Shri Deoram Janki Mandir Pipariya vs The Sub Divisional Officer Alleging ...
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Madhya Pradesh High Court

Shri Deoram Janki Mandir Pipariya vs The Sub Divisional Officer Alleging ... on 7 August, 2024

Author: Gurpal Singh Ahluwalia

Bench: G. S. Ahluwalia

                                    1                  W.P. No.21102/2012


IN THE HIGH COURT OF MADHYA PRADESH
           AT JABALPUR
                           BEFORE
           HON'BLE SHRI JUSTICE G. S. AHLUWALIA
                  ON THE 7th OF AUGUST, 2024
                WRIT PETITION No. 21102 of 2012
             SHRI DEORAM JANKI MANDIR PIPARIYA
                             Versus
     THE SUB DIVISIONAL OFFICER ALLEGING HIMSELF TO BE
            THE REGISTRAR OF PUBLIC AND OTHERS

Appearance:
  None for the petitioner.
  Shri Dilip Parihar- Panel Lawyer for the respondent/State.

                                 ORDER

This petition under Article 226 of Constitution of India has been filed seeking the following reliefs:-

"(i) The respondent No. 1 as also the IInd Additional District Judge, Hoshangabad may kindly be directed to produce the whole record of the cases for kind perusal of the Hon'ble Court.

(b) A writ in the nature of Certiorari may kindly be issued quashing the impugned orders dated 05.10.2011 (Annexure P/3) of the respondent No. 1 and the order dated 17.09.2012 (Anneuxre P/8) of the IInd Additional District Judge, Hoshangabad.

(c) Costs may also kindly be awarded.

(d) Any other order/relief/writ/direction as may be found fit and necessary under the facts and circumstances of the case may also kindly be passed/awarded/issued.

2. It is mentioned in the writ petition that S.D.O, Pipariya has passed the order dated 05.10.2011 in Revenue Case No. 02/B-113/2009-10, in the capacity of Registrar Public Trust, whereas; no notification as per the provisions of Section 34(2) of the Public Trust Act was issued.

Accordingly, the reference made by the SDO (Revenue), Pipariya under Section 26(2) of Public Trust Act was bad. Accordingly, order dated 17.09.2012 passed by IInd Additional District judge, Hoshangabad in MJC No. Unregistered is also bad.

3. Counsel for the State after verifying from the record fairly admitted that no separate notification under Section 34-A of Public Trust was issued and the powers were delegated by work distribution memo.

4. Considered the submissions made in the petition.

5. This Court in the case of Manoj Tavle and Others Vs. The State of Madhya Pradesh and Others, decided on 01.03.2024 in W.P. No. 4995/2024 has held as under:-

"This petition under Article 226 of Constitution of India has been filed against the order dated 15.02.2024 passed by Sub Divisional Officer, Saunsar, District Pandhurna in the capacity of Registrar Public Trust in Revenue Case No. 351/B-121/2023-24 by which 12 new Life Trustees have been appointed.

2. A solitary ground has been raised by counsel for petitioners that no notification has been issued by Collector Pandhurna under Section 34-A of the Public Trust Act thereby delegating his power of Registrar Public Trust to SDO, Saunsar, District Pandhurna. Therefore, the order passed by the SDO, Saunsar, District Pandhurna in the capacity of Registrar Public Trust is without jurisdiction. It is further submitted that the same authority had also directed for consideration of no confidence motion, which was challenged by filing W.P. No. 3487/2024 and this Court by order dated 17th February, 2024 has set aside the order passed by SDO, Saunsar, District Pandhurna on the ground of competency and has directed the SDO, Saunsar, District Pandhurna to forward the no confidence motion to the Collector who is the Registrar under Public Trust Act. It is submitted that the case in hand is duly covered by the said order.

3. Per contra, it is submitted by counsel for respondents that earlier in the year 2022, Collector, Chhindwara had issued a notification under Section 34-A of the Public Trust Act. However, it is fairly conceded that after the separation of Pandhurna from the District of Chhindwara, the Collector Pandhurna has not issued any notification under Section 34-A of Public Trust Act. Further, it is also fairly conceded that there is nothing in the re-constitution order to the effect that the orders/notifications issued by Collector Chhindwara shall apply to the new District unless and until new orders/notifications are issued. Thus, the orders/notifications which were passed by Collector Chhindwara have not been made applicable to the new District Pandhurna.

4. Considered the submissions made by counsel for the parties.

5. This Court in the case of Dhiraj Choudhary (supra) has held as under:-

"6. Pandhurna has been declared as a District and according to the petitioner, the Sub Divisional Officer (R), Tahsil Sausar, District Pandhurna, has not been delegated the powers by the Collector, Pandhurna by issuing a notification under section 34-A of the M.P. Public Trust Act. Earlier, the notifications which were issued by the collector, Chhindwara, would not apply on account of constitution of Pandhurna as a District.

7. 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."

8. Since there is nothing on record to show that Collector, Pandhurna has issued any notification under section 34-A of the M.P. Public Trust Act, therefore, this Court is of considered opinion that Sub Divisional Officer (R), Tahsil Sausar, District Pandhurna has no jurisdiction to exercise the powers of Registrar, Public Trust. Furthermore, Sub Divisional Officer (R), Tahsil Sausar, District Pandhurna, has not exercised the power in the capacity of Registrar, but, he has exercised the power in the capacity of Sub Divisional Officer (R), Tahsil Sausar, District Pandhurna.

9. Counsel for the parties could not point out the authority of Sub Divisional Officer (R), Tahsil Sausar, District Pandhurna to forward the application for no confidence motion to the Tahsildar/ Sarwarahkar. Accordingly, this Court is of considered opinion that the order dated 12.01.2024 passed by Sub Divisional Officer (R), Tahsil Sausar, District Pandhurna cannot be given the stamp of approval. It is accordingly quashed on the ground of competency. Sub Divisional Officer (R), Tahsil Sausar, District Pandhurna, is directed to immediately forward the application for no confidence motion to the Collector, Pandhurna/ Registrar, Public Trust, who shall take a final decision within a period of seven days from today.

10. With aforesaid observation, the petition is allowed."

6. The order passed in the case of Dhiraj Choudhary (supra) is also in respect of the same Public Trust i.e. Chamatkari Shree Hanuman Mandir Trust, Pandhurna. In the said case also the impugned order was also passed by same SDO, Saunsar, District Pandhurna in the capacity of Registrar Public Trust.

7. Under these circumstances the counsel for respondents could not point out any distinguishable feature to take a contrary view in the matter.

8. Accordingly, order dated 15.02.2024 passed by SDO, Saunsar, District Pandhurna in the capacity of Registrar Public Trust Act in Revenue Case No. 351/B-121/2023-24 is hereby set aside on the question of competency.

9. All the orders passed in pursuance to the order dated 15.02.2024 passed by SDO, Saunsar, District Pandhurna shall also stand quashed.

10. The SDO, Saunsar, District Pandhurna is directed to forward the matter to the Collector Pandhurna/Registrar, Public Trust Act within a period of 10 days from today and the Registrar, Public Trust Act/Collector, Pandhurna shall take a decision after giving full opportunity of hearing to all the necessary parties, within a period of two months from thereafter.

11. Needless to mention here that this Court has not considered the merits/demerits of the case and the order passed by the SDO, Saunsar, District Pandhuran has been set aside purely on the question of competency.

12. The Registrar, Public Trust Act/Collector Pandhurna shall decide the matter strictly in accordance with law without getting influenced or prejudiced by quashment of order dated 15.02.2024 passed by SDO, Saunsar, District Pandhurna.

13. With aforesaid observations, the petition is finally disposed of."

6. In the present case also no notification under Section 34-A of Public Trust Act was issued and powers were delegated by the Collector by work distribution, therefore, it is held that SDO, Pipariya had no jurisdiction to exercise the powers of Registrar Public Trust.

7. Accordingly, the order dated 05.10.2011, passed by SDO, Pipariya in Revenue Case No. 02/B-113/2009-10 and order dated 17.09.2012, passed by IInd Additional District Judge, Hoshangabad in MJC No. Unregistered are hereby quashed.

8. The matter is remanded back to Collector, Narmadapuram to take up the issue in accordance with law.

9. With aforesaid observation, the petition is allowed.

(G.S. AHLUWALIA) JUDGE AL

Date: 2024.08.09 16:40:49 +05'30'