Dhannu s/o Vitthal Phapal vs State of Maharashtra

R.M.Borde, J

1 Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned counsel for respective parties.

2 In this group of petitions, petitioners are objecting to the orders passed by the Tahsildar or any other revenue officials directing imposition of penalty

for unauthorised transportation or excess quantity of minor mineral or transportation of minor mineral without valid permit or transportation of minor

mineral on the basis of invalid and fabricated permit. Apart from this, the orders, directing imposition of penalty in respect of vehicles, is also a matter

of challenge.

3 Primary objection of the petitioners, in this petition, is in respect of applicability of Section 48(7) and (8) of the Maharashtra Land Revenue Code,

1966 (for short “Code of 1966).

4 Relying upon the judgment in the matter of Vijay Dashrath Shirbhate Vs. State of Maharashtra and another, 2010(1) All M.R. 842, it is contended

that since the minor mineral i.e. sand is excavated with lawful authority, provisions of Section 48(7) are not attracted. Petitioners contend that it is not

permissible for the Tahsildar or any other revenue official to impose penalty in respect of minor mineral which has been excavated out of an area/plot

leased out validly by the State Government. According to the petitioners, they have not excavated unauthorisedly sand from an area forming part of

the property vested in the State. Petitioners contend that since the source of minor mineral is an area leased out by the State under the policy framed

in that regard, provisions of Code of 1966 would not be attracted and if, at all, the act alleged amounts to contravention of any provision, that would fall

within the ambit of Mines and Minerals (Development and Regulation) Act, 1957. Section 48(1) of the Code of 1966 provides that the right to all

minerals at whatever place found, whether on surface or underground, including all derelict or working mines and quarries, old dumps, pits, fields,

bandhas, nalas, creeks, river beds and such other places, is and is hereby declared to be expressly reserved and shall vest in the State Government

which shall have all powers necessary for the proper enjoyment of such rights. It is, thus, clear that the right to all minerals at whatever place found

vests in the State Government. It is for the State Government under subÂsection (3) of Section 48 to assign to any person its right over any minerals,

mines or quarries, and in case for proper enjoyment of such right, it is necessary that all or any of the powers specified in subÂsections (1) and (2)

should be exercised, the Collector may, by an order in writing, subject to such conditions as reservations as he may specify, delegate such powers to

the person to whom the right has been assigned.

5 SubÂ​sections (7) and (8) of Section 48 of the Code of 1966 are relevant for consideration, which are reproduced herein below :

S.48. Government title to mines and minerals :

(7) Any person who without lawful authority extracts, removes, collects, replaces, picks up or disposes of any mineral from working or derelict mines,

quarries, old dumps, fields, bandhas (whether on the plea of repairing or constructions of bund of the fields or an any other plea), nallas, creeks,

riverbeds, or such other places wherever situate, the right to which vests in, and has not been assigned by the State Government, shall, without

prejudice to any other mode of action that may be taken against him, be liable , [on the order in writing of the Collector, or any revenue officer not

below the rank of Tahsildar authorised by the collector in this behalf to pay penalty on of an amount [upto five times] the market value of the minerals

so extracted, removed, collected, replaced, picked up or disposed of, as the case may be :

 [(8) (1) Without prejudice to the provisions of subÂsection (7), the Collector or any revenue officer not below the rank of Tahsildar authorised by

the Collector in this behalf, may seize and confiscate any mineral extracted, removed, collected, replaced, picked up or disposed of form any mine,

quarry or other place referred to in subsection (7), the right to which vests in, and has not been assigned by the State Government, and may also seize

and confiscate any machinery and equipment used for unauthorised extraction, removal, collection, replacement, picking up or disposal of minor

minerals and any means of transport deployed to transport the same.

(2) Such machinery or equipment or means of transport, used for unauthorised extraction, removal, collection, replacement, picking up or disposal of

minor minerals or transportation thereof, which is seized under subÂsection (1), shall be produced before the Collector or such other officer not below

the rank of Deputy Collector authorised by the Collector in this behalf, within a period of fortyÂeight hours of such seizure, who may release such

seized machinery, equipment or means of transport on payment by the owner thereof of such penalty as may be prescribed and also on furnishing

personal bond of an amount not exceeding the market value of the seized machinery, equipment or means of transport shall not be used in future for

unauthorised extraction, removal, collection, replacement, picking up or disposal of minor minerals and transportation of the same.

6 Petitioners contend that it is only when any person, without lawful authority, extracts, removes, collects, replaces, picks up or disposes of any

mineral, the State Government is empowered to take action and direct imposition of penalty. Subsection (8) authorises the Collector or any revenue

officer not below the rank of Tahsildar, authorised by the Collector, to seize and confiscate any mineral extracted, removed, collected, replaced, picked

up or disposed of from any mine and any means of transport deployed to transport the same. SubÂsection (8)(2) of Section 48 requires that such a

machinery or equipment or means of transport which has been seized shall be produced before the Collector or such other officer not below the rank

of Deputy Collector authorised by the Collector in this behalf, within a period of fortyÂeight hours of such seizure, who may release such seized

machinery, equipment or means of transport on payment by the owner thereof of such penalty as may be prescribed and also on furnishing personal

bond of an amount not exceeding the market value of the seized machinery, equipment or means of transport with an undertaking that seized

machinery, equipment or means of transport shall not be used in future for unauthorised extraction, removal, collection, replacement, picking up or

disposal of minor minerals and transportation of the same.

7 It is contended that subÂsections 8(1) and (2) of Section 48 of the Code of 1966 are referable to subÂsection (7) of section 48. It is only when the

minor minerals are collected and transported without any lawful authority, the provisions in respect of penalty for the minor minerals or the penalty for

vehicle is leviable. Petitioners contend that in all the matters before the Court, the source of extraction of minor mineral is a plot or an area leased out

by the State Government and as such, provisions of subÂsections (7) and (8) of Section 48 are not at all attracted. It is neither permissible for the

revenue officer to impose penalty in respect of minor minerals nor the transporters or owners of the vehicle can be directed to pay penalty in respect

of vehicle or to execute a bond and tender an undertaking nor the vehicle can be seized and confiscated by taking recourse to the provisions of Code

of 1966.

8 Our attention is drawn to the provisions of Mines and Minerals (Development and Regulation) Act, 1957 (for short “Act of 1957â€). The object

of the Act is to provide for the development and regulation of mines and minerals under the control of the Union. Section 3(a) of the Act of 1957

defines “Mineralsâ€, which includes all minerals except mineral oils whereas “minor minerals†has been defined in subÂsection (e) to mean

building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes and any other mineral which the Central Government

may, by notification in the Official Gazette declare to be a minor mineral.

9 Section 14 of the Act of 1957 provides that the provisions of Sections 5 to 13 (inclusive) shall not apply to quarry leases, mining leases or other

mineral concessions in respect of minor minerals. Whereas Section 15 provides that the State Government may, by notification in the Official Gazette,

make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes

connected therewith.

10 The State Government is also invested with the powers to make rules in respect of matters provided under subÂsection (1A) (a) of Section 15 of

the Act of 1957. Rule making power of the State includes providing for the rules in respect of the person by whom and the manner in which,

applications for quarry leases, mining leases or other mineral concessions, may be made and the fees to be paid therefor.

11 The questions as regards the legislative competence of the State to frame rules relating to minor minerals was a matter of consideration before this

Court in Hari Constructions Vs. State of Maharashtra and others, 1995(1) M.L.R. 679. The Division Bench of this Court has observed that the Mines

and Minerals (Development and Regulation) Act, 1957 takes over the regulation of mines and development of minerals to the Union to the extent

provided. It deals with minor minerals separately from other minerals. The subject of legislation in respect of minor minerals and covered by the Act

of 1957, but to a specified extent and to that, extent the powers of State Legislature are wanting. The object of the MLR Code is revenue

administration. The object of the said Act is to assess, charge, and collect revenue which includes penalty on account of illegal extraction of minerals

vested in the State Government. Under section 48(1) where minerals vest in the State Government, they are entitled to proper enjoyment including the

power of sale or disposal of the said minerals and if the said minerals are unauthorisedly removed, then the Collector, under section 48, is required to

charge penalty which is in the nature of damages on account of loss suffered by the Government for unauthorised extraction of minerals. Under

Section 2(19) of the Code of 1966, “land revenue†means all sums and payments, any cess or rate authorised by the State Government and

includes premium, rent or any other payment provided under any act, contract or deed on account of any land. Revenue administration also includes

rights of a Collector to impose penalty for unauthorised excavation of minerals which have vested in the Government. The Court has further held that

in fact the land revenue is the State subject under List II of the Seventh Schedule to the Constitution and there is no merit in the contention that the

State Legislature has no competence to enact the Maharashtra Land Revenue Code and particularly Section 48(7) of the Code of 1966. The two acts

operate in different and distinct spheres and that Section 48(7) of the Code of 1966 is not ultra vires the Constitution.

12 In the matter of Vijay Dashrath Shirbhate (cited supra) the Division Bench of this Court, in paragraph nos. 12 and 13 of the judgment, observed

thus :

12 Maharashtra Land Revenue Code is dealing with lands and land revenue and under section 20, all lands which are not privately owned, vest in

State Government. Under Section 48(1), the right to all minerals wherever found, vests in State Government. Section 48(7) deals with the cases where

said right of State Government is violated. The said provision clearly shows that its application depends on the place where any mineral is found and it

operates only when such place is not leased or assigned for mining of that mineral by State Government. The provision therefore, clearly show that it

gets attracted only when the ownership rights of State Government over such mineral are violated. The violation of ownership rights is not regulated

by the MM Act as it is integral part and parcel of right of revenue administration. It is to be noted recovery contemplated therein is without prejudice

to any other liability incurred by wrongdoer because of his illegal act and hence, his liability under section 21 of MM Act is not affected in any manner.

13 The person who excavate with lawful authority is not subjected to said section 48(7). Also for excavation of mineral royalty from a place which

has been assigned therefor by the State Government, the said provision is not applicable. It therefore, clearly shows that when such action is in

derogation of the ownership rights of  State Government over such minerals, the State Government is competent to recover the penalty as stipulated

in it. The penalty stipulated is three times the market value of the mineral extracted or Rs.1000/Â, if thrice the value of extracted so mineral is less

than Rs. One Thousand. It is also to be noticed that action thereunder is without prejudice to any other mode of legal action, that may be taken against

him. Thus said provision itself contemplates that any other mode of action, if possible against such wrongdoer, is not affected thereby. It also does not

contemplate any prosecution before levying such penalty.

13 It is further recorded in the judgment by the Division Bench that the provisions of Minor Minerals Act clearly show that the action thereunder is for

violating the provisions of the said Act i.e. for breach of regulatory measures enacted by the Parliament. Those regulatory measures do not in any

way derogate from ownership of either land or minerals of State Government, which are subject matter of or a consideration under Land Revenue

Code, particularly Section 48 thereof.

14 It is, thus, clear that in view of Section 48(1) of the Code of 1966, right to all minerals at whatever place those are found vests in the State

Government. Any act derogatory to ownership rights of the State over the minor minerals would be a matter falling within the provisions of Code of

1966.

15 Petitioners contend that since the source of minor minerals is an area leased out by the State to the respective contractors, their cases, even

assuming that there is violation, do not fall within the ambit of Code of 1966. The contention is devoid of substance for several reasons. The State

Government has framed, in exercise of powers conferred under Section 15 of the Act of 1957, rules for regulating minor minerals those are called

Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 (for short “Rules of 2013â€). Rule 66(11) provides that if any

excess quantity over permitted limit is found to be removed the material shall be confiscated and permit holder shall be liable for punishment under the

provisions of the Code of 1966 and Act of 1957.

16 Section 328 of the Code of 1966 empowers the State Government to make rules not inconsistent with the provisions of this Code for the purpose of

carrying into effect the provisions of this Code. SubÂsection 328 (2) (xix) authorises to make rules under SubÂsection (8) of Section 48 prescribing

the penalty to be paid by the owner for release of the machinery, equipment or means of transport used for unauthorised extraction, removal,

collection, replacement, picking up or disposal of minor minerals and under SubÂsection (9) of Section 48, the rules to regulate the extraction and

removal of minor minerals. In exercise of powers conferred under subÂsection (9) of Section 48, SubÂsection (1) and clause (xix) of SubÂsection (2)

of Section 328 read with Subsections (2) of Section 329 of the Code of 1966, the Governor of Maharashtra has framed rules further to amend

Maharashtra Land Revenue (Extraction and Removal of Minor Minerals) Rules, 1968. After Rule 8 of the Rules, Rule 9 is added providing for penalty

under SubÂsection (8) of Section 48 and personal bond. It is provided that the machinery and equipment or means of transport, used for unauthorised

extraction, removal, collection, replacement, picking up or disposal of minor minerals or transportation thereof, which is seized under SubÂsection (1),

shall be produced before the Collector or such other officer not below the rank of Deputy Collector authorised by the Collector in this behalf, within a

period of fortyÂeight hours of such seizure, who may release such seized machinery, equipment or means of transport on payment by the owner

thereof of such penalty as may be prescribed and also on furnishing personal bond of an amount not exceeding the market value of the seized

machinery, equipment or means of transport, stating therein that such seized machinery, equipment or means of transport shall not be used in future

for unauthorised extraction, removal, collection, replacement, picking up or disposal of minor minerals and transportation of the same. Under the

provisions of SubÂsection (8) of Section 48, the machinery and equipment may be released only after payment of penalty as mentioned in the table

and after submission of personal bond as stipulated in Section 48(8) of the Code of 1966. the Table provided under the Rules specify the penalty per

vehicle/equipment. SubÂrule (2) provides for execution of the personal bond recording the details as specified in the Rules. The petitioners have

objected to the imposition of penalty in respect of the vehicle used for transportation of the minor minerals. It is contended that rule framed for

imposition of penalty amounts to double jeopardy. It is contended that subÂsection (8)(2) makes provision for execution of the bond of an amount not

exceeding the market value of the seized machinery, equipment or means of transport as well as tendering of an undertaking to the effect that in

future the machinery, equipment or means of transport shall not be used for unauthorised extraction, removal, collection, replacement, picking up and

transportation of the same. It is contended, on the face of such penalty as provided under Subsection (8)(2) of Section 48, the imposition of penalty in

respect of vehicle would not be permissible.

17 On reading SubÂsection (8)(1) of Section 48 of the Code, it is noticed that the Collector or any revenue officer, not below the rank of Tahsildar,

authorised by the Collector in this behalf, may seize and confiscate any mineral extracted, removed, collected, replaced, picked up or disposed of from

any mine, quarry or other place referred to in SubÂsection (7) of Section 48, the right to which vests in, and has not been assigned by the State

Government and may also seize and confiscate any machinery and equipment used for unauthorised extraction, removal, collection, replacement,

picking up or disposal of minor minerals and any means of transport deployed to transport the same. SubÂ​section (2) obligates the authority to produce

the vehicle before the Collector or such other officer not below the rank of Deputy Collector within fortyÂeight hours, who may release the

machinery on payment by the owner, such penalty as may be prescribed and also on executing personal bond specified in SubÂsection (2). The

penalty in respect of vehicle has not been provided in Section 48(8) (2), but as a precondition for release of the vehicle, a personal bond and

undertaking of the owner is required. Whereas, rule 9 provides for penalty in respect of machinery and equipment used for unauthorised extraction,

removal, collection, replacement, picking up or disposal of minor minerals and the means of transportation. The imposition of penalty in respect of

vehicle and equipment is distinct than the condition imposed in respect of release of seized machinery or vehicle or equipment on production of the

same before the Deputy Collector / SubÂDivisional Officer. The condition in respect of execution of a bond as a precondition for release of the

vehicle cannot be equated with the imposition of penalty for violation, as provided under Rule 9. It cannot be contended that the rule, that has been

framed, is beyond the rule making power of the State Government or that the same is contrary to any substantive provision of law. It is not questioned

on the ground of competence of the State. The petitioners, though contend that the rule is unreasonable and as such is violative of Article 14 of the

Constitution, it has not been substantiated as to how the same can be branded as unreasonable. The rule has been framed directing imposition of

penalty for unauthorised extraction, removal, collection, replacement, picking up or disposal and transportation of minor minerals, to deter the violators

of law from continuing with the illegal activities. It is noticed that there is rampant illegal activities in excavation, removal, collection, replacement,

picking up and disposal and transportation of the sand and taking note thereof the State appears to have amended the rules prescribing for stringent

penalty. Merely because the penalties are stringent cannot be a reason to brand it as unreasonable or illegal. The argument advanced by the Counsel

appearing for the petitioners objecting to the imposition of penalty for vehicle or equipment or machinery which is within the framework of rules, is

unsustainable. The challenge raised to the validity of the rules directing imposition of penalty for vehicle and the machinery used for unauthorised

extraction of minor minerals, is devoid of substance and as such deserves to be turned down.

18 The petitioners contend that since the removal or excavation of sand is authorised i.e. from an area where the sand is excavated has been validly

leased to the contractor, the transportation of the said minor mineral from the aforesaid source cannot be said to be violative of provisions of Section

48 of the Code of 1966. It is only when the excavation or transportation of minor minerals is conducted unauthorisedly i.e. within the area which vests

in the State Government, same can be branded as unauthorised and the provisions of Code of 1966 can be invoked. The contention raised by the

petitioners appears to be devoid of substance.

19 As has been recorded above, in the event of transportation of sand in excess of the quantity over permitted limit is liable for punishment under the

provisions of Code of 1966 and Act of 1957 as well as Rule 66(11) of the Rules of 2013.

20 Apart from this, the State Government has framed policy for regulating the excavation and transportation of sand which has been declared under

Government Resolution dated 03.01.2018. It is prescribed that the Government Resolution has been issued in view of the directions of the Hon'ble

Supreme Court in Special Leave Petitions No. 19628Â19629 of 2009, decided on 27.02.2012 as well as the decisions rendered by the Division Bench

of this Court in PILs No. 1/2011, 116/2012, 202/2013, 79/2014 and 82/2014. Clause 11(1)(v) of the Government Resolution dated 03.01.2018 provides

that extraction and transportation of sand shall be carried between 6'O clock in the morning till 6'O clock in the evening. The extraction and

transportation of sand beyond the aforesaid period shall be considered to be illegal and appropriate action would be taken. Clause 12 of the

Government Resolution declares that the extraction of minor minerals in the riverbed shall be done manually and use of machinery like pokland, JCB is

prohibited. Clause 13(c) provides that the transporter of minor mineral/sand shall possess a valid pass bearing bar code and if the transporter is found

transporting sand without valid pass bearing bar code or if the period provided under the pass has expired, the excavation and transportation of sand

would be deemed to be illegal and penal provisions of Section 48(7) and (8) Code of 1966 would be invoked and appropriate action would be taken.

21 The petitioners have placed reliance on the judgment in the matter of Abdul Wasif Abdul Latif Vs. State of Maharashtra and another, 2017(2)

Mh.L.J. 356. In the reported matter, the truck of the petitioner carrying sand was seized by the respondents under Section 48(8) and he was directed

to pay penalty for not covering the sand with tarpaulin or any other suitable mechanism. It was contended that provisions of Sections 47 and 48 can be

invoked only if a person extracts, removes, collects, replaces, picks up or disposes of any mineral without lawful authority. It was contended that since

the petitioner had not, without lawful authority, done anything for which action could have been initiated against petitioner under Sections 48(7) and (8)

of the Code, the order of seizure as well as order imposing penalty is liable to be set aside. The contention was accepted by the Division Bench and it

was found that the case of the petitioner therein does not fall within the ambit of Sections 47 and 48 of the Code of 1966. The breach, that was

alleged, was not referable to Section 47, or not referable to any of the rules or policy framed under the provisions of Code of 1966. The judgment cited

is distinguishable and no parallel can be drawn with the act of the petitioner.

22 In the instant petitions, in certain matters though the transporters possess pass, the transportation of sand is in excess of the permit or in certain

cases the period prescribed in the pass has either expired or that the pass itself is deficient in necessary particulars and as such cannot be deemed as

valid. The conditions as provided under the Government policy permit transportation of sand between the period prescribed under the policy and with

valid pass. If any of the conditions specified in the Government Resolution is breached, the excavation or transportation would be deemed to be illegal

and calls for appropriate penalty under the Code of 1966. The petitioners cannot be permitted to contend that since the source of sand or minor

minerals is referable to issuance of license or authorisation by the Government in favour of another contractor, the transportation, even if deficient or

illegal on account of violation of certain conditions in the Government policy or the rules, shall be considered to be outside the provisions of Code of

1966, is not acceptable.

23 As has been recorded above, the provisions of Code of 1966 provide for revenue administration. The revenue administration, within its fold, brings

collection of fees, cess, all types of payments as well as premium, rent or penalties. Since the petitioners are found to have violated the provisions of

Rules of 2013 or the policy directions contained in Government Resolution dated 03.01.2018, they are liable to be proceeded with and the provisions of

SubÂsections (7) and (8) of Section 48 of the Code of 1966 can be invoked. Once it is noticed that action at the end of the petitioners is illegal, or the

act is without lawful authority, they can be proceeded with under SubÂsections (7) and (8) of Section 48 of the Code of 1966. Â Since the violation

attributable to the petitioners is branded illegal under the policy framed by the State, they cannot be permitted to contend that provisions of Sections 47

and 48 of the Code of 1966 are not attracted and no penalty can be imposed.

24 Another argument, that has been canvassed is of nonÂobservance of principles of natural justice. It is contended that petitioners have not been

extended an opportunity of hearing before imposing penalty. In certain matters, as in Writ Petition no. 4258/2018, notice issued by the Tahsildar

directing the petitioner to show cause as to why penalty shall not be recovered from him on account of violation of conditions in respect of use of

machinery for excavation of sand, is a matter of challenge. It is open for the petitioners to reply the notice and permit the Tahsildar to pass appropriate

orders. If, at all, any order is passed by the Tahsildar directing imposition of penalty, the said order is liable to be challenged before superior revenue

officer in an appeal by invoking appellate powers under the Code of 1966.

25 It would be open for the petitioners to question the adverse orders passed by the revenue officials directing imposition of penalty. It would also be

necessary for the revenue officers to produce the seized or confiscated machinery or vehicle used for illegal transportation or excavation of minor

minerals before the Deputy Collector/Sub Divisional Officer within fortyÂeight hours. If the vehicle or machinery has not been produced, same shall

be produced before the Collector or any other officer not below the rank of Deputy Collector authorised by the Collector, in that behalf, within fortyÂ‐

eight hours from the date of this order. On production of the vehicle, the concerned Deputy Collector or any officer shall observe the provisions of

Section 48(8) (2) of the Code of 1966 and pass appropriate orders forthwith. The Revenue officers, before directing imposition of penalty other than in

respect of minor minerals or for unauthorised use of vehicle for transportation of minor minerals or excavation of the same, are duty bound to extend

an opportunity of hearing to the person who has committed violation; and to the transporter of the minor minerals or to the owner of the machinery.

The revenue officials are bound to observe principles of natural justice before passing adverse orders against the transporter or owners of the

machinery. The adverse orders passed by the revenue officials are liable to be challenged before the appellate forum provided under the Code of 1966

and it would be open for the petitioners or aggrieved parties to raise objection to the order, as permissible in law.

26 For the reasons recorded above, challenge raised to the provisions of Rule 9 of the Maharashtra Land Revenue (Extraction and Removal of Minor

Mineral) Rule 1968, published in the notification dated 12.01.2018 stands rejected. The petitioners, against whom an order in respect of imposition of

penalty for the vehicle is levied, are liable to pay the amount as specified in the order subject to the availability of appellate remedies and the orders,

those may be passed by the appellate forum.

27 As has been recorded above, if the vehicles in question have not been produced before the SubÂDivisional Officer or the Deputy Collector within

contemplation of Section 48(8)(2) of the Code of 1966, such vehicles or machinery shall be produced within fortyÂeight hours from the date of this

order and the Deputy Collector / SubÂDivisional Officer, on receipt of application by the owner of the vehicle or the machinery, after extending an

opportunity of hearing to the concern, shall pass appropriate orders directing release of the vehicle, subject to imposition of penalty and fulfillment of

other conditions provided under law, expeditiously and in any case, within a period of three days from the date of the application. Â Challenge raised

to notices/order impugned in the petitions stands rejected.

28 Writ petitions are disposed of. Rule discharged accordingly. No costs.

Pending Civil Applications, if any, do not survive and stand disposed of.