Chandra Gopal Pauranik vs The State Of Madhya Pradesh
2024 Latest Caselaw 16312 MP

Madhya Pradesh High Court

Chandra Gopal Pauranik vs The State Of Madhya Pradesh on 31 May, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                         1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 31st OF MAY, 2024
              WRIT PETITION No. 10521 of 2024

BETWEEN:-

1.    CHANDRA GOPAL PAURANIK S/O SHRI
      RAM PAURANIK, AGED ABOUT 50 YEARS,
      OCCUPATION: PUROHIT/ACHARYA R/O
      FUTERA WARD NO.03 MAHAKALI CHOWK,
      DAMOH (MADHYA PRADESH)
2.    ASHISH DATT KATARE S/O SHRI MAHESH
      DATT KATARE, AGED ABOUT 43 YEARS,
      OCCUPATION: ACHARYA / PUJARI FUTERA
      WARD NO. 4 KACHHYANA DAMOH
      DISTRICT DAMOH (MADHYA PRADESH)
                                            .....PETITIONERS
(BY SHRI SAMRESH KATARE - ADVOCATE)

AND

1.    THE STATE OF MADHYA PRADESH
      THROUGH ITS PRINCIPAL SECRETARY
      DEPARTMENT OF REVENUE VALLABH
      BHAWAN BHOPAL VALLABH BHAWAN,
      BHOPAL (MADHYA PRADESH)

2.    THE COLLECTOR DAMOH        DISTRICT
      DAMOH (MADHYA PRADESH)

3.    THE REGISTRAR PUBLIC TRUST / SUB
      DIVISIONAL OFFICER REVENUE DAMOH
      DISTRICT DAMOH (MADHYA PRADESH)

4.    SHREE DEV JANKI RAMAN JI MANDIR
      (BUNDA BAHU MANDIR) PUBLIC TRUST
      DAMOH THROUGH ITS MANAGER SHREE
      DEV JANKI RAMAN JI MANDIR (BUNDA
                                       2


         BAHU MANDIR) PUBLIC TRUST DAMOH
         DISTRICT DAMOH (MADHYA PRADESH)
                                                           .....RESPONDENTS
    (SMT. SWATI ASEEM GEORGE - DY. GOVERNMENT ADVOCATE FOR
    RESPONDENTS NO. 1 TO 3 / STATE)

         This petition coming on for admission this day, the court passed
   the following:
                                      ORDER

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

(i) That, this Hon'ble Court may kindly be pleased to writ in the nature of mandamus and further be pleased to direct the respondent no. 3 to take action as provided under Section 23 of the Madhya Pradesh Public Trust Act, 1951 pursuant to the audit report of the year 2021-22 of respondent no.4.

(ii) That, this Hon'ble Court may kindly be pleased to writ in the nature of mandamus and further be pleased to direct the respondent no. 3 to complete the enquiry initiated vide order dated 19.9.2023 within one month.

(iii) That, this Hon'ble Court may kindly be pleased to writ in the nature of mandamus and further be pleased to direct the respondent no. 3 to file application before the competent Court as provided under Section 26 of the Madhya Pradesh Public Trust Act, 1951.

(iv) That, this Hon'ble Court may kindly be pleased to call for the records pertaining to the issue raised in the instant writ petition.

(v) Any other relief / reliefs, order / orders, direction/ directions which this Hon'ble court may deem fit and proper may kindly be granted to the petitioner.

2. Since, it was alleged by counsel for the petitioners that respondent no. 3 / Registrar, Public Trust / Sub-Divisional Officer (Revenue), Damoh, District Damoh has failed to discharge his duties, therefore, this Court by order dated 24.5.2024 passed the following orders :-

"Counsel for State prays for and is granted further opportunity of three working days to point out as to whether the powers of Registrar, Public Trust were delegated to the S.D.O. (R) Damoh by work distribution memo or by notification issued under Section 34-A of the M.P. Public Trust Act.

List this case on 30.5.2024."

3. Today it is submitted by counsel for the State that powers of Registrar, Public Trust have been conferred on the S.D.O. by work distribution memo dated 15.3.2024 and no specific notification under Section 34-A of the M.P. Public Trust Act has been issued.

4. Heard the learned counsel for the parties.

5. 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 Sub Divisional 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."

6. Thus, the powers of Registrar cannot be delegated to the S.D.O. by work distribution memo. In absence of any notification under Section 34-A of the M.P. Public Trust Act, Respondent no. 3 is not expected to discharge the powers of Registrar, Public Trust.

7. Accordingly, this petition is disposed of with liberty to the petitioners that if so advised, then they can make necessary application before the Collector, Damoh.

8. With aforesaid liberty, the petition is disposed of.

(G.S. AHLUWALIA) JUDGE

JITENDRA KUMAR Digitally signed by JITENDRA KUMAR PAROUHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=PRINCIPAL BENCH INDORE, 2.5.4.20=a650f9cd964b96221568096ac01ab1bf019e0b76f6fc652f893c6324a2f64a5a, postalCode=482001, st=Madhya Pradesh,

PAROUHA serialNumber=627378D3EE51220F5E81130EECF5ABBEC55EBB6B78033E5FF10402B19143 AD99, cn=JITENDRA KUMAR PAROUHA Date: 2024.05.31 19:05:24 +05'30'

JP