Bombay High Court
Venue Venture Pvt. Ltd vs The State Of Maharashtra Through Its ... on 13 March, 2024
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
2024:BHC-OS:4626-DB
7.wp(l).2078.2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.2078 OF 2024
Venue Venture Pvt Ltd .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
Digitally signed
Mr.Sumit Kothari, Advocate for the Petitioner.
by UTKARSH
UTKARSH KAKASAHEB
KAKASAHEB BHALERAO
BHALERAO Date:
2024.03.19
10:52:17 +0530
Ms.Jyoti Chavan, Addl.G.P. a/w Mr.A.L.Patki, Addl.G.P.
for State/Respondent.
CORAM: B. P. COLABAWALLA &
SOMASEKHAR SUNDARESAN, JJ.
DATE : MARCH 13, 2024
P. C.
1. Rule. Respondents waive service. With the consent of the parties, rule made returnable forthwith and heard finally.
2. By the present Petition, the Petitioner challenges the order dated 28th November, 2023 ("impugned order") passed by Respondent No.3 under Section 48(7) of the Maharashtra Land Revenue Code, 1966 (for short "the MLRC, 1966"). By the impugned order, the Petitioner has been ordered to pay an amount of Rs.43,47,688.34/- towards royalty and penalty within a period of 7 days. Page 1 of 8
MARCH 13, 2024 Utkarsh ::: Uploaded on - 19/03/2024 ::: Downloaded on - 30/03/2024 11:23:25 :::
7.wp(l).2078.2024.doc Since this payment was not made by the Petitioner, Respondent No.3 issued a Notice dated 28th December, 2023 asking the Petitioner to pay the aforesaid amount, failing which action under Section 174 of the MLRC, 1966 would be initiated. Subsequently, on 4 th January, 2024 Respondent No.3 has issued the impugned proclamation directing the Petitioner to pay the aforesaid amount within 15 days, failing which action under Section 174 of the MLRC, 1966 would be initiated.
3. It is the case of the Petitioner that he is a licensee of land bearing CTS No.1627/A, admeasuring 10117 Sq.Mtrs. situated at Village Marol-Maroshi, Royal Palms, Arey road, Village Marol-Maroshi, Goregaon (East), Mumbai (for short the "said land"). The Tahasildar, Borivali (Respondent No.3) has passed the impugned order dated 28 th November, 2023 alleging that the Petitioner, on the said land, has excavated minor minerals allegedly without obtaining the permission of the State Government. Consequently, the Petitioner is liable to pay royalty and penalty totaling to the amount of Rs.43,47,688.34/- The aforesaid demand is made on the alleged ground that minor minerals might have been excavated by the Petitioner while erecting IB columns on the said land.
Page 2 of 8
MARCH 13, 2024 Utkarsh ::: Uploaded on - 19/03/2024 ::: Downloaded on - 30/03/2024 11:23:25 :::
7.wp(l).2078.2024.doc
4. The learned counsel appearing on behalf of the Petitioner submitted that there was no excavation of minor minerals because what was excavated from the said land was used on the very same land and stored thereunder. It was basically used for backfilling and the said material was neither transported out from the said land nor sold for any commercial purpose. He submitted that in fact it is not even the case of the State Authorities that what was excavated was either transported out from the said land or used for any commercial purpose. He submitted that once this is the case, the provisions of Section 48(7) of the MLRC, 1966 cannot be invoked for levying any penalty or royalty on the Petitioner.
5. The learned counsel for the Petitioner submitted that the issue raised in the present Petition is no longer res-integra and is covered not only by a decision of the Hon'ble Supreme Court in the case of Promoters and Builders Association of Pune V/S State of Maharashtra and Others, (2015) 12 SCC 736 but also several judgments of this Court, including one of this bench passed in the case of AIGP Developers (Pune) Private Limited V/S The State of Maharashtra & Others [Writ Petition No.10449 of 2023 decided on 8th March, 2024]. He submitted that all these decisions Page 3 of 8 MARCH 13, 2024 Utkarsh ::: Uploaded on - 19/03/2024 ::: Downloaded on - 30/03/2024 11:23:25 :::
7.wp(l).2078.2024.doc have clearly held that where excavation on ones land takes place and the said material is used on the very same land, and not transported out or used for any commercial purpose, then what is excavated can never be termed as minor minerals and therefore there would be no question of levying any penalty or royalty, or invoking the provisions of Section 48(7) of the MLRC, 1966.
6. On the other hand, Ms.Chavan, the learned Additional Government Pleader, submitted that non-compliance by the Petitioner would lie in not securing approval for the extraction of the approximately 344.89 brass that was redeployed on the said land. According to Ms.Chavan, regardless of removal of soil from the land from which it is excavated, one must seek permission to extract the said soil. She submitted that it does not matter that the extracted soil was used for backfilling and development of the very same land.
7. Ms.Chavan would argue that such authorization not having been taken by the Petitioner, the extraction of 344.89 brass is per se unauthorized, and would therefore attract not only the payment of royalty but also penalty. She would submit that failure to get permission for excavation would render the mining of minor minerals to be Page 4 of 8 MARCH 13, 2024 Utkarsh ::: Uploaded on - 19/03/2024 ::: Downloaded on - 30/03/2024 11:23:25 :::
7.wp(l).2078.2024.doc unauthorized, and as a result of which, the penal jurisdiction under Section 48(7) of the MLRC, 1966 would indeed be attracted. She, therefore, argued that no interference is called for in the impugned order.
8. We have heard the learned counsel for the parties. We have also perused the papers and proceedings in the above Writ Petition. In the facts of the present case, it is not disputed that whatever was excavated by the Petitioner was in fact used on the very same land. It is no ones case that any excavated material was either transported out of the said land or used for any commercial purpose. Once this is the case, we find that the issue raised in the present Petition is squarely covered by the decision of the Hon'ble Supreme Court in the case of Promoters and Builders Association of Pune (supra). In fact, we, once again, had the occasion to consider this issue in AIGP Developers (Pune) Private Limited (supra). We have, after relying upon the decision in Promoters and Builders Association of Pune (supra), have held that where the excavated earth is used on the very same plot of land and not transported out or used for any commercial purpose, the same would not amount to excavating any minor mineral at all and hence the question of either taking permission of the State Government or paying Page 5 of 8 MARCH 13, 2024 Utkarsh ::: Uploaded on - 19/03/2024 ::: Downloaded on - 30/03/2024 11:23:25 :::
7.wp(l).2078.2024.doc any royalty cannot and does not arise. For the sake of convenience, we may refer to our observations in AIGP Developers (Pune) Private Limited (supra), the relevant portion of which reads thus:-
26. It will be seen that the penalty under Section 48(7) is linked to the market value of the mineral involved. The inference we would draw from the articulation in Promoters and Builders by the Hon'ble Supreme Court is that commercial exploitation in the market (as distinguished from use for oneself) would be an important factor in determining whether the excavated earth would at all constitute "minor mineral". This is why Promoters and Builders has placed emphasis on the need for the State to find out whether the excavated earth was re-deployed or was used commercially.
27. As seen above, the State Government is empowered to make rules under Section 15 of the Mining Act. Using this power, the Extraction Rules have been made. After the ruling in Promoters and Builders, the State Government, explicitly amended Rule 46 of the Extraction Rules, which provides for royalty on minor minerals removed from the leased area.
With effect from 11th May, 2015, Rule 46 was amended to explicitly make a conscious distinction between minor minerals extracted and used on the same land and minor minerals extracted and removed from that land. The amended Rule 46(i) of the Extraction Rules provides as follows:-
"(i) The lessee shall pay royalty on minor minerals removed from the leased area at the rates specified in Schedule I:
Provided that, such rates shall be revised once in every three years:
Provided further that, no royalty shall be required to be paid on earth which is extracted while developing a plot of land and utilized on the very same plot for land levelling or any work in the process of development of such plot;
[Emphasis Supplied] Page 6 of 8 MARCH 13, 2024 Utkarsh ::: Uploaded on - 19/03/2024 ::: Downloaded on - 30/03/2024 11:23:25 :::
7.wp(l).2078.2024.doc
28. A plain reading of the foregoing provision would show that where earth is extracted in the course of development of a plot of land and is utilised on the very same plot of land for levelling or for any other work in the course of such development, no royalty is required to be paid. Since Promoters and Builders made it clear that re-deployment on the very same land (as opposed to commercial use after its removal from the said land) is the key jurisdictional fact to determine if the the "wrath of Section 48(7)" would be attracted, the amended Rule 46(i) of the Extraction Rules has also done away with royalty being payable on the extracted earth, if it is re-
deployed in the development of the same plot of land, for land levelling or any other work incidental to the process of developing the same plot of land. Therefore, where the excavated earth is removed from the plot of land, royalty would be payable but where the excavated earth is re- deployed on the very same plot of land, there would be no charge of royalty. If there was no charge of royalty, the extraction being incidental to levelling that very land or any work relating to the development of that very plot of land, would naturally not require any separate permission. As stated by the Learned Single Judge of this Court in the judgment in Rashtriya Chemicals and Fertilizers Ltd. V. State of Maharashtra (supra), which is extracted and endorsed by the Hon'ble Supreme Court in Promoters and Builders, any other view would point to the need to get government approval for every piercing of the land with a pick-axe and equate every pebble or particle of soil as partaking the character of a minor mineral."
(Emphasis Supplied)
9. In view of the law laid down by the Hon'ble Supreme Court in Promoters and Builders Association of Pune (supra) as well as the decision of this Court in AIGP Developers (Pune) Private Limited (supra), we find that the impugned order is unsustainable and has to be Page 7 of 8 MARCH 13, 2024 Utkarsh ::: Uploaded on - 19/03/2024 ::: Downloaded on - 30/03/2024 11:23:25 :::
7.wp(l).2078.2024.doc set aside. Once the impugned order goes the subsequent notices issued pursuant thereto also cannot stand and would have to be set aside. Rule is accordingly made absolute in terms of prayer clauses (a) & (c) which read thus:-
"(a) That this Hon'ble Court may be pleased to issue a Writ of Certiorari or any other Writ, Order or Direction in the nature of Certiorari thereby quashing ans setting aside the impugned Order dated 28/11/2023 issued by the Tahsildar, Borivali Respondent No.3 herein to the Petitioner in purported exercise of powers conferred under Section 48 of the M.L.R. Code, 1966; being Exhibit I to this Writ Petition;
(c) That this Hon'ble Court may be pleased to issue a Writ of Certiorari or any other Writ, Order or Direction in the nature of Certiorari thereby quashing and setting aside the impugned Notices dated 28/12/2023 and 04/01/2024 issued by the Tahsildar, Borivali, Respondent No.3 herein addressed to the Petitioner in purported exercise of powers conferred under Section 48 of the M.L.R. Code, 1966; being Exhibit J and Exhibit K to this Writ Petition;"
10. Rule is made absolute in the aforesaid terms and the Writ Petition is also disposed of in terms thereof. However, there shall be no order as to costs.
11. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order. [SOMASEKHAR SUNDARESAN,J.] [B. P. COLABAWALLA, J.] Page 8 of 8 MARCH 13, 2024 Utkarsh ::: Uploaded on - 19/03/2024 ::: Downloaded on - 30/03/2024 11:23:25 :::