VIJAY DASHRATH SHIRBHATE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this Writ Petition under Article 226 of the Constitution of India, the petitioner, a lease holder of 0.72 R land out of field Survey No.30/2/1 of Mouza Pimpalkhuta, Taluq Morshi, District - Amravati has challenged the orders of Collector dated 13.10.1992 and the subsequent order dated 27.10.1993 passed by the State Government in an Appeal and has also prayed for quashing and setting aside of show cause notices dated 13.07.1992, 29.07.1992, 26.08.1992 and 12.11.1993. The declaration that provisions of Section 48[7] of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as "the MLR Code" for short) are ultravires the legislative powers of the State Government and therefore, unconstitutional, has also sought by prayer to strike it down. The petitioner has also complained of violation of the principles of natural justice and has stated that he did not receive the measurement report on the basis of which the recovery under Section 48 [7] of the MLR Code has been sought. Hence, the mention of quantities of mineral in the body of this judgment is subject to this objection of the petitioner.

(2.) The petitioner has a licence to extract minor mineral and at the relevant time it was valid & to operate for 5 years as per orders dated 08.01.1990. On 13.07.1992 a show cause notice was issued to him for recovery of royalty amount of Rs.15 lakhs and penalty of thrice the said amount i.e. Rs.45 lakhs. He was called upon to show cause as to why for extracting 10000 brass of minor mineral from river bed adjacent to land given to him, total amount of Rs. 60 lakhs should not be recovered from him. On 21.07.1992 he was informed that the site in dispute was to be measured on 23.07.1992 and he was called upon to remain present with necessary records. On 29.07.1992 another show cause notice was issued to him and said show cause notice mentions that, subsequent to the demand dated 16.07.1992 by petitioner, measurement was taken on 23.07.1992 in his presence. The said show cause notice states that the petitioner had extracted total 1289 brass of minor mineral, and that was from leased area. Out of it royalty for 450 brass was only paid and 175 brass material was available at site. Thus balance 664 brass was dispatched by the petitioner without paying any royalty. His accounts were also found to be not maintained properly. A show cause notice there invoking Section 4 [1] of the Mines and Mineral (Regulation and Development) Act, 1957 (hereinafter referred to as "the M.M.Act" for short) and Rule 18[1][i][xii] of the Maharashtra Minor Minerals Extraction (Vidarbha Region) Rules, 1986 (hereinafter referred to as "the Vidarbha Rules" for short), was issued. The provision of Section 21 [5] of the M.M.Act for carrying out extraction outside the leased area and provisions of Section 21[4] thereof for seizure of tools and vehicles used, were also invoked. It appears that, the petitioner paid amount of Rs.16,966/-. Thereafter on 10.08.1992, he also sought installments to pay the balance amount of Rs.34,774/-. Thereafter he also applied for removing the seals put on his vehicles and machines. On 26.08.1992 a third show cause notice was issued to him and this was in relation to 1289 brass of minor mineral. This show cause notice reveals that he extracted 664 brass minor mineral from within leased area, but did not pay royalty upon it. Remaining 545 (1289-664) brass were alleged to have been extracted from the area not leased out to him. This notice in paragraph no.8 invoked Section 48[7] of the MLR Code and called upon the petitioner to pay penalty of Rs.1,04,322/- in relation to this 545 brass of minor mineral. By paragraph no.9 he was also called upon to show cause why action under Section 21[1] of the MM Act should not be taken against him. After receipt of this communication, petitioner submitted his reply dated 25.09.1992 and in that reply, along with other grievances also reiterated that measurement report was not supplied. On 13.10.1992 the impugned order was passed by the office of the Collector and by mentioning that reply to show cause notice was not acceptable, petitioner was called upon to deposit amount of Rs.1,04,322/-. The petitioner then filed revision under Rule 34-A of the Vidarbha Region Rules before the respondent no.1 and by order dated 27.10.1993 the Revisional Authority dismissed that revision. The petitioner thereafter has approached this Court and on 01.12.1993. While issuing notice in the matter, the petitioner was directed to deposit amount of Rs.34,774/-. The balance recovery was then stayed and this interim order was continued on 14.03.1996 while issuing Rule in the matter. In view of the challenge to the constitutionality of Section 48[7] of the MLR Code notice to Advocate General has also been issued.

(3.) In this background, Shari. A.A. Naik, learned counsel for petitioner has invited our attention to the provisions of MM Act, particularly to Section 15 thereof to show that the grant of mineral licence for excavating minor minerals is also subject matter of Central Enactment. He has pointed out the provisions of Section 4 to show that, excavation from any area without licence is not permitted and under section 21 [1] it is made punishable with imprisonment for two years and with fine. He contends that, because of Central Enactment occupying the field, the State Government and Legislature losses the power to make any provision in that respect and hence, provisions of Section 48[7], imposing penalty upon the petitioner for excavation of minor mineral is unsustainable. He points out that in section 15, while narrating aspects on which the State Government has been permitted to frame Rules, does not mention the head enabling it to make provision for imposition of penalty. Such head has not been deliberately inserted because of provisions of section 21. He points out that in Section 21, Parliament has prescribed a complete scheme in this respect. Section 21[1] prescribes punishment for illegal excavation. Section 21[4] prescribes seizure of tools, equipment, vehicles used for illegal excavation and Section 21 [5] is the provision by which reimbursement of value of such illegally excavated minor mineral is also contemplated. He therefore, contends that in view of a complete scheme available in section 21, there is deliberate absence in section 15 of a provision enabling the State Government to legislate in that respect. He further argues that because of this arrangement of MM Act, the provisions of Section 48[7] which directly militate with or are duplication in part of the provisions of Section 21, cannot stand. He has relied upon the judgment of the Hon'ble Apex Court reported at AIR 1970 SC 1436 (Baijnath Kedia Vs. The State of Bihar and others); judgment of this Court reported at AIR 1971 Bombay 365 (Nagpur District Central Cooperative Bank Ltd. Vs. Divisional Joint Registrar and another); and judgment of learned Single Judge of Karnataka High Court reported at AIR 1990 Karnataka 97 (Nanjanayaka and others Vs. State of Karnataka and others), to urge that in view of the Central Legislation occupying the field, the area stands abstracted from the jurisdiction of State Legislature and provisions in the nature of Section 48[7] could not have been made by it. He contends that, said provision is therefore, unsustainable as State Government never had power to enact it.