Bombay High Court
Sajid Khan S/O Jaffar Khan vs State Of Maharashtra, Through ... on 15 March, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.407 OF 2017
Sajid Khan s/o. Jaffar Khan,
Aged about 42 years,
Occupation : Business,
R/o. Muglai Pura, Paratwada,
Tahsil Achalpur, District Amravati. : PETITIONER
...VERSUS...
1. State of Maharashtra,
Through the Collector,
Amravati.
2. The Tahsildar,
Tahsil Officer, Tiwsa,
District : Amravati.
3. Regional Transport Officer,
Regional Transport Office,
Amravati. : RESPONDENTS
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Shri T.H. Bewali, Advocate for the Petitioner.
Ms. T.H. Khan, Asstt. Government Pleader for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
WITH
WRIT PETITION No.473 OF 2017
Imran Husain s/o. Shabbir Husain,
Aged about 32 years,
Occupation : Business,
R/o. Near Popular Saw Mill,
Pakija Colony, Amravati. : PETITIONER
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...VERSUS...
1. State of Maharashtra,
Through the Collector,
Amravati.
2. The Tahsildar,
Tahsil Officer, Tiwsa,
District : Amravati. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri T.H. Bewali, Advocate for the Petitioner.
Ms. T.H. Khan, Asstt. Government Pleader for the Respondents.
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CORAM : B.P. DHARMADHIKARI AND
SWAPNA JOSHI, JJ.
DATE : 15 th
MARCH, 2017.
ORAL JUDGMENT : (PER : B.P. Dharmadhikari, J.)
1. Considering the nature of controversy, we have heard
respective counsel finally by issuing Rule and making it returnable
forthwith with their consent.
2. Ms. T.H. Khan, learned Assistant Government Pleader
wanted time to verify certain facts, however looking to the order which
we propose to pass in present matter, we have rejected that request.
3. Submission of Advocate Shri T.H. Bewali in both the matters,
is that there was earlier a writ petition before this Court and after this
Court directed grant of opportunity of hearing to respective petitioner,
the Tahsildar has heard them and passed impugned orders. The
J-wp407.17 & 473.17.odt 3/6
impugned order in Writ Petition No.473/2017 is dated 27.12.2016, while
impugned order in Writ Petition No.407/2017 is dated 10.1.2017.
4. He contends that as sand found allegedly overloaded in truck
was removed from a ghat assigned to respective petitioner, neither
section 48(7) nor section 48(8) of the Maharashtra Land Revenue Code,
1966 (in short, "M.L.R. Code") are attracted. At the most, it may be
violation of the lease agreement between the parties or then of some
provision of Motor Vehicles Act. However, the action as per the
impugned orders could not have been taken. He submits that not only
sand, but vehicles also are now in custody of the Tahsildar and lying in
Police Station.
5. Learned A.G.P. submits that in Writ Petition No.473/2017
vehicle of the petitioner supposed to carry the sand to the extent of
2 brass was in fact carrying 3.06 brass. Thus, it was carrying 1.06 brass
of sand illegally. In Writ Petition No.407/2017 instead of carrying
4 brass of sand, truck was found carrying 6.55 brass of sand i.e. 2.55
brass in excess.
6. Thus, in both the matters sand was being found carried in
excess over and above TP permit and, therefore, provisions of Section
48(7) and 48(8) of the M.L.R. Code are rightly used. They submit that
opportunity of hearing has been extended to petitioner and thereafter
impugned has been passed.
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7. The impugned orders confiscate entire sand i.e. sand which
was being carried legally as per TP and also sand allegedly found in
excess. The penalty at market rate for entire quantity has been levied
along with royalty. Similarly the trucks with sand loaded in it are still
continuous in custody of the respondents.
8. The fact that the sand was excavated from an authorized
sand ghat allotted to respective petitioner is not in dispute in the present
matter. Section 48(7) of the M.L.R. Code stipulates that when a person
without lawful authority extracts such sand from a working quarry the
right to which vests in and has not been assigned by State Government,
penal action as stipulated therein can be taken. Section 48(8) of the
M.L.R. Code operates without prejudice to provisions of sub-section (7)
and when the Collector or Revenue Officer authorized by him find that a
vehicle has been used to carry such mineral extracted from any mine as
referred to in sub-section (7), the right to which vests in and has not
been assigned by State Government, he may confiscate that mineral. He
is also authorized to seize and confiscate any machinery and equipment
used for such unauthorized extraction, removal etc.
9. In impugned order, each petitioner is directed to pay fine and
thereafter to apply for release of vehicle. Thus, not only sand, but truck
also has been detained. It appears that in Writ Petition No.473/2017
there is no such direction. Order dated 27.12.2016 in that writ petition
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does not mention Section 47(8) anywhere. The order dated 10.1.2017
impugned in Writ Petition No.407/2017 mentions said provision while
asking the petitioner to pay the fine and to apply to Sub-Divisional
Officer for release of vehicle.
10. Perusal of impugned orders in both writ petitions do not
show that the sand has been excavated from any unauthorized place or
then the right in that sand was not assigned by State Government to
respective petitioner. However, keeping in mind the request made by the
learned Asstt. Government Pleader to grant them time as this issue may
crop up in several matters, we have not recorded any final finding in this
regard.
We make it clear that the following arrangement was put to
petitioner and petitioners agreed to it.
We accordingly direct respondents to unload and confiscate
the entire quantity of sand contained in respective truck in relation to
which the impugned orders are passed. Thereafter, the vehicle shall be
released to petitioner within seven days from today.
The respective Tahsildar shall keeping in mind the provisions
of Section 48(7) and 48(8) of the Maharashtra Land Revenue Code,
1966 pass fresh orders on the entire controversy within next six weeks.
The volume of sand in relation to which penalty can be
demanded shall also be then decide as per law.
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We direct that opportunity of hearing shall be given to
petitioner before passing such orders.
If in final order it is found necessary to proceed against the
vehicles, the petitioner shall surrender the vehicle within next seven days
of passing of that order.
With this arrangement and with liberty to petitioner to
approach again, if aggrieved by such fresh orders passed by respective
Tahsildar, we partly allow the writ petitions. No costs.
JUDGE JUDGE
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