Cases referred :

1. Hari Construction v. State of Maharashtra, 1995(1) Mah.L.R. 679.

2. Baijnath Kedia v. State of Bihar, A.I.R. 1970 S.C. 1436.

Advocates appeared :

C.S. Kaptan, for petitioner.

Deopoojary, A.G.P., for respondents.

Per SINHA D.D., J.: - Heard Mr. Kaptan, learned Counsel for the petitioner and Mr. Deopoojary, learned Asstt. Government Pleader for respondents.

2. Counsel for the petitioner states that the petitioner is a Partnership Firm duly registered under the Indian Partnership Act, 1932 and it has its office in Akola City. The petitioner Firm carries on business of construction of buildings, roads and other engineering works. Some time in the year 1981-82, the petitioner Firm was allotted work of construction of a Soot Girni, namely Pain Ganga Sahakari Soot Girni Ltd. at Sakharkherda in Buldhana district. For the said construction work, material like mortar in the nature of sand, dubber etc. was required and this being minor minerals, the petitioner had obtained permission form the tahsildar and paid requisite royalty on the quantity of minor minerals lifted by the petitioner.

3. The construction work of the Soot Girni was completed in the year 1982. However, some time in the year 1984, a revenue case bearing No. MNL/37/11/1984-85 of Sakharkherda was suo motu reopened by the respondent No. 2 and the petitioner Firm was called upon to explain why penalty should not be imposed under section 48(7) of the maharashtra land revenue code, for extracting the sand and dubber illegally. The Sub-Divisional Officer, Mehekar, without holding any proper enquiry, held that the petitioner Firm extracted 500 brass of sand and 300 brass of stone/dubber and imposed a penalty of Rs. 1,96,505.00, which is three times the market value of the material alleged to have been illegally extracted by the petitioner Firm. The said order was passed on 20th November, 1984. The petitioner filed an appeal against the said Order before the resident deputy Collector, Buldana, who, by order, dated 15th April, 1986, rejected the appeal. The petitioner filed on application for review of the order of Resident Deputy Collector, and the Resident Deputy Collector, vide Order, dated 11th November, 1986, rejected the Review application and confirmed the earlier orders. The petitioner thereafter challenged the order of Resident Deputy Collector before the Divisional Commissioner, Amravati, in appeal, who also dismissed the appeal of the petitioner vide Order, dated 31st October, 1987. The petitioner, being aggrieved by this order, filed a Revision before the State Government, which was dismissed by the State Government. The order of Sub-Division Officer, dated 20th November, 1984 was finally confirmed and, therefore, revenue recovery proceedings were initiated through Tahsildar, Akola, who issued a notice to the petitioner under section 174 of maharashtra land revenue code. The petitioner being aggrieved by the above referred orders filed the present writ petition, wherein the very action of the respondent State and the Revenue Officers is challenged being ultra vires the Constitution of India.

4. In the present writ petition, the petitioner has sought a declaration in Prayer Clause 11 to the effect that the provisions of section 48(7) of the maharashtra land revenue code being beyond the legislative competence of the State Legislature and, therefore, ultra vires the article 246 of the constitution.

5. Mr. Kaptan, learned Counsel for petitioner, states that the Mines & Minerals (Regulation & Development) Act, 1957 is the post Constitution enactment and the Union Government alone is competent to make enactment in relation to the minerals etc. as could be seen from Entry 54 of the First List of Seventh Schedule. It is further contended that the source of power to make enactment in relation to certain subjects is exclusive with the respective Governments as enshrined under article 248 of the constitution of india. The powers are so exclusive that they exclude the State Government to enact any Act or Regulation, which is enacted in List 1 of the Seventh Schedule, in which Union Government alone is competent. Any enactment made by the State Government in excess of such powers is not only beyond the legislative competence of the State Government, but also ultra vires article 248 of the constitution.

6. Mr. Kaptan, learned Counsel, further contended that section 15 of the mines & minerals (regulation & Development) Act, 1957, empowers the State Government to make rules in respect of minor minerals. It is contended that the State Government is, therefore empowers to frame rules for regulating any grant of minor minerals and that too subject to restriction as enumerated in the section itself.

7. It is further contended by learned Counsel for the petitioner that section 21 of the mines and minerals act deals with imposition of penalty for contravention of provisions of the Act and sub-section (5) of section 21 contemplates that whenever any person raises, without any lawful authority, any minerals from any land, the State Government may recover from such person mineral so raised or where such mineral has already been disposed, the price thereof, and may also recover from such person rent or royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority. Mr. Kaptan, learned Counsel for the petitioner, therefore, contended that since the field, in question, is occupied by the Central Legislation, identical provisions, which is enacted in sub-section (7) of section 48 by the State Legislature, is invalid in law. Similarly, the State Legislature in a situation like this does not have legislature competence to enact sub-section (7) of section 48, which also deals with the same issue and also prescribes penalty for excavation of minerals without authority of law. It is, therefore contended that sub-section (7) of section 48, for the reasons stated herein above, is invalid in law and cannot be sustained.

8. Mr. Deopoojary, learned Assistant Government Pleader, on the other hand, contended that the judgment rendered by the Division Bench in the case of (Hari Construction v. State of Maharashtra & others)1, reported in 1995(1) Mah.L.R. 679 concludes the issue about the legislative competence of the State Government for enacting a provision of section 48(7) of the maharashtra land revenue code. The learned Assistant Government Pleader further contended that so far as the repugnancy in the Central Law, i.e. Mines & Minerals act, with the provisions of section 48(7) of the code, as canvassed by the Counsel for the petitioner, is concerned, in the light of provisions of article 254(2) of the constitution, the law enacted by the State Legislature i.e. section 48(7), will not be invalid, particularly when the said law has received the assent of the President of India on 22nd December, 1960. It is further contended that Entry 23 in the State List permits the State Government to enact laws for regulation of the Mines and Minerals Development, though subject to provision of List 1 with respect to the Regulation and Development under control of the Union. It is submitted that the object of the act (land revenue code) is to assess, charge and collect revenue, which includes penalty on account of illegal extraction of minerals vested in the State Government. Under section 48(1) where minerals vest in the State Government, they are entitled to proper enjoyment, including the power to sell, dispose of the said minerals and if the said minerals are unauthorizedly removed, then the Collector, under section 48 of the code, is required to charge penalty, which is in the nature of damages on account of a loss suffered by the Government for unauthorized extract of minerals. The learned A.G.P., contended that this issue also has been considered by the Division Bench of this Court in the above referred judgment and after taking into consideration these aspects, the Division Bench finally held that section 48(7) of the maharashtra land revenue code is not ultra vires the Constitution.

9. We have considered the contentions canvassed by the respective Counsel and perused the judgment of the Division Bench of this Court in the case of Hari Construction (supra).

10. It will be appropriate to consider the contentions advanced by the Counsel for the petitioner in the said case before the earlier Division Bench before we consider the conclusion recorded by the Division Bench in the said judgment. The contentions of Mr. Rane, the then learned Counsel appearing for petitioner in the said case are reflected in paragraph 3 of the judgment, which reads thus :

"3. Mr. Rane, learned Counsel appearing on behalf of the petitioners submitted that after declaration under section 2 of the mines and minerals (regulation and Development) Act, 1957, the entire field relating to grant of mining lease and prospecting license of minor minerals came to be occupied by the Parliament with the State Government being only a delegated authority empowered in prescribed rules relating to minor minerals under section 15 of the said Act, 1957 and therefore the respondent No. 1 was not competent to enact a law relating to minor minerals which could only be done under Entry 54 of the Union List by the Parliament and consequently the State Legislature was not competent to enact section 48(7) of the maharashtra land revenue code, 1966. that section 48 of the said code was therefore without legislative competence and was therefore ultra vires the Constitution and consequently the above mentioned impugned orders passed by the Collector levying penalty were also liable to be set aside. It was contended by Mr. Rane that once a declaration under section 2 of the said Act, 1957 was made then the entire field/topic fell within the competence of the union Legislature and the State Legislature had no competence to enact section 48 of the maharashtra land revenue code, 1966. Mr. Rane further submitted that in view of sections 14 and 15, as it stood at the relevant time, of the Mines and Minerals (Regulation and Development) Act, 1957 the entire topic relating to minor minerals fell within the competence of the Central Government and in the circumstances the State Legislature had no authority to enact section 48(7) of the maharashtra land revenue code and, therefore, section 48(7) was ultra vires the Constitution."

11. It is, therefore, evident that the challenge, which was raised in the case of Hari Construction (supra), is that after declaration of Mines and Minerals (Regulation and Development) Act, 1957, the entire field in respect of mines and minerals activity and procedure enacted in this regard was occupied by the Parliament and the State Government was only a delegated authority empowered to prescribe rules relating to minor minerals under section 15 of the Act of 1957. Similarly, the observations in paragraph 7 of the said judgment would revel that the Division Bench has also examined the various provisions of Land Revenue Code as well as that of Mines and Minerals (Regulation and Development) Act, 1957, and also considered whether the declaration under sub-section (2) of the said Act of 1957 excludes the powers of Collector to levy penalty without prejudice to any other mode of action under section 48(7) of the code of 1966. The Division Bench has also taken into consideration the scope of sections 2 and 15 of the Act of 1957 in the light of the judgment of the Supreme Court in the case of (Baijnath Kedia v. State of Bihar & others)2, reported in A.I.R. 1970 S.C. 1436.

12. The Division Bench in the case of Hari Construction (supra) in paragraph 8 has finally concluded thus :

"8. The above discussion shows that the said Act 1957 takes over the regulation of mines and development of minerals to the Union to the extent provided. It deals with minor minerals separately from other minerals. The subject of legislation in respect of minor minerals is covered by the said Act 1957 but to a specified extent and to the extent the powers of State Legislature are wanting. In the present case the only question we are required to answer is whether the State Legislature was entitled to enact section 48(7) to the maharashtra land revenue code, 1966. In the present case, we are required to answer the question as to whether the subject of revenue administration stood withdrawn from the State Legislature by virtue of the said Act 1957. It is contended on behalf of the petitioners that once the topic is taken over by the Central Legislature the State Government was not competent to enact section 48(7) of the maharashtra land revenue code in 1966 because the entire topic fell within the competence of the Parliament. We do not see any merit in the said contentions. As stated herein above, we have to examine the pith and substance of the law in question viz., the Maharashtra Land Revenue Code, 1966. As stated herein above, the object of the said enactment is revenue administration. The object of the said Act is to asssess, charge and collect revenue which includes penalty on account of illegal extraction of minerals vested in the State Government. As stated herein above, under section 48(1) where minerals vests in the State Government, they are entitled to proper enjoyment including the power of sale or disposal of the said minerals and if the said minerals are unauthorisedly removed then the Collector under section 48 is required to charge penalty which is in the nature of damages on account of loss suffered by the Government for unauthorised extraction of minerals. We can look at the problem from another angle also. Under section 2(19) of the maharashtra land revenue code, 1966, land revenue means all sums and payments, any cess or rate authorized by State Government and includes premium, rent or any other payment provided under any Act, contract or deed on account of any land. Revenue Administration also includes rights of a Collector to impose penalty for unauthorised excavation of minerals which have vested in the Government. The topic covered by section 2 read with section 14 and section 15 of the mines and minerals (regulations and Development) Act, 1957 expressly deals with grant of mining leases or prospecting licences relating to minor minerals. Revenue Administration includes imposition of penalty for unauthorised or illegal excavation of the minerals which vests in the State Legislature by the said Act 1957. In fact, land revenue is a State subject under List II of the Seventh Schedule to the Constitution. In the circumstances, there is no merit in contention raised on behalf of petitioners that the State Legislature has no competence to enact the Maharashtra Land Revenue Code and particularly section 48(7) of the said code, 1966. The two acts operate in different and distinct spheres. For the above reasons, we do not find any merit in the contention advanced on behalf of the petitioners that section 48(7) of the maharashtra land revenue code, 1966 is ultra vires the Constitution."

13. The conclusion recorded by the Division Bench in paragraph 8 referred to herein above makes it evident that looking to the object of the Code to assess, charge and collect revenue, which includes penalty on account of illegal extract of minerals, the authority to do so vests in the State Government and, therefore, the State is entitled to proper enjoyment, including the power of sale or disposal of the said minerals and if the said minerals are unauthorizedly removed, then the Collector under section 48 is required to charge penalty, which is in the nature of damages on account of loss suffered by the Government for unauthorized extract of minerals. It is, therefore, clear that the Division Bench, after taking into consideration the provisions of mines and minerals act of 1957 as well as the scheme of provisions of section 42, read with sections 14 and 15 of the mines and minerals (regulation & Development) Act, 1957, finally concluded the issue by holding that the Revenue Administration includes imposition of penalty for unauthorised or illegal excavation of the minerals, which vest in the State Legislature by the Act of 1957 and Revenue is a State subject under List II of the Seventh Schedule of the Constitution, and finally observed that section 48(7) of the maharashtra land revenue code is not ultra vires the Constitution.

14. We have considered the contentions canvassed by the Counsel before the Division Bench in the case of Hari Construction (supra), the issue involved and the finding recorded by the Division Bench makes it evident that the Division Bench, in the uncertain terms, concluded the issue by declaring section 48(7) of the land revenue code Constitutionally valid and the challenge on the ground that section 48(7) of the code is ultra vires the constitution is totally down. At the same time, the power vested in the State Government under sub-section (7) of section 48 of the code is considered in the light of the object and purpose for which the Land Revenue Code is enacted by the State Legislature, and after taking into consideration these aspects, it was held that the Collector under section 48 is competent to charge penalty, which is in the nature of damages on account of loss suffered by the State Government for unauthorised extraction of minerals. It is, therefore, evident that the Division Bench in the case of Hari Construction (supra) considered the validity of section 48(7) of the code from all dimensions and after due consideration, concluded the issue by holding that section 48(7) of the maharashtra land revenue code is not ultra vires the Constitution.

15. Similarly, Entry 54 of the Union List speaks about the regulation of mines and minerals development, Entry 23 of the State List is subject to Entry 54 of the Union List. Entry 23 of the State List deals with regulation of mines and minerals development subject to provisions of List I, which includes Entry 54 with respect to regulation and development under the control of Unions Entry 54 of the State List deals with the land revenue to include assessment and collection of revenue, maintenance of land records, survey for revenue purpose and records of right as well as alienation of revenues Entry 64 of the Sale List deals with offences against laws with respect to any of the matters in the State List. The question as to whether subject of Revenue Administration stood withdrawn from the State Legislature by virtue of Mines and Minerals (Regulation and Development) Act, 1957, was considered by the Division Bench in Hari Construction case (supra). The argument was advanced before the Division Bench in the said case by petitioner that once the topic is taken over by the Central Legislature, the State Government was not competent to enact section 48(7) of the maharashtra land revenue code in 1966, because the entire topic fell within the competence of the Parliament. After considering these aspects in paragraph 8 of the judgment in Hari Construction case (supra), the Division Bench has observed thus :

"We do not see any merit in the said contentions. As stated herein above, we have to examine the pith and substance of law in question viz., the Maharashtra Land Revenue Code, 1966. As stated herein above, the object of the said enactment is revenue administration. The object of the said Act is to assess, charge and collect revenue which includes penalty on account of illegal extraction of minerals vested in the State Government. As stated herein above, under section 48(1) where minerals vests in the State Government, they are entitled to proper enjoyment including the power of sale or disposal of the said minerals and if the said minerals are unauthorisedly removed then the Collector under section 48 is required to charge penalty which is in the nature of damages on account of loss suffered by the Government for unauthorised extraction of minerals. We can look at the problem from another angle also. Under section 2(19) of the maharashtra land revenue code, 1966, land revenue means all sums and payments, any cess or rate authorized by State Government and includes premium, rent or any other payment provided under any Act, contract or deed on account of any land. Revenue administration also includes rights of a Collector to impose penalty for unauthorised excavation of minerals which have vested in the Government. The topic covered by section 2 read with section 14 and section 15 of the mines and minerals (regulation and Development) Act, 1957 expressly deals with grant of mining leased or prospecting licences relating to minor minerals. Revenue Administration includes imposition of penalty for unauthorised or illegal excavation of the minerals which vests in the State Legislature by the said Act 1957. In fact, land revenue is a State subject under List II of the Seventh Schedule to the Constitution. In the circumstances, there is no merit in the contention raised on behalf of petitioners that the State Legislature has no competence to enact the Maharashtra Land Revenue Code and particularly section 48(7) of the said code 1966. The two Acts operate in different and distinct spheres. For the above reasons, we do not find any merit in the contention advanced on behalf of the petitioners that section 48(7) of the maharashtra land revenue code, 1966 is ultra vires the Constitution."

16. In the instant case, on the backdrop of the above referred finding recorded by the Division Bench in the case of Hari Construction (supra), the contention canvassed by the Counsel for the petitioner that the Mines and Minerals (Regulation & Development) Act, 1957 is post Constitution enactment and the Union Government alone is competent to make an enactment in relation to the minerals and includes the State Government to enact any other Act or Regulation, which is included in List I of the Seventh Schedule for which Union Government alone is competent and the enactment made by the State Government, i.e., Land Revenue Code, 1966, is in excess of such power, is not only beyond the legislative competence of the State, but also ultra vires Article 248 of the Constitution of India, cannot be accepted and the issue about the validity of provisions of section 48(7) of the code 1966 stands concluded by the Division Bench the judgment of this Court in case of Hari Construction (supra). Similarly, the second contention canvassed by the learned Counsel for the petitioner that section 15 of the Act 1957 empowers the State Government to make rules for regulating any grant of minor minerals and that too subject to restrictions as enumerated in the section itself and, therefore, it is not competent to enact another legislation on the same subject, i.e., land revenue code, 1966, particularly section 48(7) of the code, also cannot be accepted in view of the above referred finding recorded by the Division Bench in the case of Hari Construction (supra) and this issue also stands concluded and the provisions of section 48(7) of the code, 1966, cannot be declared ultra vires the Constitution on this count.

17. The third and the last contention canvassed by learned Counsel for the petitioner is that section 21 of the mines & minerals (regulation and Development) Act, 1957 provides for penalties for contravention of the provisions of sub-section (1) or sub-section (1-A) of section 4. Similarly, sub-clause (5) of section 21 of the Act further prescribes the procedure for rasing without any lawful authority any mineral from any land by the State Government and, therefore, the State is not competent to enact another provision, i.e. sub-section (7) of section 48 of the land revenue code for imposition of penalty for excavation, removal, collection of any mineral from derelict mines, quarries, old dumps, fields, Bandhas, nullahs or such other places wherever situate, which is being inconsistent. Similarly this provision being inconsistent with that of section 21 of the Act 1957, which is a Central Act and to extent it is repugnant, is invalid in law. This contention canvassed by learned Counsel for the petitioner is also misconceived and devoid of substance and cannot be accepted, firstly because the Mines and Minerals Act, 1957 and Land Revenue Code, 1966 are two different Acts which operate in different and distinct soheres and, therefore, the provisions of these two acts need to be understood in their right perspective. The object of the Land Revenue Code is revenue administration. It also includes power to assess, charge and collect revenue which includes penalty on account of illegal extraction of minerals vested in the State Government and if such minerals are unauthorizedly removed, then the Collector under section 48 is required to charge penalty, which is in the nature of damages on account of loss suffered by the Government for unauthorized extraction of minerals. This aspect is also considered by the Division Bench in the case of Hari Construction (supra), and after due consideration, the Division Bench concluded by turning down the challenge to the validity of section 48(7) of the land revenue code and declared the said section constitutionally valid. The penalties provided in sub-sections (1) and (5) are in the form of punishment with imprisonment with fine or both and therefore, operate in altogether different sphere, which has no nexus, whatsoever, with that of the power of the Collector under section 48 to charge penalty, which is in the nature of damages on account of loss suffered by the State Government for unauthorized extraction of minerals. Therefore, the question of repugnancy between the provisions of section 21(1) or section 21(5) with that of provisions of section 48(7) of the code does not arise. It is evident that from the scheme of section 21(1) and sub-clause (5) it is enacted for the purpose, which is entirely different and distinct and also operates in entirely different spheres than the one enacted by the State Government in sub-section (7) of section 48 of code and, therefore, the contention canvassed by learned Counsel in this regard is completely misconceived and devoid of substance and cannot be accepted.

For the reasons stated herein above, the petition suffers from lack of merits. The orders passed by the authorities under the provisions of the Land Revenue Code are just and proper and are sustainable in law.

Hence petition dismissed. Rule discharged. Interim order stands vacated. No order as to costs.

Petition dismissed.

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