Vithal S/O Panditrao Suryawanshi vs The State Of Maharashtra And ...
2017 Latest Caselaw 727 Bom

                                     1              cri wp 1686.2016.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD


           CRIMINAL WRIT PETITION NO. 1686 OF 2016

             Vithal s/o Panditrao Suryawanshi,
             age 30 yrs, Occ. Business and Driver,
             R/o Arajkheda, Tq. Renapur,
             Dist. Latur.
             At Present Sai Road, Latur.
             Tq & Dist. Latur.                     ..Petitioner..

             VERSUS

     1.      The State of Maharashtra.

     2.      The Tahsildar, Latur.
             Tq. & Dist. Latur.

     3.      The Police Inspector,
             MIDC Police Station, Latur.
             Dist. Latur.                         ...Respondents..

                                     ...
                Advocate for Petitioner : Mr T M Venjane  
               APP for Respondents 1-3 : Mr S G Karlekar
                                     ...
              CORAM : S.S. SHINDE & V.K. JADHAV, JJ.

...

Reserved on : March 10, 2017 Pronounced on : March 15, 2017 ...

ORAL JUDGMENT : (Per Jadhav, J.)

1. Rule. Rule made returnable forthwith and heard

finally with the consent of parties.

2. This Criminal Writ Petition is preferred for

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following reliefs :-

"B] Be pleased to direct the respondent authorities to release the vehicles of the petitioner which are (TATA Tippers) bearing registration No.MH-14/BJ-0002 and MH-04/EB-4399 and hand over to the petitioner.

C] Be pleased to quash and set aside the orders dated 28.11.2016 (Exh."C" colly) passed by the Ld. Tahsildar, Latur."

3. Brief facts, giving rise to the present writ petition

are as under :-

The petitioner is exclusive owner in possession of

vehicles TATA Tippers. Said vehicles are heavy goods

vehicles and used for the purpose of the transportation

of the sand from one place to another place. On

27.11.2016 flying squad appointed by respondent no.2

by resorting the amended provisions of Section 48 (8)(1)

of the Maharashtra Land Revenue Code, 1966

(hereinafter referred to as MLR Code) seized the

aforesaid vehicles on the ground that those vehicles

were being used for transporting the sand. Those

vehicles were seized under the panchanama and for the

purpose of protecting custody of the vehicles the same

were handed over to the nearest police station i.e. MIDC,

Police Station, Latur. By order dated 28.11.2016 the

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respondent authorities imposed penalties on the

petitioner for illegal transportation of the sand.

4. Learned counsel for the petitioner submits that, in

view of the provisions of Section 48(8)(1) of the MLR

Code, the Collector or any revenue officer not below the

rank of Tahsildar authorized by the Collector in this

behalf, may seize and confiscate any mineral extracted,

removed, collected, replaced, picked up or disposed of

from any mine, quarry or other place extracted illegally

and may also seize and confiscate any machinery and

equipment used for unauthorized extraction, removal,

collection, replacement, picking up or disposal or minor

minerals and any means of transport deployed to

transport the same. In view of the provisions of section

48(8)(2) of MLR Code, the aforesaid minerals and

transportation means (vehicles) are required to be

produced before the Collector or such other officer not

below the rank of Deputy Collector authorized by the

Collector in this behalf, within a period of forty-eight

hours of such seizure, who may be release such seized

machinery, equipment or means of transport on

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payment by the owner thereof of such penalty as may be

prescribed and also on furnishing personal bond of an

amount not exceeding the market value of the seized

machinery, equipment or means of transport stating

therein that such seized machinery, equipment, or

means of transport shall not be used in future for

unauthorized extraction, removal, collection,

replacement, picking up or disposal of minor minerals

and transportation of the sand."

5. Learned counsel submits that, in contravention of

the said provisions revenue officer below the rank of

Tahsildar seized the aforesaid vehicles and same were

also not produced before the Collector or such other

officer not below the rank of Deputy Collector, within a

period of 48 hours of such seizure as provided under

48(8)(2) of the MLR Code.

6. Learned counsel submits that, the seizure of the

vehicle as well as imposition of the penalty on the

petitioner for the alleged act is improper, incorrect and

illegal. Learned counsel for the petitioner submits that,

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officers of revenue department have not lodged any

complaint against the petitioner, nor such seizure was

reported to the concerned Magistrate.

7. Learned APP submits that, in view of the

provisions of sub-section 48 (7) of the MLR Code, any

revenue officer not below the rank of Tahsildar

authorized by the Collector in this behalf, can pass an

order against person who was illegally transporting the

sand to pay penalty of an amount equal to five times.

The flying squad was appointed by respondent no.2 by

resorting to the amended provisions of section 48(8)(1)

of the MLR Code. The seizure of the vehicle was

completed by conducting panchnama and for the

purpose of protecting custody of the vehicles, same were

handed over to the nearest police station. Those vehicles

are not seized by the police authorities. The learned

APP submits that, no interference is required. Writ

petition is liable to be dismissed.

8. WE deem it appropriate to reproduce herein below

Section 48 of the Maharashtra land Revenue Code, 1966

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particularly the amendment made in sub-section (7) and

sub section 48 (8) 1 and 2 of section 48 which reads

thus :-

Section 48 sub section (7) :-

(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 bunds of the fields or an 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 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.

In section 48 of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as "the Revenue Code "),--

(i) in sub-section (7),--

(a) for the words "on the order in writing of the Collector, to pay penalty not exceeding a sum determined, at three times", the words "on the order in writing of the Collector or any revenue officer not below the rank of Tahsildar authorized by the Collector in this behalf, to pay penalty of an amount equal to five times" shall be substituted ;

(b) the proviso shall be deleted;

Section 48 (8) (1) :-

(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.

(ii) for sub-section (8), the following sub-section shall be substituted, namely :--

"(8)(1) Without prejudice to the provision of subsection (7), the

7 cri wp 1686.2016.odt

Collector or any revenue officer not below the rank of Tahsildar authorized by the Collector in this behalf, 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, and may also seize and confiscate any machinery and equipment used for unauthorized extraction, removal, collection, replacement, picking up or disposal of minor minerals and any means of transport deployed to transport the same.

(2) Such machinery or equipment or means of transport, used for unauthorized extraction, removal, collection, replacement, picking up or disposal of minor minerals or transportation thereof, which is seized under sub-section (1), shall be produced before the Collector or such other officer not below the rank of Deputy Collector authorized by the Collector in this behalf, within a period of forty-eight hours of such seizure, who may release such seized machinery, equipment or means of transport on payment by the owner thereof of such penalty as may be prescribed and also on furnishing personal bond of an amount not exceeding the market value of the seized machinery, equipment or means of transport, stating therein that such seized machinery, equipment or means of transport shall not be used in future for unauthorized extraction, removal, collection, replacement, picking up or disposal of minor minerals and transportation of the same."

9. In view of the provisions of Section 48(8)(1) of the

MLR Code, the Collector or any revenue officer not below

the rank of Tahsildar authorized by the Collector in this

behalf may seize and confiscate any mineral extracted,

and may also seize and confiscate any machinery and

equipment used for such an unauthorized extraction

and any means of transport deployed to transport the

same.

8 cri wp 1686.2016.odt

10. In the instant case, we do not find that Tahsildar

had accompanied the flying squad when aforesaid

vehicles came to be seized by him under the

panchnama. On the contrary, it appears that Naib

Tahsildar had seized those vehicles which is contrary to

the provisions of Section 48(8)(1) of MLR Code, 1966. It

is also not brought to our notice that, said seized

vehicles were produced before the Collector or such

other officer not below the rank of Deputy Collector

authorized by the Collector in this behalf within a

period of 48 hours of such seizure for further orders in

terms of the provisions of Section 48(8)(2) of MLR Code.

It further appears from the record placed before us that,

after seizure of those vehicles under the panchnama,

vehicles were handed over to the nearest police station

i.e MIDC Police Station Latur for the purpose of

protection/ custody of the vehicles.

11. By order dated 10.2.2017 noticing the aforesaid

illegalities in not following the provisions of section 48 of

the MLR Code as discussed above, this court directed

respondent no.2 to release the vehicles of the petitioner.

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We, thus, partly allow the Criminal Writ Petition in

terms of prayer clause 'B' and also in terms of the

aforesaid interim order to the extent of release of the

vehicles to the petitioners.

12. So far as imposition of penalty on account of

extracting the minerals illegally are concerned, we find

that impugned order dated 28.11.2016 is passed by the

Tahsildar in accordance with the provisions of section

48 (7). We are not inclined to interfere in it.

13. In view of the above, rule is made partly absolute

in above terms. Criminal writ petition accordingly

disposed of. No costs.

                      SD/-                                      SD/-

         ( V.K. JADHAV, J. )                        ( S.S. SHINDE, J. )

                                       ....



     aaa/-