ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 4461 OF 2008 PETITION NO. 4461 OF 2008 PETITION NO. 4461 OF 2008 Kishankumar J. Kedia ...Petitioner Vs. The Tahasildar, Vadgaon Maval & Ors. ...Respondents. Mr.Girish Godbole for the Petitioner. Mrs.Bhende, AGP for Respondent Nos.1 to 3. CORAM CORAM CORAM : R.V.MORE, J. : R.V.MORE, J. : R.V.MORE, J. DATED DATED DATED : 15th July, 2008 : 15th July, 2008 : 15th July, 2008. P.C. P.C. P.C. . At the outset, Mr.Godbole, the learned counsel appearing for the Petitioner, makes a statement that he does not want to press the prayer clauses (c) and (d), as the Petitioner’s application is pending before the Respondent No.2 S.D.O., Maval Sub-Division, Pune. The statement accepted and the Petition is restricted to prayer clauses (a) and (b) only. 2. Heard Mr.Godbole, the learned counsel appearing for the Petitioner and Mrs. Bhende, the learned AGP for the Respondents. 3. Rule. By consent Rule made returnable forthwith. The Petitioner take exception to the order dated 19/11/2007 passed by the Respondent No.2 in RTS Appeal ( 2 ) No.149/2007 whereby the stay already granted in favour of the Petitioner came to be vacated. The Petitioner also take exception to the order dated 22/02/2008 passed by the Respondent no.2 in RTS Appeal No.149 of 2007 whereby on the petitioner’s application for restoration of the stay, was also rejected. 4. By the order dated 21/04/2007, the Respondent No.1 directed the Petitioner to pay an amount of Rs.59,25,000/- towards royalty and penalty for alleged excavation /use of Murum and Dabar (Minor minerals) in his land. The Petitioner challenged this order by filing an appeal bearing No. 149/2007 before the Respondent No.2 S.D.O. The learned S.D.O., Pune division by his order dated 11/09/2007 stayed the aforesaid order dated 21/04/2007 passed by Respondent No.1 Tahasildar. The Petitioner’s appeal was kept for hearing on 21/11/2007 on that day neither petitioner nor his advocate could remain present before the Respondent No.2 S.D.O and therefore, the stay granted earlier came to be vacated. The Petitioner thereafter preferred a fresh application for restoration of the said order, however, this application was also came to be rejected on 22/02/2008. The Petitioner filed R.T.S. Second Appeal No. 67/2008 before the ( 3 ) Collector, Pune. However, the said Appeal was dismissed as held not maintainable under Section 252 (C) of the Maharashtra Land Revenue Code-1966. The Petitioner, therefore, constrained to challenge both the orders passed by Respondent No.2 S.D.O., on 19/11/007 and 22/02/2008. 5. Mr.Godbole, submits that on 19/11/2007 the petitioners counsel could not remain present as he was unwell and the Petitioner could reach to the office of the Respondent No.2 S.D.O. only at 2.00 p.m.. In that view of the matter, Mr.Godoble submitted that sufficient explanation for absence was given therefore, the Respondent No.2 S.D.O. ought to have restored the stay. Mr.Godbole also submits that the petitioner is ready and willing to deposit an amount of alleged loyalty in order to show his bonafides. Mrs. Bhende, per contra support the impugned order. 6. Having heard the learned counsel appearing for respective parties and going through the impugned order alongwith other compilation annexed to Petition, and find merit in the petition. 7. The Respondent No.2 by passing an order on ( 4 ) 11/09/2007 stayed the Tahasildar’s order and this order came to be vacated on 21/11/2007 since nobody remained present on behalf of the Petitioner. The Petitioner is residence of Mumbai and the petitioner engaged services of lawyer from Pune. On the day fixed for hearing the Petitioner’s lawyer could not remain present because he was taken suddenly ill. The Petitioner stated on affidavit that he reached on that day at Pune from Mumbai at about 2.00 p.m., however, before that the S.D.O. vacated the stay. The Petitioner’s application for restoration of the stay was rejected by the impugned order dated 22/02/2008 by observing that the petitioner has not given any evidence about the payment of loyalty before extraction of the minor mineral. In my view, the impugned order dated 22/02/2008 does not stand to reason, as Petitioners specific case was that he has not extracted any minor minerals. In that view of the matter the impugned order dated 22/02/2008 deserves to be quashed and set aside. 8. So far as the restoration of the stay is concerned, in my opinion, the Petitioner has given sufficient cause as to why he or his lawyer did not remain present on 19/11/2007. The Petitioner has ( 5 ) shown his bonafides by showing willingness to deposit an amount of royalty without prejudice to the rights and contentions and subject to final outcome of the proceedings. In that view of the matter, I am of the opinion that the stay granted to the Petitioner on 11/09/2007 deserves to be restored. 10. In the facts and circumstances, I dispose of the Petition by passing the following order. O R D E R R D E R R D E R 1. The impugned orders passed by Respondent No.2 on 19/11/2007 and 22/02/2008 in Appeal R.T.S. No.149 of 2007 which are at Exhibit "R" and Exhibit "S" respectively, to this petition are quashed and set aside. 2. During the pendency of the final disposal of the petitioner’s appeal bearing No.149 of 2007, the order dated 21/11/2007 passed by the Respondent No.1 Tahasildar asking the petitioner to deposit an amount of Rs.59,25,000/- ( 6 ) towards royalty and penalty is stayed subject to petitioner depositing an amount of Royalty in the Tahasildar office within a period of 2 weeks from the date of receipt of this order. 3. Needless to mention that the above said deposit is without any prejudice to the rights and contentions to the respective parties and subject to outcome of the proceedings pending before the learned S.D.O., Respondent no.2. 4. The learned S.D.O., Respondent no.2 shall dispose of the Petitioner’s appeal as expeditiously as possible and in any event, within a period of six months from the date of receipt of this order. 5. Rule made absolute in above terms. ( R. V. MORE, J.) R. V. MORE, J.) R. V. MORE, J.)