1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3139/2009 Yeshwant Bahu Uddeshya Seva Bhavi Sanstha Through its Chairman Rajendra Tukaram Mhaske Age 32 years, Occ-Agriculture, R/o Shriram Nagar, Mondha Road, Beed. .. PETITIONER VERSUS 1. The State of Maharashtra Through its Secretary Revenue & Forest Department Mantralaya, Mumbai 2. The Collector,Aurangabad 3. The Tahsildar, Paithan District Aurangabad ..RESPONDENTS .... Shri S.B.Talekar,Adv.for petitioner Shri N.N.Jadhav,AGP.for Respondent-State .... CORAM : P.V.HARDAS & R.K.DESHPANDE,JJ. JUDGMENT RESERVED ON : 6/7/2009 JUDGMENT PRONOUNCED ON : 10/7/2009 2 JUDGMENT [PER DESHPANDE,J.] : Rule. Rule made returnable forthwith. With consent of learned counsel for parties, petition is heard finally at the stage of admission. 2. This petition under Article 226 and 227 of the Constitution of India challenges show cause notice dated 13/4/2009 at Exh.B to the petition issued by the respondent Collector, Aurangabad calling upon the petitioner to show cause as to why fine of Rs.4,05,000/- and royalty of Rs.90,000/- should not be recovered from the petitioner for extracting sand from the adjacent Gut Nos.831,830,832 and 833 unauthorisedly. The petitioner is further asked to stop the extraction of sand from the Gut Nos.886, 889, 890 and 892 allotted to him pending the decision on the show cause notice. The petitioner also challenges the order dated 15/5/2009 passed by the Additional Commissioner, Aurangabad Division, Aurangabad rejecting the appeal preferred by the petitioner under Section 247 of the Maharashtra Land Revenue Code 1966 as not maintainable. 3. Notice was issued in the instant Writ Petition. During the pendency of the petition for admission, the petitioner received notice 3 dated 22/6/2009 issued by the Tahsildar, Paithan, calling upon the petitioner to deposit fine of Rs.4,95,002/-, failing which the said amount shall be recovered as arrears of land revenue. The petitioner was thereupon permitted to amend the petition by an order dated 3/7/2009 to challenge the said notice dated 22/6/2009. Thus the said notice is also the subject matter of challenge in the instant Writ Petition. The facts leading to the case are as under : 4. The respondent Collector, Aurangabad issued a notification dated 27/1/2009, inviting bids for allotment of Navgaon Sand Spot for extracting sand on the bed of Godavari river. The petitioner in response to the said notification submitted his bid and was found to be the highest bidder offering Rs.20,53,000/-. The same was accepted by the Collector, Aurangabad. The petitioner deposited an amount of Rs. 6,00,000/- on 28/1/2009 and an amount of Rs.4,53,000/-29/1/2009 in the Government treasury. 5. By an order dated 7/2/2009, the Collector, Aurangabad allotted Gut Nos.890,889 and 886 to the petitioner for extracting sand in the bed of Godavari river at Navgaon Tahsil, Paithan. The said order is at Exh.A to the petition. The condition No.2 incorporated in the said 4 order was that the petitioner shall extract the sand only from the area allotted to him and shall not extract the sand from the area which is not allotted to him. It was further a condition No.23 incorporated in the said order to the effect that if any of the conditions of order are violated, then the competent authority shall have right to cancel the auction and impose fine and recover it. By way of condition no.27, it was laid down that all the terms and conditions laid down in the order as well as under the Rules shall be binding upon the petitioner. It was also incorporated by way of condition no.33 that if any complaints are received from any person or the institution about unauthorised extraction of sand in breach of the terms and conditions of the order, then such complaint shall be placed before a committee presided over by the Collector as the Chairman, Chief Executive Officer, Zilla Parishad, Executive Engineer, Public Works Department, Senior Officer, Ground Water Survey Department and Senior Geologist as its members. It has further been laid down that the said committee shall inquire into the complaints and submit its report to the Collector, upon which the Collector shall decide whether to permit the petitioner to continue with the extraction of sand. It has further been laid down that any decision taken by the Collector in this regard, shall be appellable before the Divisional Commissioner. 5 6. The petitioner received show cause notice dated 13/4/2009 Exh.”B” to the petition, in which, it was stated that although the petitioner was allotted Gut Nos.886, 889, 890 and 892 of Mouje Navgaon, Taluka Paithan for extraction of sand, the petitioner has unauthroisedly extracted sand to the extent of 900 Brass from Gut Nos.831,830,832 and 833 which are adjacent to the Sand Spot allotted to the petitioner. It was stated that complaint was received from Tahsil Paithan in respect of this unauthorised extraction of sand in breach of the terms and conditions of order dated 7/2/2009. The petitioner was therefore, called upon to show cause as to why an amount of Rs. 4,05,000/- towards penalty and an amount of Rs.90,000/- towards royalty for unauthorised extraction of 900 Brass of sand should not be recovered from him. The petitioner was further asked to show cause as to why sand extraction activity carried by the petitioner should not be stopped. The petitioner was instructed to immediately stop the extraction of sand pending the decision on the show cause notice. 7. The petitioner submitted his reply to this show cause notice on 24/4/2009 which is at Exh.”C” to the petition, pointing out therein that certain persons from the said village were engaged in extracting sand from those Gut numbers and therefore, the offences are also 6 registered against them in police station. The petitioner submitted that he is not at all responsible for unauthorised extraction of sand as alleged in the show cause notice. 8. Since there was an order passed by the Collector, Aurangabad asking the petitioner to stop the activity of extraction of sand, the petitioner preferred an Appeal under Section 247 of the Maharashtra Land Revenue Code before the Additional Commissioner, Aurangabad Division, Aurangabad. The same was however, dismissed by an order dated 15/5/2009 on the ground that the said Appeal was not tenable against the show cause notice. The petitioner has therefore, challenged this order of dismissal of Appeal, alongwith the order passed by the Collector, Aurangabad on 13/4/2009 asking the petitioner to stop extraction of sand from the Gut numbers allotted to him. 9. Shri S.B.Talekar, learned counsel appearing for the petitioner contended that action of Collector asking the petitioner to stop extraction of sand from the Gut numbers allotted to the petitioner is without jurisdiction. Similarly the order passed by the learned Additional Commissioner, dismissing the Appeal filed by the petitioner amounts to failure to exercise jurisdiction under Section 247 of the 7 Maharashtra Land Revenue Code. According to the petitioner, the activity of extraction of sand from Gut Nos.890,889 and 886 is governed by order of allotment dated 7/2/2009 read with the Government Resolution dated 5/9/2003 at Exh.”E” to the petition. According to him, the show cause notice alleges breach of condition no.2 mentioned in the order dated 7/2/2009 as well as that of condition no.11 in the Government Resolution dated 5/9/2003. The breach of condition complained of was unauthorised extraction of sand from the Sand Spot not allotted to the petitioner. It was on the basis of the report of the Tahsildar that the impugned action was taken. According to the petitioner, the action is in total breach of the procedure laid down in the order of allotment dated 7/2/2009 r.w. Government Resolution dated 5.3.2009 which contemplates investigation of any such complaints by committee constituted for that purpose. According to the petitioner, it is only upon submission of the report of this committee that the Collector can take any action and mere complaint is not enough to issue show cause notice. The petitioner submits that this procedure has not been followed in the instant case, no report is called from the said committee, in the absence of which, the impugned show cause notice is liable to be set aside. According to the petitioner, at any rate there is no power with the Collector to ask the petitioner to stop extraction of sand by way of an interim order. 8 10. The respondents have filed their affidavit in reply to the petition. It is the stand of the respondents that a letter dated 17/2/2009 was received from the Tahsildar, Paithan about the unauthorised/illegal extraction of sand to the extent of 900 Brass by the petitioner from Gut Nos.830,831,832 and 833, which are not allotted to him. It is also stated that a panchanama was drawn on 13/2/2009 and on the basis of the documents and information furnished by the Tahsildar, show cause notice dated 13/4/2009 was issued to the petitioner. According to the respondents, the petitioner has violated conditions of allotment order dated 7/2/2009 and the Collector was competent to pass an order. Shri N.N.Jadhav, learned Assistant Government Pleader, argued that the Government Resolution dated 5/9/2003, is not at all applicable to the instant case as the reference to the committee constituted therein is only in respect of the complaints received from the individuals or institutions. According to the learned counsel, there was no such complaint received from any individual or from institution and hence the matter was not required to be referred to the committee. According to the learned counsel, the order passed by the Additional Commissioner dismissing the Appeal, was also correct as no Appeal lies against the show cause notice. 9 11. At the very outset, we must make it clear that we are not adjudicating upon any allegations made in the show cause notice dated 13/4/2009 issued by the Collector, Aurangabad to the petitioner about unauthorised extraction of sand to the extent of 900 Brass from Gut Nos.831,830,832 and 833. It is not in dispute that the show cause notice has been issued on the basis of the complaint or letter dated 17/2/2009 received from Tahsildar, Paithan. It is also not in dispute that what has been alleged is the breach of condition no.2 in the order of allotment dated 7/2/2009 and breach of condition no.11 in the Government Resolution dated 5/9/2003 to the effect that the petitioner has extracted sand unauthorizedly from the Gut numbers not allotted to him. Hence, the provisions of Government Resolution dated 5/9/2003 are clearly attracted. 12. In our view, the order of allotment dated 7/2/2009 as well as the Government Resolution dated 5/9/2003 requires the Collector to place the complaint received from Tahsildar before the Committee constituted under the Chairmanship of the Collector and it is only on the basis of the report of such committee as contemplated under Clause 11 of the Government Resolution dated 5/9/2003 that a show cause notice can be issued to the petitioner. It is only upon final order 10 adjudicating the show cause notice is passed, that a penalty can be imposed or the allotment of Sand Spot can be cancelled or the petitioner can be asked to stop extraction of sand. The basis for issuing show cause notice has to be the report of Committee constituted under Government Resolution dated 5/9/2003. At any rate, no adverse action can be taken against petitioner, without there being report of such Committee. If the report is adverse against petitioner, then a show cause notice in respect of it would be necessary. Apart from this, there is no power with the Collector, either under the order dated 7/2/2009 or under the Government Resolution dated 5/9/2003 to ask the petitioner to stop the extraction of sand by way of an interim order. The action of the respondent Collector in issuing show cause notice to the petitioner and asking him to stop extraction of sand from the Sand Spot allotted to him, is clearly unauthorised and without jurisdiction. The same is therefore, hereby quashed and set aside. 13. So far as the order dated 15/5/2009 passed by the learned Additional Commissioner dismissing Appeal filed by the petitioner under Section 247 of the Maharashtra Land Revenue Code is concerned, the same, in our view, amounts to failure to exercise the jurisdiction vested in him. The show cause notice is issued by the Collector under Section 47(7) of the Maharashtra Land Revenue Code. 11 Any order passed under Section 47(7) is undoubtedly appellable under Section 247 of the Maharashtra Land Revenue Code. The order passed by the Collector asking the petitioner to stop extraction of the sand from the Sand Spot allotted to him being without jurisdiction. The learned Additional Commissioner ought to have entertain the Appeal and decide it on merits. Apart from this, the order of allotment dated 7/2/2009 itself confers power upon the Commissioner to hear Appeal against the action taken by the Collector as stated in condition no.33. Similarly under Government Resolution dated 5/9/2003, it is the Divisional Commissioner to whom the powers of appeal are conferred against the order passed by the Collector. It cannot therefore, be stated that the Appeal preferred by the petitioner was not maintainable. The order of the Collector is therefore, liable to be quashed and set aside. 14. In view of the above, the petition must succeed. The show cause notice dated 13/4/2009 at Exh.”B” to the petition issued by the Collector, Aurangabad, asking the petitioner to stop the extraction of sand from Gut Nos.890, 889 and 886 of Mouje Navgaon , Tq. Paithan, from the bed of Godavari river is quashed and set aside. Similarly, the notice dated 22/6/2009 issued by the Tahsildar, calling upon the petitioner to pay an amount of Rs.4,95,002/- is also quashed and set 12 aside. The order dated 15/5/2009 passed by the learned Additional Commissioner Aurangabad Division, Aurangabad dismissing the Appeal filed by the petitioner as not maintainable, is also quashed and set aside. It is however, made clear that the respondent Collector, Aurangabad is at liberty to issue fresh show cause notice to the petitioner by following the procedure prescribed in the allotment order dated 7/2/2009 r.w. Government Resolution dated 5/9/2003 and to proceed with it in accordance with law. 15. Petition is allowed. Rule made absolute. There shall however, be no order as to costs. [R.K.DESHPANDE] [P.V.HARDAS] JUDGE JUDGE umg/wp3139.09