SAJID S.KHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) A Division Bench of this Court, expressing its inability to agree with the view taken by another Division Bench of this Court earlier regarding interpretation of Sections 48(7) and 48(8) of the Maharashtra Land Revenue Code, 1966 (for short "the Code of 1966"), requested the Hon'ble Chief Justice to constitute a Larger Bench to consider the point. While referring the matter to the Hon'ble Chief Justice for constitution of the Larger Bench, specific point for reference was not framed, however on reading of the referral order, it is clear that the Division Bench comprising of Shri B.P. Dharmadhikari and Shri Arun D. Upadhye, JJ., expressed its inability to accept the view taken by another Division Bench comprising of Shri R.K. Deshpande and Shri M.G. Giratkar, JJ. as recorded in para no. 6 of the judgment delivered in Criminal Writ Petition No. 1105/2017. In para no. 6 of the judgment delivered in Criminal Writ Petition No. 1105/2017, the earlier Division Bench accepted the contention of the petitioner therein that the transporter of mineral (minor mineral) cannot be booked under the provisions of Sections 48(7) and 48(8) of the Code of 1966 if the assignee of rights of extraction of the minor mineral is different from the transporter, unless it is shown that the extraction of sand (minor mineral) by the assignee is unauthorized and illegal. The earlier Division Bench further held that the provisions of Sections 48(7) and 48(8) of the Code of 1966 do not empower the Authorities to seize and confiscate the vehicle carrying minerals (minor mineral) in excess of the weight permitted to be carried by the vehicle. As the point for consideration by the Larger Bench was not framed in the referral order, after hearing the learned advocates appearing in the matter, by the order dated 24/11/2020, we framed the following points for consideration :-

(2.) The relevant facts are :-

(3.) Elaborate submissions are made by the learned advocate for the petitioners to urge that the provisions of Sections 48(7) and 48(8) of the Code of 1966 are not attracted if the transporter is found transporting the sand on contract with the holder of mining lease, and consequently action cannot be taken against the transporter under Sections 48(7) and 48(8) of the Code of 1966 on the premise that the transporter has committed breach of those provisions. It is argued that action is not taken against the holder of mining lease at whose behest the sand was being transported, and therefore action only against the petitioners i.e. the transporters is per se illegal and unsustainable in law.