Arun Tumadu Chaudhari, Age years v. Dattu

Judgment

#4. Dattu s/o Magan Choudhari, Age years, Occu. Business, R/o Prakasha, Taluka Shahada, District Nandurbar The State of Maharashtra, through The Secretary, Department of Revenue, Mantralaya, Mumbai 32 The Minister, Department of Revenue, Maharashtra State, Mantralaya, Mumbai 32 The District Collector, Nandurbar, District Nandurbar ..PETITIONER ..RESPONDENTS Mr Milind Patil, Advocate for petitioner Mr P.R.Katneshwarkar, Advocate for respondent No.1 Mr K.B.Choudhari, Assistant Govt. Pleader for respondents 2 to 4

CORAM : SMT.NISHITA MHATRE. J. DATE : 31st March 2011 W.P.No.1407 of 2010 2 ORAL JUDGMENT (PER SMT. MHATRE, J.)

#1. Rule, returnable forthwith, by consent.

#2. The order impugned in the present petition has been passed by Respondent No.3 the Minister for Revenue, Maharashtra State on 5th June 2009. By this order the appeal preferred by the respondent No.1 against the order passed by the Additional Commissioner, Nasik as well as the District Collector, Nandurbar on 23th March 2009 and 20th June 2008, respectively have been set aside by Respondent No.3. A further direction has been issued that the sand, which was seized from the respondent No.1 should be released to him. Respondent No.1 has been permitted to excavate 2615.6 brass sand from Tapi river bed was also issued. The District Collector, Nandurbar has been directed to issue the transport licence in favour of respondent No.1 for excavation and transportation of the seized sand. Although the licence for excavation of the sand had expired, the respondent No.3 has relaxed the licence period to enable respondent No.1 to extract 2615.6 brass sand after an undertaking was submitted by him to the Collector to comply with all the rules and conditions of the licence.

#3. The petition has been filed by a political activist, contending W.P.No.1407 of 2010 3 that the respondent No.3 could not have passed such an order when both the Collector and later the Additional Commissioner had found that there was illegal excavation of sand by respondent No.1. The petitioner has contended that the panchnama drawn up before the Collector indicates that the sand extracted by respondent No.1 was far in excess of the permissible limit, as per the licence issued to him. According to the petitioner the impugned order passed by respondent No.3, in fact, gives a licence to respondent No.1 to flout the provisions of law.

#4. It is contended on behalf of the petitioner that the inquiry conducted by the Collector and latter the Commissioner in the appeal indicates that both these authorities had considered all the aspects of the matter and they have concluded that there was illegal excavation of sand by the respondent No.1. According to the learned Advocate for the petitioner, the order passed by respondent No.3 has, in fact, resulted in a loss of revenue for the State and, therefore, the order needs to be quashed.

#5. The learned Advocate for respondent No.1 contends that although the signatures of the respondent No.1 are found on the panchnamas the respondent No.1 had not, in fact, signed those panchnamas. He also contends that no hearing was afforded to the respondent No.1 by the Collector before passing an adverse W.P.No.1407 of 2010 4 order against him. It is, in these circumstances, he submits that the order passed by respondent No.3 cannot be questioned.

#6. Undisputedly, in respect of excavation of sand from the river beds, the State of Maharashtra has now formulated a new policy pursuant to directions passed by the Division Bench of this Court. Therefore, any excavation of sand would have to be in conformity with that policy.

#6. However, in the present case what is in issue is whether the respondent No.1 has flouted the policy as it was existing when the license was issued in his favour and whether he could be absolved from payment of royalty and the fine for the illegal excavation of sand. In my view, the interest of justice would be met if the matter is remanded to the Collector, Nandurbar by setting aside the order impugned in the present petition. There is an affidavit filed by respondent No.1 in which he has stated that he was not afforded a hearing by the Collector before the order dated 20.6.2008 was passed. In these circumstances, the writ petition is disposed of with the following order: (i) The impugned order passed by respondent No.3 on 5th June 2009 is set aside and the proceedings are remanded to the Collector, Nandurbar. W.P.No.1407 of 2010 5 (ii) The Collector, Nandurbar shall hear the parties i.e. both the respondent No.1 as well as the petitioner before passing any order on the complaint filed by the petitioner. (iii) The parties will appear before the Collector, Nandurbar on 8th April 2011 at 11.00 a.m. The Collector shall pass orders after hearing the parties, within eight weeks from that date. (iv) In the meantime, the respondent No.1 shall not excavate any sand from the Tapi river bed. Rule made absolute accordingly. ( SMT. NISHITA MHATRE, J.) (vvr/1407.10wp) W.P.No.1407 of 2010 6