HIGH COURT OF CHATTISGARH AT BILASPUR
Writ Petition C 4266 of 2009
Shri Dattatraya Mandir Trust
...Petitioners
Versus
1 State of Chhattisgarh
2 Collector and Chairman
3 Registrar Public Trust
4 Taran Prakash Sinha
5 Shri Chetan Dandawate
6 Shri Yashwant Rao Girepunje
...Respondents
! Shri Virendra Sharma
^ Shri Arun Sao
CORAM: Honble Shri Satish K Agnihotri J
Dated: 11/08/2009
: JUDGEMENT
O R D E R Oral
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION
OF INDIA
1. The petitioner has filed this petition, impugning the
order dated 25.7.2009 (Annexure P/1), passed by the Sub
Divisional Officer and Registrar Public Trust, Raipur in Case
No. 01 B/113(4) year 2008-09 (Yashwant Rao Girpunje & another
Vs. State of Chhattisgarh).
2. Learned counsel appearing for the petitioner submits
that the petitioner Shri Dattatraya Mandir Trust is a
registered trust. On 19.8.2008 (Annexure P/2) the petitioner-
Trust, through its trustee namely Shri Yashwant Rao
Girepunje/Respondent No.6 filed an application under Section
9 (1) of the Chhattisgarh Public Trusts Act, 1951 (for short
`the Act, 1951′) in prescribed format to the respondent No.3
for change of the entries in trust register for change of
names of some of the trustees. The respondent No.2 after
following the prescribed procedure passed the order on
12.1.2009 under Section 9 (2) of the Act, 1951. This order
was conditional where names of the trustees were directed to
be entered on furnishing five points information/documents
within seven days, failing which the order was to be
cancelled automatically. The requisite conditions were
fulfilled on 19.1.2009 and consequently the entries were made
in the register as per the order dated 12.1.2009.
3. Thereafter, the respondent No.5 (Shri Chetan Dandawate),
Secretary of the Trust, filed an application on 2.7.2009
before the respondent No.3 for quashing of the order dated
12.1.2009. By the impugned order dated 25.7.2009 (Annexure
P/1) the respondent No.3 cancelled the order dated 12.1.2009,
hence this petition.
4. Learned counsel appearing for the petitioner further
submits that Section 8 (1) of the Act, 1951 provides that any
working trustee or person having interested in a public trust
or any property found to be trust property, aggrieved by any
finding of the Registrar may institute a suit in a Civil
Court to have such finding set aside or modified. The
respondent No.6 instead of filing a civil suit, being
aggrieved by the order dated 12.1.2009, passed by the
Registrar, had filed an application/complaint on 2.7.2009.
The respondent No.3, contrary to the provisions of Section 8
of the Act, 1951 entertained the application/complaint made
by the respondent No.6 and by the impugned order dated
25.7.2009 (Annexure P/1) recalled the order dated 12.1.2009,
which is not sustainable in law.
5. I have heard learned counsel appearing for the parties
and perused the documents appended thereto.
6. Section 8 of the Act, 1951 provides for filing of civil
suit against any of the findings of the Registrar, Public
Trust. The Registrar, Public Trust has passed the order dated
25.7.2009 (Annexure P/1) under the provisions of Section 9
(2) of the Act, 1951. Sub-section (3) of Section 9 of the
Act, 1951 provides that “The provisions of section 8 shall
apply to any finding under this section as they apply to a
finding under section 6.” Thus, if a finding is recorded
under the provisions of Section 9 (1) & (2) of the Act, 1951,
an aggrieved party may move the civil Court against the
finding of the Registrar, Public Trust. Thus, the petitioner
has alternative statutory remedy of challenging the order of
the Registrar, Public Trust, passed under Section 9 of the
Act, 1951, in civil suit.
7. Having perused the relevant provisions of law, it is
obvious that an alternative effective statutory remedy is
available to the petitioner under Section 8 of the Act, 1951.
It is well settled that normally the High Court should not
interfere if there is an adequate, statutory, efficacious
alternative remedy is provided by the statute, party must
exhaust the statutory remedy before resorting to writ
jurisdiction.
8. A Constitution Bench of the Hon’ble Supreme Court in K.
S. Rashid and Son v. Income Tax Investigation Commission and
Others1, observed that “the remedy provided for in Article
226 of the Constitution is a discretionary remedy and the
High Court has always the discretion to refuse to grant any
writ if it is satisfied that the aggrieved party can have an
adequate or suitable relief elsewhere.” The said decision has
been referred and followed subsequently in a catena of
decisions that if a relief cannot be granted by the appellate
authority, the writ jurisdiction may be invoked. In the
present set of facts, all the relief sought for by the
petitioner can be granted by the civil Court.
9. On the question of availability of alternative remedy,
the Supreme Court in State of H.P. and others v. Gujarat
Ambuja Cement and another2, observed as under:
“17. We shall first deal with the plea regarding
alternative remedy as raised by the appellant
State. Except for a period when Article 226 was
amended by the Constitution (Forty-second
Amendment) Act, 1976, the power relating to
alternative remedy has been considered to be a rule
of self-imposed limitation. It is essentially a
rule of policy, convenience and discretion and
never a rule of law. Despite the existence of an
alternative remedy, it is within the jurisdiction
of discretion of the High Court to grant relief
under Article 226 of the Constitution. At the same
time, it cannot be lost sight of that though the
matter relating to an alternative remedy has
nothing to do with the jurisdiction of the case,
normally the High Court should not interfere if
there is an adequate efficacious alternative
remedy. If somebody approaches the High Court
without availing the alternative remedy provided
the High Court should ensure that he has made out a
strong case or that there exist good grounds to
invoke the extraordinary jurisdiction.
10. Further, applying the said ratio in U.P. State Spinning
Co. Ltd. vs. R.S.Pandey and another3, the Court observed as
under:
“21. In U.P. State Bridge Corpn. Ltd. v. U.P. Rajya
Setu Nigam S. Karmachari Sangh, it was held that
when the dispute relates to enforcement of a right
or obligation under the statute and specific remedy
is, therefore, provided under the statute, the High
Court should not deviate from the general view and
interfere under Article 226 except when a very
strong case is made out for making a departure. The
person who insists upon such remedy can avail of
the process as provided under the statute. To the
same effect are the decisions in Premier
Automobiles Ltd. v. Kamlekar Shantaram Wadke,
Rajasthan SRTC v. Krishna Kant, Chandrakant Tukaram
Nikam v. Municipal Corpn. of Ahmedabad and in
Scooters India v. Vijai E.V.Eldred.”
11. This Court in Writ Petition (C) No. 2164 of 2008
(Shivratan Agariya & another Vs. State of Chhattisgar &
others) in para 6 and 7 observed as under:
“6. This Court in M/s Thobhani Auto Mobiles vs.
State of Chhattisgarh and Others, while dealing
with the issue of alternative remedy observed that
“normally the High Court should not interfere if
there is an adequate, efficacious alternative
remedy where hierarchy of appeals is provided by
the statute, party must exhaust the statutory
remedy before resorting to writ jurisdiction,
except when a very strong case is made out for
making a departure.”
7. Applying the well-settled dicta laid down by
the Hon’ble Supreme Court as well as this Court on
the issue of availability of alternative remedy to
the facts of the case, this petition is dismissed
as not maintainable, as no strong case has been
made out for exercise of extraordinary
discretionary jurisdiction in favour of the
petitioners. However, liberty is reserved to the
petitioners to take recourse to the alternative
statutory forum that may be available to them under
the provisions of law. Consequently, interim order
passed earlier stands vacated.”
12. In view of the foregoing, the petition is dismissed as
not maintainable. However, liberty is reserved to the
petitioner to avail the alternative statutory remedy, in
accordance with law, if so advised.
J U D G E