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TMI Blog2019 (4) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... s, railways, buildings to be a minor mineral in addition to the minerals already declared as minor minerals. The ordinary earth does not fall within the meaning of the definition, minor mineral , as declared by the Notification, as it cannot be said to be for the purposes of filling or levelling in construction of embankments, roads, railways and buildings. The authorities, it seems, have proceeded on the premise that the very excavation of the ordinary earth was subject to levy of royalty de hors the use for which it was put to - In view of the plain language of the provisions especially the definition of minor minerals the action of the authorities cannot be sustained. Petition allowed. - WRIT PETITION NO. 3704 OF 2018 - - - Dated:- 29-3-2019 - R.M. BORDE And N. J. JAMADAR, JJ. Mr. V. Sridharan, Senior Advocate a/w. Mr. Sriram Sridharan, Ms. Divyasha Mathur I/b PDS Legal for petitioners. Mr. R.S. Pawar, AGP for respondent Nos.1 to 3State. JUDGMENT PER N.J. JAMADAR, J. 1. The challenge in this petition is to a notice dated 4th December 2017 issued by the Tehsildar, Dahanu, District Palghar, Maharashtra whereby a penalty of ₹ 34,80, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid factual setting of the matter, we have heard Shri V. Sridharan, the learned Senior Advocate for petitioners and Shri R.S. Pawar, the learned AGP for respondent Nos.1 to 3State at some length. 6. The learned counsel for the petitioners urged with a degree of vehemence that the action of the respondents to pursue with the impugned notice and threaten the recovery as an arrear of land revenue under the Code, 1966 is wholly arbitrary, illegal, and thus, unsustainable. The respondent No.3 has not at all adverted to the nature of the activity being carried out by the petitioners and the use of the ordinary earth excavated while digging the ground for laying the freight corridor, urged the learned counsel for the petitioners. What exacerbates the highhandedness on the part of the authorities is the audacity with which the authorities are pursuing the action despite the legal position, including the judgment of the Supreme Court in the case of Promoters and Builders Association of Pune Vs. The State of Maharashtra Ors. (2015) 12 SCC 736, being specifically brought to their notice. 7. Per contra, the learned AGP stoutly submitted that the respondent No.3 was within his right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to make the rules in respect of minor minerals. The State Government, in exercise of the powers conferred by Section 15 has framed rules entitled, Minor Mineral Extraction (Development and Regulation) Rules, 2013. 12. It would be contextually relevant to note the provisions of Section 48(7) of Code of 1966, with reference to which the impugned notice was issued by the respondent No.3. It reads as under : 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 Tahasildar authorised by the Collector in this behalf to pay penalty on of an amount [upto five times] the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court, that after the inclusion of ordinary earth in the definition of minor minerals by the Notification under Section 3(e) of the 1957 Act, excavation of ordinary earth without authorisation under the said Act, would make the appellants liable not only to payment of penalty under the Code but also for criminal prosecution under the said Act. 17. Allowing the appeals, the Supreme Court, after analysing the provisions, contained in Section 48(7) of the Code of 1966 and the aforesaid Notification whereby the ordinary earth was declared as a minor mineral, observed in unequivocal terms that, ordinary earth used for filing or levelling purposes in construction of embankments, roads, railways, buildings to be a minor mineral in addition to the minerals already declared as minor minerals. (emphasis in original). 18. The observations of the Supreme Court in paragraphs 14 and 15 of the aforesaid judgment are instructive in nature. Thus, they are extracted below :- 15. Though Section 2(j) of the Mines 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed and set aside the order of the Tahasildar holding, interalia, that the use of the excavated earth to fill up the dug pits and in construction of the project did not fall within the ambit of the aforesaid Notification, and, thus, the Tahasildar could not have passed the order under Section 48(7) of the Land Revenue Code, 1966. 20. It is evident that the Supreme Court has enunciated in clear and explicit terms that excavation of ordinary earth for uses not contemplated in the aforesaid Notification would not amount to a mining activity so as to attract the wrath of the provisions of either the Maharashtra Land Revenue Code or the Act 1957. The Court further ruled that a blanket determination of liability for the mere fact that ordinary earth was dug up would not be 2 (2017) 2 SCC 6760 justifiable. What is of determinative significance is the more precise determination of the end use of the excavated earth. If the end use of the extracted earth falls within the tentacles of the purposes specifically mentioned in the aforesaid Notification, then it would fall within the ambit of the Code of 1966 or the said Act, 1957. It is implies that the question of liability to pay the roya ..... X X X X Extracts X X X X X X X X Extracts X X X X
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