( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3150 OF 1996 Sow. Mandakini Shashikant Deokhedkar, .. Petitioner died per L.Rs. Shashikant s/o. Balaji Deokhedkar, Age. 50 years, Occ. Service, R/o. 26, Yashoda, Opp. to Akashwani, Ahinsa Nagar, Jalna Road, Aurangabad. Versus 1. The State of Maharashtra .. Respondents 2. The Collector, Aurangabad. 3. The Sub-Divisional Officer, Aurangabad. Shri A.S. Bajaj h/f. Shri L.B. Pallod, Advocate for the petitioner. Shri D.V. Tele, A.G.P. for respondent Nos. 1 to 3. CORAM : P.R. BORKAR,J. DATED : 07.08.2009 ORAL JUDGMENT :- 1. This Writ Petition is directed against the judgment and order passed by the Sub-Divisional Officer, Aurangabad, ( 2 ) in File No.96/MAG/Gounkhanij/CR/65/96 dated 17.06.1996, under Section 48 (7) of the Maharashtra Land Revenue Code, 1966, imposing penalty of Rs.2,37,006/- on the petitioner for illegally quarrying 5643 brass stone. 2. Some of the facts giving rise to this petition are undisputed at this stage. Survey No.227/1 situated at Tisgaon, Tq. & Dist. Aurangabad is a Government land. The Government has leased 2 acres portion thereof to one Uttam Shinde on 05.01.1988 for quarrying purposes. Uttam Shinde entered in to agreement with the petitioner on 24.02.1992 and transferred his rights to mine stones from the property which was let out to him. One D.S. More and others objected to the petitioner carrying out work of quarrying and therefore the petitioner filed suit and order of injunction was issued. In the meantime admittedly 1500 brass stone was extracted by D.S. More and others. On 06.08.1992 the Mining Officer visited the site and by that time 7020 brass stone was already extracted. As per the visit of the Tahsildar on 08.06.1996, he found that 8280 brass stone was extracted from the quarry and accordingly panchanama was drawn. On 06.06.1994 respondent No.3 seized truck belonging to the ( 3 ) petitioner on the ground that without valid pass the stones were extracted and notice was issued under Section 48 of the Maharashtra Land Revenue Code. The Sub-Divisional Officer, Aurangabad, enquired into the matter. He came to a conclusion that the petitioner illegally extracted 5643 brass stone of value Rs. 79002/- and therefore under Section 48 (7) of the Maharashtra Land Revenue Code, imposed three times penalty which is of Rs. 2,37,006/-. It is this order is challenged in this writ petition. 3. It is case of the petitioner that as per Panchanama drawn by the Circle Officer produced at Ex. “G” on 06.08.1992 the land was handed over to the petitioner which was earlier in possession of Uttam Shinde and as per said panchanama already stones from pit of size East-West – 200 ft. and Western side boundary was 150 ft. in length, the middle and on the Eastern side boundary was 100 ft. and depth was 30 ft. It is said that though the panchanama shows size in feet, it was actually in meters. Even Sub-Divisional Officer, Aurangabad has referred to this in his report and he stated that the petitioner was handed over possession of quarry on 06.08.1992, already 7020 brass stone was already extracted ( 4 ) including 40% Murum (soft stone) and 1500 brass stone was extracted. In between 06.08.1992 to 19.10.1995 the petitioner has deposited the amount of Rs. 16,592/- towards royalty. The petitioner also offered to pay price of remaining stones which were extracted. 4. The Sub-Divisional Officer stated that the royalty of 1137 brass was paid. Earlier 1500 brass stone was extracted. Total comes to 2637 brass and actual extraction as per report of the Talathi was 8280 and therefore it must be presumed that the petitioner has extracted stone to the extent of 5643. 5. The learned advocate Shri A.S. Bajaj argued that the Sub-Divisional Officer did not consider the extraction of stone from 05.01.1988 to 24.02.1992 by Uttam Shinde, who was earlier licence holder. Nothing is said about quarrying by Uttam Shinde, who was carrying out quarrying for almost three years. If total extraction was 8280 brass, then it must also be explained how much was the extraction of stone by Uttam Shinde and how much royalty he has paid. It must be noted that the Sub-Divisional officer has considered that 4212 ( 5 ) brass of Murum (soft stone) was extracted, which must obviously be by Uttam Shinde. So merely from size of the pit, it cannot be said that the petitioner has extracted 5643 brass stone. 6. One thing is clear that as per say of the petitioner there was agreement between the quarry owners and the Collector on 19.10.1995. It was decided that each quarry owner should pay royalty of Rs. 7500/- every year. It is also admitted that from 09.01.1996, the quarry was in possession of the petitioner till 04.06.1996. He claims that he had not extracted stone between 19.01.1996 to 04.06.1996 as he had no licence of explosives from Explosive Department. In view of the agreement the petitioner is bound to pay Rs. 7500/- as royalty irrespective of whether he had extracted stone or not in the meantime. 7. It must be noted that if total extraction from site was 8280 brass, then while drawing final conclusion, it does not appear that the Sub-Divisional Officer has considered all circumstances. In the facts and circumstances of the case, I allow this writ petition and set aside order passed by the ( 6 ) Sub-Divisional Officer, Aurangabad bearing No. File No. 96/MAG/Gounkhanij/CR/65/96 dated 17.06.1996. However, it is held that the petitioner is bound to pay Rs. 7500/- which is said to be paid by the petitioner on 21.08.1996. The petitioner wants to place on record xerox copy of challan for said payment. The challan is taken on record and marked “X”. 8. Rule made absolute and writ petition is disposed of accordingly. [P.R. BORKAR,J.] snk/2009/AUG09/wp3150.96