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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 ..... Western Dedicated Freight Corridor. The petitioner Nos.2 to 5 have been engaged by petitioner No.1 as subcontractors for the execution of the said work. As a part of the project, the petitioners are required to cut and level the ground along the 186 km. stretch. In the process, if the earth extracted is scientifically found to be of suitable quality, it is used for embankment. However, if the earth is not found to be of suitable quality, the petitioners dump the earth at alternate locations. 3. On 17th November 2017, the respondent No.3Tehsildar, Dahanu visited one of the worksites and, thereafter, issued the impugned notice proposing to levy penalty of Rs. 34,80,744/under Section 48(7) of the Maharashtra Land Revenue Code, 1966 ('the Code of 1966'). Though a suitable reply was submitted by the petitioners, the respondent No.3 threatened to pursue the action in pursuance of the impugned notice. Contending that the action of the respondents is in contravention of the provisions contained in Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'the said Act, 1957') and the Maharashtra Minor Mineral Extraction (Development and Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minerals under the said Act, 1957. In the backdrop of these facts, according to the learned AGP, the levy of royalty and the penalty in terms of Section 48(7) of the Code of 1966, cannot be faulted at. 8. Before adverting to deal with the aforesaid rival submissions, it may be apposite to note the statutory and regulatory framework, which governs the situation at hand. The Mines and Minerals (Development and Regulation) Act, 1957 contains the provisions for the regulation of mines and development of minerals. The 'minor mineral' is defined in Section 3(e) of the said Act, 1957 as under :" 3(e) "Minor minerals" as '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. Evidently, the ordinary earth is not specifically defined as 'minor mineral'. However, the Central Government is empowered to declare any other mineral as a minor mineral. In pursuance of such power, the Central Government issued the Notification on 3rd February 2000 ('the Notification') and thereby declared ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nevitable. The question which, however, wrenches to the fore is whether the mere extraction of ordinary earth makes the petitioners liable to pay the royalty, under the aforesaid statutory framework. 14. The learned counsel for the petitioners urged that the issue is no longer resintegra. There are a series of judgments of this Court and also the authoritative pronouncement of the Supreme Court in the case of Promoters and Builders Association of Pune Vs. The State of Maharashtra & Ors. (Supra) which hold that mere extraction of earth does not invite the levy of royalty. The use of the ordinary earth for the purposes expressly mentioned in the aforesaid Notification is determinative, submitted the learned counsel for the petitioners. 15. At this juncture, reference to the decision of the Supreme Court in the case of Promoters and Builders Association of Pune Vs. State of Maharashtra & Ors. (Supra) may be apposite. In the said case, the Promoters and Builders Association of Pune appellants therein, had urged that the earth which is dug for the purposes of laying of foundation of building is not intended for filling up or levelling purposes; digging the earth is inbuilt in the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1957 Act. 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 undertaken 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 322000 would have no application; the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m M. Afag of village Gholvad and Baman R. Irani of village Bordi had reported that they procured the ordinary earth, excavated at the worksite of the petitioners, and used the same for filling and levelling. Therefore, according to the learned AGP, the petitioners cannot avoid the liability to pay the royalty. The Panchanama, dated 27th February 2018 and the explanation of the abovenamed agriculturists were pressed into service in support of the aforesaid contention. 22. We have perused the aforesaid Panchanama and the explanatory statements of the above named persons annexed to the affidavit in reply of respondent No.3. Even if the case of the respondent No.3 is taken at par, yet we are afraid to note that it does not advance the cause of revenue. The Panchanama, dated 27th February 2018 reveals that the ordinary earth, allegedly excavated from the worksite of the petitioners was used for levelling the agricultural land for better cultivation. The explanatory statements of the above named persons also proceed on the said line. Such use of the ordinary earth does not fall within the meaning of the definition, "minor mineral", as declared by the Notification, as it cannot be said t ..... 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