Bombay High Court
Harihar S/O Mahadev Puri vs State Of Maharashtra, Thr. The ... on 15 March, 2019
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, Pushpa V. Ganediwala
J-wp7165.18.odt 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.7165 OF 2018
Harihar s/o. Mahadev Puri,
Aged about 43 years,
Occupation : Business,
R/o. 62 Opposite Sawastic Nagar Watter Tank,
Badnera Road, Amravati. : PETITIONER
...VERSUS...
1. State of Maharashtra,
Through the Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai.
2. The Tahsildar,
Tehsil Office, Armori,
District Gadchiroli. : RESPONDENTS
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Shri T.H. Bewali, Advocate for the Petitioner.
Shri Neeraj Patil with Ms. Shamsi Haider, Asstt. Government Pleader for the
Respondents.
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CORAM : SUNIL B. SHUKRE AND
SMT. PUSHPA V. GANEDIWALA, JJ.
DATE : 15th MARCH, 2019.
ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)
1. Heard.
2. Rule. Rule made returnable forthwith. Heard finally by ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 15:44:47 ::: J-wp7165.18.odt 2/9 consent.
3. In the present case, the vehicle, a truck bearing registration No.MH-30-AV-1008 belonging to the petitioner was intercepted by the Tahsildar, Armori (respondent No.2) on 24.9.2018 at about 10.45 a.m. while the vehicle was in transit on the road and passing from over-bridge across Khobragadi river, near Armori. The interception was done with a view to check the material loaded in the truck and when it was inspected, it was discovered by respondent No.2 that the truck was transporting 10 brass of sand, which was in excess by 5 brass units of sand. It was later on also found that the petitioner had only a transit permit for carriage of 5 brass of sand by his said vehicle. Thus, the transportation of excess 5 brass of sand was found to be illegal by respondent No.2 and accordingly the action under Section 48(7),(8) of the Maharashtra Land Revenue Code, 1966 (in short, "MLR Code, 1966") was taken against the petitioner.
4. It is the contention of Shri T.H. Bewali, learned counsel for the petitioner that the provisions of Section 48(7) and (8) of the MLR Code, 1966 are not attracted in the present case for the reason that the sand was collected by the petitioner from a lawful source or a licensee, who in turn possessed a licence taken through the process of auction purchase to excavate a particular portion of the sand ghat. He submits that the petitioner had purchased 10 brass of sand from such a lawful ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 15:44:47 ::: J-wp7165.18.odt 3/9 source, in favour of whom, the State Government had already assigned its right in respect of the sand. According to the learned A.G.P. for the respondent, although this is the averment of the petitioner, no proof to prove the averment has been adduced at any stage of the proceeding by the petitioner and even in this petition, there is no document or any other evidence filed on record which would show that the excess sand was procured from a lawful source in respect of which the State Government had no right whatsoever.
5. The provisions of sub-sections (7) and (8) of Section 48 of the MLR Code, 1966 come into operation only when the seized sand is found to be illegally excavated or illegally transported thereby showing that the State Government continues to have a right in respect of this sand. This provision cannot be applied to a case where the State Government has no vested right in the seized sand or there is an assignment of such right of the State in favour of the auction purchaser or any other person in possession of the excavated sand.
6. Sub-Section (1) of Section 48 of the MLR Code is a general provision and it makes a declaration of omnibus nature to the effect that the State Government shall have right to all minerals at whatever place found, whether on surface or underground and shall have all powers necessary for the proper enjoyment of such a right. This sub-section would make it amply clear that there is a presumption floated by law in ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 15:44:47 ::: J-wp7165.18.odt 4/9 favour of the State Government that the ownership of all the minerals found at whatever places and wherever vest in the State Government. This right, however, is transferable in terms of Section 48(3). If this is so, a party taking a contrary plea would have to prove by producing on record relevant evidence that the State Government has lost its such right by virtue of some transfer or assignment of right. The burden of proof in this regard would necessarily be upon the person who claims an exception to the general right of the State Government under Section 48(1) of the MLR Code.
7. Such being the position of law, an argument made on behalf of the petitioner that it is not stated in the impugned order that the excess sand was illegally excavated would be of no consequence. In fact, the impugned order dated 4.10.2018 speaks in categorical terms that the transportation of excess sand was illegal and this statement would sufficiently show the legal connotation which flows from Section 48(1) of the MLR Code regarding State Government having general ownership over all minerals as having been established here. That would mean that the moment excess sand is found to be transported without transport permit, the general presumption of law would come into play. It would indicate that this sand is a mineral which belongs to State and the State has not transferred it's right to anyone. The presumption, however, being rebuttable, it is open to the transporter to show by placing on ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 15:44:47 ::: J-wp7165.18.odt 5/9 record reasonable proof that the sand has been purchased by him from a licensee or a lawful source in whose favour the assignment has been made. For, this purpose, it is necessary to place on record some documents or to say the least some receipts or affidavits having relevancy.
8. In the present case, as rightly submitted by the learned A.G.P. we find that no proof whatsoever to establish the claim that the excess sand was collected by the petitioner from a lawful source has been placed on record. It would then follow that the transportation of excess sand was clearly in violation of the mandate of Section 48 of the MLR Code and as a logical corollary to it, it would also have to be said that the provisions of sub-sections (7) and (8) of Section 48 of the MLR Code are indeed attracted in the present case. It would have been a different case had there been reasonable material brought on record by the petitioner to establish his claim that the sand in question was procured by him from a lawful source and if that was to happen in the present case, the provisions of Mines and Minerals (Development and Regulation) Act, 1957 in particular Section 4(1-A) read with Section 21 thereof prescribing penalty for transporting excess sand would have come into play. But, as stated earlier, this is not the position here.
9. The next contention of the learned counsel for the petitioner is that the vehicle in question was not produced before the Collector ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 15:44:47 ::: J-wp7165.18.odt 6/9 within 48 hours of its seizure and that violated the mandate of sub-section (8) of Section 48 of MLR Code. From the documents placed on record, we find that there is a delay in production of the vehicle in question before the Collector or duly authorized Deputy Collector by the Tahsildar, Armori and this delay went beyond the stipulated time of 48 hours. But, the question would be, whether such belated production of the vehicle before the concerned authority would make the transport of excess sand found to be illegal as legal and the answer has to be stated in negative terms. Of course, the Division Bench of this Court in the case of Dipak Ghadge and others vs. State of Maharashtra and others, reported in 2018(66) GST 314 has taken a view that the provision of Section 48(8)(2) is mandatory in nature and if it is not followed, a serious prejudice would occur to the affected person for, it is likely that such person may suffer substantial financial loss. This view expressing the consequence of not following the mandate of Section 48(8)(2) is only about a prejudice occurring to an affected person in terms of financial loss and not in terms of the legality or otherwise of the action of illegal transportation of the sand belonging to the State Government. Therefore, so far as the question involved in the present case is concerned, in our humble opinion, the view so expressed by the coordinate Bench of this Court, on facts, would be of no assistance to the case of the petitioner here. In the present case, question of financial loss ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 15:44:47 ::: J-wp7165.18.odt 7/9 would arise only when the petitioner has proved his right over the excess sand, which he has not. Facts show that the petitioner failed to dislodge the presumption of the sand belonging to the Government. Financial loss would occur to only that person who illegally or wrongly loses or sacrifices a thing owned by him. There is another dimension involved. Violation of mandate of Section 48(8) by itself would not legalize an action, the action of illegal transport of sand, which is otherwise patently unlawful and in clear violation of the right of the State Government to all the minerals found in the State and the transporter has to make out a case of specific prejudice to him, which the petitioner has not done in the present case.
10. The third submission of the learned counsel for the petitioner is that by the impugned order penalty in respect of illegal transport of the sand as well as the means of convenience employed for such illegal transport has been imposed under Section 48(7) by the Tahsildar, but it is not permissible for him to do so. Upon perusal of sub-sections (7) and (8) of Section 48 we find that there is substance in the argument of learned counsel for the petitioner. What can be imposed by way of a penalty by the Tahsildar by invoking his power under sub-section (7) of Section 48 of MLR Code is only that penalty which is for illegal transportation of sand only to the extent of five times of the market value of the minerals transported in addition to the amount of royalty and ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 15:44:47 ::: J-wp7165.18.odt 8/9 nothing more. But, in the present case the penalty imposed by the Tahsildar is of composite nature, one for the transportation of the minerals as such and the other for the user of the vehicle in question for such transport. For the later part of the offence, the penalty can be imposed only by the Collector or any officer not below the rank of a Deputy Collector specifically authorized in this behalf by the Collector himself. This is under Section 48(8)(2) of the MLR Code. It is here that the impugned order has made itself vulnerable to law and to this extent only, the impugned order deserves to be quashed and set aside.
11. Writ Petition is, therefore, partly allowed.
12. The impugned order is quashed and set aside only to the extent that it imposes penalty for user of the vehicle in question in illegally transporting the excess sand and this matter is remanded back to the Collector for a fresh decision in accordance with law with liberty given to the Collector to either decide himself or assign it to any officer not below the rank of Deputy Collector for a fresh decision in accordance with law, in terms of Section 48(8)(2) of the Maharashtra Land Revenue Code, 1966.
13. Personal hearing, if so desired, by the petitioner, may be given to him.
14. The petitioner is directed to remain present before the Collector or his Authorized Officer at 11.00 a.m. on 25.3.2019 and the ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 15:44:47 ::: J-wp7165.18.odt 9/9 matter be decided finally within two weeks from the date of appearance.
15. Rule is made absolute in these terms.
16. While deciding afresh in terms of these directions, the authority contemplated under Section 48(8)(2) of the MLR Code shall also consider the request of the petitioner for release of the vehicle upon imposition of a reasonable amount of penalty in accordance with law.
JUDGE JUDGE
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