LPA.152/2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 152 OF 2010 IN WRIT PETITION NO. 2538 OF 2010 WITH CIVIL APPLICATION NO. 196 OF 2010 IN LETTERS PATENT APPEAL NO. 152 OF 2010 Shri Ramkrishna V. Khot & Ors. ....Appellants. Vs. Shri Ratnakar Pralhad Herekar & Ors. ....Respondents. ..... Mr. S.M. Sabrad, for the Appellants. Mr. C.G. Gavankar with G.S. Hiranandani, for Respondent No.1. Mr. A.I. Patel, AGP for Respondent Nos.2 and 3. ..... CORAM : MOHIT S. SHAH, C.J. AND S.C. DHARMADHIKARI, J. DATE : 9TH JULY, 2010. P.C. 1] This appeal is directed against the order 16.6.2010 passed by the learned Single Judge of this Court confirming the order of the Additional Commissioner, Konkan Division dated 4.2.2010, by which the Additional Commissioner had set aside the order of the Collector, Sindudurg. 1 LPA.152/2010 2] By the order dated 6.10.2009, the Collector, Sindudurg on the basis of the report of the District Mining Officer, Sindudurg held that respondent no.1 herein had unauthorisedly extracted sand from the Karli Creek and on that basis imposed penalty of Rs.14,27,580/- on respondent no.1. Respondent no.1 challenged the said order before the Divisional Revenue Commissioner under section 247 of the Maharashtra Land Revenue Code. By an order dated 4.2.2010 the Additional Commissioner (Konkan Division) allowed the appeal partly and remanded the matter back to the Collector for rehearing and directed him to redecide the matter in the light of the observations made in the order of the Additional Commissioner. 3] Learned Single Judge has dismissed the writ petition of the appellants/villagers challenging the above order of the Additional Commissioner after making certain observations. 4] The appellants/villagers are aggrieved by the order of remand as well as observations made by the learned Single Judge. It is submitted that if such observations are allowed to stand, the Collector will be 2 LPA.152/2010 handicapped in deciding the matter against respondent no.1-contractor, even if he is inclined to give findings against the respondent no.1- contractor. 5] Our attention is invited to the following observations of the learned Single Judge by which the appellants/villagers are aggrieved: “ It appears that the entire extraction is not unauthorised. The respondent no.1 was granted licence to extract sand in excess of the licence granted to him. The Additional Collector observed that there was no concrete material to show whether sand extracted was in excess of the licence granted and whether the sand sold was in excess of the quantity permitted to be extracted.” 6] Further, reference is also made to the following observations made by the Single Judge on the basis of the order of Additional Commissioner:- “ It is not disputed before me that panchanama regarding excavation of sand was not drawn. It is also not disputed that the monthly returns filed by respondent no.1 regarding extraction of sand and sale thereof were also not scrutinized by the Collector.” 3 LPA.152/2010 7] Learned counsel for the appellants/villagers submits that one of the allegations against respondent no.1-contractor was that monthly returns were not being filed by him and therefore, there was no question of Collector making the scrutinisation of such monthly returns which were not filed in first place. It is, further, submitted that the learned Single Judge proceeded on the basis that adverse order could not have been passed against respondent no.1-contractor in absence of the panchanama regarding extraction of sand. It is submitted that such observations virtually tiltled the issue in favour of respondent no.1-contractor and, therefore, no useful purpose will be served by remanding matter to the Collector if the Collector is tied down to such observations. 8] Learned counsel for respondent no.1-contractor submits that there were various other parties to whom licences had already been granted for extraction of sand, and in view thereof, if respondent no.1- contractor has extracted sand from the area leased to him in the Karli Creek, he should not be held responsible for excessive extraction of sand. 4 LPA.152/2010 9] In rejoinder the learned counsel for the appellants submitted that the order dated 31.3.2010 passed by another division bench in writ petition no.3264 of 2009 did not contemplate any inquiry against any other contractor. 10] Having heard the learned counsel for the parties, we find that it is true that another division bench of this Court had passed an order in writ petition no.3264 of 2009 directing the Collector, Sindudurg to take appropriate action in the matter of alleged excessive extraction of sand, and that the order dated 31.3.2010 did indicate that fresh inquiry was required to be conduced in respect of quantity of sand lifted by the contractor, who is respondent no.1 before us (respondent no.6 in writ petition no.3264 of 2009). All the same, it cannot be overlooked that the order dated 6.10.2009 passed by the Collector, Sindudurg was produced before the other division bench on 9.10.2009 and the division bench did permit the contractor (respondent no.6 in the said petition and respondent no.1 before us) to challenge the order before appropriate forum i.e. before the appellate authority. 11] In the background of the above facts, while respondent no.1- contractor cannot be denied his right to challenge the order of the 5 LPA.152/2010 Collector dated 6.10.2009 on all grounds available to him, at the same time the observations made by the learned Single Judge can not be allowed to come in the way of the Collector deciding the controversy on its own merits. 12] In view of the above, without expressing any opinion either way, while we confirm the order of the learned Single Judge in so far as the order of remand passed by the Additional Commissioner (setting aside the order of the Collector and remanding the matter back to the Collector for fresh inquiry) is not being disturbed, we make it clear that the Collector/Additional Collector shall be at liberty to decide the matter afresh in accordance with law without being influenced by any of the observations made by the learned Single Judge in the order dated 16.6.2010 or by the Additional Commissioner in his order dated 4.2.2010. 13] We also make it clear that appellant-writ petitioner shall be entitled to participate in the proceedings, which will now be decided by the Collector. The Collector shall decide the matter afresh as aforesaid as expeditiously as possibly and preferably within two months from the date of receipt of this order. 6 LPA.152/2010 14] Learned AGP submits that some time may be taken in serving notice upon the parties and therefore, it would be better if this Court stipulates a particular date, so that parties should appear before the Collector. Learned AGP suggests that parties should appear before the Collector on 28.7.2010 at 11.00 a.m. We accordingly direct that the appellants, respondent no.1 as well as the Mining Officer shall appear before the Collector, Sindudurg on the above date and time. In the meantime, any material, documents or written submissions which the parties may desire to produce before the Collector, may be produced by the said date. 15] The appeal is accordingly disposed of with above directions. In view of disposal of the appeal, the civil application is also disposed of. CHIEF JUSTICE S. C. DHARMADHIKARI, J. 7