Judgment : Antony Dominic, J. 1. Petitioner is the owner of 50 cents of land situated in Re.Survey. No. 68/5 of Atholi Village in Koilandy Taluk. Alleging that he extracted minor mineral (laterite stone) without a quarrying permit under the Kerala Minor Mineral Concession Rules. He was issued Ext. P1 order requiring him to remit Rs. 74,182. In this order it is stated that the petitioner removed 210.60 Cubic Meters of laterite stone, and therefore it is liable to pay Rs. 8,424/- toward royalty, Rs. 60, 758/- towards price and Rs. 5000/- towards fine. This order was issued by the first respondent, and since amount was not paid, revenue recovery action was initiated against the petitioner. It was there upon the writ petition was filed with the following prayers: (i) declare that the Rule 58 (2) of the Minor Kerala Mineral Concession Rules is repugnant to section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 (Central Act) to the extent it seeks to recover the minor mineral or price of minor mineral on allegation of raising of minor mineral without lawful authority, and therefore void and liable to be struck down. (ii) declare that Ext. P1 order is arbitrary, illegal and ultra vires of the Central Act and consequently Ext. P2 and P3 proceedings are illegal, void and unenforceable. (iii) call for the records leading to Ext. P1 , P2 and P3 and quash the same by issuance of a writ of certiorari or other appropriate writ, order or direction. 2. Petitioner contends that Rule 58(2) of KMMC Rules is repugnant to section 15 of the MMDR Act, to the extent minor mineral or price of the minor mineral is permitted to be recovered by the State. He also disputes the allegation that he removed laterite stones and on that basis impugns Exts. P1 to P3. In support of his first contention, counsel for the petitioner relied on the provisions of the MMDR Act, KMMC Rules and the judgment of this court KALYANAM TILE CO. vs STATE OF KERALA (1988 (1) KLT 153). 3. Ext. He also disputes the allegation that he removed laterite stones and on that basis impugns Exts. P1 to P3. In support of his first contention, counsel for the petitioner relied on the provisions of the MMDR Act, KMMC Rules and the judgment of this court KALYANAM TILE CO. vs STATE OF KERALA (1988 (1) KLT 153). 3. Ext. P1 was issued on 20.08.2007 and as on that date Rule 58(2) of the KMMC Rules stood as follows: "whenever any person raises without any unlawful authority any minor mineral from any land, the State Government may recover from such person the mineral so raised or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any unlawful authority." 4. Reading of this provision shows that when a person raises without any lawful authority minor mineral from any land, the State Government may recover from such person the mineral so raised or where such mineral has already been disposed of, its price, in addition to rent, royalty or tax as the case may be. Case of the petitioner is that the Rule have been framed by the State Government in exercise of the powers conferred under section 15 of the MMDR Act 1957, which authorises the State to make rules for regulating the grant as quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected there with. It is contented that none of the provisions of section 15 authorises the State Government to recover the mineral raised unauthorisedly or its price from the person concerned. It is in support of this contentions that the counsel for the petitioner relied on the judgment in KALYANAM TILE CO. vs STATE OF KERALA (1988 (1) KLT 153). 5. Having considered the rival submissions made at the bar, I am inclined to think that there is no substance in the contention. Section 21 of the MMDR Act provides of penalties. vs STATE OF KERALA (1988 (1) KLT 153). 5. Having considered the rival submissions made at the bar, I am inclined to think that there is no substance in the contention. Section 21 of the MMDR Act provides of penalties. Section 21(5) reads as under: "whenever any person raises without any unlawful authority any minor mineral from any land, the State Government may recover from such person the mineral so raised or, where such mineral has already been disposed of, the price there of, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any unlawful authority." 6. A comparison of section 21(5) of the Act with Rule 58(2) of KMMC Rules shows that the State government was only incorporating provisions of section 21(5) into the KMMC Rules. Therefore even if it is assumed that section 15 of the MMDR Act did not authorise the State to make Rules for recovery of the minor mineral or its price, so long as section 21(5) of the MMDR Act remained in the statute, even in the absence of Rule 58(2), the State could have realized the minor mineral or its price from a person who raises the minor mineral without lawful authority. Therefore, Rule 58 cannot said to be ultra virus the MMDR Act rendering it unconstitutional and unenforceable. 7. In the aforesaid judgment that was considered by this court is a scope of Rule 48 (L ) of the KMMC Rule and it was held that in view of section 15 of the MMDR Act, the provision of realisation, the price was beyond the rule making power of the Government. The said judgment can have no relevance in this case so long as section 21 (5) of the MMDR Act authorises the State to realize price when minor mineral is raised without authority. Therefore this judgment will not improve the case of the petitioner in any manner. Therefore, the first prayer in the writ petition is only to be rejected. In so far the case of the petitioner is that he did not unauthorisedly raise the minor mineral is concerned, such a contention is a factual one. If at all petitioner has such agreement the permit available to the petitioner the course available to the petitioner was to challenge Ext. In so far the case of the petitioner is that he did not unauthorisedly raise the minor mineral is concerned, such a contention is a factual one. If at all petitioner has such agreement the permit available to the petitioner the course available to the petitioner was to challenge Ext. P1 by filing an appeals as provided in Rules 49 of the KMMC Rules. In any case adjudication of such factual controversies is impermissible in a proceedings under Article 226 of the Constitution of India and therefore that prayer of the petitioner against Ext.P1 has to be rejected. Once Ext. P1 is held valid of Ext. P2 and P3 revenue recovery notice also cannot be interfered with. 8. The up short of the above discussion is that no merit substance in the contentions raised and the writ petition is to be dismissed. 9. However taking note of the submissions made by the counsel for the petitioner, I allow the petitioner to remit the amount due under Ext. P1 in 5 equal installments. The first installment shall be paid on or before 25.02.2012 and subsequent installments shall be paid by the 25-th of every subsequent month. If payment is made without default, recovery will be deferred and in case default is committed, respondents will be free to continue the revenue recovery action.