Bombay High Court
M/S Mahalaxmi Constructions, Through ... vs The State Of Maharashtra Through The ... on 4 February, 2016
Author: Vasanti A. Naik
Bench: Vasanti A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6433 OF 2015
PETITIONER: Messrs. Mahalaxmi Constructions,
Through the Proprietor, Shri Anmol S/o
Anandrao Chavan, Aged about 45 years,
Occupation:business, Resident of
Subhash Ward, Warthi, Taluka mohadi,
District Bhandara.
ig -VERSUS-
RESPONDENTS: 1. The State of Maharashtra, Through the
Principal Secretary, Revenue and
Forests Department Mantralaya,
MUMBAI - 400 032.
2. The Collector, Bhandara District, Civil
Lines, BHANDARA.
3. The Additional Collector, (In-charge of
Mining), Civil Lines, BHANDARA.
4. The Mining Officer, Civil Lines,
BHANDARA.
Shri C. S. Kaptan, Senior Advocate with Shri C. M. Samarth
Advocate for the petitioner.
Shri Nilesh Joshi, Assistant Government Pleader for respondent
Nos.1 to 4.
CORAM: SMT. VASANTI A. NAIK
AND
A.S. CHANDURKAR JJ.
DATED
: 4
th
FEBRUARY, 2016.
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ORAL JUDGMENT : (Per Smt. Vasanti A. Naik, J)
Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned Counsel for the parties.
By this petition, the petitioner has sought a direction to the respondents to issue Zero Royalty Passes or appropriate authorization to the petitioner to enable it to remove the stocked sand from the rented plot to any other desired destination. The petitioner has also sought a direction to the respondents to issue the Dealers Licence to the petitioner in pursuance of its application dated 15-9-2014.
The few facts giving rise to the petition are stated thus:-
The petitioner proprietory firm participated in an E-
auction for excavation of the sand from Mohagaon Devi-A Sand Ghat, Tahsil Mohadi, District Bhandara. The petitioner was the successful bidder and a lease deed was executed in favour of the petitioner for allotment of Sand Ghat for excavation of 3534 Brass of sand. After the execution of the lease deed on 29-4-2014, the petitioner excavated 3534 Brass of sand from the concerned Sand Ghat till 15-9-2004. Since the lease was to expire on 30-9-2014, it is the case of the petitioner that in pursuance of the directions and ::: Uploaded on - 05/02/2016 ::: Downloaded on - 31/07/2016 03:48:04 ::: wp6433.15.odt 3/9 instructions of the Mining Officer, the petitioner applied for a Dealers Licence under Rule 71(2)(a) of the Maharashtra Minor Mineral Extraction (Development and Regulation) Rule, 2013.
According to the petitioner, though the said application was made due to the insistence of the Mining Officer and though the respondents had issued a challan of Rs.1000/- on 26-9-2014 in favour of the petitioner, the Additional Collector wrote to the Tahasildar on 29-9-2014 seeking advice whether the petitioner could be granted the Dealers Licence. The petitioner was informed by a communication dated 6-1-2015 that the licence could be issued in favour of the petitioner only after the Tahasildar is satisfied that there is no illegal excavation and transportation of the sand. It was informed that the application for dealers licence would be decided after the Sand Ghat is again auctioned. Since the petitioner was not permitted to remove the sand from the private place where it was stocked after its excavation before 15-9-2014, the petitioner has filed the instant petition seeking the aforesaid relief.
Shri C. S. Kaptan, the learned Senior Counsel appearing for the petitioner submitted that the action on the part of the respondent Nos.2 & 3 of seizing and confiscating the sand legally excavated by the petitioner is bad in law and a direction is ::: Uploaded on - 05/02/2016 ::: Downloaded on - 31/07/2016 03:48:04 ::: wp6433.15.odt 4/9 required to be issued against the respondents to permit the petitioner to remove the same from the concerned place where it is stocked. It is submitted that the petitioner was not required to possess a Dealers Licence for transporting the sand that was excavated in pursuance of the lease deed executed between the respondent No.2 and the petitioner. It is submitted that there is nothing in the lease agreement that provides that a licensee should possess a Dealers Licence for removal of the sand excavated in pursuance of the lease. It is submitted that even as per Rule 71 of the Rules of the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013, a person other than a quarry permit or quarry lease holder would be required to possess a Dealers licence for stocking, selling or offering for sale any minor mineral mentioned in Schedule I. It is submitted that a quarry permit holder or a quarry lease holder is not required to possess a Dealers Licence for stocking and selling the minor minerals. It is submitted that the Dealers Licence was being sought by the petitioner only at the insistence of the Mining Officer and if the respondents were not ready to grant the same in favour of the petitioner, they could not have seized the sand of the petitioner that was legally excavated in pursuance of the lease agreement executed between the parties on 29-4-2014. It is submitted that ::: Uploaded on - 05/02/2016 ::: Downloaded on - 31/07/2016 03:48:04 ::: wp6433.15.odt 5/9 the action on the part of the respondents of seizing the sand of the petitioner is clearly arbitrary and illegal especially when it was stored on a private place and was not stored at the Sand Ghat. It is submitted that the action on the part of the respondents in seizing the Sand of the petitioner is not in accordance with the terms of the lease agreement and/or provisions of any other law. It is submitted that the petitioner is not required to possess a Dealers Licence and hence, the grievance of the petitioner would stand redressed if this Court only directs the respondents to issue Zero Royalty Passes or appropriate authorization to the petitioner to enable it to remove the stocked sand from the rented plot to any other desired destination at the earliest.
Shri Nikhil Joshi, the learned Assistant Government Pleader for the respondents supported the action of the respondents and submitted that after the petitioner applied for a Dealers Licence, the Collector had asked the Tahasildar whether the same could be granted in favour of the petitioner. It is submitted that after receiving a report from the Tahasildar, it was found that it was not possible to grant a Dealers Licence in favour of the petitioner at that stage. It is fairly admitted after a perusal of the Rules and the lease agreement, that there is nothing in the lease agreement that necessitates the lease holder of a Sand Ghat ::: Uploaded on - 05/02/2016 ::: Downloaded on - 31/07/2016 03:48:04 ::: wp6433.15.odt 6/9 to secure a Dealers Licence for removal of the Sand from the Sand Ghat and the private place where it is stored before the expiry of the term of the lease. It is submitted that according to the respondent Nos.2 & 3, the action of the seizure of the sand is made in view of condition Nos.8 & 9 of the lease agreement. It is submitted that the Sand was not removed by the petitioner from the private place within a period of ten days after the expiry of the lease period and, therefore, the respondents had seized the sand of the petitioner. It is submitted that the action of the respondents is in accordance with law.
On hearing of the learned Counsel for the parties and on a perusal of the lease agreement and the affidavit-in-reply filed on behalf of the respondents, it appears that the respondents had illegally seized the sand of the petitioner without any authority of law. Atleast, nothing is pointed out on behalf of the respondents to show that the respondents were authorized to seize the sand excavated by the petitioner and stored in a private place before the expiry of the period of the lease. It is averred in para 3 of the writ petition that due to the instructions of the Mining Officer, the petitioner had applied for a Dealers Licence and a Challan was also received by the petitioner on 26-9-2014. There is no denial to the averment made in para 3 of the writ petition that it was only on ::: Uploaded on - 05/02/2016 ::: Downloaded on - 31/07/2016 03:48:04 ::: wp6433.15.odt 7/9 the instructions of the Mining Officer that the petitioner applied for a Dealers Licence. We have noted herein above as it is fairly stated on behalf of the respondents that there is nothing in the agreement of lease executed between the parties that necessitates the lease holder of a Sand Ghat to possess a Dealers Licence under Rule 71 of the Maharashtra Minor Mineral Extraction (Development and Regulation) Rule, 2013. If that is so, the Mining officer should not have insisted that the petitioner should apply for a Dealers licence. Be that as it may, the petitioner had applied for the Dealers Licence and a Challan was also received by the petitioner for issuance of the Dealers Licence on 26-9-2014. It is surprising that an officer of the Rank of the Additional Collector should write to the Tahasildar and make a query whether a Dealers Licence could be issued in favour of the lease holder of the Sand Ghat. On the say of the Tahasildar that there could be a possibility of illegal excavation and transportation of the Sand, the Dealers Licence was refused to the petitioner. It was stated in the order refusing the Dealers Licence in January 2015 that the application for a Dealers Licence could be decided after the Sand Ghats were re-auctioned in 2014-15. It is difficult to guage as to how the petitioner could have excavated and illegally transported the sand after the expiry of the lease period on 30-9-2014. The ::: Uploaded on - 05/02/2016 ::: Downloaded on - 31/07/2016 03:48:04 ::: wp6433.15.odt 8/9 petitioner had already removed and stored 3534 brass of sand before 15-9-2014 in a private place and was desirous of removing the same from the said place, but was not permitted to remove it in the absence of a Dealers Licence. On one hand, the respondents were not issuing the Dealers Licence in favour of the petitioner and on the other, were not permitting the petitioner to remove the sand from the private place and dispose it of in accordance with law. The necessary Zero Royalty Passes or appropriate authorization was not granted to the petitioner to remove the sand from the private place. There was no authority whatsoever in the respondents to prohibit the petitioner from removing the sand from the private place. The reliance placed by the respondents on condition Nos.8 & 9 of the lease deed for seizure of the sand is ill founded as on a reading of condition Nos.8 & 9, it is clear that the sand could not have been seized in view of the same. The sand could have been seized under Rule 8 only if the stock of the sand was not removed from the land of excavation within ten days.
Such is not the case here. It is not the case of the respondents that the petitioner did not remove the stock of sand from the land of excavation i.e. the Sand Ghat within ten days from the expiry of the lease period i.e. within ten days after 30-9-2014. It is not denied by the respondents that the petitioner had excavated 3534 ::: Uploaded on - 05/02/2016 ::: Downloaded on - 31/07/2016 03:48:04 ::: wp6433.15.odt 9/9 brass of sand before 15-9-2014 and had stored the stock in the private land. Condition No.9 of the lease deed would also not apply to the facts of the case as the said condition provides that the excavated sand, that is not removed from the Sand Ghat would vest in the Government. As stated herein above, the sand excavated by the petitioner was removed from the Sand Ghat before 15-9-2014 and was stocked in a private place, and the respondents, therefore, cannot rely on condition Nos.8 & 9 of the lease deed to seize the stock of sand. In the circumstances of the case, we find that the action on the part of the respondents in seizing the entire stock of sand excavated by the petitioner and stored in the private land is clearly arbitrary and illegal.
Hence, the writ petition is allowed. The respondents are directed to issue the Zero Royalty passes or such appropriate authorization to the petitioner to enable it to remove the stocked sands from the private land to any other desired destination. The appropriate passes and authorization should be issued in favour of the petitioner within a period of seven days. Rule is made absolute in the aforesaid terms. No costs.
JUDGE JUDGE
//MULEY//
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