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Vijay Dashrath Shirbhate Bombay HC Order
Vijay Dashrath Shirbhate Bombay HC Order
Vijay Dashrath Shirbhate Bombay HC Order
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 3296/1993
Vijay Dashrath Shirbhate,
Resident of “Shribhate Bhawan”
Morshi, District – Amravati. ....PETITIONER.
VERSUS
1.State of Maharashtra,
through Revenue and Forest
Department, Mantralaya,
Madam Cama Road, Bombay – 32.
2.Collector, Amravati. ....RESPONDENTS.
Mr. A.A. Naik, Advocate for the Petitioner.
Mr. V.A. Thakre, Asstt. Govt. Pleader for Respondents.
ORAL JUDGEMENT. (Per B.P. Dharmadhikari, J)
India, the petitioner, a lease holder of 0.72 R land out of field Survey No.
order dated 27.10.1993 passed by the State Government in an Appeal and
has also prayed for quashing and setting aside of show cause notices dated
13.07.1992, 29.07.1992, 26.08.1992 and 12.11.1993. The declaration that
provisions of Section 48[7] of the Maharashtra Land Revenue Code, 1966
(hereinafter referred to as “the MLR Code” for short) are ultravires the
legislative powers of the State Government and therefore, unconstitutional,
has also sought by prayer to strike it down. The petitioner has also
complained of violation of the principles of natural justice and has stated that
he did not receive the measurement report on the basis of which the recovery
under Section 48[7] of the MLR Code has been sought. Hence, the mention
objection of the petitioner.
2. The petitioner has a licence to extract minor mineral and at the
relevant time it was valid & to operate for 5 years as per orders dated
recovery of royalty amount of Rs. 15 lakhs and penalty of thrice the said
amount i.e. Rs. 45 lakhs. He was called upon to show cause as to why for
extracting 10000 brass of minor mineral from river bed adjacent to land
given to him, total amount of Rs. 60 lakhs should not be recovered from him.
On 21.07.1992 he was informed that the site in dispute was to be measured
records. On 29.07.1992 another show cause notice was issued to him and
said show cause notice mentions that, subsequent to the demand dated
presence. The said show cause notice states that the petitioner had extracted
total 1289 brass of minor mineral, and that was from leased area. Out of it
royalty for 450 brass was only paid and 175 brass material was available at
site. Thus balance 664 brass was dispatched by the petitioner without paying
any royalty. His accounts were also found to be not maintained properly. A
show cause notice there invoking Section 4 [1] of the Mines and Mineral
Minerals Extraction (Vidarbha Region) Rules, 1986 (hereinafter referred to
21[5] of the M.M.Act for carrying out extraction outside the leased area and
were also invoked. It appears that, the petitioner paid amount of Rs.
16,966/. Thereafter on 10.08.1992, he also sought installments to pay the
balance amount of Rs. 34,774/. Thereafter he also applied for removing the
seals put on his vehicles and machines. On 26.08.1992 a third show cause
notice was issued to him and this was in relation to 1289 brass of minor
mineral. This show cause notice reveals that he extracted 664 brass minor
mineral from within leased area, but did not pay royalty upon it. Remaining
545 (1289664) brass were alleged to have been extracted from the area not
leased out to him. This notice in paragraph no.8 invoked Section 48[7] of
the MLR Code and called upon the petitioner to pay penalty of Rs. 1,04,322/
in relation to this 545 brass of minor mineral. By paragraph no.9 he was also
called upon to show cause why action under Section 21[1] of the MM Act
petitioner submitted his reply dated 25.09.1992 and in that reply, along with
other grievances also reiterated that measurement report was not supplied.
On 13.10.1992 the impugned order was passed by the office of the Collector
and by mentioning that reply to show cause notice was not acceptable,
petitioner then filed revision under Rule 34A of the Vidarbha Region Rules
before the respondent no.1 and by order dated 27.10.1993 the Revisional
Authority dismissed that revision. The petitioner thereafter has approached
this Court and on 01.12.1993. While issuing notice in the matter, the
recovery was then stayed and this interim order was continued on
14.03.1996 while issuing Rule in the matter. In view of the challenge to the
General has also been issued.
3. In this background, Shri A.A. Naik, learned counsel for petitioner
has invited our attention to the provisions of MM Act, particularly to Section
15 thereof to show that the grant of mineral licence for excavating minor
minerals is also subject matter of Central Enactment. He has pointed out the
licence is not permitted and under section 21[1] it is made punishable with
imprisonment for two years and with fine. He contends that, because of
Central Enactment occupying the field, the State Government and Legislature
losses the power to make any provision in that respect and hence, provisions
of Section 48[7], imposing penalty upon the petitioner for excavation of
minor mineral is unsustainable. He points out that in section 15, while
narrating aspects on which the State Government has been permitted to
frame Rules, does not mention the head enabling it to make provision for
imposition of penalty. Such head has not been deliberately inserted because
of provisions of section 21. He points out that in Section 21, Parliament has
punishment for illegal excavation. Section 21[4] prescribes seizure of tools,
equipment, vehicles used for illegal excavation and Section 21[5] is the
provision by which reimbursement of value of such illegally excavated minor
section 15 of a provision enabling the State Government to legislate in that
respect. He further argues that because of this arrangement of MM Act, the
provisions of Section 48[7] which directly militate with or are duplication in
part of the provisions of Section 21, cannot stand. He has relied upon the
(Baijnath Kedia .vrs. The State of Bihar and others); judgment of this Court
reported at AIR 1971 Bombay 365 (Nagpur District Central Cooperative Bank
Ltd. .vrs. Divisional Joint Registrar and another); and judgment of learned
Single Judge of Karnataka High Court reported at AIR 1990 Karnataka 97
(Nanjanayaka and others .vrs. State of Karnataka and others ), to urge that
in view of the Central Legislation occupying the field, the area stands
nature of Section 48[7] could not have been made by it. He contends that,
power to enact it.
4. By placing reliance upon the judgment reported at AIR 1983 SC
150 (T. Barai .vrs. Henry Ah Hoe and another ) the learned counsel
suffered by petitioner and he has paid part of the fine before approaching
this Court, and thereafter paid remaining part as per the interim orders of
this court. According to him, if the petitioner is required to pay amount as
jeopardy.
Section 48[7] of the M.L.R. Code are held to be available to the State
Government in addition to the provisions of the MM Act, it gives arbitrary
power to the State Government to victimize any person like the petitioner.
He states that in a given case the State Government may take recourse to
Section 21[5] of MM Act only and recover the cost of minor mineral and
royalty or tax and close the matter. In that case, it may not take recourse to
Section 48[7] and make demand, apart from the price of the minor mineral
removed, thrice that amount of penalty. In some cases, it may invoke only S,
48(7) and avoid prosecution/seizure under S. 21 alltohether. He contends
that Section 48[7] of MLR Code is more onerous than section 21[5] of the
MM Act, and if that provision is upheld it would lead to violation of Article
14 of the Constitution of India, as powers to pick & choose or discriminate
would then be available to the State Government and the power can be
exercised arbitrarily.
6. On merits, the learned counsel has contended that the apparent
false hood or ingredients in the claim of the respondents is apparent from the
fact of changing quantity of excavated material in their show cause notice.
He states that, though initially the excavation was alleged to be of 10000
brass, in second show cause notice it was shown less and in third show cause
notice it was brought down only to 1289 brass. He further states that the
division of this 1289 brass into two quantities i.e. 664 brass from within
mining area and 545 brass from area not leased to the petitioner, is again
arbitrary. He contends that because of this only, a prayer for conducting
communicated to the petitioner. Though petitioner demanded copy of that
measurement report, it was never supplied to him either by the office of the
Collector or than by the Government in Revision. He further states that the
consideration of his challenges by the office of the Collector or by the State
petitioner with penalty or then for rejecting the revision filed by him.
respondents, has contended that the validity of Section 48[7] MLR Code is
already upheld by this Court in judgment reported at 1995 [1] Mh.L.R. 679
that the provisions of Land Revenue Code deal with “lands and land revenue”
and do not in any way encroach upon the field occupied by the MM Act. He
According to him as the petitioner was present at the time of recording of
demand of petitioner therefor is only to some how defeat the recovery under
Section 48[7]. He prays for dismissal of the Writ Petition.
8. In his reply arguments, Shri Naik, learned counsel points out that
the aspect of validity has been considered by the Division Bench in the
contends that the provisions of Section 4 to 15 of the MM Act as prevailing
prior to amendment of the said Act in 1972, have only been looked into and
therefore, the provisions of Section 15[1]A which has been amended and
added on 10.02.1987 were not required to be considered. Thus according to
him apparent conflict in Vidarbha Region Rules and Land Revenue Code was
not required to be considered by the said Division Bench. He further states
that the provisions made by the Parliament in Section 21 of the MM Act have
not been also considered, so as to find out whether in the face of said
provisions, action under section 48[7] MLR Code was permissible or not. He
therefore, contends that the said Division Bench judgment does not in any
way cover the controversy raised before this Court.
9. As already stated above, the question of exact quantity excavated
by the petitioner from area not leased to him does not arise for consideration
before us. The allegation was, he extracted total 1289 brass minor minerals
and out of it 545 was from outside the leased area. The action under section
48[7] MLR Code is only in relation to this 545 brass and it is not in relation
to 664 brass allegedly extracted from area leased out to him without paying
royalty. The provisions of Section 48[7] of the MLR Code clearly show that
if such a mineral is extracted form any place and right thereto vests in State
& has not been assigned by the State Government, then only action
thereunder is possible. It is therefore, apparent that the government has on
account of this stipulation in Section 48[7] MLR Code taken recourse to it
and in fact in paragraph no.6 of the show cause notice dated 28.06.1992,
there is application of mind on these lines.
10. Provisions of MM Act and provisions of MLR Code are considered
Construction (supra). Said consideration has not been impugned before us in
any way and effort has been only to show that the Division Bench of this
Court then was not required to consider the arguments as raised before us.
The consideration of the controversy in paragraph nos. 5,6,7, and 8 of the
said Division Bench judgment clearly shows that, the MLR Code occupies a
different field and does not in any way come in conflict with the provisions of
MM Act, 1957. In paragraph no.8, the Division Bench has noticed that the
said Act takes over the regulation of mines and development of minerals to
the Union to the extent provided. It is also noticed that, it deals with minor
minerals separately from other minerals. The MM Act is found dealing with
minor minerals to certain extent and it has been observed that, to that extent
Government to enact Section 48[7] MLR Code has been gone into, and it has
been noticed that the answer depends upon the question whether the
subject of revenue administration stood withdrawn from State Legislature by
substance and noted that, the object of Land Revenue Code was revenue
penalty on account of illegal extraction of minor minerals vested in State
Government. It has been noticed that, under Section 48[1] the minerals
including the power of sale and disposal thereof. The power of Collector
damages on account of loss suffered, and revenue administration is found to
excavation of mineral which are vested in Government. In said paragraph, it
has been concluded that, the MM Act and Maharashtra Land Revenue Code
operates in different and distinct sphere and because of this finding, the
Constitution has been negatived. The words used by this Court in this
judgment are in the backdrop of challenge argued but the ratio that both
Constitution and operate in distinct spheres clearly flows from it.
11. The provision of MM Act do not in any way divest the ownership
of State Government either of land or on any minerals. Section 2 thereof
which makes a declaration of expediency, reads : “2. Declaration as to the
expediency of Union control – It is hereby declared that it is expedient in the
public interest that the Union should take under its control the regulation of
Thus, only control of Union has been found to be expedient and in public
interest by the said provision, which is in accordance with Entry No.54 of List
clause [e] thereof, “minor minerals” have been separately defined. Section
Rules in respect of minor minerals. Clause [g] of Section 15[1A], permits
making of Rules for fixing and collection of Rent. Royalty, fees, dead rent,
fine or other charges. Similar power is also given to Central Government in
Government has framed Vidarbha Region Rules, 1966. Section 4[1] of MM
Act prohibits undertaking for any mining operation except in accordance with
therefore vest the ownership of minor mineral with the Central Government.
The said instructions only control i.e. regulate mines and minerals.
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 shows that it
gets attracted only when the ownership rights of State Government over such
mineral are violated. This violation of ownership rights is not regulated by
the MM Act as it is integral part & 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 without 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
stipulated in it. The penalty stipulated is three times the market value of the
mineral extracted or Rs. 1000/, 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.
action thereunder is for violating the provisions of the said Act i.e. for breach
minerals of State Government, which are subject matter of or a consideration
under Land Revenue Code, particularly Section 48 thereof. The absence of
therefore not relevant while considering the provisions of Section 48[7] of
the MLR Code. In so far as the Vidarbha Region Rules are concerned, as the
violation of regulatory measures is already taken care of in Section 21, the
said provision could not have been made therein. However, it may be noted
that by section 15 of MM Act, the State Government has been empowered to
make Rules levying fine and the scope, nature or extent thereof does not
require any consideration by us in the present controversy.
consideration above, we find that Section 48[7] takes care of violation of
rights to mineral vesting in State Government, and it therefore, operates in
totally different field. It does not in any way encroach upon the field
occupied by the MM Act and does not militate with any provision made
Central Cooperative Bank Ltd. .vrs. Divisional Joint Registrar and another.
(both supra). This Court has in Hari Construction ..vrs.. State of
Maharashtra and others (supra) already considered sufficiently this judgment
of the Hon’ble Apex Court.
16. The finding above also shows that the recovery of penalty from
petitioner is due to breach of ownership of State and reference to market
value of extracted mineral for computation of penalty under section 48[7] is
as an incident of ownership, It is not a punishment inflicted upon him under
MLR Code to attract the doctrine of double jeopardy. Section 21 of MM Act
does not deal with such violation of ownership rights at all. Hence, the
judgment of Hon’ble Apex Court in the case of T. Barai .vrs. Henry Ah Hoe
and another (supra) also does not require any consideration in the present
impossibility of simultaneous obedience to both the provisions does not arise
at all as both provisions do not operate on same subject or in same field.
Needless to mention that argument about existence of arbitrary power to pick
and choose in State and its possible use to discriminate between two wrong
doers or then to victimize petitioner by it are, even otherwise, without any
legal basis. In any case, in present situation these challenges are also
misconceived.
17. Perusal of reply to show cause notice filed by the petitioner on
25.09.1992 before the Collector, shows that he has denied application of
Section 48[7] of Land Revenue Code, and has also denied the quantities
allegedly excavated by him. After denial of those quantities, he has stated
that measurement taken were incorrect and copy of measurement has been
supplied to him. He has stated that unless and until such copy is provided to
him, he would not be in a position to effectively defend himself. It is not in
dispute that this reply filed by him is on record before the Collector. In the
impugned order dated 13.10.1992 the office of Collector has only given one
acceptable to the Office of Collector. The grievance made by the petitioner
therefore, has not been looked into or evaluated, and the fact that, he had
demanded copy of the measurement report is totally ignored. The said order
is therefore a nonspeaking order. This grievance about the order is raised by
the petitioner in his revision under Rule 34A of the Vidarbha Region Rules
before the Hon’ble Revenue Minister. The respondent no.1 has decided said
revision on 27.10.1993. The said order runs into 4 paragraphs and first 3
paragraphs only show previous history and arguments. Last paragraph shows
that the revisional authority has found after going through the record that
there was no reason to disbelieve the calculations. Thus the contention that
measurement recorded were incorrect has not been again looked into and
that there was challenge to its correctness is lost sight of. Finding on
propriety or correctness of said challenge is thus totally avoided by both these
authorities. The fact that copy of the measurement or measurement report
was not made available to the petitioner is again lost sight of. In view of this
position, the impugned order dated 27.10.1993 of respondent no.1 as also
accordingly quashed and set aside.
18. In view of the discussion above, the proceeding are restored back
to the file of respondent no.2 Collector, for taking fresh decision after giving
petitioner shall be supplied copy of measurement / measurement report and
objections, if any, the Collector or the delegate shall proceed to hear the
petitioner and decide the controversy, as early as possible. Writ Petition is
therefore, partly allowed. Rule accordingly. However, in the circumstances
of the case, there shall be no order as to costs.
JUDGE JUDGE
Rgd.