M/S Shree Rajesh Pathak, Thr. ... vs State Of Maharashtra, Department ...
2023 Latest Caselaw 4352 Bom

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

                                WRIT PETITION NO. 2746 OF 2023
                    M/s. Shree Rajesh Pathak Vs. State of Maharashtra and others

                                                           WITH
                                      WRIT PETITION NO. 2747 OF 2023
                      M/s. Suraj Enterprises Vs. State of Maharashtra and others
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              Office Notes, Office Memoranda of                                Court's or Judge's Order
              Coram, appearances, Court's Orders
              or directions and Registrar's order
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                       Shri D. V. Chauhan, Advocate for petitioner (in both the petitions).
                       Shri A. M. Deshpande, I/c. Government Pleader for respondent nos. 1 to 5 (in W.P.
                       No. 2746/2023)
                       Shri A. S. Fulzele, Addl. G. P. for respondent nos. 1 to 5 (in W. P. No. 2747/23).



                       CORAM :-         A. S. CHANDURKAR & M. W. CHANDWANI, JJ.

                       DATED :-         27.04.2023.


                                            Heard. Rule.

                       2.                   Shri   A.     M.      Deshpande,           learned        Incharge

Government Pleader waives notice for respondent nos. 1 to 5 in Writ Petition No. 2746/2023 and Shri A. S. Fulzele, learned Additional Government Pleader waives notice for the respondent nos. 1 to 5 in Writ Petition No. 2747/2023.

3. The petitioners having paid royalty amount to the District Mineral Foundation under Clause no. 5 of the Government Circular dated 05.02.2021 seek to rely upon the judgment in the case of Shree Rajesh Pathak, through its proprietor Rajesh Ramlal Pathak Vs. State of Maharashtra and connected matters [(2022) 4 Mh.L.J. 658] for seeking refund of the aforesaid amount on the ground that Clause no. 5 of the

RR Jaiswal

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said Circular has been held to be bad in law. The petitioners have approached the respective Collectors of the district seeking said refund. Though, the period of more than six months has elapsed since making such request, the same has not been considered and hence, the petitioners have approached this Court.

4. We find from the aforesaid decision that Clause no. 5 of the Circular dated 05.02.2021 has been held to be travelling beyond rule making powers of the State of Maharashtra and hence has been struck down. Consequently, the petitioners are entitled to seek refund of the amount of 10% royalty paid to the District Mineral Foundation. In these facts the following order will serve the ends of justice:-

i) The respondent nos. 2 to 5 in both the Writ Petitions shall decide the petitioners' application for refund and take a decision, if there is no legal impediment in doing so.

ii) To enable consideration of the aforesaid application, the petitioners shall appear before the said authority on 03.05.2023.

iii) The decision to be taken within a period of four weeks from that date and the same be communicated to the parties.

5. Rule is made absolute in the aforesaid terms. No costs.

RR Jaiswal



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6. Authenticated copy of this order be supplied to the parties.

(M. W. CHANDWANI, J.) (A. S. CHANDURKAR, J.)

RR Jaiswal