Bombay High Court
M/S. Madhoor Buildwell Private ... vs Tasasildar Shahpur And Ors on 3 February, 2021
Bench: K.K. Tated, R. I. Chagla
12 WPST 29777-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO. 29777/2019
M/s. Madhoor Buildwell Pvt. Ltd. .. Petitioner
vs.
The Tahasildar, Shahapur & Ors. .. Respondents
.....
Mr. R. D. Soni i/b Ram & Co. for the petitioner.
Mr. C. D. Mali, AGP for the State.
.....
CORAM: K.K.TATED, &
RIYAZ I. CHAGLA, JJ.
DATED : FEBRUARY 03, 2021
P.C.
. Heard.
2. By this Petition, under Article 226 of the Constitution
of India, the Petitioner is challenging the demand notice
dated 16/09/2016 and order dated 04/03/2017 passed by
Respondent No. 1 calling upon the Petitioners to deposit a
sum of Rs. 2,27,13, 659/- (Rupees Two Crore Twenty Seven
Lac Thirteen Thousand Six Hundred and Fifty Nine only) by
way of royalty and penalty under Section 48(7) of the
Maharashtra Land Revenue Code, 1966.
3. It is the case of the Petitioners that Respondent No.2
floated online Tender No. 1862 for construction of Ellavya
Model Residential School Campus at Village Shendegaon,
Talula Shahapur, Dist-Thane. The Petitioners were
successful bidder in that tender. Respondent No.2 awarded
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the said contract in favour of the Petitioners. Hence, the
Petitioners after obtaining the permission to start
construction activities.
4. The learned counsel for the Petitioners submit that
while carrying out construction activity the excavated earth
soil has been used by them in the said land itself. Inspite of
that the Respondent-Tahasildar issued notice dated
16/09/2016 calling upon the Petitioners why they should
not impose the royalty plus penalty of Rs. 2,27,13, 659/-
(Rupees Two Crore Twenty Seven Lac Thirteen Thousand
Six Hundred and Fifty Nine only) on them.
5. The learned counsel for the Petitioners submit that, in
the present proceedings, the concerned offcer has called the
report from the Executive Engineer in respect of the
Petitioner's excavation of the earth. He submits that the
Executive Engineer submitted the report dated 21/05/2019
in which it is specifcally stated in paragraph 6 that there is
no misuse of the said excavation minerals from the said land
and the same is used by the Petitioners for the same project
in the same land itself. He submits that, these facts are not
considered by the concerned Tahasildar while passing the
impugned order dated 04/03/2017.
6. The learned counsel for the Petitioners submit that,
similar issue was there before the Apex Court in the matter
of Promoters and Builders Association of Pune Vs. State of
Maharashtra and Others reported in (2015) 12(SCC) 736.
It is held in that matter, if the mineral are used for the same
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project in the same land then there is no question of
payment of any royalty and/or penalty under Section 48(7)
of the Maharashtra Land Revenue Code, 1966. He relies on
paragraph 15 of the said Judgment which reads thus:
"15 As use can only follow extraction or
excavation it is the purpose of the
excavation that has to be seen. The 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 undertalen
to lay the foundation of a building would not,
ordinarily, carry the intention to use the
excavated earth for the purpose of flling up
or levelling. A blanlet determination of
liability merely because ordinary earth was
dug up, therefore, would not be justifedd
what would be required is a more precise
determination of the end use of the
excavated earthd a fnding 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 fnding in favour of the
claim made by the builders, obviously, the
Notifcation dated 3-2-2000 would have no
applicationd the excavated earth would not a
specie of minor mineral under Section 3(e)
of the 1957 Act read with the Notifcation
dated 3-2-2000."
On the basis of those submissions, the learned counsel
for the petitioners submits that, the impugned order passed
by the Authority is required to be set aside. He submits that,
pending the hearing and fnal disposal of the present
petition, the Respondent may be restrained from taling any
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coercive action against the Petitioners for recovery of the
said amount i.e. Rs. 2,27,13, 659/- (Rupees Two Crore
Twenty Seven Lac Thirteen Thousand Six Hundred and
Fifty Nine only).
7. The learned AGP for the State submits that, he
requires some time to fle an affdavit in reply.
8. Considering the submissions made by the learned
counsel for the Petitioners and the Judgment of the Apex
Court in the matter of Promoters and Builders Association
of Pune Vs. State of Maharashtra and Others (supra), we are
satisfed that the Petitioners have made out a case for ad-
interim relief. Hence, the following order:
a. The Respondent -State to fle an affdavit in reply on or
before 26/02/2021, with copy to other side.
b. Rejoinder, if any, to be fled on or before 12/03/2021,
with copy to other side.
c. The Respondents are restrained from taling any
coercive action against the Petitioners for recovery of an
amount of Rs.2,27,13, 659/- (Rupees Two Crore Twenty
Seven Lac Thirteen Thousand Six Hundred and Fifty Nine
only) as per order dated 04/03/2017 passed by the
Tahasildar.
d. Matter to appear on board on 31/03/021.
( RIYAZ I. CHAGLA, J.) (K.K.TATED, J.)
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