1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2642 OF 2009 Subhash s/o Haribhau Kudale Age: 40 Yrs., occu. Agril. & Contractor, r/o Rahu, Tq. Daund, District Pune. - PETITIONER VERSUS 1) The State of Maharashtra Through its Secretary Revenue & Forest Department, Mantralaya, Mumbai-32. 2) The Hon’ble Minister for Revenue & Forest, Maharashtra State, Mantralaya, Mumbai-400 032. 3) Shri Rajesh Ankushrao Tope Age: 45 Yrs., Hon’ble Minister for Higher & Technical Education & Medical Education, Maharashtra State, Mantralaya, Mumbai. 4) The Collector, Jalna. 5) The District Mining Officer, Jalna. 6) The Sub Divisional Officer, Partur, District Jalna. 7) The Tahsildar, Ambad, District Jalna. 2 8) Chandrakant s/o Ramchandra Mapari, Age: 40 yrs., Occu. Agril. 9) Madhukar s/o Bhimrao Mapari, Age: 40 Yrs., occu. Agril. 10) Sayyad Akbar Sayyad Karim, Age: 40 Yrs., occu. Agril. 11) Balasaheb s/o Asaram Yetale, Age: 35 Yrs., occu. Agril. 12) Suresh s/o Dattatraya Mapari, Age: 39 Yrs., occu. Agril. (Resp.Nos. 8 to 12 r/o Walkeshwar, Tq. Ambad, District Jalna._ - RESPONDENTS (Resp.Nos. 8 to 12 are Intervenors) ***** Mr.S.B.Talekar, Advocate for Petitioner; Mr.K.B.Choudhari, Addl. Govt.Pleader for Resp. Nos. 1, 2, 4 to 7; Mr.S.S.Tope, Advocate for Respondent No.3; Mr.S.R.Bagul, Adv. for Intervenors/Resp.Nos. 8 to 12. ----- CORAM : NARESH H. PATIL & K.U.CHANDIWAL, JJ. DATE : 27th November, 2009. JUDGMENT (PER: K.U.CHANDIWAL,J.) . Heard. By consent of parties, Rule made 3 returnable forthwith. 2) The petitioner applied for excavation of sand by participating in the auction held on 21st February, 2009 and offered higher amount of the bid Rs.25,00,000/- and his bid came to be accepted by the Collector, Jalna. The Talathi, Ambad handed over possession on 26th February, 2009. The period for such lifting of sand was to run up to 31st July, 2009 in a specified area of 800 mtrs. x 34 x 1 mtr. The villagers found foul play in the action of the petitioner in excavating the sand and grievance was put up to the concerned authorities including the Hon’ble Minister for Higher & Technical Education, who in turn, addressed a letter to Hon’ble Minister for Revenue, highlighting the so-called illegalities or unauthorized extraction by the machinery, which is not permissible in the tender terms. The Hon’ble Minister for Revenue by communication dated 30th March, 2009, through Deputy Secretary and then Collector, Jalna by communication dated 31st March, 2009 stopped the extraction of sand from the Godavari river bed passing through Ambad Taluka which was permitted in terms of the tender condition to the petitioner herein. The said action is questioned by the petitioner on several grounds. 4 3) During the course of submissions, learned Counsel for the petitioner heavily relied on the Division Bench Judgment of this Court in identically placed matter, wherein this Court in Writ Petition No.2608/2009 by order dated 6th May, 2009 set aside the directions of the Revenue Minister and also allowed the petitioner therein (auction purchaser) to have further excavation for the left over 31 days. 4) Learned Additional Govt. Pleader Shri K.B.Choudhari was vocal in pointing that the period of excavation effective from 26th February, 2009 till 31st July, 2009 has lapsed and the only recourse available to the petitioner would be to seek refund of the amount with damages, if any, permissible under the law. 5) The intervenors also objected for such exercise, claiming that it will be creating ecological problem, as lifting of sand by the petitioner was in contravention of the tender conditions. A grievance was made that nephew of the Collector was partner and consequently, the Government machinery has been activated in mis- directed manner. 6) Since there is already a Judgment of this Court in Writ Petition No.2608/2009, which 5 has held that the Revenue Minister had no authority to issue such directions to stop the excavation when the tender conditions apparently were not violated and without there being any hearing given to the aggrieved persons. We would not, primarily countenance such action. 7) We have gone through the report of the Expert Committee dated 9.5.2009 and find that the Experts from the different fields had visited the site and heard even the villagers. They did not find any violation in the process of extraction effected by the petitioner herein. The report is indeed an eye-opener and blatantly defused the grievance accelerated by either the villagers or coined through the orders of the Hon’ble Revenue Minister. 8) The petitioner in terms of the tender condition is obliged to adhere to the terms and any infraction thereof is bound to invite the consequences flowing therefrom. 9) The learned APP, while opposing to entertain the petition, took recourse to clause 33 of the Tender condition, which indicated that in the event of any situation, the sand is not excavated, there will not be extension of the period, nor the amount will be refunded. We are 6 afraid, such condition in the factual matrix of the present case, will not be legally enforceable firstly, because the learned Revenue Minister passed unilateral order of stoppage of lifting of sand by the petitioner. Secondly, the petitioner had already deposited tender amount in stipulation of the terms. No hearing was given to the petitioner for such action. 10) Though the villagers are feeling aggrieved, however, the tender and auction was in pursuance of the Government Policy and since it has been in vogue, the same now cannot be unilaterally terminated. The allegation that nephew of Collector is partner in the petitioner’s business activities, has no decisive bearing for the present matter. Every case presents new dimensions on facts and throws light on its different shades. In this scenario of the matter, the action of learned Minister appears to be unreasonable and shows infidelity to the record. 11) In Tata Cellular Vs. Union of India – (1994) 6 SCC 651, the Hon’ble Apex court in para 71 of the said Judgment has observed thus : “71. Judicial quest in administrative matters has been to 7 find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review. 12) Taking survey of the entire record, we find the petition will have to be allowed with following directions. 13) The order of the learned Revenue Minister of stopping of excavation of sand in terms of the tender condition is set aside. The petitioner is entitled for excavation of sand from the river bed for remaining period of four months strictly in terms of the tender conditions. 14) If the authorities concerned find that there is breach of terms of tender conditions, by which the petitioner herein secured the tender, the authorities are at liberty to take action, including termination of the tender or imposing penal action in terms of term 41 thereof. The excavation of the sand would definitely be to the 8 extent it was offered with maximum ceiling of 9611 brass digging including the earlier excavated sand by the petitioner. 15) Rule made absolute in the aforesaid terms. sd/- sd/- (K.U.CHANDIWAL) (NARESH H. PATIL) JUDGE JUDGE bdv/wp2642.09 fldr.23.11.09