( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1149 OF 1991 Rafiyoddin s/o Tayyab Ali Kazi Since deceased, by his L.Rs. 1. Smt. Jaibunissabegum w/o Rafiyoddin Kazi 2. Jayauddin s/o Rafiyoddin Kazi 3. Raisoddin s/o Rafiyoddin Kazi 4. Najmoddin s/o Rafiyoddin Kazi All r/o Kharde Road, Jamkhed, District Ahmednagar. PETITIONERS VERSUS 1. The State of Maharashtra (through its Secretary, Revenue and Forest Department), Mantralaya, Bombay-32 2. The Collector, Ahmednagar. 3. The Divisional Commissioner, Nasik Division, Nasik. 4. The Advocate General of Maharashtra, High Court Building, Bombay-32. RESPONDENTS ..... Mr. S.B. Talekar, advocate for the petitioners. Mr. N.H. Borade, AGP for the respondents No. 1 to 3. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 12th January, 2010] [DATE OF JUDGEMENT PRONOUNCED : 22nd January, 2010] ( 2 ) JUDGEMENT : 1. The deceased petitioner challenged judgement and order dated 22-01-1991 rendered by Hon’ble Minister of State for Revenue in the exercise of revisional jurisdiction in revision application No. 3390/4177/1990. Though findings of the Assistant Collector and the Commissioner, Nasik were maintained by the Hon’ble Minister, yet, quantum of penalty was reduced. 2. The deceased petitioner was a Government Contractor. He owned agricultural land bearing Survey No. 932/2-B/2 (old), which is survey No. 488/2-B/2 (new), situated at Jamkhed (District Ahmednagar). The land was having minor minerals. The deceased petitioner had applied for permission to convert the said land for non-agricultural use. He had installed a stone crusher in the land. Admittedly, he had started excavation in the land for extracting stones and crushing the same in order to convert the same into rubble. He used to extract metal from the stone quarry situated in the land in question. He had obtained minor mineral extraction ( 3 ) permit from the Tahsildar, Jamkhed on 7th July, 1982. The permit was in respect of extraction of 50 brass of minerals. 3. The deceased petitioner was served with a notice dated 01-03-1989 by the Assistant Collector, Parner Division, calling upon him to show cause why action under section 48 (7) of the Maharashtra Land Revenue Code, 1966 be not taken against him and penalty equivalent to three times value of the extracted minor minerals be not recovered from him. It was noticed that he was allowed to install the stone crusher and extract the minor minerals only from area of 50 x 40 mtrs. (2000 sq.mtrs.), yet, he had utilized area of 10,000 sq. mtrs. for extraction of minor minerals. It was noticed that he was using excessive 8000 sq. mtrs. area without lawful permission. He had not paid royalty for extraction of the minor minerals from the said 8000 sq. mtrs. area of the agricultural land and had used the same unauthorizedly without obtaining permission for non-agricultural use thereof. The Assistant Collector carried out certain inquiry. A panchanama of the site ( 4 ) of stone quarry was drawn prior to the issuance of show- cause notice. Though the deceased petitioner was granted time to make his submissions on 28-03-1989 after his first appearance on 13-03-1989, yet, he did not give any written reply. He had left the office of the Assistant Collector without signing the relevant document on which time was granted upto 28-03-1989 for filing of the written reply. The Assistant Collector, Parner Division, held that the petitioner had used 1 hectare land without any permission for non-agricultural use and had unauthorizedly started quarrying in the said area. He came to the conclusion that the deceased petitioner had extracted 11,000 brass minor minerals from the said agricultural land. Therefore, royalty fee at rate of Rs. 10/- per brass, amounting to Rs. 1,10,000/- was found recoverable from the deceased petitioner. The Assistant Collector, therefore, directed him to pay the royalty of Rs. 1,10,000/-, cess of Rs. 5500/- as per the Government rate and penalty of Rs. 3,30,000/-. The said order dated 06-04-1989 rendered by the Assistant Collector was challenged by the deceased petitioner by way of appeal. The Collector, Ahmednagar, by his order dated 22-08-1989 ( 5 ) dismissed the appeal. The orders were maintained by the Additional Commissioner, Nasik Division while dismissing the revision application by order dated 17-02-1990. The Minister of State for Revenue dismissed the revision/ review application on merits but reduced the quantum of penalty from Rs. 3,30,000/- to Rs. 1,10,000/-. 4. The petitioner alleges that he had extracted the stones for the purpose of contractual work which he was required to execute as per Government contract. He had submitted copies of the work orders and details about the stone quarry situated in his land Survey No. 488/2-B/2. According to him, the Tahsildar, Jamkhed had not issued permit for minor minerals’ extraction though he had already applied on 04-01-1983 for such kind of permit. He alleged that the royalty could not be claimed when the rubble and metal extracted from the agricultural land was used for execution of the Government work. 5. The petitioner submitted that the revenue authorities and the Hon’ble Minister did not properly ( 6 ) consider his representations and rendered illegal orders in respect of the penalty. He further alleged that there was no appropriate assessment of the quantum of extracted minor minerals from the land. According to him, the Assistant Collector did not properly appreciate the probable quantity of the minor minerals which was available from his land and wrongly assessed the quantum on basis of guesswork. Consequently, he urged for quashing of the relevant orders of the revenue authorities and the Hon’ble Minister. 6. Heard learned counsel and learned A.G.P. 7. There is no dispute about the fact that the deceased petitioner was a Government Contractor and owned the agricultural land. The deceased petitioner was given contractual work in pursuance to acceptance of his tender. He was executing work of construction of a bridge on Vaitarna river between Jamkhed-Kharda road. It is an admitted fact that he had not been granted permission to use his land for non-agricultural use except and save a part thereof to the extent of 50 x 40 ( 7 ) mtrs. (2000 sq. mtrs.). The permit granted in his favour on 07-07-1982 by the Tahsildar (Exh-A) shows that it was limited to the extent of 50 brass minerals and royalty of Rs. 375/- was paid by him. It is manifest that such permit gave him authority to removal and transport the minor minerals only for period between 07-07-1982 to 07-08-1982. There was no further extension of the period nor any other permit was issued in his favour. He had applied for the exemption certificate seeking permission to excavate the stones and crushed metal from the agricultural land. However, his application was not allowed at any point of time. 8. Mr. Talekar would submit that copy of the panchanama drawn by the revenue authority on 30-05-1988 was not furnished to the petitioner alongwith show-cause notice dated 01-03-1989 and, therefore, he had no knowledge about the inquiry conducted before issuance of the notice. He would submit that in absence of opinion of any technical expert, the Assistant Collector could not have assumed that 11,000 brass minor minerals had been extracted from the land of the petitioner. He ( 8 ) would submit further that the deceased petitioner was not given proper and fair opportunity of giving his explanation. He contended that the order of the Assistant Collector was exparte and as such, was liable to be interfered with by the appellate and revisional authorities. He contended that the royalty could not have been charged when the metal and the rubble was used for the purpose of Government work. He argued that the revenue authorities did not consider import of Government Circular dated 21-02-1983 (Exh-G). 9. The Government Circular dated 21-02-1983 (Exh- G) provides comprehensive policy pertaining to refund of royalty on quarrying of minor minerals’ extraction of Irrigation Department by the Contractor. A close reading of the Government Circular shows that the Contractor, who is entitled to supply quarry material without royalty, is required to apply to the Collector or other competent authority through the Executive Engineer Incharge of the Public Works for permission to quarry the material required for a specific Government work. The Executive Engineer is thereafter required to ( 9 ) certify on the application that the Contractor is entitled to quarry material without payment of royalty and also is entitled to quarry material for bonafide use of the Government work during the period. There is specific procedure prescribed for the purpose of claiming exemption from payment of royalty. The deceased petitioner did not submit any such application seeking exemption from payment of royalty and it was never enrouted through the Executive Engineer incharge of the Public Works. It appears from the record that the deceased petitioner was served with a notice dated 19-10-1987 by the Tahsildar, Jamkhed. He gave his reply (Exh-C) on 31-10-1987. It was for the first time that he alleged use of rubble/khadi and stones for the Government work. In his reply, he had not disputed the fact that he had extracted stones from 10,000 sq. mtrs. land. He stated that he had deposited the royalty amount of 75 brass stones vide a challan. The averment in his reply dated 31-10-1987 would show that he did not explain how much metal and rubble was used for the Government work. He vaguely stated that approximately, most of the material was used for the Government work. ( 10 ) In view of the correspondence placed on record, it is amply clear that the petitioner was given due opportunity by the Tahsildar, during course of preliminary inquiry, to explain his stand as regards extraction of rubble and metal from his land. It is on the basis of such inquiry that the Tahsildar submitted his report (Exh-J) dated 09-06-1988 to the Assistant Collector. The report purports to show that the deceased petitioner had removed 10,800 brass of minor minerals from the extracted stones. It was found that 200 brass stones was lying on the place of the khadi kendra (stone crusher). The estimated value of the quarried stones was Rs. 1,10,000/-. It is on basis of such inquiry that the show-cause notice was issued by the Assistant Collector. The Assistant Collector noticed that though the deceased petitioner was called upon to give reply on 13-03-1989 and was granted time upto 28-03-1989, yet, he had left the office without signing the relevant papers. Considering the conduct of the deceased petitioner, the Assistant Collector found that his intention was to protract the matter. Needless to say, though the opportunity was made available to him, yet, the deceased ( 11 ) petitioner did not avail the opportunity. Moreover, his stand in this regard is explicit from the reply given to the notice issued by the Tahsildar. It was a summary inquiry. Obviously, it cannot be said that the petitioner was denied reasonable opportunity to clarify the factual position. 10. So far as the contention of the learned counsel that technical opinion was necessary before drawing any inference is concerned, I find it difficult to accept the argument. The petitioner never stated in his appeal memo filed before the Collector and other authorities that opinion of expert was necessary. His main thrust was on the question of legality of section 48 (7) of the Maharashtra Land Revenue Code for the reason that there were no guidelines provided under the law. Nextly, it was his contention that the Assistant Collector had not disclosed the material gathered during the inquiry and, therefore, he was deprived of reasonable opportunity to clarify the factual position. The panchanama drawn by the revenue authority would show that the Deputy Engineer had informed that since 1980, 30,623 cubic ( 12 ) metres khadi and dubber was extracted and 200 brass khadi and dubber was lying at the spot. The fact that the deceased petitioner was granted permit only for a limited period and that too, to the extent of 25 brass of stones to be quarried, goes to show that he obtained the permit for small quantity of the stones to be quarried, yet had quarried large quantity. He had deposited small amount towards the royalty. His intention was to utilize the said permit (Exh-A) as a leverage to extract more stones for the purpose of crushing and to use larger area of the agricultural land though the non-agricultural permission was limited to the extent of 20 x 50 meters area. 11. The deceased petitioner was served with notices by the Tahsildar and yet, had not cooperated in the course of preliminary inquiry. He had not obtained permission as required under the provisions of the Mines and Minerals (Regulation and Development) Act, 1957. Under section 2 (1) (j) of the Mines and Minerals (Regulation and Development) Act, 1957, the term “Mine” means any excavation where any operation for the purpose ( 13 ) of searching for or obtaining minerals has been carried on. The panchanama drawn at the site and the ipse dixit of the deceased petitioner would show that he had used the agricultural land for non-agricultural use i.e. for the purpose of mining of stones. 12. Section 48 (7) of the Maharashtra Land Revenue Code, 1966 reads as follows : “48. Government title to mines and minerals :- (1) The right to all minerals at whatever place found, whether on surface or underground, including all derelict or working mines and quarries, old dumps, pits, fields, bandhas, nallas, creeks, river beds and such other places, is and is hereby declared to be expressly reserved and shall vest in the State Government which shall have all powers necessary for the proper enjoyment of such rights. (2) ***** (3) ***** (4) ***** (5) ***** (6) ***** (7) Any person who without lawful authority ( 14 ) 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, 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 the Collector, to pay penalty not exceeding a sum determined, at three times the market value of the minerals so extracted, removed, collected, replaced, picked up or disposed of, as the case may be :” 13. The deceased petitioner had used the agricultural land for non-agricultural purpose and had extracted the minor minerals without any lawful authority. Obviously, he was liable to pay the penalty as provided under sub-section (7) of section 48 of the Maharashtra Land Revenue Code. The questions raised by the petitioner in the present petition are mostly questions of facts. How much quantity of the stones was extracted, whether assessment of such quantity by the ( 15 ) competent authorities was proper and whether the valuation thereof was correctly arrived at or not, are the disputed questions of facts. The writ jurisdiction is unavailable in the context of such disputed questions of facts. Once it is found that a reasonable opportunity was given to the deceased petitioner, it goes without saying that the impugned orders need not be interfered with. It is important to notice that the Hon’ble Minister substantially reduced the amount of penalty from Rs. 3,30,000/- to Rs. 1,10,000/-. Inspite of such substantial reduction, which was outcome of application of mind, the deceased petitioner had not paid the amount and preferred this writ petition. Considering his conduct, I have no hesitation in holding that he tried to protract the litigation with a view to avoid payment of the penalty. The value of the amount is reduced due to long passage of time. The value of rupee in 1991 is not the same with juxtaposition of the present times. Hence, I am of the opinion that the petitioners are liable to pay interest at rate of 12 per cent per annum on the due amount from date of the order of the Hon’ble Minister i.e. 22-01-1991 onwards till the ( 16 ) entire amount is paid up. This is necessary because the very purpose of the writ petition was to protract the payment of due amount and to pay it when its value in terms of purchase value would dwindle substantially. The petitioners are also liable to pay cost of the petition to the respondents. 14. In the result, the petition is dismissed with costs of Rs. 25,000/- and with further direction that the petitioners shall pay interest at rate of 12 per cent per annum on the due amount of penalty recoverable from date of the order rendered by the Hon’ble Minister till the entire amount is paid. [ V.R. KINGAONKAR ] JUDGE NPJ/wp1149-91