Madhya Pradesh High Court
Anurag Kumar Jain vs Sub Divisional Officer Revenue on 21 September, 2021
Author: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.19981/2020
Anurag Kumar Jain and others Vs. Sub Divisional Officer
(Revenue) Cum Registrar, Public Trust, and others
Gwalior, Dated:21/09/2021
Shri Arun Dudawat, Advocate for petitioners.
Shri R.P. Singh, Government Advocate for State through video
conferencing.
Shri Siddharth Sharma, Advocate for Caveator.
This petition under Article 226 of the Constitution of India has
been filed challenging order dated 9/12/2020 passed by Sub
Divisional Officer/ Registrar, Public Trust, Bhind in case No.1/2020-
21/B-113, by which the trust formed by the petitioners in the name of
Pannalal Ayodhya Prasad Dharmshala Trust, Sadar Bazar, Bhind has
been cancelled.
2. Although various grounds have been raised by the counsel for
the petitioners, but one more ground was raised that since the power
of Registrar, Public Trust have not been delegated to the SDO by
notification under Section 34-A of MP Public Trust Act, therefore,
exercise of power of Registrar, Public Trust by the SDO, Bhind was
bad in law and accordingly, by order dated 20/7/2021, the State
Government was directed to place the copy of work distribution
memo or notification by which the power of Registrar, Public Trust
under MP Public Trust Act were delegated to the SDO (Revenue),
Bhind. Accordingly, the SDO (Revenue), Bhind has filed the order
dated 12/3/2019 issued by the Collector/District Magistrate, Bhind to
2 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.19981/2020
Anurag Kumar Jain and others Vs. Sub Divisional Officer
(Revenue) Cum Registrar, Public Trust, and others
show that the power of Registrar, Public Trust, were delegated to him
by work distribution and not by any notification under Section 34 of
MP Public Trust Act.
3. The pivotal question for determination in the present case is
that- "as to whether the Collector who is de jure Registrar under
Section 3 of MP Public Trust Act, 1951 can delegate its power by
work distribution or not?"
4. Section 34-A of the Act, 1951 deals with the delegation of
powers as Registrar which reads as under:-
"34A. Delegation of powers by Registrar. -
Subject to the provisions of this Act and to such
restrictions and conditions, as may be prescribed,
the Registrar may, by order in writing, delegate all
or any of his powers and duties under this Act to
any Revenue Officer of his district not below the
rank of a Sub-Divisional Officer.''
5. The questions that whether there has to be specific notification
under Section 34-A of the Act, 1951 or the powers can be delegated
by work distribution memo are no more res integra.
6. The Co-ordinate Bench of this Court in the case of Praveen
Malpani & Anr. vs. Mahendra Singh Gadwal & Anr. by judgment
dated 15.2.2018 passed in M.A.No.4917/2009 (Principal Bench)
has held as under:-
"6. Before dealing with the rival contentions of the
parties, it is apposite to refer the relevant
3 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.19981/2020
Anurag Kumar Jain and others Vs. Sub Divisional Officer
(Revenue) Cum Registrar, Public Trust, and others
provisions of the Trust Act, which read as under:
"Section 2(6). "Register" means the
Registrar of Public Trust;"
"Section 3. Register of Public Trust.- (1)
The [Collector] shall be the Registrar of Public
Trusts in respect of every public trust the principal
office or the principal place of business of which
as declared in the application made under Sub-
section(3) of Section 4 is situate in his district; (2)
The Registrar shall maintain a register of public
trusts, and such other books and registers and in
such form as may be prescribed."
"Section 34-A. Delegation of powers by
Registrar.- Subject to the provisions of this Act
and to such restrictions and conditions, as may be
prescribed, the Registrar may, by order in writing,
delegate all or any of his powers and duties under
this Act to any Revenue Officer of his district not
below the rank of a Sub-Divisional Officer"
7. In the considered opinion of this Court, the
point involved in this case is no more re integra. In
Shri Deo Parasnathiji Mousuma Ghanshyam
Budhu Singhai (Supra) this Court opined as
under:
"8. While interpreting a provision like
section 34-A it must be borne in mind that
statutory powers cannot be assigned without
statutory authority to do so. It must, therefore,
bear a strict construction. Now, that section
speaks of an "order in writing" by the Registrar of
Public Trusts, delegating all, or any of his powers
and duties under the Act. The words used
obviously contemplate the making of a separate
"order in writing" by the Registrar after due
application of his mind, and not a mere
administrative direction in the nature of a
Distribution memo issued by a Deputy
Commissioner (now the Collector) for allocation
of revenue work within his district. There is a
distinction between an order of delegation of
certain statutory functions and the administrative
power of allocating business of particular officers.
4 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.19981/2020
Anurag Kumar Jain and others Vs. Sub Divisional Officer
(Revenue) Cum Registrar, Public Trust, and others
Even assuming that a delegation of powers under
section 34-A is an administrative function,
nevertheless such delegation could not be
achieved by the issue of a Distribution Memo for a
variety of reasons. In the first place, the section
speaks of the Registrar of Public Trusts and not
the Deputy Commissioner of a district. Secondly,
the making of an order in writing" has to be after
due application of his mind, and, therefore, it is
not a mere ministerial act. Thirdly, issuance of a
Distribution memo implies the existence of a
power in several persons, and it merely allocates
the work for administrative convenience, while a
delegation under section 34-A results in conferral
of jurisdiction on a particular officer in respect of
functions of a judicial nature. In my view, when
section 34-A speaks of an "order in writing", it
implies the making of a general or special order
by the Registrar of Public Trusts in his capacity as
such, which must clearly define the nature of the
functions that are assigned thereby."
[Emphasis Supplied]
8. The question of delegation of power through
the work distribution order was again considered
by the Division Bench of this Court in M.P.
No.1209/1991 [Smt. Buddhibai vs. Registrar
Public Trust-cum-SDO & others]. The relevant
portion reads as under:
"As in the present case, the impugned order
was passed by SubDivisional Officer the main
ground of attack made in this petition is that there
was no delegation of power in favour of the Sub-
Divisional Officer and, therefore, the impugned
order passed by him as Registrar of Public Trust is
illegal and without jurisdiction. Considering this
argument on behalf of the petitioner at the time of
hearing of this petition on 19.04.19921, this Court
was pleased to adjourn the hearing of the case so
as to enable the learned Addl Adv. General
appearing on behalf of the respondent No.1 to
show whether the Registrar had delegated his
power under section 34-A of the M.P. Public
5 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.19981/2020
Anurag Kumar Jain and others Vs. Sub Divisional Officer
(Revenue) Cum Registrar, Public Trust, and others
Trusts Act and on what ground. Today the learned
Dy. Adv. General appearing on behalf of the
respondent No.1 as also the learned counsel
appearing for respondents No.2 & 3 admitted that
except a distribution memo, there was no
delegation of powers made in accordance with
section 34-A of the Act. We are, therefore, of the
view that on this short ground this petition
deserves to be allowed and the impugned order
dated 13.03.1991 (Annexure-P-3) of the
respondent No.1 deserves to be quashed.
Accordingly, this petition is hereby allowed. The
impugned order dated 13.03.1991 (Annexure-P3)
is quashed."
[Emphasis Supplied]
9. The same principle was laid down in M.P.
No.1714/1992 [Ramnarayan Tiwari vs. The Sub-
Divisional Officer & others]. The relevant portion
reads as under:
"In this connection, learned counsel for the
petitioner has drawn my attention to Section.3 of
the M.P. Public Trust Act, 1951 which inter alia
provides that the Collector shall be Registrar of
the Public Trust. My attention has been further
drawn to Section 34(A) of the Act which provides
for delegation of the power by Registrar to any
Revenue Officer of the district not below the rank
of Sub-Divisional Officer. In the present case, it
has been averred by the petitioner that no such
delegation has been made by the Registrar and on
the basis of distribution memo respondent No.1
has exercised the power. This fact has not been
controverted by respondents.
It is submitted by learned counsel for the
petitioner that on the basis of distribution memo
the Sub-Division Officer cannot exercise the
power and in support of the aforesaid submission,
learned counsel place reliance on judgment of this
Court in Shri Deo Parasnathji Mousuna
Ghanshyam vs. Firm Kanhaiyalal, 1972 MPLJ
206.
Mr. Kale could not point out anything to
6 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.19981/2020
Anurag Kumar Jain and others Vs. Sub Divisional Officer
(Revenue) Cum Registrar, Public Trust, and others
distinguish the aforesaid authority. In view of the
authority of this Court, referred to above, the Sub-
Divisional Officer cannot exercise the power on
the basis of the distribution memo. Admittedly,
respondent No.1 has passed the order on the basis
of the distribution memo issued by the Collector,
which will not confer jurisdiction on him and on
this ground alone, the order impugned is fit to set
aside and I do so accordingly."
[Emphasis Supplied]
10. These judgments were again considered by this
Court in W.P. No.1230/2002 [Dr. M.K. Bhargava
& others vs. Smt. Parmeshwari Devi Indra
Kumar Trust] decided on 13.04.2010. The ratio
decidendi of aforesaid judgments was again
followed by this Court by holding that "in the case
at hand admittedly the Sub-Divisional Officer was
discharging as 'Registrar Public Trust' on the basis
of distribution memo by the Collector and not by
virtue of any written order by the Registrar as
contemplated under Section 34-A of the Trust Act,
1951. Thus, the Sub-Divisional Officer acted
without jurisdiction and the order passed in such
capacity on an application under Section 14 of the
Trust Act, 1951 is a nullity in the eyes of law.
Accordingly, the impugned orders dated
15.01.2001 and 22.02.2002 are hereby set aside
and it is held that the distribution memo dated
04.05.1993 did not confer any jurisdiction in
favour of the SubDivisional Officer under the
Public Trust Act, 1951".
11. The aforesaid judgments contains a common
string which clearly lays down that the delegation
of power under Section 34-A cannot be done in a
routine manner. The specific order must be in
writing and should be passed after proper
application of mind. The power cannot be
delegated through a work distribution order. I am
bound by the aforesaid Single and Division Bench
judgments in which aforesaid principle was laid
down. So far the judgment of Umedi Bhai (Supra)
7 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.19981/2020
Anurag Kumar Jain and others Vs. Sub Divisional Officer
(Revenue) Cum Registrar, Public Trust, and others
on which reliance is placed by Mr. Rahul Mishra,
learned G.A. is concerned, a plain reading of this
judgment shows that this Court has merely held
that under Section 34-A, the Registrar is further
authorized to delegate all or any of his power and
duty under this Act to any revenue officer of his
district not below the rank of Sub-Divisional
Officer. It is relevant to mention here that in this
judgment the method and nature of delegation
required was not subject matter of challenge. There
is no quarrel between the parties that the Collector
is competent to delegate the power to another
officer in consonance with Section 34-A of the
Act. The only question is regarding the manner
and method of such delegation of power. Thus, the
judgment of Umdi Bhai (Supra) is of no
assistance to the other side."
7. Thus, it is clear that unless and until a separate notification
under Section 34-A of the Act, 1951 is issued, the powers of the
Registrar cannot be delegated to the SDO by work distribution memo.
In the present case, no notification under Section 34-A of the Act,
1951 has been issued and the powers were conferred/delegated to the
SDO by work distribution memo dated 12/3/2019, therefore it is held
that the SDO had no jurisdiction to perform his duties as Registrar
Public Trust Act, 1951.
8. Under these circumstances, this Court is left with no option,
but to set aside the order dated 9/12/2020 passed by SDO (Revenue),
Bhind in Case No.1/2020-21/B-113 and to transfer the case to the
Collector, Bhind for adjudicating the controversy involved in the
matter. Let the entire file be transferred to the Court of Collector,
8 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.19981/2020
Anurag Kumar Jain and others Vs. Sub Divisional Officer
(Revenue) Cum Registrar, Public Trust, and others
Bhind. The parties shall appear before the Collector, Bhind on
25/10/2021 and the Collector, Bhind is directed to decide the
controversy within a period of three months from thereafter.
9. With aforesaid observation, the petition is finally disposed of.
(G.S. Ahluwalia)
Judge
Arun*
ARUN KUMAR MISHRA
2021.09.22 17:32:31 +05'30'
