M/S Bgr Energy Systems Ltd vs The Tahsildar, Chandrapur Sub ...
2017 Latest Caselaw 4036 Bom

WP  4606/11                                            1                            Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                       WRIT PETITION No. 4606/2011
M/s BGR Energy Systems Limited,
a company incorporated under the 
provisions of the Companies Act, 1956
through its General Manager (Finance & Accounts)
having its Registered Office at A-5,
Pannamgadu Industrial Estate, Ramapuram
Post, Sullurpet Taluk, Andhra Pradesh-524401
and Corporate Office at 443, Anna Salai, Teynampet
Chennai 600 018, work site - 2 X 500 MW 
Expansion Project, Unit No.8 & 9, Chandrapur
Super Thermal Power Station,
MAHAGENCO, Chandrapur-442404,
Dist. Chandrapur, Maharashtra.                                                 PETITIONER

                                      .....VERSUS.....

1.    The Tahsildar, Chandrapur,
      Sub-Divisional Magistrate Office Compound,
      Railway Station Road, Chandrapur,
      Maharashtra - 442 406.
2.    The Sub-Divisional Officer, Chandrapur,
      Sub-Divisional Magistrate Office Premises,
      Railway Station Road, Chandrapur: 442 406.
3.    The District collector, Chandrapur,
      Railway Station Road, Chandrapur -
      442 406, Maharashtra.
4.    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, Unit No.8 & 9,
      Chandrapur Super Thermal Power Station,
      Chandrapur - 442404, Maharashtra.
5.    Ministry of Finance,
      through the Under-Secretary,
      Revenue Section, Mantralaya,
      Mumbai 400 032.
6.    State of Maharashtra,
      through its Secretary,
      Department of Revenue & Forest,
      Mantralaya, Mumbai - 32.                                                      RESPONDENTS




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 WP  4606/11                                            2                              Judgment

                 Shri A.C. Dharmadhikari, counsel for the petitioner.
Shri K.L. Dharmadhikari, Assistant Government Pleader for the respondent nos.1 to 3, 5
                                         & 6.
                  Shri D.M. Kale, cousnel for the respondent no.4.


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

DATE : 5 TH JULY, 2017.

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

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

Tahsildar, dated 16.03.2011 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.4-Maharashtra State Power Generation Company Limited for the

construction of 2X500 MW Thermal Power Project at Chandrapur. 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. When the project reached at 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

WP 4606/11 3 Judgment

liability. The respondent no.1-Tahsildar by the impugned order, dated

16.03.2011 directed the petitioner to pay the royalty of Rs.52,86,200/-

and the penalty of Rs.1,58,58,600/-. The aforesaid order was challenged

by the petitioner before the Sub-Divisional Officer and the Collector but

the appeals filed by the petitioner were dismissed. The petitioner has

impugned the said orders in the instant petition.

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

petitioner, submitted that ordinary earth was not included within the

definition of the term 'minor mineral' under Section 3(e) of the Mines and

Minerals (Development and Regulation) Act, 1957. It is submitted that

the Central Government by the notification, dated 03.02.2000, declared

that ordinary earth used for the purpose of filling and levelling purposes

in construction of embankments, roads, railways, buildings would be

considered as a minor mineral. It is submitted that the earth excavated

by the petitioner while executing the work for the power project was

stacked by the petitioner in the site of the power company and the same

was utilized for filling up the pits and the other areas that were dug up

during the construction. It is submitted that even assuming that the

ordinary earth that was excavated from the site was utilized by the

petitioner for filling a pond which was allegedly at a distance of two

kilometers from the site from where the earth was excavated still, the

excavated earth cannot be brought within the fold of the term 'minor

WP 4606/11 4 Judgment

mineral' as defined under the provisions of Section 3(e) of the Mines

and Minerals (Development and Regulation) Act and the notification,

dated 03.02.2000. It is submitted that the notification dated 03.02.2000

clearly declares that only ordinary earth used for filling or levelling

purpose in construction of embankments, roads, railways, buildings could

be treated as minor mineral. It is submitted that it is not the case of the

revenue authorities that the petitioner had utilized the excavated earth

for filling or levelling purposes as are mentioned in the notification, dated

03.02.2000. It is submitted that in the circumstances of the case, 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) would help the petitioners in assailing the

impugned orders.

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

Pleader appearing for the revenue authorities, has supported the orders of

the authorities. It is submitted that the petitioner had not only excavated

the earth from the construction site but had carried it to the pond which

is at a distance of two kilometers away from the site. It is submitted that

the royalty and penalty is sought to be imposed upon the petitioner under

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

the excavation and transportation of the earth by the petitioner was

without permission of the revenue authorities.

WP 4606/11 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 orders, it appears

that the impugned orders 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. The relevant part of the notification issued by the Central

Government, dated 03.02.2000 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."

On a perusal of the notification, it is clear that ordinary earth used only

for filling or levelling purposes in construction of embankments, roads,

WP 4606/11 6 Judgment

railways, buildings could be considered as minor mineral in addition to

the minerals mentioned in Section 3(e) of the Act of 1957. It is apparent

from a reading of the notification dated 03.02.2000 that ordinary earth

used for any purposes other than the purpose of filling or levelling as

mentioned in the notification is not brought within the fold of the term

'minor mineral' under section 3(e) of the Act. It is not the case of the

respondent-Authorities that the petitioner had utilized the excavated

earth for the purpose of filling or levelling of embankments, roads,

railways or buildings. According to the respondent-Authorities, as could

be seen from the impugned order as also the affidavit-in-reply filed on

behalf of the respondent-Authorities, the excavated earth was utilized by

the petitioner for the purpose of filling a pond which is at a distance of

two kilometers away from the site from where the earth was excavated.

The purpose for which the excavated earth was utilized by the petitioner

is not a purpose that is specified in the notification, dated 03.02.2000.

The end use of the excavated earth in the case of the petitioner is not for

the purposes mentioned in the notification, dated 03.02.2000. Since it is

not the case of the respondent-Authorities that the petitioner had utilized

the ordinary earth excavated from the project site for filling or levelling of

embankments, roads, railways, buildings the excavated earth could not

have been considered as a minor mineral. Since the ordinary earth used

for filling and levelling purpose for construction of embankments, roads,

railways, buildings, etc. is a minor mineral and since in the instant case,

WP 4606/11 7 Judgment

the petitioner had not used the ordinary earth in the construction of

embankments, roads, railways and buildings, the ordinary earth

excavated by the petitioner could not have been considered to be a minor

mineral so as to invoke the provisions of Section 48(7) of the

Maharashtra Land Revenue Code, 1966. It appears that the revenue

authorities did not consider the notification dated 03.02.2000 issued

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

Regulation) Act before passing the order imposing penalty on the

petitioner.

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

The impugned orders passed by the revenue authorities are hereby

quashed and set aside.

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

to costs.

              JUDGE                                            JUDGE

APTE