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2019 DIGILAW 577 (MP)

Deepak Gupta v. State of M. P.

2019-08-09

G.S.AHLUWALIA

body2019
JUDGMENT : Ms. Tripti Agrawal, Counsel for the petitioner. Shri Vijay Sundaram, Panel Lawyer for the respondents No. 1 and 2/State. Shri Sanjay Sharma, counsel for the respondent Nos. 3 to 17. This petition under Article 226 of the Constitution of India has been filed against the order dated 7-6-2016 passed by Sub Divisional Officer-cum-Registrar Public Trust, Lashkar, District Gwalior in Case No. 1/2015-2016/B-113(1) by which Girwar Lal (Dharmardh Trust) Dharmshala, Naya Bazar, Lashkar, Gwalior M. P. has been registered as public trust. 2. A preliminary objection has been raised by the counsel for the respondents that a statutory remedy under section 8 of M. P. Public Trust Act, 1951 (Act 1951) is provided under the Act and, therefore, the writ petition directly against the order of Registration of Public Trust is not maintainable. 3. Per contra, it is submitted by the counsel for the petitioners that since the Public Trust was registered without following the due procedure of law as laid down under section 5 of the Act, 1951, therefore, it cannot be said that the writ petition is not maintainable. 4. Heard the learned counsel for the parties. 5. Although the petitioners have not taken any ground with regard to competency of the SDO-cum-Registrar Public Trust Act to act as a Registrar but this Court by order dated 4-12-2018 had passed the following orders : “By this petition the petitioners have challenged the order dated 7-6-2016 passed by the SDO-cum-Registrar, Public Trust Lashkar, District Gwalior in Case No. 01/2015-16/B-113(1) by which a Public Trust has been created. The counsel for the State prays for and is granted three weeks’ time to file return to the petition. The State counsel is also specifically directed to place the order issued by the Collector delegating his power to the SDO under section 34-A of Public Trust Act. It is well established principle of law that the powers to the SDO cannot be delegated by issuing work distribution memo but there has to be a specific notification issued under section 34-A of the Public Trust Act. List in January, 2019. Interim relief to continue till next date of hearing.” 6. It is well established principle of law that the powers to the SDO cannot be delegated by issuing work distribution memo but there has to be a specific notification issued under section 34-A of the Public Trust Act. List in January, 2019. Interim relief to continue till next date of hearing.” 6. In response to the direction given by this Court by the abovementioned order, the respondents have placed the copy of the work distribution dated 2-1- 2016 issued by District Magistrate/Collector by which the SDO was given the powers under section 34-A of the Act, 1951. The work distribution memo dated 2-1-2016 is as under:- Image 7. 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 delegate its powers by issuing a work distribution memo or not? 8. Section 34-A of the Act, 1951 deals with the delegation of powers as Registrar which reads as under :- “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.” 9. 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 are no more res integra. 10. The Co-ordinate Bench of this Court in the case of Praveen Malpani and anr. vs. Mahendra Singh Gadwal and 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). “Registrar” means the Registrar of Public Trust;” “Section 3. Registrar of Public Trust. 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). “Registrar” means the Registrar of Public Trust;” “Section 3. Registrar 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 res 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. 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 and others]. The relevant portion reads as under : “As in the present case, the impugned order was passed by Sub- Divisional 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 19-4-19921, 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. 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 and 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 13-3-1991 (Annexure-P-3) of the respondent No. 1 deserves to be quashed. Accordingly, this petition is hereby allowed. The impugned order dated 13-3-1991 (Annexure-P3) is quashed.” (Emphasis Supplied) 9. The same principle was laid down in M. P. No. 1714/1992, Ramnarayan Tiwari vs. Sub-Divisional Officer and 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 M.P.L.J. 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. 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 and others vs. Smt. Parmeshwari Devi Indra Kumar Trust decided on 13-4-2010. 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 15-1- 2001 and 22-2-2002 are hereby set aside and it is held that the distribution memo dated 4-5-1993 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. 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.” 11. 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 2-1-2016, therefore it is held that the SDO had no jurisdiction to perform his duties as Registrar Public Trust Act, 1951. Therefore, the impugned order dated 7-6-2016 is without jurisdiction. Accordingly, the said order is hereby set aside. As a consequence thereof, it is directed that the application filed by the respondent No. 3 for registration of the trust as Public Trust shall be placed before the Collector-cum- Registrar Public Trust Act, 1951 who shall either decide the application by itself or may transfer to any other authority after validly issuing a notification under section 34-A of the Act, 1951. The parties are directed to appear before the Registrar/Collector, Gwalior on 14-10-2019. The Registrar Public Trust Act/Gwalior is directed to proceed further in accordance with the procedure laid down under the Act, 1951. 12. With aforesaid observations, the petition is finally disposed of. Order accordingly.