Jini Prakashan v. District Geologist, District Mining and Geology Office Palakkad; District Collector, Palakkad District; Thahasildar, Alathur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY, THE 14TH DAY OF AUGUST 2019 / 23RD SRAVANA, 1941** ## **WP(C).No.20065 OF 2019(G)** ## **PETITIONER :** **JINI PRAKASHAN AGED 46 YEARS W/O. PRAKASHAN, KALLAKKERI HOUSE, CHALAKKA, NORTH KUTHIYATHODU P. O., PUTHANVELIKKARARA, PARAVOOR, ERNAKULAM DISTRICT, PIN - 683594.** **BY ADV. SRI.T.A.SHABEERALI** ## **RESPONDENTS:** - **1 THE DISTRICT GEOLOGIST DISTRICT MINING AND GEOLOGY OFFICE, TOWN BUS STAND COMPLEX, PALAKKAD, PIN - 678014.** - **2 THE DISTRICT COLLECTOR PALAKKAD DISTRICT.** - **3 THE THAHASILDAR ALATHUR, ALATHUR TALUK OFFICE, PALAKKAD DISTRICT. PIN-678 014** ## **BY SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20065 OF 2019(G)** **2** ## **JUDGMENT** The petitioner, who is running a brick manufacturing unit in the land comprised in Re.Sy.No.134/2 of Tharoor II Village in Palakkad District, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 order dated 16.07.2019 of the 2[nd] respondent District Collector as the same being arbitrary, illegal and unsustainable. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to consider Ext.P4 application dated 19.07.2019 and allow her to compound the offence on payment and release the goods, forthwith. 2. On 23.07.2019, when this writ petition came up for admission, the learned Government Pleader sought time to file statement. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. **WP(C).No.20065 OF 2019(G)** **3** 4. The petitioner is feeling aggrieved by Ext.P3 order dated 16.07.2019 of the 2[nd] respondent District Collector, whereby 40,000 boiled bricks out of 1,00,000 boiled bricks seized as per Ext.P1 notice dated 26.02.2019 of the 1[st] respondent District Geologist are directed to hand over to District Nirmithi Kendra for sale through 'Kalavara'. As per Ext.P3 order, the 2[nd] respondent District Collector has released 60,000 boiled bricks to the petitioner on remittance of a sum of Rs.4,45,000/- towards its market price, including royalty for 500 Metric Tons of clay and fine, which the petitioner had already remitted vide Ext.P2 chalan dated 06.03.2019. After Ext.P3 order, the petitioner submitted Ext.P4 request dated 19.07.2019 before the 2[nd] respondent to give back the balance 40,000 boiled bricks, instead of handing over the same to the District Nirmithi Kendra. 5. In **Sirajuddin v. District Collector [2017 (1) KLT 756]** , a Divisional Bench of this Court held that a **WP(C).No.20065 OF 2019(G)** **4** plain reading of sub-section (5) of Section 21 of Mines and Minerals (Development and Regulation) Act, 1957 makes it explicitly clear that the question of payment of the price of the mineral illegally extracted arises only when the minerals so extracted has already been disposed of and as such, not available for recovery and not in a case, in which, such mineral, after transformation as bricks under the process of mere mixing and baking is available for recovery. Paragraph 33 of the said decision reads thus. “33. As we have already noticed, sub-section (5) of Section 21 of the MMDR Act empowers the State to recover from any person, who raises without any lawful authority any mineral, the mineral so raised or where such mineral has already been disposed of, the price thereof. In the case on hand, the mineral, namely, the ordinary clay, is used for the manufacture of bricks, which is essentially a process by which, ordinary clay is mixed and cut into different shapes and then baked. A plain reading of sub-section (5) of Section 21 makes it explicitly clear that the question of payment of the price of the mineral illegally extracted arises only when the mineral so extracted has already been disposed of and as such, not available for recovery and not in a **WP(C).No.20065 OF 2019(G)** **5** case, in which, such mineral, after transformation as bricks under the process of mere mixing and baking is available for recovery. The decision of the Apex Court in **Punjab Aromatics** v. **State of Kerala** [(2008) 11 SCC 482 ] relied on by the appellants in the context of 'test of irreversibility' which is a criterion to ascertain as to when a given process amounts to manufacture. The question that was dealt with in the said decision is whether the process of conversion of 'red oil' into 'sandalwood oil' by removing water content and other impurities would attract levy of purchase tax under Section 5A of the Kerala General Sales Tax Act, 1963. The said decision on an entirely different factual matrix, rendered in the context of levy of purchase tax under Section 5A of the KGST Act in no way supports the arguments advanced by the appellants in these appeals, with reference to sub-section (5) of Section 21 of the MMDR Act. Therefore, the learned single Judge rightly rejected the contention of the appellants that the bricks manufactured using the illegally extracted ordinary clay is not liable for seizure or recovery in terms of sub-section (5) of Section 21 of the MMDR Act.” 6. In view of the law laid down in the decision referred to supra, no interference is warranted on Ext.P3 order of the 2[nd] respondent insofar as 40,000 boiled bricks are ordered to be handed over to the **WP(C).No.20065 OF 2019(G)** **6** District Nirmithi Kendra. 7. The relief sought for in Ext.P4 representation made by the petitioner is contrary to the statutory provisions and also the law laid down by this Court in the deicison referred to supra. Therefore, the 2[nd] respondent cannot be directed to consider that representation, as no mandamus can be issued to do something which is contrary to law. 8. **In State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the **WP(C).No.20065 OF 2019(G)** **7** ## provisions of law or to do something which is contrary to law. Paragraph 10 of the said decision reads thus; " **10.** Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on **WP(C).No.20065 OF 2019(G)** **8** 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. ......." 9. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law. Vide: State of Punjab v. Renuka Singla [(1996) 8 SCC 90], State of U.P. v. Harish Chandra [1996 (9) SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560]. 10. In view of the decisions referred to supra, conclusion is irresistible that the petitioner is not entitled for the reliefs sought for in this writ petition. **WP(C).No.20065 OF 2019(G)** **9** When the request sought for in Ext.P4 application is contrary to the statutory mandate, no writ of mandamus can be issued for consideration of that application. In the result, this writ petition fails and the same is accordingly dismissed. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/17/8 **WP(C).No.20065 OF 2019(G)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOSTAT COPY OF THE NOTICE DATED 26.02.2019 OF THE FIRST RESPONDENT. EXHIBIT P2 THE PHOTOSTAT COPY OF THE CHALLAN DATED 06.03.2019.** **EXHIBIT P3 PHOTOSTAT COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 16.07.2019. EXHIBIT P4 THE PHOTOSTAT COPY OF THE APPLICATION DATED 19.07.2019 SUBMITTED BY THE PETITIONER.** **EXHIBIT P5 THE PHOTOSTAT COPY OF THE JUDGMENT DATED 07.03.2017 IN WP(C) 7615/2017.**