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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 ..... r the purposes of laying foundation of the building would still attract rigours of Section 48(7) of the Revenue Code". Under the aforesaid provision of the Code extraction of minerals by any person without assignment of any right by the State Government makes such person liable to penalty, as prescribed. 3. The Nuclear Power Corporation, the second Appellant before us is a Government Company engaged in the construction, maintenance and operation of nuclear power station in India. It is aggrieved by the fact that though an issue similar to the one raised by the builders had been raised by it before the High Court the writ proceeding instituted by the Corporation has been dismissed on the ground that statutory remedy under the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as 'the Code') had not been resorted to by the Corporation. 4. The relevant facts may, at the outset, be alluded to. In the first set of appeals, digging of earth for the purpose of laying of foundation of a building is an integral part of the building activities undertaken by the Appellants. According to the Appellant-builders, the earth excavated or dug up is redeployed in the building it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of a minor mineral. Additionally, the provisions of Rule 6 of the Maharashtra Land Revenue (Restriction on Use of Land) Rules, 1968 (hereinafter for short 'the Rules of 1968') has been relied upon to contend that excavation of land for purposes of laying of foundation for buildings do not require any previous permission of the Collector which is otherwise mandated prior to use/excavation of land for any of the purposes covered by the provisions of the Rules of 1968. The definition of 'Mine' in Section 2(j) of the Mines Act, 1952 and the meaning of the expression 'mining operation' assigned by Section 3(d) of the Act of 1957 has also been pressed into service to contend that mere digging of earth as undertaken by the Appellants cannot amount to a mining activity. The learned Counsel for the Appellants (builders) have alternatively contended that if the Appellants are still to be held liable under the provisions of Section 48(7) of the Code, the aforesaid provision itself is liable to be adjudged as constitutionally invalid. The Act of 1957 which is relatable to Entry 54 of List I comprehensively deals with all questions of liability on account of unautho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to Entry 18 and 45 of the List II and not Entry 23 of the said List as contended on behalf of the Appellants. 9. We may proceed to analyse the issues arising by reproducing Section 48(7) of the Code under which the impugned actions have been made. 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 construction of bunds of the fields or on any other plea), nallas, creeks, river-beds, 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, to pay penalty not exceeding a sum determined, at three times the market value of the minerals so extracted, removed, collected, replaced, picked up or disposed of, as the case may be. Provided that, if the sum so determined is less than one thousand rupees, the penalty may be such larger sum not exceeding one thousand rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooling the nuclear plant. The construction of buildings is in terms of a sanctioned development plan under the MRTP Act whereas the excavation/widening of the channel to bring sea water is in furtherance of the object of the grant of the land in favour of the Nuclear Power Corporation. The Appellant-builders contend that there is no commercial exploitation of the dug up earth inasmuch as the same is redeployed in the construction activity itself. In the case of the Nuclear Power Corporation it is the specific case of the Corporation that extract of earth is a consequence of the use of the land for the purposes of the grant thereof and that there is no commercial exploitation of the excavated earth inasmuch as "the soil being excavated for "Intake Channel" was not sent outside or sold to anybody for commercial gain". 14. None of the provisions contained in the MRTP Act referred to above or the provisions of Rule 6 of the Rules of 1968 would have a material bearing in judging the validity of the impugned actions inasmuch as none of the said provisions can obviate the necessity of a mining license/permission under the Act of 1957 if the same is required to regulate the activities und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act of 1957 read with the Notification dated 3.2.2000. 17. Insofar as the appeal filed by the Nuclear Power Corporation is concerned, the purpose of excavation, ex facie, being relatable to the purpose of the grant of the land to the Corporation by the State Government, the extraction of ordinary earth was clearly not for the purposes spelt out by the said Notification dated 03.02.2000. The process undertaken by the Corporation is to further the objects of the grant in the course of which the excavation of earth is but coincidental. In this regard we must notice with approval the following views expressed by the Bombay High Court in Rashtriya Chemicals and Fertilizers Limited v. State of Maharashtra and Ors. AIR 1993 Bombay 144 while dealing with a somewhat similar question. 14. If it were a mere question of Mines and Minerals Act, 1957 covering the removal of earth, there cannot be possibly any doubt whatever, now, in view of the very wide definition of the term contained in the enactment itself, and as interpreted by the authoritative pronouncements of the Supreme Court. As noted earlier, the question involved in the present case is not to be determined with reference to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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