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 30th 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 1/7 902.WP.16418.2024.doc Sufiyan Syed - PA 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 2/7 902.WP.16418.2024.doc Sufiyan Syed - PA 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 3/7 902.WP.16418.2024.doc Sufiyan Syed - PA 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) 4/7 902.WP.16418.2024.doc Sufiyan Syed - PA (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 5/7 902.WP.16418.2024.doc Sufiyan Syed - PA 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 6/7 902.WP.16418.2024.doc Sufiyan Syed - PA 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. (ARUN R. PEDNEKER, J.) 7/7 902.WP.16418.2024.doc Sufiyan Syed - PA SUFIYAN EHTESHAM SYED Digitally signed by SUFIYAN EHTESHAM SYED Date: 2026.09.10 18:29:57 +0530