regulation) Act. As per the Hon'ble Supreme Court, the end use of the

earth that is excavated for laying the foundation or for any other purpose,

would determine whether the excavated earth could be brought within

the fold of the term 'minor mineral'. If the excavated earth is not used for

filling or levelling in construction of embankments, roads, railways,

buildings, etc., the said earth would not be a 'minor mineral' within the

definition of the term under Section 3(e) of the Mines and Minerals

(Development and Regulation) Act. It is apparent from the impugned

order that the Tahsildar has not imposed the penalty on the petitioner for

excavating any mineral other than the earth and the same is passed due

to the excavation of the earth to the extent of 144318 Brass. Since the

earth excavated by the petitioner cannot be brought within the fold of the

term 'minor mineral', the Tahsildar could not have passed the impugned

order under Section 48(7) of the Maharashtra Land Revenue Code as it

could not be said that the petitioner had excavated 'minor mineral'

without seeking the requisite permission.

WP 3383/11 8 Judgment

Hence, for the reasons aforesaid, the writ petition is allowed.

The impugned order of the Tahsildar is quashed and set aside.

Rule is made absolute in the aforesaid terms with no order as

to costs.

              JUDGE                                    JUDGE


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