The Bombay High Court had held that extra excavation of soil/earth during construction, by itself, does not make the excavated material a minor mineral so as to attract royalty. The Court observed that royalty cannot be imposed unless it is positively demonstrated, or clear inferences can be drawn, that the excavated material was used for purposes specified in the relevant notification.

Justice Arun R. Pedneker was hearing a writ petition filed challenging a demand of Rs.1,21,05,180/- towards royalty/penalty for alleged excess excavation. The petitioner contended that they had permission to construct on the concerned plots and had already paid royalty for excavation of 897 brass of murum. It was submitted that excavation was a natural part of construction and that the excavated material had to be refilled at the same site.

Relying on the Supreme Court's judgment in Promoters and Builders Association of Pune v. State of Maharashtra & Ors., the petitioner submitted that loose soil/excavated earth does not become a minor mineral unless it is removed and utilised for the purposes specified in the notification issued under Section 3(e) of the Mines and Minerals (Development and Regulation) Act, 1957.

The State opposed the petition, submitting that there was excess excavation of mines and minerals and that the excavated material was not found near the site, indicating that it had been transported and used as a minor mineral.

The Court noted that under the Supreme Court's judgment, excavated earth becomes a minor mineral only when it is used for the end products specified in the notification. It further observed that excavation is a natural part of construction activity and that some excavated material may also be required to be refilled.

The Court held that unless the use of the excavated material for the specified purposes is positively demonstrated, royalty cannot be imposed on the excavated soil/earth. It observed:

“… unless it is positively demonstrated or clear inferences are drawn that the material is used for the purposes as mentioned in the notification, royalty cannot be imposed on the excavated soil/earth, as the same cannot be quantified as minor mineral.

The Court noted that extra excavation alone is not sufficient.

“Extra excavation alone is not sufficient to hold that the extra excavated material is a minor mineral as the excavation being a natural part of the construction activity,” the Court remarked.

Accordingly, the writ petition was allowed and disposed of.

Case Title: Viren Buildcon LLP v. State of Maharashtra [Writ Petition No. 3022 of 2026]

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