Ankush Kashinath Mhaske v. The State of Maharashtra

1. Rule. Rule made returnable forthwith. Learned Assistant Government Pleader for the Respondent Nos. 1 to 5/State waives service. Heard finally by consent.

2. By this petition under Article 226 and 227 of the Constitution of India, the Petitioner is challenging the order dated 04.04.2022 issued by the Respondent No.3, by which the request of the Petitioner for refund of amount of un-excavated sand, is rejected.

3. The case of the Petitioner in short is as under. 3.[1] In November 2015, the Petitioner was declared as successful bidder for sand excavation in 5 villages on banks of river Kukadi. On 04.01.2016, the Petitioner addressed a letter to Respondent No.4 stating that there are newspaper reports about opposition of villagers for sand excavation and since the Petitioner had not taken possession of the sand-ghats, a request was made to check the situation. The Respondent-Collector, in turn addressed a letter to Respondent No.5 (Tahsildar, Junnar) for inquiry and report. On 07.01.2016, the sandghats were allotted to the Petitioner after deposit of offset price and agreement was executed and the Petitioner was directed to take possession of the sand-ghats through the Tahsildar. 3.[2] The Petitioner, thereafter issued a letter to the Collector for grant of permission to use suction pump and Poclain machine. It is the case of the Petitioner that the Senior Scientist, Groundwater Survey and Development, Pune has issued a letter dated 11.01.2016 mentioning that there is 8 to 10 meters of water in river Kukadi and therefore usage of suction pump was recommended. The concerned Tahsildar had asked report from the Circle Officer, which was submitted, indicating that out of 5 villages, 4 villages have taken negative stand towards sand excavation and only village Sultanpur was ready. The Tahsildar in turn submitted report to the Collector indicating the said position. In February, 2016, the Petitioner again requested for permission to use suction pump. 3.[3] Finally on 02.03.2016, the Petitioner took possession of the sandghats for the purpose of excavation. In June 2016, the Petitioner reminded the Collector that till date, permission for use of suction pump is not accorded and therefore the Petitioner was not able to utilise full potential of sand-ghats. According to the Petitioner, from March 2016 to September 2016, he excavated only 7298 brass of sand out of permitted 10,570 brass with the available aid of workers. Ultimately, after the period of allotment was over, the Petitioner handed over the possession of the sand-ghats to the Government in the presence of the Circle Officer, Talathi and Panchas. The Petitioner thereafter demanded refund for un-excavated 3272 brass of sand. On 25.06.2018, the District Collector, rejected the request for refund. 3.[4] The Petitioner approached Respondent No.1/State with the same request, however by order dated 17.07.2019, the concerned Additional Secretary rejected the claim of the Petitioner. The Petitioner filed review under Section 258 of the Maharashtra Land Revenue Code, 1966 and by order dated 20.07.2021, the Minister for Revenue partly allowed the review, thereby setting aside the order dated 17.07.2019 and remanded the matter for de novo hearing before the District Level Committee headed by Respondent No.4 Collector. On 06.10.2021, the said Committee rejected the Petitioner’s claim and based on this rejection report the Respondent No.1 State has finally passed the impugned order dated 04.04.2022 rejecting the Petitioner’s claim for refund for un-excavated sand. In these circumstances, the Petitioner has filed the present petition.

4. The Deputy Secretary, Revenue and Forest Department has filed Affidavit-in-Reply dated 19.10.2023 contending inter alia that as per the condition No. 17-C-(22) of applicable Government Resolution dated 12.03.2013 (for short ‘the said GR’), the Petitioner’s request for use of suction pump was not accepted. That the Petitioner was issued 132 receipt books during the period from 02.03.2016 to 30.09.2016, out of which the Petitioner used only 99 receipt books and remaining 33 receipt books were submitted to Tahsildar Junnar. It is contended that under letter dated 19.12.2017, the Collector of Thane informed the Collector of Pune that 39 receipts having signature and stamp of the Collector of Pune issued in the name of the Petitioner for the period between 12.12.2015 to 21.01.2016 were found along with illegally excavated sand in Thane district, which indicates that the Petitioner has used the receipts with back-dates for illegal excavation in Thane district. That the Petitioner was never restrained from excavating sand during the allotment period and as per the minutes of meeting of the District Level Committee, it is clear that there was no fierce opposition either by villagers or local authority from the villages allotted to the Petitioner. The correspondence between the Collector of Thane and Collector of Pune and the allegedly misused receipts are produced on record.

5. The Petitioner filed additional affidavit dated 26.09.2024 denying any connection with the alleged 39 receipts/passes used for illegal excavation in Thane. It is submitted that there are no negative findings against the Petitioner. It is also submitted that 39 receipts found in Thane district were not scanned which is clear from letter issued by the District Mining Officer, Pune dated 29.12.2017 to the Collector of Thane.

6. The Deputy Secretary Revenue and Forest Department has filed further short Affidavit-in-Reply dated 12.12.2024 contending inter alia that the Petitioner has taken possession of sand-ghats without any protest/complaint and copies of panchnama and possession receipts are produced on record. It is reiterated that in view of condition No. 17-C- (22) in the said GR, the Petitioner’s request has been turned down.

7. Mr. Tilak, learned Counsel for the Petitioner submitted that there is sufficient material on record in the form of gram panchayat proceedings and inter-department communication/s to indicate that there was opposition from 4 out of 5 villages in which sand-ghats were allotted. He submitted that since the allotted ghats were submerged in water at many places, the Petitioner could not excavate sand to its full capacity and despite recommendation to permit use of suction pump, the request was not granted, which has resulted in under utilisation of excavation potential. He submitted that therefore, the Petitioner is entitled to refund towards un-excavated sand.

8. The learned Assistant Government Pleader has supported the impugned decision, by referring to various Affidavits-in-Reply as narrated above.

9. We have considered the rival submissions and perused the record with the assistance of the learned Counsel for the parties.

10. Perusal of the applicable sand excavation policy under the said GR indicates that under clause 17-C-(22) & (23), it is provided that it will be sole responsibility of the allottee to excavate sand from allotted area and with the use of means permitted and excuses such as non-availability of expected sand deposits and access roads or sand ghats being submerged in water or there being any manmade or natural obstruction will not be available to the allottees. It is further provided that under no circumstances, the time period will be extended or sand ghats will be changed. With such clear policy in place, on Petitioner’s own showing, he has entered into necessary agreement with the Government on 07.01.2016. So also, it is clear from Panchnama and possession receipt dated 02.03.2016 produced by Respondent/State along with its affidavit, that when the Petitioner accepted the possession of the sand-ghats in presence of Panchas, it is clearly mentioned that the river bank is full of water and the Petitioner has accepted the possession of the sand-ghats without any contest or objection. The possession receipt bears the signature of the Petitioner as a person taking possession. In the teeth of the policy stated above and further in teeth of the Petitioner entering into agreement with the Government and acting upon it, taking possession of the sand-ghats with open eyes, the principle of ‘estoppel by conduct’ applies to the Petitioner. The Petitioner with open eyes has accepted the contract and taken possession of sand ghats partially submerged under water. Since the policy permits excavation only with means permitted by the Government and since the Petitioner was not permitted to use suction pump, no fault can be found with the impugned decision taken on the basis of the said clause.

11. Viewed in the light of what is narrated above, when the impugned order is perused, it is seen that relevant clauses of the said GR are considered properly by the Committee so far as use of suction pump and submerging of sand-ghats are concerned. About the aspect of the Petitioner allegedly using the passes illegally in Thane district, we find that disputed questions of fact are involved and therefore it will not be possible to adjudicate upon the same.

12. However, we note that the most important reason pleaded for inability to excavate sand, is opposition from the local villagers in some of the villages. Those villages are village Bori Budruk, village Bori- Khurd and village Shiroli Tarfe Aale. The Petitioner has produced on record the proceedings of Gram Panchayat-Bori Budruk and Gram Panchayat – Shiroli Tarfe Aale, clearly indicating the decision taken in village panchayat meetings not to permit and oppose sand excavation from the banks of river Kukadi flowing through the villages. Perusal of those proceedings indicates the reason of opposition is their perceived effect of sand excavation on water scarcity in the villages and threat to ancient archaeological remains available in the sand ghats.

13. The Petitioner has also produced a letter dated 21.07.2016 written by the Joint Director, Archaeological, Pune to the concerned Tahsildar at Junnar indicting that it was brought to the notice of Tahsildar that as per the research undertaken by Deccan College Pune in the banks of river Kukadi, passing through the said villages, archaeological remains including stone-age tools and animal remains as well as volcano ashes have been found and such ancient treasure is likely to be damaged by sand excavation. The letter requests the Tahsildar to completely prohibit sand excavation from Kukadi river banks passing through said villages.

14. The Petitioner has also produced a letter dated 24.06.2016 issued by the Taluka Executive Magistrate, Junnar to the local police station asking for police protection in view of stiff opposition by the villagers of Bori-Budruk and Bori-Khurd. Similarly, the correspondence from Sarpanch of village Bori-Budruk is produced, referring to collapse of an old bridge passing through the village due to sand excavation.

15. We have perused the revised sand excavation policy document under GR dated 12.03.2013. Clause 3 thereof specifically provides that before the sand-excavation tender process is undertaken, the recommendation from local Gram Sabha is contemplated. NOC is supposed to be taken from local Gram Sabha and it is incumbent upon the Gram Panchayat to call for a meeting once NOC is asked by the Government. The Sub Divisional Officer is supposed to verify whether reasons given for opposing sand excavation is sufficient or not and if objections are raised, a decision whether sand excavation should be tendered or not is to be taken on merits and for such decision, even participation of officer from ground water survey is provided. Even video recording of such meeting is provided. The said clause also provides that if a particular Gram Sabha has not given permission for sand excavation, and if unauthorised excavation is found, legal action is supposed to be taken.