Bombay High Court
M/S. Pabal Housing Pvt. Ltd. And ... vs The State Of Maharashtra And Ors on 15 March, 2017
Bench: A.S. Oka
Megha 6_wp_3297_2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3297 OF 2016
M/s. Pabal Housing Pvt. Ltd. & Anr. ...Petitioners
Versus
The State of Maharashtra & Ors. ...Respondents
.....
Mr. Uday Warunjikar for the Petitioners.
Mr. Manish Pabale, AGP for the Respondent Nos.1 and 2.
CORAM : A.S. OKA &
SMT. ANUJA PRABHUDESSAI, JJ.
DATED: 15th MARCH, 2017.
ORAL JUDGEMNT ( PER A.S. OKA, J.):-
On the earlier date, the parties were put to notice that the
Petition will be taken up for final disposal at the admission stage
considering the narrow controversy involved. Accordingly, we issue
Rule. The learned AGP waives service for the first and the second
Respondents. Considering the order which we propose to pass, notice
to the third Respondent is not necessary.
2. By this Petition under Article 226 of the Constitution of
India, the Petitioners have taken an exception to the notices dated 24th
June, 2013, 5th July, 2014 and 15th February, 2016, as well as the
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order dated 24th June, 2013 passed by the Tahasildar, Vasai in
purported exercise of powers under sub section (7) of section 48 of the
Maharashtra Land Revenue Code, 1966 (for short 'the said Code'). It is
alleged that the first Petitioner has carried out illegal excavation of
certain quantity of soil, stones and sand. Therefore, the first Petitioner
was called upon to deposit a sum of Rs.1,39,18,720, as the royalty for
illegally excavation of minor minerals and penalty. The penalty
component demanded was in the sum of Rs.1,19,77,320/-.
3. The Petitioners have also impugned the further demand
(Exhibit -'I')which is dated 29th April, 2013. This is a communication
addressed by the Circle Officer to Tahasildar, Vasai regarding illegal
excavation of minor minerals by the first Petitioner. By the
communication dated 15th February, 2016 the first Petitioner was
called upon to deposit a sum of Rs.1,53,39,540 on account of illegal
excavation. On 22nd February, 2016 two cheques in the sum of
Rs.7,00,000/- and Rs.7,20,820/- respectively were deposited by the
Petitioner with the Talathi. We must note here that the cheque in the
sum of Rs.7,20,820/- was not honoured. Therefore, the Petitioners
have deposited a sum of Rs.7,20,820/- with the State Bank of India. A
photocopy of challan dated 10th March, 2017 is placed on record.
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4. The learned counsel appearing for the Petitioners relies
upon a decision of the Apex Court in the case of Promoters and
Builders Association of Pune Vs. State of Maharashtra 1. He invited
our attention to paragraph No.15 of the said decision. He submitted
that while taking action under sub section (7) of section 48 of the said
Code, the purpose of the excavation has to be seen. The excavation
undertaken to lay foundation or the excavation of soil for the purpose
filling up or levelling will not amount to any illegality. His submission
is that a fresh adjudication is required to be made in the context of the
law laid down by the Apex Court. The learned AGP submitted that a
remedy of preferring appeals under the said Code is available against
the orders passed by the Tahasildar. He pointed out that recovery
proceedings have already been initiated by issuing notices dated 5th
May, 2015 and 5th September, 2015. His submission is that only to
avoid the statutory deposit that the Petitioners have not adopted the
remedy of statutory appeals and therefore, this Petition should not be
entertained.
5. We have given careful consideration to the submissions.
1 (2015) 12 SCC 736
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The case of the Petitioners is that after obtaining development
permission from the third Respondent-Planning Authority, construction
work was undertaken. It is their case that a development permission
was granted on 31st March, 2012. After completing the construction,
an Occupation Certificate was issued by the second Respondent. It is
the contention of the Petitioners that during the period between 6th
November, 2012 till 11th April, 2013 royalty was paid by the
Petitioners for purchasing soil and stones from Mumbai. The
contention of the Petitioners is that sub section (7) of section 48 of the
Code will apply only in a case where there is excavation or disposal of
minor minerals from mines, quaries, etc. It is the submission that for
the work of digging for the construction of a building, sub section 7 of
section 48 of the Code cannot be invoked.
6. We have considered the decision of the Apex Court in case
of Promoters and Builders Association of Pune. The appeal before the
Apex Court arose out of a decision of a Division Bench of this Court in
the case of Promoters and Builders Association of Pune V/s. State of
Maharashtra2. The challenge in the writ petition before this Court
was to the action initiated under sub section 7 of section 48 of the said
2 2011 (1) Bombay Cases Reporter, page 51
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Code. While disposing of the said writ petition, the Division Bench of
this Court came to the conclusion that the Petitioners therein had an
alternative efficacious remedy of appeals. The Apex Court in the
aforesaid decision interfered with the decision of the Division Bench by
setting aside the judgment of the Division Bench. Paragraph Nos.14
and 15 of the decision of the Apex Court read thus:-
"14. Though Section 2(1)(j) of the Mines Act, 1952
which defines 'mine' and the expression "mining
operations" appearing in Section 3(d) of the 1957 Act
may contemplate a somewhat elaborate process of
extraction of a mineral, in view of the Notification dated
3.2.2000, insofar as ordinary earth is concerned, a simple
process of excavation may also amount to a mining
operation in any given situation. However, as seen, the
operation of the said Notification has an inbuilt
restriction. It is ordinary earth used only for the purposes
enumerated therein, namely, filling or levelling purposes
in construction of an embankments, roads, railways and
buildings which alone is a minor mineral. Excavation of
ordinary earth for uses not contemplated in the aforesaid
notification, therefore, would not amount to a mining
activity so as to attract the wrath of the provisions of
either the Code or the 1957 Act.
15. As use can only follow extraction or excavation it is
the purpose of the excavation that has to be seen. The
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liability under Section 48(7)
for excavation of ordinary
earth would, therefore, truly depend on a determination
of the use/purpose for which the excavated earth had
been put to. An excavation undertaken to lay the
foundation of a building would not, ordinarily, carry the
intention to use the excavated earth for the purpose of
filling up or levelling. A blanket determination of liability
merely because ordinary earth was dug up, therefore,
would not be justified; what would be required is a more
precise determination of the end use of the excavated
earth; a finding on the correctness of the stand of the
builders that the extracted earth was not used
commercially but was redeployed in the building
operations. If the determination was to return a finding
in favour of the claim made by the builders, obviously, the
Notification dated 3.2.2000 would have no application;
the excavated earth would not be a specie of minor
mineral under Section 3(e) of the 1957 Act read with the
Notification dated 3.2.2000."
(underlines supplied)
7. While setting aside the demand under Sub-Section 7 of
Section 48, made by the State Government, the Apex Court granted
liberty to proceed against the Builders.
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8. Now coming back to the facts of the present case, before
issuing impugned order dated 24th June, 2013 a show cause notice
was issued to the Petitioner on 21st May, 2013. On plain reading of
the order dated 24th June, 2013 and from the affidavit in reply filed by
Gajendrakumar Narendra Patole, it is apparent that before issuing the
demand in exercise of powers under sub section (7) of section 48 of
the said Code, the Tahasildar has not taken into consideration the
purpose of excavation. The Tahasildar, Vasai seems to have made a
blanket determination of liability, which is criticised in paragraph No.
15 of the aforesaid decision of the Apex Court.
9. In the light of law laid down by the Apex Court, we propose
to set aside the order dated 24th June, 2013 and all consequential
actions taken for implementation of the said order with liberty to the
Tahasildar to proceed against the Petitioners in terms of the law laid
down by the Apex Court after giving an opportunity of being heard to
the Petitioners.
10. Accordingly, we dispose of the Petition by passing following
order:-
(i) the orders /notices dated 24th June, 2013, 5th July,
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2014 and 15th February, 2013 are hereby set aside and
action taken on the basis of notice /orders including the
action of freezing the bank accounts of the Petitioners as
well as attachment of their property stands set aside;
(ii) We direct the Petitioners to appear before the
Tahasildar, Vasai on 30th May, 2017 at 11.00 a.m. It will
be open for the Petitioners to file a reply to the notice
dated 21st May, 2013 (Exhibit-'h' to the Petition) on or
before 30th May, 2017. After giving an opportunity of
being heard to the Petitioners, the Tahasildar shall make
adjudication in terms of the law laid down in paragraph
No.15 of the aforesaid decision;
(iii) The Tahasildar, Vasai shall pass appropriate order in
accordance with law as expeditiously as possible and
preferrably within a period of three months from 30th May,
2017;
(iv) The order passed by him shall be communicated to the
Petitioners. If the order be adversed to the Petitioners, the
same shall not be implemented for a period of three weeks
from the date on which the same is communicated to the
Petitioners to enable the Petitioners to adopt appropriate
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statutory remedies;
(v) The amount of Rs.7,00,000/- and Rs.7,20,820/-
deposited by the Petitioners will be subject to the orders
which may be passed by the Tahasildar, Vasai and /or by
the Appellate /Revisional Authorities. In the event, the
Tahasildar finds that the Petitioners are not liable to pay
any amount, he shall order refund of the aforesaid amount
with interest, if any, accrued thereon;
(vi) If the Tahasildar, Vasai holds that the Petitioners are
liable to pay any amount in excess of the said amounts, the
said amounts shall be adjusted by the Tahasildar, Vasai
towards dues payable by the Petitioners subject to the
orders which may be passed by the Appellate /Revisional
Authorities;
(vii) All contentions on merits are kept open;
(viii) Rule is made partly absolute on above terms.
(ANUJA PRABHUDESSAI, J.) (A.S. OKA, J.)
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