Promoters and Builders Association of Pune Versus The State of Maharashtra & Ors.



CIVIL APPEAL NO. 10717 OF 2014

(Arising out of S.L.P. (C) NO. 33002 of 2010)

Promoters and Builders Association of Pune … Appellant


The State of Maharashtra & Ors. … Respondents

In the first set of appeals, digging of earth for the purpose of laying of foundation of a building is an integral part of the building activities undertaken by the appellants. According to the appellant-builders, the earth excavated or dug up is redeployed in the building itself at a particular stage of the construction. On the basis that such activity amounts to mining of a “minor mineral” i.e. ordinary earth and that the same is without due permission/lease or assignment of the right to do so, the respondent authorities have invoked the power under Section 48(7) of the Code to levy penalty by the order(s) impugned before the High Court. The challenge having resulted in the findings of the High Court, as extracted above, the present appeals have been the builders themselves. The facts in the appeal filed by Nuclear Power Corporation of India Limited are largely similar. Inconsonance with its objects, the Corporation in whose favour the grant of land was made had carried out digging activities for the purpose of widening of the water channel through which sea water is drawn for the purposes of cooling the nuclear plant in the Tarapur Atomic Power Station. The Corporation categorically denies any commercial use of the extracted earth. On behalf of the appellants it is pointed out that to attract Section 48(7) of the Code, the activity undertaken has to be unlawful. The building operations undertaken by the appellant-builders are pursuant to a final development plan sanctioned under Section 31 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter for short ‘the MRTP Act’). In this regard the attention of the Court has also been drawn to the provisions of Section 2(7) of the MRTP Act which define “development” to mean “carrying out of buildings, engineering, mining or other operations in or over or under, land ……..”. It is also pointed out that by Notification dated 3.2.2000 issued under Section 3(e) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter for short referred to as ‘the Act of 1957’)ordinary earth has been declared to be a minor mineral but only if it is used for filling or leveling purposes in construction of embankments, roads, railways, buildings etc. According to the learned counsel for the appellant-builders, the earth which is dug up for the purposes of laying of foundation of buildings is not intended for filling up or leveling purposes; digging of the earth is inbuilt in the course of building operations. The activity undertaken, therefore, cannot be characterised as one of excavation of a minor mineral. Additionally, the provisions of Rule 6 of the Maharashtra Land Revenue (Restriction on Use of Land)Rules, 1968 (hereinafter for short ‘the Rules of 1968’) has been relied upon to contend that excavation of land for purposes of laying of foundation for buildings do not require any previous permission of the Collector which is otherwise mandated prior to use/excavation of land for any of the purposes covered by the provisions of the Rules of 1968.The definition of ‘Mine’ in Section 2(j) of the Mines Act, 1952and the meaning of the expression ‘mining operation’ assigned by Section 3(d) of the Act of 1957 has also been pressed into service to contend that mere digging of earth as undertaken by the appellants cannot amount to a mining activity. The learned counsel for the appellants (builders)have alternatively contended that if the appellants are still to be held liable under the provisions of Section 48(7) of the Code, the aforesaid provision itself is liable to be adjudged as constitutionally invalid. The Act of 1957 which is relatable to Entry 54 of List I comprehensively deals with all questions of liability on account of unauthorized /unlicensed mining and the field being wholly occupied by a central enactment, Section 48(7) of the Code is constitutionally suspect being relatable to Entry 23 of List II which is subject to Entry 54 of List I….read more