BRIJESH SATISH DATTANIversusTHE STATE OF MAHARASHTRA THR PRIN. SECRETARY, REVENUE AND FOREST DEPT. AND ORS

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIVIL APPELLATE JURISDICTION

                        WRIT PETITION NO. 16418 OF 2024

Brijesh Satish Dattani                                      .. Petitioner

            Vs.
State of Maharashtra & Anr.                                 .. Respondents


Adv. Rajiv Narula a/w Adv. Tarang Jagtiani i/b. Adv. Jhangiani &
Associates,for the Petitioner.
Ms. A. A. Nadkarni, AGP for the State.

                                  CORAM : ARUN R. PEDNEKER, J.
                                  Date : 8th SEPTEMBER 2026

P.C. :


1.       Heard learned counsel for the parties.

2.       Rule. Rule made returnable forthwith with the consent of the parties

heard finally.

3.       By the present Petition, the Petitioner challenges the order dated 30 th

August 2024 passed by the Respondent No. 2, whereby Respondent No. 2

has imposed a penalty of Rs. 16,17,19,964/- on the Petitioner for excavating

minor mineral i.e. earth/loose soil. The penalty has been imposed under

section 48 (7) of the Maharashtra Land Revenue Code for unauthorized

excavation and filling up of the site.

4.       The facts given to rise to the present Petition are that the Petitioner
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obtained N.A. development permission from the planning authority.

Pursuant to the construction permission so obtained, the Petitioner carried

out excavation at various places on the site. Certain portion of the site had

to be filled in while the construction activity was being carried out. The

Respondent received a complaint alleging that the Petitioner was excavating

soil/loose earth at the construction site. Accordingly, the Circle Officer,

Respondent No. 5, carried out measurements, and an inspection and

prepared a report. On the basis of the report, a show cause notice was issued

to the Petitioner alleging that he had excavated 11,348/- brass of earth and

that such excavation was unauthorized. The matter was thereafter fixed for

hearing on 22nd January 2020. Subsequently, an order was passed against the

Petitioner imposing penalty under section 48(7) of the Maharashtra Land

Revenue Code.

5.     A penalty of Rs. 8,66,70,25.20/- had been imposed by the said order.

The order was challenged before this Court in Writ Petition No. 2137 of

2025. This Court, by order dated 27th May 2021, set aside the order passed

by the Tahsildar under section 48(7) of the Maharashtra Land Revenue Code

and remitted the matter back to the Tahsildar to consider the same in

accordance with law, after hearing the Petitioner.

6.     Thereafter, fresh show cause notice was issued, after hearing the

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Petitioner, the present impugned order is passed.       The learned counsel

appearing for the Petitioner submits that excavation is a natural process of

carrying out construction activity.    He further submits that the material

extracted while carrying out the construction activity is used for leveling of

the land and the same is neither transported nor used for any of the purposes

mentioned in the notification issued under section 3(e) of the Mines and

Minerals Act. As such, the ordinary earth so excavated does not constitute a

minor mineral on which royalty can be imposed.

7.     He relies upon the Judgment of the Supreme Court in the case

Promoters and Builders Association of Pune Vs. State of Maharashtra &

Ors. reported in (2015) Volume 12 SCC 736 so also the Judgment of this

Court in the case of Royale Urbanspace, Shahpur & Ors. Vs. State of

Maharashtra & Anr. reported in 2022 Volume 3 Mh.L.J. 606.

8.     Per Contra, the learned AGP relies upon the Government Resolution

dated of 9th May 2023 and submits that the State is entitled to impose royalty

on excavation carried out at a construction site. She further submits that

excavation and transportation are two different concepts. She submits that

the Petitioner was only granted permission to excavate and transport 2,000

brass. In the instant case, it is found that the Petitioner exceeded the quota

and excavated 15,917.36 brass of earth and, accordingly, the penalty has

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been imposed. She submits that the Petitioner did not have permission to

excavate of 15917.36 brass of earth. Considering the same, the penalty has

been imposed.

9.     It is submitted that this Court, in exercise of its Writ Jurisdiction

should not interfere with the impugned order. The learned AGP submits that

the challenge to the impugned order be rejected and the Petition be

dismissed.

10.     Considered the rival submissions. The Supreme Court in the case of

Promoters & Builders (supra) at Paragraph No. 9, 10, 11 and 15 has held

that ordinary earth used only for the purpose of construction of

embarkments, roads, railways and buildings, constitutes a minor mineral, on

which royalty can be imposed.

11.    The Supreme Court in the Judgment of the Promoters & Builders

(supra), in paragraph Nos. 10, 11 & 15 has observed as under :

            10.      What is a mineral is not defined either under the
            MRTP Act or the Code. The said expression is however
            defined by Section 2(1)(i) of the Mines Act, 1952 and
            Section 3(a) read with Section 3(e) of the 1957 Act. As
            mining activities and operations are regulated by the
            provisions of the 1957 Act it is the definition contained in
            the said Act which will be more relevant for the present.
            Section 3(a) and Section 3(e) is in the following terms :-
            “3. Definitions. - In this Act, unless the context otherwise
            requires -
            (a) ‘minerals’ includes all minerals except mineral oils;
            (b)-(d)
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            (e) ‘minor minerals’ means building stones, gravel, ordinary
            clay, ordinary sand other than sand used for prescribed
            purposes, and any other mineral which the Central
            Government may, by notification in the Official Gazette,
            declare to be a minor mineral;”

            11.        Ordinary earth has been brought within the fold of
            a minor mineral by Notification of 3-2-2000 issued under
            Section 3(e) of the 1957 Act. The said notification is in the
            following terms :
                                    “NOTIFICATION
               GSR 95 (E). - In exercise of the powers conferred by
            clause (e) of Section 3 of the Mines and Minerals
            (Development and Regulation) Act, 1957 (67 of 1957), the
            Central Government hereby declares the ‘ordinary earth’
            used for filling or levelling purposes in construction of
            embankments, roads, railways, buildings to be a minor
            mineral in addition to the minerals already declared as minor
            minerals hereinbefore under the said clause.
                                                      (F. No. 7/5/99-M. VI)
                                                                 sd/-
                                                            (S.P. Gupta)
                               Joint Secretary to the Government of India”
                                                        (emphasis supplied)
            It is, therefore, clear that “ordinary earth” used for filling or
            levelling purposes in construction of embankments, roads,
            railways, buildings is deemed to be a minor mineral.

            15.       As use can only follow extraction or excavation it
            is the purpose of the excavation that has to be seen. The
            liability under Section 48(7) for excavation of ordinary earth
            would, therefore, truly depend on a determination of the
            use/purpose for which the excavated earth hand been put to.
            An excavation undertaken to lay the foundation of a
            building would not, ordinarily, carry the intention to use the
            excavated earth for the purpose of filling up or levelling. A
            blanket determination of liability merely because ordinary
            earth was dug up, therefore, would not be justified; what
            would be required is a more precise determination of the end
            use of the excavated earth; a finding on the correctness of
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            the stand of the builders that the extracted earth was not
            used commercially but was redeployed in the building
            operations. If the determination was to return a finding in
            favour of the claim made by the builders, obviously, the
            Notification dated 3-2-2000 would have no application; the
            excavated earth would not be a specie of minor mineral
            under Section 3(e) of the 1957 Act read with the Notification
            dated 3-2-2000.

Also in the case of Royale Urbanspace, Shahpur (supra) this Court has

expressed a similar view at paragraph No. 10 as under :

            10.      We may state that, on 11-5-2015, the State
            Government notified an amendment to the Maharashtra
            Minor Mineral Extraction (Development and Regulation)
            (Amendment) Rules, 2015 by introducing a proviso to Rule
            46(a)(i), inter alia, providing that no royalty shall be
            required to be paid on earth which is extracted while
            developing a plot of land and if utilized on the very same
            plot for land levelling or any work in the process of
            development fo such plot.

12.    Particularly in Royale Urbanspace, Shahpur (supra) it is observed

that no royalty shall be paid on earth which is extracted for developing a plot

of land and if utilized on the very same plot for lands levelling or for any

work in the process of development. Considering the Judgment of the

Supreme Court in Promoters & Builders (supra) and the Division Bench of

this Court in Royale Urbanspace, Shahpur (supra) it can be seen that in the

instant case, the Petitioner has extracted the earth as a part of construction

activity and utilized most of it at the very construction site. The same can be

seen from Page No. 86 Exh. J, which shows that there is an excavation and
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            also filling up of the site. Since there is no evidence to show that the

            extracted soil was used for any of the purposes mentioned in the notification

            under Section 3(e) of the Mines and Minerals Act, 1956, there can be no

            payment of royalty on the excavated earth, more particularly when it is used

            on the same site and in this view of the matter considering the report at Page

            No. 86 and also the reply filed, this Court would quashed the impugned

            order.

            13.       Excavation is alleged to be of the year 2010, thus I have not

            considered the effect of the Government Resolution dated 09.05.2023 to the

            facts of the present case.

            14.       Writ Petition is allowed. Rule confirmed in above terms.



SUFIYAN                                                       (ARUN R. PEDNEKER, J.)
EHTESHAM
SYED
Digitally signed by
SUFIYAN EHTESHAM
SYED
Date: 2026.09.10
18:29:57 +0530




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