Bombay High Court
Satyasheel S/O Surajlal Gajbhiye vs The Tahsildar, Nagpur on 12 March, 2019
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, Pushpa V. Ganediwala
1 WP6299.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6299 OF 2018
PETITIONER : Satyasheel S/o Surajlal Gajbhiye,
Aged about 31, Occu. Private,
R/o Post Mehandi, Naya kund,
Tah. Parseoni, Dist. Nagpur.
VERSUS
RESPONDENT : The Tahsildar,
Tahsil Parshivni, Dist. Nagpur.
----------------------------------------------------------------------------------------------
Mrs. A. R. Taywade, Advocate for the petitioner.
Mr. T. A. Mirza, Asst. Govt. Pleader for the respondent
----------------------------------------------------------------------------------------------
CORAM : SUNIL B. SHUKRE and
PUSHPA V. GANEDIWALA, JJ.
DATE : MARCH 12, 2019.
ORAL JUDGMENT (Per Sunil B. Shukre, J.)
1. Rule. Rule is made returnable forthwith. Heard finally by consent of the learned counsel for the parties.
2. We have heard Mrs. A. R. Taywade, the learned counsel for the petitioner and Mr. T. A. Mirza, the learned Assistant Government Pleader for the respondent.
::: Uploaded on - 14/03/2019 ::: Downloaded on - 14/03/2019 23:23:35 :::
2 WP6299.18.odt
3. Under Section 48(7) of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to "the MLR Code" for the sake of brevity), a discretion has been conferred upon the authority named therein i.e. Collector or any Revenue Officer not below the rank of Tahsildar authorised by the Collector in that regard, to impose penalty of an amount which may be up to five times of the market value of the minerals unauthorizedly extracted, removed, collected, replaced, picked up or disposed of, as the case may be. Similar discretionary power is granted to the Collector or any Revenue Officer not below the Rank of Deputy Collector authorized in that regard by the Collector under Section 48(8)(2) of the MLR Code to impose penalty in his discretion for unauthorized use of machinery or equipments or means of transfer for carrying of illegally excavated sand or minerals belonging to the State.
4. Whenever a discretionary power is conferred upon the Collector or his authorized officer, the power cannot be reasonably exercised unless an opportunity of hearing is granted to a person, who is going to be affected by the exercise of discretion one way or the other. The law in this regard is settled and if it is seen that no ::: Uploaded on - 14/03/2019 ::: Downloaded on - 14/03/2019 23:23:35 ::: 3 WP6299.18.odt such an opportunity of hearing has been granted, it would only mean the denial of rule of law, a rule which is firmly established in our Constitutional philosophy and which runs through the Articles like Articles 14, 19 and 21 of the Constitution of India. For this reason, we are not inclined to uphold the objection raised by Mr. T.A. Mirza, the learned Assistant Government Pleader for the respondent regarding availability of alternate remedy under Section 24 of the MLR Code and its non-use in the present case thereby making this petition as non-maintainable.
5. After having seen the nature of the provisions contained in Section 48(7),(8) of the MLR Code, we are of the view that the impugned order dated 11.12.2018 cannot be sustained in the eye of law. This order has been passed without granting any opportunity of hearing to the petitioner and therefore, it deserves to be quashed and set aside.
6. In that view of the matter, the writ petition is allowed.
(i) The impugned order dated 11.12.2018 passed by the respondent - Tahsildar, Parseoni, district Nagpur is hereby quashed ::: Uploaded on - 14/03/2019 ::: Downloaded on - 14/03/2019 23:23:35 ::: 4 WP6299.18.odt and set aside.
(ii) The matter is remanded back to the Collector, Nagpur, who shall, by himself or through his authorised officer, decide the issue involved in this petition, after granting hearing to the petitioner, in accordance with law, keeping in view the mandate of sub-sections 7 and 8 of Section 48 of the MLR Code, within a period of Three weeks from the date of the order.
7. Rule is made absolute in these terms. The writ petition is disposed of accordingly. No costs.
JUDGE JUDGE
Diwale
::: Uploaded on - 14/03/2019 ::: Downloaded on - 14/03/2019 23:23:35 :::