Bhausaheb S/O Ramdas Jadhav vs The State Of Maharashtra Thr. ...
2022 Latest Caselaw 12325 Bom

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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION

VASANT   Digitally signed by
         VASANT ANANDRAO
ANANDRAO IDHOL                    WRIT PETITION NO.9369 OF 2022
         Date: 2022.12.02
IDHOL    15:50:24 +0530


               Bhausaheb R. Jadhav                                     ...Petitioner
                         V/s.
               State of Maharashtra & Anr.                             ...Respondents


               Mr.Shrirang Katneshwarkar with Mr.Deepak Pote for the Petitioner.

               Ms.Kavita N. Solunke, AGP for the State - Respondent Nos.1 and 2.

                                         CORAM : R.D. DHANUKA &
                                                 S.G. DIGE, JJ.

DATE : 29TH NOVEMBER, 2022.

P.C. :-

1. Rule. Ms.Solunke, learned AGP waives service for the

respondent nos.1 and 2. Rule is made returnable forthwith.

2. By this petition filed under Article 226 of the Constitution

of India, the petitioner seeks a writ of certiorari for quashing and

setting aside the impugned order dated 10th June, 2022 passed by

the respondent no.2 and seeks a writ of mandamus to release the

vehicle bearing registration No.MH-15 FE - 6983 without further

delay.

3. The petitioner is engaged into the business of supply and

transport of building material and has his own vehicle truck. It is the

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case of the petitioner that as per the demand of the purchaser in

Nashik, and as the required quality of sand was available at Nizar,

District Tapi, in the state of Gujarat, the petitioner bought the sand

and proceeded into the limits of Maharashtra State. Since the District

Squad did not find ETP (Zero royalty pass) with the petitioner, the

respondents imposed 10% royalty.

4. Learned counsel for the petitioner submitted that the

petitioner had already obtained a permit from the Gujarat RTO. The

petitioner was not required to pay any royalty under the circular dated

5th February, 2021, as sought to be invoked by the respondents while

demanding the payment of royalty. He placed reliance on the

judgments of the Nagpur Bench of this Court delivered on 7 th April,

2022 in Writ Petition No.2078 of 2021 in case of M/s.Shree Rajesh

Pathak vs. State of Maharashtra & Ors. and also the judgment

delivered by the Division Bench of Aurangabad Bench of this Court

on 26th April, 2022 in Writ Petition 4397 of 2022 in case of Vishal

Babasaheb Dube @ Dhube vs. State of Maharashtra & Anr. and

submitted that this Court in both the judgments has already held that

the respondents cannot collect any royalty under 'clause 5' of the said

circular dated 5th February, 2021. This Court has held clause no.5 of

the said circular as bad in law since the State Government has not

been conferred with any authority or power to demand contribution to

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the DMF of the district on the entry and consequent transport of

minor minerals within the State of Maharashtra. It has already been

held by this Court that clause 5 of the said circular dated 5th February,

2021 will not operate on the ground of being excessive and travelling

beyond the rule making power of the State of Maharashtra. The said

circular shall operate excluding clause 5.

5. In our view, the order is based on clause 5 of the said

circular dated 5th February, 2021. The facts are identical to the facts

before this Court in case of M/s.Shree Rajesh Pathak vs. State of

Maharashtra & Ors. and Sudarshan Rajkumar Badgujar vs. State

of Maharashtra & Ors., thus, we are respectfully bound by the

principles laid down in both the judgments.

6. Ms.Solunke, learned AGP for the respondents could not

distinguish any of these judgments and also could not dispute that

the recovery sought by the respondents from the petitioners was

based on clause 5 of the said circular, which is held bad in law by this

Court in the aforesaid two judgments.

7. In our view, the levy proposed by the respondents is thus

without jurisdiction. The action on the part of the respondents to

detain the vehicle registration No.MH-15 FE - 6983 is also without

jurisdiction.

8. We accordingly pass the following order :-

907-wp9369-22.doc

i). The writ petition is allowed in terms of prayer clause (B).

The vehicle of the petitioner described in prayer clause (B) of the

petition shall be released within one week from today.

ii). Rule is made absolute accordingly. There shall be no order

as to costs. Parties to act on the authenticated copy of this order.

(S.G. DIGE, J.)                                   (R.D. DHANUKA, J.)