Bombay High Court
Shri. Anand Subhash Shah vs State Of Maharashtra Through The ... on 2 May, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5758 OF 2023
[Anand Vs. State]
Office Notes, Office Court's or Judge's orders.
Memoranda of Coram,
appearances, Court's
orders or directions and
Registrar's orders
Mr. R.S. Datar, Advocate i/b. Druti Datar, for Petitioner.
Mr. C.D. Mali, AGP for the Respondent Nos.1 to 4-State.
CORAM : SARANG V. KOTWAL, J.
DATE : 2nd MAY, 2023
P.C.:
1. Leave to amend to correct the prayer clauses (a) & (b) is
granted. Amendment shall be carried out forthwith.
2. The Petitioner has challenged the order dated 28.12.2022 passed
by the Tahsildar, Shahapur directing the Petitioner to deposit the
amount of Rs.9,53,97,008/-.
3. The subject matter of the said order is the excavation carried out
by the Petitioner in Survey No.133/1b admeasuring 8 Hectare 24 Ares.
The impugned order mentions that the Petitioner had excavated the
earth and had used the earth in the same land. He had excavated a
nullah and had constructed an artificial pond. The panchanama was
conducted. It is mentioned in the impugned order that he had not taken
any permission or had not paid any royalty. On this ground, the
impugned order was passed.
4. Learned counsel for the Petitioner submitted that he was served
with a show cause notice dated 11.7.2022 and he had answered to that
notice by submitting a written reply on 30.7.2022. A copy of the same
is annexed to this Petition. It also bears the acknowledgment from the
Tahsildar's office, Shahapur showing that it was received on 2.8.2022.
Inspite of that, the impugned order mentions that the Petitioner had
nothing to say. Moreover the impugned order also makes a reference to
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one Sillu Patel and others and it is stated in the order that those persons
had not filed any written statement.
5. Learned counsel for the Petitioner submitted that this shows
clear non application of mind on the part of the Tahsildar because said
Sillu Patel had noting to do with this show cause notice or with the
land. Moreover, the reply given by the Petitioner was not considered at
all and a wrong statement was made in the impugned order that the
Petitioner had nothing to say.
6. Learned counsel for the Petitioner relied on the judgment of the
Hon'ble Supreme Court in the case of Promoters And Builders
Association of Pune Vs. State of Maharashtra and others 1 and in
particular he relied on paragraph-15 of the said judgment in which it
was held that, 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) of the Maharashtra Land Revenue Code 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. What had to
be seen is whether the extracted earth was used commercially. Shri
Datar submitted that in the present case the impugned order itself shows
that the earth was excavated for use in the same plot for constructing
the artificial pond.
7. Learned AGP submitted that the Petitioner has an alternate
remedy of appeal under Section 247 of the Maharashtra Land Revenue
Code (for short, 'MLR Code'). He submitted that the Petitioner is
required to deposit 25% of the penalty for the appeal to be decided by
the appropriate authority. He submitted that the Petitioner has to
exhaust that remedy before approaching this Court.
8. In answer to these submissions, Shri Datar relied on the order
passed by a Division Bench of this Court on 9.12.2021 in Writ Petition
No.7390/2010 in the case of P.S.C. Pacific Vs. The State of
Maharashtra in which the Petition was directly entertained. In
paragraph-11 of the said order, the issue of alternate efficacious remedy
1 (2015) 12 SCC 736
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was considered and the Division Bench had observed that in the case
before the Court no purpose would be served to relegate the Petitioner
to the Appellate Authority in the facts and circumstances of that case.
9. Shri Datar also relied on another order of a Division Bench of
this Court dated 13.1.2015 passed in Writ Petition No.2743/2010 in the
case of Rahul Rasiklal Nahar and others Vs. The State of
Maharashtra and others. Even in that case, the Petition was directly
entertained instead of relegating the Petitioner to the remedy of an
appeal.
10. In the present case, according to shri Datar, as the impugned
order shows clear non-application of mind, the observations of Hon'ble
Supreme Court are squarely applicable and, therefore, it is necessary to
entertain Writ Petition in this Court without relegating the Petitioner to
the alternate remedy of filing an appeal.
11. Learned AGP seeks time to file affidavit-in-reply to answer all
these questions. In this view of the matter, today I am adjourning the
matter, but, learned counsel for the Petitioner has made out a case for
grant of ad-interim relief.
12. Hence, the following order :
:: O R D E R ::
i. Issue notice to the Respondents, returnable on 24.8.2023.
Learned AGP waives service for the Respondents.
ii. Till then there shall be ad-interim relief in terms of prayer clause
(d).
iii. Stand over to 24.8.2023
(SARANG V. KOTWAL, J.)
Deshmane (PS)
