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4.1. Shri. Godbole submitted that the impugned action of levying royalty and penalty on the Petitioner for excavation of minor minerals for the purpose of laying down the foundation / plinth and construction of basement is clearly illegal in as much as the said activity of construction was carried out pursuant to grant of valid building permission under the provisions of the said Act by the planning authority.

7 of 21 wp.7390.10.doc 4.2. Shri. Godbole further submitted that the applicability of the provisions of Section 48(7) of the MLR Code, 1966 is in respect of lands vested in the Government which are used for the purpose of mining operations, similarly placed allied operations; excavation of digging up of land for the purpose of laying down foundation of a building and/or construction of plinth or basement cannot be considered as mining activity if the said excavated material is used on the same plot for levelling and development and consequently no royalty is payable. Shri. Godbole submitted that Section 48 of the MLR Code, 1966 deals with lands, the title of which is vested in the Government and cannot apply to privately owned lands which are developed under valid development permission granted by the planning authority under the provisions of the said Act; the words "......or such other place wherever situate......" as appearing in sub- section 7 of Section 48 of the MLR Code, 1966 will have to be read "ejusdem generis" with the words "Mines, quarries" etc.; the provisions of Section 48 apply only in the case of excavation or disposal of any minerals from such mines, quarries and not to excavation on the surface of the land in the case of development / construction; provisions of sub-section 2 of Section 48 clearly reflect the intention of the legislature that the words "right to all mines and quarries" is related to the principal activity of mining and quarrying; excavation of land temporarily for the purpose of laying down foundation and 8 of 21 wp.7390.10.doc development cannot amount to excavation of minor minerals especially if the same are used on the same plot as in the present case and there is no material evidence to show that there is any transportation of minor minerals after excavation from the said lands so as to pay the requisite royalty and penalty under the said Rules. He submitted that after the Petition was filed, solely relying on the order dated 11.08.2010, the Respondent No.6, Circle Officer, Mulshi by order dated 31.01.2011 cancelled the Mutation Entry No. 7741 recording the name of the Petitioner as owner of the said lands; such action of the Respondent No.6 being patently illegal and deserves to be set aside.

5. Ms. M.P. Thakur, learned AGP appearing for the Respondent(s) - State has referred to the affidavit-in-reply dated 04.09.2021 filed by Shri. Abhay Shivajirao Chavan, Tahsildar, Taluka Mulshi, District Pune and contended that the Petitioner has illegally excavated sand and murum to the extent of 12183 brass without prior permission as can be seen from the panchnamas carried out by the Circle Officers of Thergaon and Male on 27.01.2009 and 01.09.2009; in view thereof, action under the provisions of sub-section 7 of Section 48 of the MLR Code, 1966 has been initiated.

5.2. Advocate Ms. Thakur has referred to the judgment of the Apex Court in the case of United Bank of India Vs. Satyawati Tondon and Others2 and contended that the Petitioner can be directed to exhaust the alternate remedy of going before the appellate authority. She has also attempted to distinguish paragraph No.16 of the judgment in the case of Promoters and Builders Association of Pune (supra) passed by the Apex Court along with the provisions of sub- section 7 of Section 48 of the MLR Code, 1966 and submitted that the action initiated by the Respondent No.5 - Tahsildar under the said provisions was correct in law. She has therefore prayed for dismissal of the present Writ Petition.

8.3. We may also state that the aforesaid decision of the Supreme Court has been followed by a coordinate Bench of this Court in the case of BGR Energy System Ltd, Khaparkheda Vs. Tahsildar, Saoner 3 wherein the Petitioner had challenged the order of the Tahsildar directing the Petitioner to pay royalty and penalty for illegal excavation of earth while executing the work of construction of a thermal power project at Khaparkheda. This Court after following the decision in the case of Promoters and Builders Association of Pune (supra), quashed and set aside the order of the Tahsildar holding, inter alia, that use of the excavated earth to fill up the dug pits and any construction of the project did not fall within the ambit of the Notification dated 03.02.2000 and thus, the Tahsildar could not have passed the order under Section 48(7) of the MLR Code, 1966. It is, therefore, evident that the Supreme Court had enunciated in clear and unambiguous terms that excavation of ordinary earth for construction of building purposes / development would not attract levy of royalty and penalty under the provisions of Section 48(7) of the MLR Code, 1966, especially when the excavated earth has been used for levelling and development on the same plot.