1 wp 3940.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3940 OF 2011 Mahendra Pamandas Lalwani, Age : 38 Years, Occu. : Business, R/o Municipal Hospital, Amalner, Tq. Amalner, Dist. Jalgaon. .. .. Petitioner Versus 1. The State of Maharashtra, Through Principal Secretary, Revenue Department, Mantralaya, Mumbai. 2. The Collector, Jalgaon, Dist. Jalgaon. 3. Tahsildar, Amalner, Tq. Amalner, Dist. Jalgaon. .. .. Respondents Shri B. S. Deshmukh, Advocate for the Petitioner. Shri S. B. Pulkundwar, A.G.P. for the Respondent/State. WITH WRIT PETITION NO. 3941 OF 2011 Sukdev Ganpat Choure, Age : 40 Years, Occu. : Business, R/o Ozar, Tq. Niphad, Dist. Nashik... .. Petitioner 2 wp 3940.11 Versus 1. The State of Maharashtra, Through Principal Secretary, Revenue Department, Mantralaya, Mumbai. 2. The Collector, Jalgaon, Dist. Jalgaon. 3. Tahsildar, Amalner, Tq. Amalner, Dist. Jalgaon. .. .. Respondents Shri B. S. Deshmukh, Advocate for the Petitioner. Shri S. B. Pulkundwar, A.G.P. for the Respondent/State. WITH WRIT PETITION NO. 4606 OF 2011 M/s. Waghchaure and Company, Aurangabad, through its Proprietor, Kiran Janardhan Waghchaure, R/o Aurangabad, Tq. & Dist. Aurangabad, Through his General Power of Attorney, Machindra S/o Bhagwanrao Choudhari, Age : 38 Years, Occu. : Agril. and Business, R/o Nagardevale, Tq. & Dist. Ahmednagar. .. .. Petitioner Versus 1. The State of Maharashtra, Through its Secretary, Revenue & Forest Department, 3 wp 3940.11 Mantralaya, Mumbai. 2. The Collector, Ahmednagar, District Ahmednagar. 3. Tahsildar, Rahuri, Tq. Rahuri, Dist. Ahmednagar. .. .. Respondents Shri A. D. Shinde, Advocate for the Petitioner. Smt. R. K. Ladda, A.G.P. for the Respondent/State. WITH WRIT PETITION NO. 5670 OF 2011 Dnyandeo S/o Dagdu Changhate, Age : 47 Years, Occu. : Agril., R/o Mendhipur, Tq. Gangapur, District Aurangabad. .. .. Petitioner Versus 1. The State of Maharashtra, Through its Principal Secretary, Forest and Revenue Department, Mantralaya, Mumbai. 2. The Collector, Aurangabad. 3. Tahsildar, Gangapur, Tq. Gangapur, Dist. Aurangabad. .. .. Respondents Shri P. S. Dighe, Advocate for the Petitioner. Shri S. B. Pulkundwar, A.G.P. for the Respondent/State. 4 wp 3940.11 WITH WRIT PETITION NO. 5671 OF 2011 Vijay S/o Shankarchand Changhate, Age : 35 Years, Occu. : Agril., R/o Mendhipur, Tq. Gangapur, District Aurangabad. .. .. Petitioner Versus 1. The State of Maharashtra, Through its Principal Secretary, Forest and Revenue Department, Mantralaya, Mumbai. 2. The Collector, Aurangabad. 3. Tahsildar, Gangapur, Tq. Gangapur, Dist. Aurangabad. .. .. Respondents Shri P. S. Dighe, Advocate for the Petitioner. Shri S. B. Pulkundwar, A.G.P. for the Respondent/State. WITH WRIT PETITION NO. 5672 OF 2011 Narayan S/o Punjaram Changhate, Age : 30 Years, Occu. : Agril., R/o Mendhipur, Tq. Gangapur, District Aurangabad. .. .. Petitioner Versus 5 wp 3940.11 1. The State of Maharashtra, Through its Principal Secretary, Forest and Revenue Department, Mantralaya, Mumbai. 2. The Collector, Aurangabad. 3. Tahsildar, Gangapur, Tq. Gangapur, Dist. Aurangabad. .. .. Respondents Shri P. S. Dighe, Advocate for the Petitioner. Shri S. B. Pulkundwar, A.G.P. for the Respondent/State. CORAM : S. V. GANGAPURWALA, J. DATE : 09TH AUGUST, 2011. ORAL JUDGMENT : . Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing. 2. The petitioners have assailed the show cause notices issued by the authorities purportedly invoking powers U/Sec. 48(7) of the Maharashtra Land Revenue Code. 3. The learned counsel for petitioners submit that the authorities in the said notices have determined the penalty amount to be levied and the alleged excess excavation without 6 wp 3940.11 any notice to the petitioners. The petitioners were not given any notice prior to the alleged measurement been carried out by the authorities. The learned counsel further contends that they are not even given the reports of the measurement being carried out by the authorities or their flying squad as alleged by the authorities. Directly the authorities have resorted to Sub Section 7 of Section 48 of the Maharashtra Land Revenue Code. According to the learned counsel, the amount arrived at in the notices is speculative in nature and cannot be substantiated. The learned counsel relies on the judgment dated 17th June, 2008 of the Division Bench of this Court in a case of Indrajeet Krushnarao Jagdale Vs. The State of Maharashtra in Writ Petition No. 903 of 2008. 4. In Writ Petition Nos. 5670/2011, 5671/2011 and 5672/2011, Shri Dighe, the learned counsel submits that the authorities have made averments of theft as against the petitioners without any basis. There is no material worth the names suggesting that the petitioners have involved in the alleged acts. In absence of the same, the impugned notices cannot be sustained and deserves to be quashed and set aside. 7 wp 3940.11 5. Shri Pulkundwar, and Mrs. Ladda, the learned Assistant Government Pleaders for respondents submit that the flying squad had measured the excavation and has also drawn the panchanamas and on the basis of the same the notices have been issued. 6. It is not disputed that the petitioners have not been given the measurement reports, nor the petitioners were present at the time of measurement. The amount said to have been arrived at in the said notices amounts to prejudging the case. As such, a show cause notice which lays down the amount of penalty on the alleged acts of commission on the part of the petitioners without any opportunity to the petitioners cannot with-stand. The Apex Court in a case of Siemens Ltd. Vs. State of Maharashtra and others reported in (2006) 12 S.C.C. 33 has held thus : "A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in 8 wp 3940.11 the realm of a show cause notice." 6. Taking into account the fact that the petitioners were never made known of the alleged measurement been effected by the authorities, nor were at any material point of time supplied with the measurement reports and no opportunity was given to the petitioners, moreover only three days time was given to file reply, the notices cannot be sustained. 7. In the light of the above, the notices and any orders consequent to the same are quashed and set aside. The Rule is made absolute in above said terms. 8. Needless to state that this order would not be an impediment for the authorities to take appropriate action in respect of the alleged excess or illegal excavations made by the petitioners after giving reasonable opportunity to the petitioners and following the principles of natural justice. All points are kept open. I have not dilated on the jurisdiction of the authorities to issue the notices and the merits of the same. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Aug. 11