HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION C No 3786 of 2010
A Chandrashekhar
...Petitioners
Versus
The State of Chhattisgarh & Others
...Respondents
! Shri RS Baghel Advocate for the petitioner
^ Shri NN Roy Panel Lawyer for the State
CORAM: Honble Shri Satish K Agnihotri J
Dated: 28/08/2010
: Judgement
ORDER ORAL
Passed on 28th day of August 2010
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
1. Heard learned counsel for the parties.
2. The petitioner on the basis of alleged irregularities
purported to have been committed by the Secretary of the
respondent No.6 association, seeks a direction to the
respondent No.2 & 3 to exercise the powers under Section
33 of the Chhattisgarh Society Registrikaran Adhiniyam,
1973 (for short “the Adhiniyam, 1973”) and supersede the
respondent No.6 and to take the management of respondent
No.6 in its hands. Further, a writ of mandamus to the
respondent No.2 & 3 to stop respondent No.7 from working
as Secretary to the respondent No.6 association.
3. Be that as it may, on a special query whether any
application has been made either to the State Government
or to the Registrar, learned counsel appearing for the
petitioner submits that a representation has been made to
the Deputy Registrar, Societies and Firms, Bilaspur
Division, Bilaspur, on 29/07/2010 (Annexure D) seeking an
action against one Shri N.A. Khan to stop his illegal
activities and to remove him for violation of law as well
as the resolution dated 26/03/2009.
4. The petitioner is seeking a direction to comply with
the statutory provisions contained under the provisions of
Section 33 of the Adhiniyam, 1973. Section 33 of the
Adhiniyam, 1973 begins with the words “If, in the opinion
of the State Government”. Thus, the State Government has
to form its opinion on the basis of certain documents or
application made by the competent people to make the
application.
5. It is a case where the petitioner has not attempted
to approach the State Government or the Registrar for
exercise of its power under the provision of Section 33 of
the Adhiniyam, 1973 had rather chosen to approach this
Court directly under Article 226 of the Constitution of
India seeking a direction against the State respondent to
act under the provisions of Section 33 of the Adhiniyam,
1973.
6. This is a very unusual case, where it appears that
the petitioner has by-passed all the statutory provisions
and seeking a direction, which may not be granted when
there is no application to the Registrar of Societies or
the State Government, as the case may be, and, as such,
the State Government has no opportunity to form its
opinion to take action under the provisions of Section 33
of the Adhiniyam, 1973 against the respondent No. 6 & 7.
7. It is a trite law that a petitioner seeking writ of
mandamus must have a judicially enforceable legal right,
which has been infringed.
8. The Supreme Court in Mani Subrat Jain and others vs.
State of Haryana and others1, held as under :-
“9. The High Court rightly
dismissed the petitions. It
is elementary though it is to
be restated that no one can
ask for a mandamus without a
legal right. There must be a
judicially enforceable right as
well as a legally protected
right before one suffering a
legal grievance can ask for a
mandamus. A person can be said
to be aggrieved only when a
person is denied a legal right
by some one who has a legal
duty to do something or to
abstain from doing something
(See Halsbury’s Laws of
England, 4th Ed. Vol. I,
paragraph 122; State of Haryana
v. Subash Chander Marwaha &
Ors. Jasbhai Motibhai Desai
v. Roshan Kumar Haji Bashir
Ahmed & Ors. and Ferris
Extraordinary Legal Remedies
paragraph 198.”
9. In Dr. Umakant Saran vs. State of Bihar and others2,
the Supreme Court observed as under :-
“10. This Court has pointed out
in Dr. Rai Shivendra Bahadur v.
The Governing Body of the
Nalanda College, that in order
that mandamus may issue to
compel the authorities to do
something, it must be shown
that the statute imposes a
legal duty and the aggrieved
party have a legal right under
the statute to enforce its
performance. xxx xxx xxx”
10. The petitioner has not established any legally
enforceable right to seek the aforestated writ of mandamus
or any other writ.
11. The letter dated 29/07/2010 addressed to the Deputy
Registrar, Societies and Firms, Bilaspur Division,
Bilaspur, does not seek exercise of powers under the
provisions of Section 33 of the Adhiniyam, 1973 and, as
such, it cannot be said that the petitioner has made an
application to the Registrar or the State Government, as
the case may be.
12. Thus, this petition is frivolous, without any basis
and is accordingly dismissed. However, liberty is reserved
to the petitioner to make appropriate application to the
Registrar of Societies or the State Government, as the
case may be, seeking exercise of power under Section 33 of
the Adhiniyam, 1973, if so advised.
J U D G E
