Preji Jose vs. Geologist Department of Mining and Geology, Thrissur District

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941** ## **WP(C).No.13338 of 2019** **PETITIONER:** **PREJI JOSE, W/O. VINU ABRAHAM, PUTHUR HOUSE, ARAKUNNAM DESOM, ARAKUNNAM P.O., KANAYANNOOR TALUK, ERNAKULAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, JEEMON JOHN, S/O. M.M.JOHNY, MEKKATTUPARAMABIL HOUSE, KOMBATHUKADAVU P.O., PUTHENCHIRA, THRISSUR DISTRICT BY ADV. SRI.O.D.SIVADAS** **RESPONDENT:** **THE GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, THRISSUR DISTRICT** ## **SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) 13338/2019 -:2:- ## **JUDGMENT** The petitioner is the owner of the property having an extent of 10.12 ares in Sy.No.184/1 of Nadathara Grama Panchayat in Thrissur Taluk, covered by Ext.P1 tax receipt. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondent District Geologist to issue OA Form to the petitioner to remove and transport ordinary earth from his property in Sy.No.184/1 Nadathara Village, without insisting production of No Objection Certificate from the revenue authorities. 2. On 7.5.2019, when this writ petition came up for admission, the learned Senior Government Pleader was directed to get instructions. On 29.5.2019, when this writ petition came up for consideration, this Court passed the following order: _“The learned Government Pleader on instructions would submit that the respondent is yet to receive Ext.P4 application._ _The learned counsel for the petitioner seeks adjournment._ _Post on 24.6.2019._ _Based on the instructions, the learned Government Pleader to file statement.”_ 3. Heard the learned counsel for the petitioner and also the ## W.P.(C) 13338/2019 ## -:3:- learned Senior Government Pleader appearing for the respondent. 4. The sole issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for a writ of mandamus commanding the respondent to consider Ext.P4 request dated 25.1.2019. 5. The specific stand taken by the learned Government Pleader on 29.5.2019 is that the respondent is yet to receive Ext.P4 application. The learned counsel for the petitioner could not produce any material to show that such a request has already been made before the respondent, on 25.1.2019. 6. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145]** a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Paragraph 15 of the said decision reads thus; W.P.(C) 13338/2019 -:4:- " **15.** .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer [1966 (1) SCR 120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." (underline supplied) ## 7. In **Oriental Bank of Commerce v. Sunder Lal Jain** ## **[(2008) 2 SCC 280]** the Apex Court held that, in order that a W.P.(C) 13338/2019 -:5:- writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. Paragraphs 11 and 12 of the said decision read thus; " **11.** The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. : **Note 187** .- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to W.P.(C) 13338/2019 -:6:- perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed. **Note 192** .- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. **Note 196** .- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. **Note 206** .- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion W.P.(C) 13338/2019 -:7:- reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. **12.** These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149]** , after referring to the earlier decisions in **Lekhraj Satramdas Lalvani v. N.M. Shah [AIR 1966 SC 334]** , **Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210]** and **Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]** , this Court observed as follows in paragraph 15 of the reports: - "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already W.P.(C) 13338/2019 -:8:- indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31[st] March, 2000 and apply RBI guidelines to their case." 8. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that, u nder 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. Paragraph 10 of the said decision reads thus; W.P.(C) 13338/2019 -:9:- " **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 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 W.P.(C) 13338/2019 -:10:- 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 the instant case, the petitioner filed this writ petition before this Court on 6.5.2019, without submitting Ext.P4 application for mineral transit passes before the respondent. In such circumstances, it cannot be said that there is any failure on the part of the respondent in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of mandamus for consideration of Ext.P4 application. In the result, this writ petition fails and the same is accordingly dismissed. It is made clear that this judgment will not stand in the way of the petitioner making a fresh application before the W.P.(C) 13338/2019 -:11:- respondent, after complying with the statutory mandate, and pursuing that application. **Sd/-** **ANIL K.NARENDRAN, JUDGE** vps W.P.(C) 13338/2019 -:12:- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE RECEIPT ISSUED BY THE VILLAGE OFFICER, NADATHARA VILLAGE DATED 7.04.2018** **EXHIBIT P2 COPY OF THE BUILDING PERMIT DATED 12.12.2017 ISSUED BY THE NADATHARA GRAMA PANCHAYATH** **EXHIBIT P3 COPY OF THE NOTIFICATION DATED 30.6.2014 ISSUED BY THE GOVERNMENT EXHIBIT P4 COPY OF THE REQUEST DATED 25.01.2019 SUBMITTED BY THE PETITIONER TO THE RESPONDENT** ## **RESPONDENT'S/S' EXHIBITS:** ## **NIL** **/True Copy/** **vps PS to Judge**