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TMI Blog2014 (12) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... n to lay the foundation of a building would not, ordinarily, carry the intention to use the excavated earth for the purpose of filling up or levelling. A blanket determination of liability merely because ordinary earth was dug up, therefore, would not be justified; what would be required is a more precise determination of the end use of the excavated earth; a finding on the correctness of the stand of the builders that the extracted earth was not used commercially but was redeployed in the building operations. If the determination was to return a finding in favour of the claim made by the builders, obviously, the Notification dated 3.2.2000 would have no application; the excavated earth would not be a specie of minor mineral Under Section 3(e) of the Act of 1957 read with the Notification dated 3.2.2000. Appeal allowed - decided in favor of appellant. - Civil Appeal No. 10717/2014 (S.L.P. (C) No. 33002/2010), Civil Appeal No. 10718/2014 (SLP(C) No. 34306/2010), Civil Appeal No. 10716/2014 (SLP (C) No. 4571/2011), Civil Appeal No. 10715/2014 (SLP(C) No. 13828/2011) - - - Dated:- 3-12-2014 - Ranjan Gogoi and R.K. Agrawal, JJ. For the Appellant : Shekhar Naphade, Sr. Adv., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en filed by the Association of the Builders and also by some of the builders themselves. 5. The facts in the appeal filed by Nuclear Power Corporation of India Limited are largely similar. In consonance with its objects, the Corporation in whose favour the grant of land was made had carried out digging activities for the purpose of widening of the water channel through which sea water is drawn for the purposes of cooling the nuclear plant in the Tarapur Atomic Power Station. The Corporation categorically denies any commercial use of the extracted earth. 6. On behalf of the Appellants it is pointed out that to attract Section 48(7) of the Code, the activity undertaken has to be unlawful. The building operations undertaken by the Appellant-builders are pursuant to a final development plan sanctioned Under Section 31 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter for short 'the MRTP Act'). In this regard the attention of the Court has also been drawn to the provisions of Section 2(7) of the MRTP Act which define development to mean carrying out of buildings, engineering, mining or other operations in or over or under, land ........ . It is also p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning of the water channel; there was no sale or transfer of the excavated earth and the same was the incidental result of the process of repair/widening of the channel which is an activity in consonance with the grant of the land to the Appellant by the State Government. The said grant was made way back in the year 1964 on freehold basis for the purpose of establishing an atomic power station and for maintenance thereof. It is further submitted that the very jurisdiction to levy penalty Under Section 48(7) of the Code having been raised in the writ petition filed by the Appellants, the High Court was not justified in refusing adjudication on merits. 8. In reply, the State has contended that after the inclusion of ordinary earth in the definition of minor minerals by Notification dated 3.2.2000 Under Section 3(e) of the 1957 Act, excavation of ordinary earth without authorization under the Act of 1957 would make the Appellants liable not only to payment of penalty under the Code but also for criminal prosecution under the Act of 1957. It is contended that mere permission for construction of buildings; sanction of the development plans or the provisions of Rule 6 of the Rules of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Section 3(e) of the Act of 1957. As mining activities and operations are regulated by the provisions of the Act of 1957 it is the definition contained in the said Act which will be more relevant for the present. Section 3(a) and Section 3(e) is in the following terms: Section 3.--In this Act, unless the context otherwise requires,-- (a) minerals includes all minerals except mineral oils: (b) xxxxx xxxx xxxxx (c) xxxxx xxxx xxxxx (d) xxxxx xxxx xxxxx (e) minor minerals means 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; 12. Ordinary earth has been bought within the fold of a Minor Mineral by Notification of 3.2.2000 issued Under Section 3(e) of the Act of 1957. The said Notification is in the following terms: NOTIFICATION GSR (E)-In exercise of the powers conferred by Clause (e) of Section 3 of the Mines and Minerals (Development and Regulation) Act 1957 (67 of 1957), the Central Government hereby declares the 'ordinary earth' used for filling or levelling pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines Act, 1952 which defines 'Mine' and the expression mining operations appearing in Section 3(d) of the Act of 1957 may contemplate a somewhat elaborate process of extraction of a mineral, in view of the Notification dated 3.2.2000, insofar as ordinary earth is concerned, a simple process of excavation may also amount to a mining operation in any given situation. However, as seen, the operation of the said Notification has an inbuilt restriction. It is ordinary earth used only for the purposes enumerated therein, namely, filling or levelling purposes in construction of an embankment, road, railways and buildings which alone is a minor mineral. Excavation of ordinary earth for uses not contemplated in the aforesaid Notification, therefore, would not amount to a mining activity so as to attract the wrath of the provisions of either the Code or the Act of 1957. 16. As use can only follow extraction or excavation it is the purpose of the excavation that has to be seen. The liability Under Section 48(7) for excavation of ordinary earth would, therefore, truly depend on a determination of the use/purpose for which the excavated earth had been put to. An excavation undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of the grant itself. Every use of the sod, or piercing of the land with a pick-axe, would, in that eventuality, require sanction of the authorities. The interpretation so placed, would frustrate the intention of the grant and lead to patently absurd results. To equate the earth removed in the process of digging a foundation, or otherwise, as a mineral product, in that context, would be a murder of an alien but lovely language. The reading of the entire grant, would certainly rule out a proposition equating every pebble or particle of soil in the granted land as partaking the character of a mineral product. In the light of the above conclusion, I am clearly of the view that the orders of the authorities, are vitiated by errors of law apparent on the face of the record. They are liable to be quashed. I do so. 18. For the aforesaid reasons all the appeals are allowed, however, with the direction that in the cases of the Appellant-builders the Respondent-State will be at liberty to proceed further in accordance with the observations contained in this order if it is so advised. So far as the appeal of the Nuclear Power Corporation is concerned the writ petition is allowed and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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