Madhya Pradesh High Court
Himanshu Agrawal vs Dhuniwala Ashram Public Trust ... on 3 October, 2023
Author: Gurpal Singh Ahluwalia
1 M.P. No.5840/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 3rd OF OCTOBER, 2023
MISCELLANEOUS PETITION No. 5840 of 2023
BETWEEN:-
1. HIMANSHU AGRAWAL S/O SHASHIBHUSHAN
AGRAWAL, AGED ABOUT 39 YEARS,
OCCUPATION: SERVICE R/O 302 OM
MANGALAM BIHAR 26 -27 BAIRATHI COLONY
NO.1 INDORE DISTRICT INDORE (MADHYA
PRADESH)
2. DHEERAJ MEHDIRATTA S/O ARJUNDAS
MEHDIRATTA, AGED ABOUT 36 YEARS,
OCCUPATION: BUSINESS R/O. 50, PALACE
COLONY INDORE, DISTRICT INDORE (M.P.)
(MADHYA PRADESH)
3. RAJENDRA RAGHUVANSHI S/O CHHOTE LAL
RAGHUVANSHI, AGED ABOUT 46 YEARS,
OCCUPATION: BUSINESS R/O. WARD NO. 14,
TIAPURA UDAIPURA DISTRICT RAISEN (M.P.)
(MADHYA PRADESH)
4. PRADUMAN DUBEY S/O MANOJ DUBEY, AGED
ABOUT 24 YEARS, OCCUPATION: BUSINESS
R/O. FLAT NO. 102, 564, VIGYAN NAGAR
INDORE DISTRICT INDORE (M.P.) (MADHYA
PRADESH)
5. PUSHPDEEP JAISWAL S/O SHRI GOPAL
KRISHAN JAISWAL, AGED ABOUT 23 YEARS,
OCCUPATION: SERVICE R/O. 19-C, SWASTHYA
NAGAR INDORE, DISTRICT INDORE (M.P.)
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI ASHOK KUMAR TIWARI -ADVOCATE )
AND
DHUNIWALA ASHRAM PUBLIC TRUST KHANDWA
REGISTRATION NO. 316 YEAR 1961 TAHSIL
DISTRICT KHANDWA THROUGH WORKING
TRUSTEE PRAKASH BAHETI DHUNIWALA ASHRAM
2 M.P. No.5840/2023
PUBLIC TRUST KHANDWA REGISTRATION NO. 316
YEAR 1961 TAHSIL AND DISTRICT KHANDWA
(MADHYA PRADESH)
.....RESPONDENTS
............................................................................................................................................
This petition coming on for admission this day, the court passed the
following:
ORDER
This Petition under Article 227 of Constitution of India has been
filed seeking following reliefs:
"It is, therefore, prayed that the
Hon'ble Court may kindly be pleased to
allow the petition and be further pleased to
command the Sub-Divisional Officer
Revenue Khandwa to decide the Revenue
Case No.007-B/113(4)/2022-23 (Himanshu
Agrawal and Ors. Vs. Dhuniwala Ashram
Public Trust Khandwa) (Annexure P-3),
pending before him within a time fixed by
the Hon'ble Court, in the interest of justice.
Such other relief deemed fit in the
circumstances of the case including costs of
the petition may also be awarded."
2. It is submitted by counsel for petitioners that matter is pending
before SDO (Revenue), District Khandwa in the capacity of Registrar,
Public Trust and therefore, prayed for a direction to SDO (Revenue),
District Khandwa/Registrar, Public Trust to dispose of Revenue Case
No. 007-B/113(4)/2022-23, in which complaint against mismanagement
of public trust has been made.
3. Per contra, petition is vehemently opposed by counsel for State. It
is submitted that in case if such proceeding is pending, then same shall
be decided as expeditiously as possible in accordance with law.
4. Heard the learned counsel for parties.
5. The Collector can delegate the powers of Registrar Public Trust to
SDO by publication of notification under Section 34-A of M.P. Public
Trust Act in official gazette. However, on several occasions it is being
observed that powers are being delegated by work distribution memo.
6. This Court in the case of Prashant Sharma Vs. State of M.P.
and Others decided on 27th July, 2022 in W.P. No.8001/2022
(Gwalior Bench) has held as under:
"Yesterday, the State counsel was directed to
verify as to whether the powers of Registrar Public Trust
have been delegated to the SDO by a notification issued
under Section 34-A of Public Trust Act or not. After
seeking instructions from the Collector, Sheopur, it is
submitted by Shri Khot that the powers of Registrar
Public Trust have been delegated to the SDO by work
distribution memo and no notification under Section 34-
A of Public Trust Act has been issued.
It is really unfortunate that in series of
judgments, this Court has already held that the powers of
Registrar Public Trust cannot be delegated by work
distribution memo and there has to be a specific
notification under Section 34-A of Public Trust Act, but
still no improvement has been shown in the work of the
Collectors of the State of M.P. and every time they are
delegating the powers of Registrar Public Trust by work
distribution memo.
This Court in the case of Narottam Singh
Narwariya Vs. State of M.P. And Others by order
dated 12/07/2022 passed in W.P.No.26995/2021 has
held as under:-
"The pivotal question for determination in
the present case is that whether Collector who is
dejure Registrar under Section 3 of the Act,
1951 can entrust its powers by issuing a work
distribution memo or not ?
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."
The question 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 is no more res integra."
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
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.
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 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 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) 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."
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.
Accordingly, this Court is of the considered
opinion that the SDO, Sheopur has no authority to
exercise the powers of Registrar Public Trust, therefore,
the order dated 02/03/2022 is quashed as without
jurisdiction.
The Collector, Sheopur is directed to entertain
the complaint made by the respondent No.2 and to
proceed in accordance with law.
With aforesaid observation, the petition is
finally disposed of.
The Chief Secretary, State of M.P. is directed to
distribute the copy of this order to all the Collectors of
State of M.P. and also instruct them that they cannot
delegate the powers of Registrar Public Trust to the SDO
or any authority by issuance of work distribution memo
and if the Collector wants to delegate his powers to any
subordinate officer, then the same should be done by
issuing a notification under Section 34-A of M.P. Public
Trust Act.
Let a copy of this Order be supplied to Shri
Khot for communicating the same to the Chief Secretary.
Since, this order has been passed without
issuing notice to the respondent No.3, therefore, the
Collector, Sheopur shall issue a notice to the respondent
No.3 before proceeding further in the matter."
7. It is not known as to whether powers of Registrar, Public Trust
have been delegated to SDO (Revenue), District Khandwa by work
distribution memo or by notification issued under Section 34-A of M.P.
Public Trust Act.
8. Therefore, SDO (Revenue), District Khandwa is directed to first
of all verify as to whether he is exercising his power of Registrar Public
Trust by virtue of a work distribution memo issued by Collector, District
Khandwa or virtue of a notification published in official gazette under
Section 34-A of M.P. Public Trust Act ? If SDO (Revenue), District
Khandwa comes to a conclusion that he is exercising his powers by
virtue of gazette notification issued under Section 34-A of M.P. Public
Trust Act, then he shall make every endeavour to decide the matter
within a period of seven months from the date of production of certified
copy of this Court. If SDO (Revenue), District Khandwa is of the view
that he has been delegated powers by virtue of a work distribution
memo, then he shall immediately transfer the matter back to Collector,
District Khandwa in the light of judgment passed in the case of
Prashant Sharma (supra) within a period of 15 days from the date of
production of certified copy of this order and the Collector, District
Khandwa shall decide the matter finally within a period of seven months
thereafter.
9. This Court has deliberately given a lengthier date in the light of
forthcoming elections of State Assembly.
10. With aforesaid observation, petition is finally disposed of.
(G.S. AHLUWALIA)
JUDGE
Shanu
Digitally signed by SHANU
RAIKWAR
Date: 2023.10.04 11:23:06
+05'30'
