Case Note & Summary
The petitioner, M/s BGR Energy Systems Limited, was awarded a contract by Maharashtra State Power Generation Company Limited (MAHAGENCO) for construction of a 1X500 MW Thermal Power Project at Khaparkheda. During construction, the petitioner excavated earth for laying foundations of buildings and structures. The excavated earth was utilized within the project site for backfilling and other construction purposes. The Tahsildar, Saoner, issued a show-cause notice alleging illegal excavation without permission and, by order dated 08.06.2011, directed the petitioner to pay royalty of Rs.2,88,63,600/- and penalty of Rs.16,37,82,168/- under Section 48(7) of the Maharashtra Land Revenue Code, 1966. The petitioner challenged this order by way of writ petition. The High Court observed that the excavation was for the purpose of laying foundation and the excavated earth was not removed from the site but was used for backfilling and construction. The court held that such excavation does not amount to 'illegal excavation' under Section 48(7) as there was no removal of earth from the site or commercial exploitation. The court quashed the impugned order and allowed the petition.
Headnote
A) Maharashtra Land Revenue Code - Illegal Excavation - Section 48(7) - Interpretation - The petitioner, a contractor, excavated earth for laying foundation of a thermal power project. The excavated earth was used on-site and pits were backfilled. The Tahsildar imposed royalty and penalty for illegal excavation. The High Court held that such excavation does not amount to 'illegal excavation' under Section 48(7) as there was no removal of earth from the site or commercial exploitation. The order was quashed. (Paras 1-5)
Issue of Consideration
Whether excavation of earth for the purpose of laying foundation of a building, where the excavated earth is utilized within the same site and the pits are backfilled, amounts to 'illegal excavation' under Section 48(7) of the Maharashtra Land Revenue Code, 1966, attracting royalty and penalty.
Final Decision
The impugned order dated 08.06.2011 is quashed and set aside. The writ petition is allowed.
Law Points
- Excavation of earth for construction purposes
- when the excavated earth is used on-site and pits are backfilled
- does not constitute 'illegal excavation' under Section 48(7) of the Maharashtra Land Revenue Code
- 1966
- as there is no removal of earth from the site or commercial exploitation.
Case Details
2017 LawText (BOM) (07) 148
Writ Petition No. 3383/2011
Smt. Vasanti A Naik, A.D. Upadhye
Shri A.C. Dharmadhikari for petitioner, Shri K.L. Dharmadhikari for respondent nos.1,2 & 4, Shri D.M. Kale for respondent no.3
M/s BGR Energy Systems Limited
The Tahsildar, Saoner, The Sub-Divisional Officer, Saoner, Maharashtra State Power Generation Company Limited (MAHAGENCO), State of Maharashtra
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Nature of Litigation
Writ petition challenging order of Tahsildar imposing royalty and penalty for alleged illegal excavation of earth.
Remedy Sought
Quashing of order dated 08.06.2011 directing payment of royalty and penalty.
Filing Reason
Petitioner was directed to pay royalty and penalty for excavating earth during construction of a thermal power project, which it contended was not illegal as the earth was used on-site.
Previous Decisions
Tahsildar's order dated 08.06.2011 imposing royalty and penalty.
Issues
Whether excavation of earth for foundation laying, where earth is used on-site and pits backfilled, amounts to 'illegal excavation' under Section 48(7) of the Maharashtra Land Revenue Code, 1966.
Submissions/Arguments
Petitioner argued that excavation was for construction purposes and earth was used on-site, not removed, hence no illegal excavation.
Respondents contended that excavation without permission attracts royalty and penalty under Section 48(7).
Ratio Decidendi
Excavation of earth for construction purposes, where the excavated earth is utilized within the same site and the pits are backfilled, does not constitute 'illegal excavation' under Section 48(7) of the Maharashtra Land Revenue Code, 1966, as there is no removal of earth from the site or commercial exploitation.
Judgment Excerpts
By this writ petition, the petitioner challenges the order of the Tahsildar, dated 08.06.2011 directing the petitioner to pay the royalty and penalty for the illegal excavation of earth, under Section 48(7) of the Maharashtra Land Revenue Code, 1966.
It is the case of the petitioners and it is not disputed by the respondents that the excavated earth was utilized in the construction of the project and the dug up pits were filled.
Procedural History
The Tahsildar issued a show-cause notice to the petitioner for illegal excavation. After reply, the Tahsildar passed order dated 08.06.2011 imposing royalty and penalty. The petitioner challenged this order by filing Writ Petition No. 3383/2011 before the Bombay High Court, Nagpur Bench.
Acts & Sections
- Maharashtra Land Revenue Code, 1966: Section 48(7)
