1) Mr. Amjad Said Khan vs 2) Mr. Ravindra Holi
2022 Latest Caselaw 8763 Bom

                                      1                                  jg.w.p. 2334.2021.odt



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, AT NAGPUR.

                        Writ Petition No. 2334 of 2021


(1) Mr. Amjad Said Khan,
    Aged : Major, Occ-Business,
    R/o. Near Gurudwara
    Gadchandur Road, Rampur,
    At Rajura,
    Dist. Chandrapur-442905                                           ... Petitioner

      ... Versus ...

(1) State of Maharashtra,
    Through its Secretary,
    Department of Revenue and Forest,
    Mantralaya, Mumbai.

(2) Mr. Ravindra Holi,
    Tehsildar Office, Tah-Rajura,
    Dist : Chandrapur.                                            ... Respondents
-------------------------------------------------------------------------------------
Mr. Manish O. Shukla, Advocate for the petitioner
Mrs. M. A. Barabde, A. G. P. for the State/respondent no. 1
--------------------------------------------------------------------------------------


                                              CORAM : MANISH PITALE, J.

DATED : 5-9-2022

ORAL JUDGMENT

Heard learned counsel for the petitioner and learned

Assistant Government Pleader for the respondents - State authorities.

2. Rule. Rule made returnable forthwith.

2 jg.w.p. 2334.2021.odt

3. By this petition, the petitioner has challenged the order

dated 22-5-2020 passed by the respondent - Tahsildar imposing penalty

of Rs. 1,10,900/- on the petitioner for allegedly illegally transporting

sand in a tractor and trolley. It is an admitted position that the

petitioner has deposited the said penalty amount under protest and

accordingly, tractor and trolley were released in his favour.

4. At the outset, learned Assistant Government Pleader

submitted that the present petition ought not to be entertained as

alternative remedy of approaching the Sub Divisional Officer was

available to the petitioner. In response, learned counsel for the

petitioner submitted that in the present case, the petitioner is alleging

violation of principles of natural justice on the part of the respondent -

Tehsildar, while passing the impugned order and, that therefore, the

present writ petition can be entertained by this Court.

5. According to the learned counsel for the petitioner, the

sand in question was being transported on the basis of valid transit pass

and therefore, the impugned action is wholly unjustified. On the other

hand, learned Assistant Government Pleader submitted that the transit

pass was found to be invalid and therefore, no interference was called

for.

3 jg.w.p. 2334.2021.odt

6. Perusal of the material on record shows that there was

transit pass available with the petitioner when he claims to have legally

transported one brass of sand on 12-12-2019 from the sand ghat where

he purchased it, to transport it at his private place for stocking the

same. It is claimed that this very transit pass could be the basis for

further transporting the sand, as was being done on 16-5-2020. It is

also submitted on behalf of the petitioner, by relying upon the response

and explanation given to the show cause notice, that the copy of transit

pass and certain details were placed before the Tehsildar along with

written explanation.

7. Perusal of the impugned order shows that the written

explanation submitted by the petitioner has been rejected by the

respondent - Tehsildar by recording that the transit pass was found to

be invalid on verification through on-line system. It is then recorded

that GPS photograph of the vehicle in question falsified the claim of the

petitioner and that report of the Police Patil also recorded adverse

findings against the petitioner. Thereupon from the respondent -

Tehsildar has given a finding that sand was being illegally transported

by the petitioner and accordingly, penalty was imposed.

8. There is nothing on record to show that the report, if any,

upon verification through on-line system about transit pass was 4 jg.w.p. 2334.2021.odt

supplied to the petitioner. There is also nothing to show that the GPS

photo of the vehicle in question, upon which reliance was placed, was

ever put to the petitioner or a copy of the same was supplied to him.

The record also does not show the report of Police Patil was made

available to the petitioner. In these circumstances, this Court convince

that the contention raised on behalf of the petitioner about the violation

of principle of natural justice on the part of respondent - Tehsildar is

supported by the material on record. The said action taken by the

respondent - Tehsildar by imposing penalty in the impugned order

stands vitiated due to the aforesaid violation of principles of natural

justice. Since the said contention is specifically raised on behalf of the

petitioner and this Court is inclined to accept the same, the aspect of

alternative remedy being available to the petitioner becomes irrelevant.

Even otherwise, the rule of not exercising writ jurisdiction due to

availability of alternative remedy is a rule of prudence and not

necessarily a rule of law. In these circumstances, it is found that the

writ petition filed by the petitioner can certainly be entertained.

9. In view of findings recorded herein above, there is violation

of principles of natural justice while imposing penalty on the petitioner.

Therefore, the writ petition deserves to be partly allowed.

5 jg.w.p. 2334.2021.odt

10. Accordingly, writ petition is partly allowed. The impugned

order is quashed and set aside.

11. The matter is remanded to the Tehsildar for proper

consideration. The respondent-Tehsildar shall furnish copies/

documents, photographs and other such material upon which reliance

was placed to proceed against the petitioner. Material be provided to

the petitioner within two weeks of appearance of the petitioner before

the respondent - Tehsildar.

12. The respondent - Tehsildar is directed to pass appropriate

order after giving proper opportunity to the petitioner within six weeks

of appearance of the petitioner before the respondent - Tehsildar.

13. The petitioner shall appear before the respondent -

Tehsildar on 12-9-2022. The Tehsildar shall then proceed to act in

accordance with the direction given herein above, so as to ensure that

order is passed within six weeks of 12-9-2022.

JUDGE

wasnik

Digitally signed byAVINASH YUVRAJ WASNIK Signing Date:07.09.2022 14:26