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2022 DIGILAW 876 (BOM)

Laxman v. State Of Maharashtra

2022-03-24

ROHIT B.DEO

body2022
JUDGMENT Rohit B. Deo, J. - Heard Mr. a.R. Ingole, learned Counsel for the petitioner and Mr. N.R. Rode, learned assistant Government Pleader for the respondents. 2. Rule. Rule made returnable forthwith. With consent, the petition is heard finally. 3. In the petition, the challenge is to the action initiated by the authority in exercise of power conferred under Section 48(7) and (8) of the Maharashtra Land Revenue Code, 1966 (Code) in respect of transportation of gitti (metal stone) which is a finished product. 4. an identical issue is considered by the Division Bench of this Court in Writ Petition 5466/2004 (Bansilal s/o Lunkaranji Chandak (dead) through L.Rs. and others v. State of Maharashtra and another) which is decided by judgment dated 13-12-2018. The factual matrix was that the vehicle owned by the petitioner was transporting metal stone from the stone crusher and was seized in exercise of power under Section 48(7) of the Code and penalty was imposed. The Division Bench noted the provisions of Section 48 of the Code and its interpretation in the earlier decision of the Division Bench in Writ Petition 4700/2009 (Pralhad s/o Vishnu Wayade and others v. The State of Maharashtra and others), thus : 'Section 48(7) of the Maharashtra Land Revenue Code, to which our attention is invited by both the counsels, reads as under : '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 Collector or any revenue officers not below the rank of Tahsildar authorised by the Collector in this behalf, to pay penalty of an amount up to five times the market value of the minerals so extracted, removed, collected, replaced, picked up or disposed of, as the case may be.' In terms of the aforesaid provision, 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, 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 be liable to pay penalty in terms of the said provision. This provision has been interpreted by the Division Bench of this Court in its judgment dated 19-3-2010 delivered in Writ Petition No. 4077 of 2009 (Pralhad s/o Vishnu Wayade and others v. The State of Maharashtra and others), wherein it is held that, 'considering the purpose for which the said provision is made, viz. for unlawful removal of minerals and not for finished products, the action taken by the respondents under the same is a total usurpation of authority and is completely mala fide in law.' The Division Bench then articulated thus : '4. In the present case, it is not the charge that the petitioner has extracted the raw material (Kapchi) from any working or derelict mines, quarries, old dumps, fields, bandhas, nallas, creeks, river-beds, etc., as contemplated by the provision of sub-section (7) of Section 48 of the Maharashtra Land Revenue Code. Undisputedly, the vehicle in question was carrying the finished product of Gitti (metal stone) collected from the stone crusher of the petitioner, for which no transit pass is required. Undisputedly, the vehicle in question was carrying the finished product of Gitti (metal stone) collected from the stone crusher of the petitioner, for which no transit pass is required. The question as to whether the transporter was required to explain his source of metal stone or extraction of clay has been dealt with in Para 7 of the aforesaid decision, which is reproduced below : '7. as regards the justification offered by the respondents for requiring transit passes, if at all the respondents in reality have wished to see if the clay extracted is being properly used for the purposes of manufacturing bricks, then for verifying the same they could have restored to a simple procedure for inspection as may be authorised by law. Having regard to the same, it is wholly unnecessary to go in the question of the action taken by respondents being innocent as observed by the apex Court in a decision in the case of Smt. S.R. Venkataraman v. Union of India and another reported in (1979) 2 Supreme Court Cases 491 wherein while considering the question of malice in law by quoting the observations of Viscount Haldane in the decision in the case of Shearer v. Shields reported in (1914) aC 808, it has been observed by apex Court in paragraph no.5 of the said decision: '5. Malice in law is, however, quite different Viscount Haldane described it as follows in Shearer V. Sheilds : a person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly and in that sense innocently. This malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.' In view of the law laid down by this Court in the aforesaid decision, it is not possible for us to sustain the impugned order passed by the respondent No.2.' 5. as the legal position stands, the Division Bench in Pralhad s/o Vishnu Wayade and others v. The State of Maharashtra and others held that considering the statutory scheme action against finished product is totally usurpation of authority and is completely mala fide in law and the Division Bench in Bansilal s/o Lunkaranji Chandak (dead) through L.Rs. and others v. State of Maharashtra and another has categorically held Gitti or metal stone to be finished product against which no action can be initiated under Section 48(7) of the Code . 6. The Tahsildar has filed an affidavit dated 21-3-2022 in Writ Petition 138/2022. The gist of the affidavit is that the Code defines 'Minor Minerals' to mean the minor mineral in respect of which the State Government is empowered to make Rules under Section 15 of the Mines and Minerals (Regulation and Development) act, 1957 (act of 1957). Section 15 of the act of 1957 empowers the State Government to make the Rules and in exercise of such power the State Government has enacted the Maharashtra Mines (Regulation and Development) Rules, 2013 (Rules). Rule 2(n) of the Rules stipulates that mineral shall mean the minerals so declared from time to time by the Central Government by issuing notification in the Official Gazette under the act of 1957. Section 3(e) of the act of 1957 defines minerals as including ordinary sand, gravel, building stone etc. and certain other minerals are included by issuing notification. The affidavit asserts that while gravel is included in the definition of mineral, there is no description of the said term and, therefore, if the dictionary meaning is seen, gravel would be a mixture of sand or small, usually rounded, pebbles or stone. The affidavit asserts that the gravel also includes crushed stone (Gitti) which is made by crushing big stones in the crusher units. The affidavit fairly states that the stone crushers do pay royalty to the State Government for the excavation of the stones. The affidavit then avers that it is the duty of the stone crushing unit owner to give copy of the royalty pass to the transporter. It is then averred that if it is held that there is no regulatory power over finished products, it would be difficult to enforce the regulatory measures in the Code since conceivably finished products which are transported from tainted sources shall escape detection and control. It is then averred that if it is held that there is no regulatory power over finished products, it would be difficult to enforce the regulatory measures in the Code since conceivably finished products which are transported from tainted sources shall escape detection and control. The affidavit then avers that the characteristic of the product is not changed due to the crushing of the big stone and conversion into metal stone. The affidavit urges this Court to consider gitti or metal stone as 'gravel' and to uphold the regulatory power of the State Government. 7. While the learned assistant Government Pleader Mr. N.R. Rode would advance serious and prolonged submissions on the lines of what is stated in the affidavit, it is difficult to agree with the submission that gitti or metal stone is not a finished product and further, even if it is assumed that gitti or metal stone is a finished product, its transportation can be regulated. The argument that 'gravel' which is defined as a 'mineral' in the act of 1957 must be widely and expansively interpreted to include gitti or metal stone, merits rejection. The term 'gravel' which is used in the company of several other products which are defined as 'minerals' clearly refers to gravel in the natural form found in the river-bed etc. Moreover, the Division Bench has already held that gitti or metal stone is a finished product and it would neither be appropriate nor permissible for me to take a contrarian view. The other submission is that even a finished product can be regulated under the Code considering that the efficacy of the regulatory regime depends on such control and regulation, which argument is negatived by the Division Bench in Pralhad s/o Vishnu Wayade and others v. The State of Maharashtra and others in Writ Petition 4077/2009. I am bound by the said decision of the Division Bench. 8. In my considered view, in view of the position of law articulated by the two Division Bench decisions of this Court which are referred to supra, the coercive action initiated against the transportation of gitti in the petition will have held to be illegal and ultra vires the Code. 9. The petition is allowed accordingly.