Z.A.HAQ,J. - (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 :- "(I) Whether the provisions contained in Section 48 of the Maharashtra Land Revenue Code, 1966 would apply to " minor minerals" ? (II) When any action is to be taken for breach of the provisions contained in Section 48 of the Maharashtra Land Revenue Code, 1966 or those contained in the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 framed under the Mines and Minerals (Development and Regulation) Act 1957 in relation to the unauthorized extraction, removal, transportation etc. of minor minerals, which of the two different sets of provisions as contained in Section 48 of the Maharashtra Land Revenue Code, 1966 or in Rule 78 of the Rules of 2013, would prevail ?" Accordingly, the learned advocates made their submissions.
(2.) The relevant facts are :- On 01/02/2018, four vehicles alleged to be owned by the petitioners were carrying sand from the sand ghat situated near Rajura, District Chandrapur to Adilabad. The Naib Tahsildar, Rajura stopped the vehicles and though all the relevant documents were produced and were verified by the Naib Tahsildar, the vehicles were detained. The petitioners claim that they are in the business of transport and they were transporting the sand as per the contract with the respondent no. 5 who according to the petitioners was holding valid license for excavation of sand from the ghat at Mudholi Tukum. According to the petitioners, they were having valid permit to transport five brass of sand per day and the action of the Naib Tahsildar in detaining the vehicles on the ground that the sand was being transported in the vehicles in excess of permissible limits, is illegal and unjustified. According to the respondent - Authorities, the transport permits produced by the drivers of the vehicles did not show the invoice number, period of validity of the transport permits, date of issuance of the transport permits and the date of expiry of the transport permits. Be that as it may, we are not required to deal with the contentions on merits of the matter and the facts are reproduced only to understand the controversy and for answering the reference.
(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.;