Bombay High Court
Shree Sonigara Realcon Thru. Partner vs The State Of Maharashtra Thru. Revenue ... on 18 August, 2025
Author: N.J. Jamadar
Bench: N.J. Jamadar
2025:BHC-AS:35736
14-wp-10895-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10895 OF 2025
Shree Sonigara Realcon through ... Petitioner
Partner
V/s.
The State of Maharashtra through ... Respondents
Revenue Dept and Ors.
-------------------
Mr. Prathamesh Bhargude with Sumit Sonare, Vinayak Pandit and
Sufyaan Munsuri i/by Ajinkya Udane, for the petitioner.
Smt. R.M. Shinde, AGP, for the State.
--------------------
CORAM : N.J. JAMADAR, J.
DATE : 18th AUGUST 2025
ORAL ORDER:
1. Heard the learned counsel for the parties.
2. Rule. Rule made returnable forthwith and, with the consent
of learned counsel for the parties, heard finally.
3. The challenge in this petition is to an order dated 8 th July
2025 passed by the Tahsildar, Mulshi Paud, Tal- Mulshi, Dist-Pune,
whereby the Tahsildar had determined that the petitioner has
excavated 15,676 brass minor minerals and the total
unauthorised excavation of the minor minerals was 9,577 brass,
and, accordingly, penalty of Rs. 5,65,04,300/- has been imposed
on the petitioner under Section 48(7) of the Maharashtra Land
varsha 1 of 8
14-wp-10895-2025.doc
Revenue Code, 1966.
4. Mr. Prathamesh Bhagurde, the learned counsel for the
petitioner, submitted that the Tahsildar has not considered the
documents tendered by the petitioner, especially the map
indicating the exact excavation of the minor minerals from the
lands and its utilisation at site itself for the purpose of
development. It was submitted that since the petitioner is utilising
minor minerals at site itself, for the purpose of development, the
petitioner was not required to pay any royalty thereon.
5. Moreover, according to Mr. Bhagurde, the record would
indicate that the quantity of minor minerals allegedly excavated
by the petitioner varied from time to time. In the notice dated 13 th
December 2021, it was alleged that the petitioner had excavated
6,616 brass minor minerals. In the panchnama, which was drawn
on 6th December 2022, it was claimed that around 900 to 950
brass minor minerals was stored at the site. In the panchnama
which was drawn on 10th January 2024, it was alleged that the
total excavation was 6,989 brass.
6. It was further submitted that despite the categorical
contention in the reply to the show cause notice that excavated
miner minerals was used for the development at site, the
impugned order came to be passed without adequate
consideration of the said contention.
7. Miss Shinde, the learned AGP supported the impugned
order. It was submitted that the impugned order has been passed
varsha 2 of 8
14-wp-10895-2025.doc
in conformity with the principles of natural justice and after
following the procedure prescribed for the determination of the
amount of royalty and the penalty for non-payment. Therefore, no
interference is warranted in the impugned order, submitted the
learned AGP.
8. From the perusal of the material on record, it appears that
the panchnamas were drawn at different points of time and,
accordingly, varying quantity of the minor minerals were noted to
have been allegedly excavated by the petitioner. In the reply filed
on behalf of the petitioner to the show cause notice dated 13 th
December 2021, there are categorical contentions that the
excavated minor minerals have been used for the purpose of
development at site and the petitioner has neither used the same
for commercial purpose nor transported the same. Therefore, the
petitioner was not liable to pay the royalty as assessed.
9. In the case of Ircon International Ltd, New Delhi and Ors. Vs
State of Maharashtra and Ors1, a Division Bench of this Court, had
an occasion to consider the import of the provisions contained in
Section 48 of the Maharashtra Land Revenue Code, 1966 in the
context of the liability to pay the royalty. This Court referred to
judgment of the Supreme Court in the case of Promoters and
Builders Association of Pune Vs. state of Maharashtra and Ors 2,
and observed as under:
"15. At this juncture, reference to the decision of the
Supreme Court in the case of Promoters and Builders
1 (2019 )SCC online Bom 544
2 (2015) 12 SCC 736
varsha 3 of 8
14-wp-10895-2025.doc
Association of Pune Vs. State of Maharashtra & Ors.
(Supra) may be apposite. In the said case, the Promoters
and Builders Association of Pune-appellants therein, had
urged that the earth which is dug for the purposes of
laying of foundation of building is not intended for filling
up or levelling purposes; digging the earth is inbuilt in
the course of building operations. The activity
undertaken, therefore, cannot be characterised as one of
excavation of a minor mineral. In the connected appeal,
preferred by the Nuclear Power Corporation, in addition
to above contention of the builders, it was contended that
no commercial exploitation of the excavated earth was
involved in the process of repair/widening of the water
channel; there was no sale or transfer of the excavated
earth and the same was the incidental result of the
process of repair/widening of the channel which is an
activity in consonance with the grant of the land to the
appellant by the Statement Government.
"16. As against this, it was the contention of the State,
before the Supreme Court, that after the inclusion of
ordinary earth in the definition of "minor minerals" by the
Notification under Section 3(e) of the 1957 Act,
excavation of ordinary earth without authorisation under
the said Act, would make the appellants liable not only to
payment of penalty under the Code but also for criminal
prosecution under the said Act.
17. Allowing the appeals, the Supreme Court, after
analysing the provisions, contained in Section 48(7) of
the Code of 1966 and the aforesaid Notification whereby
the ordinary earth was declared as a minor mineral,
observed in unequivocal terms that, "ordinary earth" used
for filing or levelling purposes in construction of
embankments, roads, railways, buildings to be a minor
mineral in addition to the minerals already declared as
minor minerals."
(emphasis in original).
varsha 4 of 8
14-wp-10895-2025.doc
18. The observations of the Supreme Court in paragraphs
14 and 15 of the aforesaid judgment are instructive in
nature. Thus, they are extracted below :-
"15. Though Section 2(j) of the Mines Act, 1952
which defines 'Mine' and the expression "mining
operations" appearing in Section 3(d) of the Act of
1957 may contemplate a somewhat elaborate
process of extraction of a mineral, in view of the
Notification dated 3-2-2000, insofar as ordinary
earth is concerned, a simple process of excavation
may also amount to a mining operation in any given
situation. However, as seen, the operation of the said
Notification has an inbuilt restriction. It is ordinary
earth used only for the purposes enumerated
therein, namely, filling or levelling purposes in
construction of an embankments, roads, railways
and buildings which alone is a minor mineral.
Excavation of ordinary earth for uses not
contemplated in the aforesaid notification, therefore,
would not amount to a mining activity so as to
attract the wrath of the provisions of either the Code
or the 1957 Act.
16. 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
undertaken to lay the foundation of a building
would not, ordinarily, carry the intention to use the
excavated earth for the purpose of filling up or
levelling. A blanket determination of liability merely
because ordinary earth was dug up, therefore, would
not be justified; what would be required is a more
precise determination of the end use of the
excavated earth; a finding on the correctness of the
stand of the builders that the extracted earth was
varsha 5 of 8
14-wp-10895-2025.doc
not used commercially but was redeployed in the
building operations. If the determination was to
return a finding in favour of the claim made by the
builders, obviously, the Notification dated 3-2-2000
would have no application; the excavated earth
would not be a specie of minor mineral under
Section 3(e) of the Act of 1957 read with the
Notification dated 3-2-2000."
(emphasis supplied)
19. The aforesaid judgment of the Supreme Court, was
followed by a Division Bench judgment of this Court in
the case of BGR Energy System Ltd, Khaparkheda Vs.
Tahsildar, Saoner & Ors. 2. In the said case, the petitioner
therein had challenged the order of the Tahasildar
directing the petitioner to pay the royalty and penalty for
the illegal excavation of the earth while executing the
work of construction of thermal power project at
Khaparkheda. This Court, after following the aforesaid
judgment, quashed and set aside the order of the
Tahasildar holding, inter-alia, that the use of the
excavated earth to fill up the dug pits and in construction
of the project did not fall within the ambit of the
aforesaid Notification, and, thus, the Tahasildar could not
have passed the order under Section 48(7) of the Land
Revenue Code, 1966.
20. It is evident that the Supreme Court has enunciated
in clear and explicit terms that excavation of ordinary
earth for uses not contemplated in the aforesaid
Notification would not amount to a mining activity so as
to attract the wrath of the provisions of either the
Maharashtra Land Revenue Code or the Act 1957. The
Court further ruled that a blanket determination of
liability for the mere fact that ordinary earth was dug up
would not be justifiable. What is of determinative
significance is the more precise determination of the end
use of the excavated earth. If the end use of the extracted
earth falls within the tentacles of the purposes specifically
mentioned in the aforesaid Notification, then it would fall
within the ambit of the Code of 1966 or the said Act,
varsha 6 of 8
14-wp-10895-2025.doc
1957. It is implies that the question of liability to pay the
royalty hinges more on the end use of the extracted
ordinary earth than the mere factum of extraction."
(emphasis supplied)
10. Re-adverting to the facts of the case, on the one hand, it
appears that the petitioner had categorically asserted that the
minor minerals excavated from the subject land were used for
development of the property, at site. The said claim of the
petitioner was required to be examined in the light of the
documents submitted by the petitioner, especially the maps which
are annexed at page 82 and 83 of the petition.
11. Secondly, prima facie there is variance in the various
panchnamas as regards the quantity of the unauthorisedly
excavated minor minerals. The said discrepancies might be on
account of the fact that those panchnamas were drawn at
different points of time. However, the determination of exact
quantify of minor minerals unauthorisedly extracted is imperative
for arriving at the amount of royalty and penalty, if any, thereon.
12. Thus, the question of of exact quantity of minor minerals
unauthorisedly extracted and whether the minor minerals so
excavated by the petitioner has been used at site itself are
required to be determined afresh by the Tahsildar, after providing
an opportunity of hearing to the parties.
13. In view of the above, the petition deserves to be partly
allowed.
varsha 7 of 8
14-wp-10895-2025.doc
14. Hence, the following order:
ORDER
a) The Petition stands partly allowed.
b) Impugned order dated 8th July 2025 passed by the
Tahasildar, Mulshi (R.2) stands quashed and set aside.
c) The proceeding for determination of the royalty along
with penalty, if any, i.e. Gau.Kha/SR/01/2025 stands
remitted back to the Tahsildar for determination afresh.
d) The Tahsildar is requested to hear and decide the said
proceeding in light of the aforesaid material on record,
including the maps (Exhibit-82 and 83) tendered by the
petitioner, after providing an opportunity of hearing to all
the concerned parties.
Rule is made absolute to the aforesaid extent.
Petition disposed.
(N.J. JAMADAR, J)
Signed by: S.S.Phadke
varsha 8 of 8
Designation: PS To Honourable Judge
Date: 19/08/2025 15:08:46
