1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.131 OF 2010 Shripad Pandurang Khisti, age: 35 years, Occ: Sand Contractor, R/o Ajnuj, Tal.Shrigonda, District Ahmednagar. Appellant Versus 1 State of Maharashtra, through Collector, Ahmednagar. 2 The Collector, Ahmednagar. 3 The Sub Divisional Officer, Karjat Division, Tal. Karjat, District Ahmednagar. 4 The Tahsildar, Shrigonda, Tal. Shrigonda, Dist.Ahmednagar. Respondents Mr. N.V.Gaware, advocate for the appellant. Mr. B.V.Wagh, A.G.P. For Respondents. CORAM: R.M.BORDE, J. DATE : 03 rd March, 2010. P.C.: 1 This is an appeal by original plaintiff raising exception to the judgment and decree passed by Ad hoc District Judge-2, Ahmednagar in Regular Civil Appeal No.70/2005, decided on 06.07.2007. 2 Plaintiff instituted Regular Civil Suit No.211/2003 claiming decree of declaration that he is entitled to lift sand to the extent of 9750 brass for 2 which royalty was paid and remaining quota of 6700 brass sand for which royalty is to be paid. Plaintiff also seeks a direction against defendants to allot quota of sand as stated in the plaint. Plaintiff claims that he is entitled to lift sand to the extent of 29700 brass for which a permit has been issued and same is enforceable. 3 Plaintiff applied to Collector, Nanded for excavation of sand out of river Bhima and river Ghodnadi. Initially application of plaintiff was not considered by the Collector, as such, he preferred writ petition no. 342/1998 in this Court. The petition was allowed on 04.09.1998 and Collector was directed to decide the application presented by plaintiff. The Collector rejected application presented by plaintiff, however, he approached the State Government by presenting Revision Application. The State Government was pleased to permit the plaintiff to lift sand from river bed of river Bhima to the extent of available quantity of sand. It is contended that on 03.12.1998, Collector issued license in favour of plaintiff for lifting sand to the extent of 10000 brass from river Bhima. Plaintiff sought permission for lifting additional sand as same was available in the river bed. The Collector rejected application of the plaintiff, as such, plaintiff approached this Court by presenting Writ Petition No.165/1999. Directions were given by this Court to the Collector for securing report of Senior Geologist to ascertain whether there would be any adverse impact on ecology and environment in case of issuance of license. After securing opinion from Senior Geologist, the Collector, Ahmedngar, permitted plaintiff to lift sand to the extent of 10000 brass from the river bed. Because of long time gap lapsed in securing orders, it is contended that there was no sufficient sand left in the river beds. Plaintiff was permitted to lift 3000 brass sand from village Hingani Dumala and 6000 brass sand from river bed of Bhima at village Arvi, Taluka Shrigonda. Plaintiff 3 was permitted to lift sand until 28 th February 2001. Plaintiff deposited the amount, as directed, however, he could lift sand only up to 500 brass from the spot and further quantity of 2500 brass sand remained to be lifted. The Tahsildar, in the meantime, issued a notification for conducting auction of sand block on 04.11.2000. Plaintiff objected for conducting auction contending that he is entitled to lift 2500 brass sand up to February 2001. However, auction was conducted and one of the defendants, Dadabhau Gavhate was allotted the permit. According to plaintiff, the auction is illegal, as plaintiff possesses valid permit to lift sand to the extent of 2500 brass. Hence, plaintiff instituted suit claiming that he is entitled to lift sand to the extent of 29750 brass, for which he has deposited royalty amount. Plaintiff also seeks restraint order against defendants restraining them from obstructing him from lifting the sand. Plaintiff also seeks a direction against defendants for permitting him to lift sand from village Yelpane and Sangvi out of river bed of river Ghodnadi, Tq.Shrigonda. 4 Suit was opposed by defendants by filing written statement. Defendants contend that plaintiff was permitted to lift sand only to the extent of 3000 brass from G.No.639 at village Hingani Dumala and he was supposed to execute agreement under terms and conditions. However, plaintiff did not inform the Tahsildar regarding lifting of sand nor did he maintain a register and receipt book as per the terms of permit. According to defendants, there is breach in observance of terms and conditions of the permit. According to defendants, during monsoon of 2000, sufficient quantity of sand was available at river beds of river Ghodnadi and as such, decision was taken by revenue authorities to auction the sand block, which is different from the block allotted to the plaintiff. The auction was conducted and defendant no.5 was a successful bidder. It is contended that in spite of extending an 4 opportunity to the plaintiff, he did not furnish details of excavation of sand. It is contended that in spite of extending time for lifting sand, plaintiff has failed to lift the same and as such he is not entitled to make any grievance. It is contended that permit issued is for specified period and as such, plaintiff cannot insist for permission to lift sand after lapse of so many years. 5 The trial Court decreed suit and declared that plaintiff is entitled to excavate sand to the extent of 16450 brass, out of which he has paid royalty for the quantity of 9700 brass sand and for remaining quantity of to the extent of 9750 brass, he is yet to pay royalty amount. The trial Court directed defendants to make available spot at village Sangavi Dumala, Tal. Shrigonda for the purposes of lifting sand as per the report of Ground Water Survey and Development Agency. It is also directed to the defendants to secure report of Ground Water Survey and Development Agency in respect of availability of sand at the spot Yelpane and after securing report, shall make available the spot at village Yelpane, as per entitlement of plaintiff and permit him to lift the sand. It was also directed to the Collector, Ahmednagar to determine time limit for lifting sand after taking into consideration policy of the State Government in respect of auction of sand dated 05.09.2003. 6 The judgment and decree passed by the trial Court was subjected to challenge in an appeal presented to the first appellate Court, at the instance of State Government. The appeal was initially dismissed, as such, further appeal was presented by the State Government to this Court. This Court remitted back the matter to the first appellate Court with certain directions. It was directed to the first appellate Court to determine as to whether there are mutual obligations created by issuing permit. It was also directed to consider whether the permit creates only temporary right for 5 specified period and that there is no obligation on the part of State Government to continue or allow the permits to be extended. It was also directed to consider legal effect of grant of permit. It was also observed that as the plaintiff failed to excavate the sand due to the act of God, whether such a defence is available to the State Government and effect of circumstances stated in enforcement of obligations created under the terms of permit. 7 After remittance of the matter back to the District Court, parties were given an opportunity to place their contentions before District Court. The first appellate Court, after considering rival contentions, was pleased to allow the appeal partly. It was declared that the plaintiff is entitled to lift sand to the extent of 6650 brass . It was further directed that the amount of royalty, which is paid by plaintiff, be adjusted in the royalty of sand for 6650 brass. It was further directed that plaintiff shall deposit excess amount if difference between the previous rate and present rate of royalty of sand of 6650 brass, exceeds the amount of royalty deposited by plaintiff. 8 I have perused the judgments delivered by both the Courts below. The first appellate Court has recorded a finding that grant of permit creates only temporary right for a specified period and there is no mutual obligation on the part of Government to continue or to allow terms of the permit to be extended. 9 Learned Counsel appearing for appellant – original plaintiff has vehemently objected to the finding recorded by first appellate Court in this regard. It is contended that first appellate Court has misconstrued the meaning of permit and license and erroneously observed that permit 6 granted to a person has all the characteristics of license, which is for a specified period. It is contended that first appellate Court has erroneously construed the meaning of word royalty and came to the conclusion that the rights of appellant are restricted. It is contended that having come to the conclusion that plaintiff was allotted sand block for lifting sand to the extent of 29750 brass, interference at the hands of first appellate Court was uncalled for. 10 I have considered the submissions made by appellant and perused the judgment of first appellate Court. It is to be noted here that authorisation in favour of plaintiff for lifting sand to the extent of 29750 brass was stated to have been issued in the year 1998 and necessary permits authorising the plaintiff to lift sand have been issued by the competent authorities from time to time. Plaintiff is seeking enforcement of the terms in respect of lifting minor mineral permitted in view of authorisation issued in the year 1998. It is to be taken note of that the permit issued is for specified period. The very nature of authorisation in respect of lifting sand depends on various circumstances. Every year the quantity accumulated at a particular sand block undergoes change. By any stretch of imagination, it cannot be contended that plaintiff would be entitled to enforce authorisation issued in 1998 after lapse of more than 12 years. Apart from this aspect, it is observed by the first appellate Court that plaintiff was granted permit to lift 10000 brass sand on 05.12.1998. He did not act in accordance with the authorisation. He lifted sand to the extent of 13300 brass and as such he is entitled to only 6650 brass sand. The observations made by the first appellate Court, on the basis of evidence placed before the Court, need not be interfered with while exercising powers under Section 100 of the Code of Civil Procedure. 7 11 Another aspect which requires consideration is that in pursuant to the judgment of first appellate Court, plaintiff was granted permit on 21.11.2008 for lifting sand to the extent of 6650 brass from two different spots / sand blocks. It was directed that he should excavate sand up to 31 st July 2009. It was also communicated to the plaintiff to deposit remaining amount of royalty to the tune of Rs.4,78,800/-. Plaintiff deposited the amount and possession of sand block was handed over to him on 11.12.2008. As per the terms of the permit, it was specifically agreed that plaintiff should not excavate sand by installing more than five suction pumps. However, plaintiff excavated sand in excess of the permit and as such, authorities were constrained to take action and cancel the permit. The order was issued in that regard on 29.05.2009. It was found that plaintiff excavated more sand than permissible and as such fine was imposed against him as directed under Section 48(7) of the Maharashtra Land Revenue Code. The plaintiff was directed to deposit fine of Rs.5,10,72,000/- and necessary orders in respect of recovery of amount have been issued. In view of these subsequent developments, no interference is called for in the instant Second Appeal. Appeal is devoid of substance. 12 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/sa13110