Research › Search › Judgment

Madhya Pradesh High Court · body

2021 DIGILAW 717 (MP)

MAHANT MADAN MOHANDAS v. STATE OF MADHYA PRADESH

2021-11-08

SANJAY DWIVEDI

body2021
ORDER/JUDGMENT : – Shri Sanjay Agrawal, learned counsel for the petitioner. Shri S. K. Shrivastava, learned Government Advocate for respondent No. 1/State. Shri Utkarsh Agrawal, learned counsel for respondent No. 2. Since respondent No. 2 is the main contesting respondent and he has filed his reply/return, therefore, the matter is heard finally. By the instant petition filed under Article 226 of the Constitution of India, the petitioner is questioning the legality, validity and propriety of orders dated 2-8-2021 (Annexure-P/9) and 14-9-2021 (Annexure-P/10) passed by respondent No. 1. 2. Learned counsel for the petitioner is challenging the impugned orders confining his submission to the extent that those orders have not been passed by the competent authority. According to him the orders can be passed by the Registrar and as per the section 3 of Madhya Pradesh Public Trusts Act, 1951 (for short the ‘Act, 1951’), the Collector of the District shall be the Registrar but the officer who is at present holding the post Registrar, is the Sub Divisional Officer and by virtue of work distribution memo he has been assigned the work of Registrar and as per section 34-A of the Act, 1951 though the Registrar can delegate the powers to any revenue officer not below the rank of Sub Divisional Officer, but in the present case, there is no such delegation in favour of the Sub Divisional Officer by the Registrar (Collector) but only under work distribution memo orders have been passed and as such, the impugned orders passed by respondent No. 1/Sub Divisional Officer are void. Though the issue raised by the petitioner is purely legal and said position has not been disputed by Shri Utkarsh Agrawal, learned counsel appearing for the contesting respondent i.e. respondent No. 2 but he opposes the petition on the ground of locus of the petitioner and submits that the petition is not maintainable as the petitioner has no locus to challenge the impugned orders. 3. As per the fact of the case, Mandir Shri Kamali Ji Trust Samiti (for brevity the ‘Trust’) is a public trust registered under the provisions of the Act, 1951 bearing registration No. 01/B-113/1964-65. (3.1) In the year 1989, the then Trustee of the Trust had elected the present petitioner as a President of the Trust and he was continued on the said post. (3.1) In the year 1989, the then Trustee of the Trust had elected the present petitioner as a President of the Trust and he was continued on the said post. But vide resolution dated 20-3-2013, some of the Trustees appointed respondent No. 2 as the President of the Trust. The said order of appointment of respondent No. 2 was challenged by the petitioner before respondent No. 1 and by order dated 27-3-2014 the resolution dated 20-3-2013 appointing respondent No. 2 as a President of the Trust was declared to be illegal and void and direction has also been issued for restoring the position existed prior to passing the resolution dated 20-3-2013. Respondent No. 1 thereafter restrained the respondent No. 2 to operated the bank accounts of the Trust under his signature but that order has not been challenged and according to the petitioner he was continued to be the President of the Trust. (3.2) Respondent No. 2 had submitted an application before respondent No. 1 for treating him to the President of the Trust and on his application an order has been passed on 4-1-2016, in which according to the petitioner he had not been given any opportunity of hearing and also not given any notice that respondent No. 2 was treated as the President of the Trust and entries of public trust were corrected accordingly. (3.3) The order dated 4-1-2016 has been assailed by the petitioner by filing a civil suit i.e. No. 687-A/2016 before the 6th Civil Judge, Class-II, Bhopal. However, the resolution was again passed by the Trustee of the Trust on 15-1-2021 in which the petitioner has again been appointed as the President of the Trust. Therefore, the civil suit has been withdrawn on 13-7-2021. (3.4) The petitioner filed a complaint before respondent No. 1 along with one Hridesh Bhargava alleging various financial irregularities and malpractices against respondent No. 2 and one Shri Brijesh Sharma. When nothing was done, the petitioner filed a petition i.e. W. P. No. 5519/2017 before the High Court and said petition was disposed of vide order dated 19-5-2017 (Annexure-P/5) directing respondent No. 1 to look into the complaint submitted by the petitioner. (3.5) In pursuance to the direction given by the High Court, respondent No. 1 registered a complaint case as 89-B/121/2016-17. (3.5) In pursuance to the direction given by the High Court, respondent No. 1 registered a complaint case as 89-B/121/2016-17. However, respondent No. 1 contrary to the order dated 27-3-2014 passed an order on 19-7-2018 (Annexure-P/6) directing respondent No. 2 to be the President of the Trust and permitted him to operate the accounts of the Trust. (3.6) The order dated 19-7-2018 has also been assailed by the petitioner by filing a petition i.e. W. P. No. 19671/2018 which is pending according to the petitioner. (3.7) The Trust by resolution dated 15-1-2021 has again elected the petitioner as the President of the Trust. The said resolution is available on record as Annexure-P/7 and same was supplied to respondent No. 1 by covering memo dated 5-7-2021 (Annexure-P/8). The acknowledgment of said letter by respondent No. 1 is also there, but respondent No. 1 despite having knowledge about election of the petitioner as the President not permitted the petitioner to operate the bank accounts of the Trust and passed the impugned order dated 2-8-2021 (Annexure-P/9) and permitted respondent No. 2 to operate the bank accounts along with respondent No. 3. (3.8) Respondent No. 2 had also filed some applications before respondent No. 1 and on the basis of the said application a case was registered as case No. 03/B-113/2021-22 in which the petitioner has not been impleaded as a party and was never noticed by respondent No. 1 but the order has been passed on 14-9-2021 treating respondent No. 2 to be the President of the Trust. The said order dated 14-9-2021 is available on record as Annexure-P/10 which is impugned in this petition. 4. The challenge is made by the petitioner in respect of the impugned orders dated 2-8-2021 and 14-9-2021 passed by respondent No. 1 mainly on the ground that respondent No. 1 is not the competent authority to pass such orders as the Collector is the Registrar as per section 3 of the Act, 1951 and there is no delegation of powers by Registrar (Collector) in favour of Sub Divisional Officer who is at present acting as a Registrar and passed the impugned orders. 5. Reply has been filed by respondent No. 2 raising objection with regard to maintainability of petition saying that the petitioner has no locus to file the petition. 5. Reply has been filed by respondent No. 2 raising objection with regard to maintainability of petition saying that the petitioner has no locus to file the petition. In the reply, it is stated that the order dated 14-9-2021 has been passed on an application filed under section 9 of the Act, 1951 and the said application was in respect of removal of Trustees namely Brijesh Sharma, Harinarayan Ji Vaidya and Akhilesh Shukla, but none of them have challenged the said order and as such, the petitioner has no locus to challenge the same. 6. In the reply, respondent No. 2 has admitted that the present Registrar is acting as a Registrar by virtue of order of Collector dated 11-10-2019 (Annexure-R/3) which has been passed by the Collector while distributing the work amongst his subordinate officers and in the said work distribution the present Registrar has been assigned the work to perform duties as Registrar. 7. Shri Utkarsh Agrawal, learned counsel appearing for respondent No. 2 has raised preliminary objection regarding locus of the petitioner and further urged that the resolution in which the petitioner has been elected as a President was illegal and contrary to rules but he has also admitted that the said resolution has not been assailed by any of the Trustees or by any member of the Trust. 8. Considering the submissions made by the learned counsel for the parties and perusal of record, the first objection with regard to locus of the petitioner is concerned, since the present petitioner is claiming himself to be an elected President by virtue of resolution of members of the Trust dated 15-1-2021 (Annexure-P/7) and even after knowing about the said resolution the same has not been assailed by the respondents or by any other member of the Trust questioning its validity then the present petitioner has locus to challenge the order passed by the authority not having competence that too in respect of the affairs of the Trust. If a resolution has been passed by the members of the Trust and the petitioner was elected as a President in the said resolution in presence of Trustees, at this stage this Court would be loath to test the sanctity of the said resolution but for the locus of the petitioner since resolution has not been assailed and not been set aside by any of the competent authority, therefore, preliminary objection raised by respondent No. 2 regarding locus of the petitioner is without any substance. Thus, preliminary objection raised by respondent No. 2 is hereby rejected as in my opinion the petitioner has locus to assail the impugned orders. 9. So far as the competence of respondent No. 1 is concerned, from the record available and the reply submitted by respondent No. 2 it is clear that respondent No. 1 is holding the post of Sub Divisional Officer substantively and by way of order dated 11-10-2019 (Annexure-R/3) whereby the Collector distributed the work amongst his subordinates, given charge to respondent No. 1 of Registrar as per section 3 of the Act, 1951. Although, I am not satisfied with the submission made by the counsel for respondent No. 2 for the reason that the order dated 11-10-2019 (Annexure-R/3) is only an order of work distribution. Section 3 of the Act, 1951 provides as to which authority shall be the Registrar of a public trust, which read as under : – “3. Registrar of public trusts. – (1) (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.” A bare perusal of section 3 of the Act, 1951 makes it clear that it is the Collector who shall be the Registrar of a public trust. However, the Collector has been further empowered to delegate powers of Registrar of Trust in pursuance to the provisions of section 34-A of the Act, 1951 which reads as under : – “34-A. Delegation of powers by Registrar. However, the Collector has been further empowered to delegate powers of Registrar of Trust in pursuance to the provisions of section 34-A of the Act, 1951 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 Sub-Divisional Officer.” As per aforesaid provision, it is clear that the Collector can delegate powers of Registrar to its subordinate officers not below the rank of Sub Divisional Officer, but there should be an order in writing delegating powers of Registrar under section 34-A of the Act, 1951 in favour of any revenue officer. 10. Here in this case, it is clear from Annexure-R/3 that the Deputy Collector has been given the work of Registrar while passing the order of work distribution amongst subordinate officers but there is no specific order indicating that the delegation is being made in exercise of power conferred upon the Collector by section 34-A of the Act, 1951. The work distribution memo indubitably cannot be considered to be an order passed by the Collector in exercise of power provided under section 34-A of the Act, 1951 and delegating the powers of Registrar to any of subordinate revenue officer. As such, this Court has no confusion to hold that the impugned orders passed by respondent No. 1 under the capacity of Registrar are the orders coram non judice. The Deputy Collector/Sub Divisional Officer cannot act as a Registrar unless there is a specific delegation of powers as per section 34-A of the Act, 1951. 11. The petitioner has placed reliance upon an order of this Court of W. P. No. 15504/2021 and two other connected writ petitions i.e. W. P. Nos. 9293/2021 and 16399/2021 decided by a common order dated 20-10-2021. 11. The petitioner has placed reliance upon an order of this Court of W. P. No. 15504/2021 and two other connected writ petitions i.e. W. P. Nos. 9293/2021 and 16399/2021 decided by a common order dated 20-10-2021. According to the petitioner, the matter relates to same trust which is in question in the present petition in which the attack was made on the ground that the authority which had passed the order in pursuance to the order of work distribution is not a Registrar as per definition of Registrar under the Act, 1951 and the same authority namely Jamil Khan, Deputy Collector, is also the authority who has passed the orders which are impugned in this petition. The Coordinate Bench set aside the orders which were impugned in the said petition on the ground that as per section 34-A of the Act, 1951 there was no specific delegation of powers in favour of Deputy Collector by the Collector who is the Registrar as per the definition of Registrar provided under the Act, 1951. Now this Court has no other option but to follow the fact that the present Registrar is holding the substantive post of Deputy Collector and by virtue of order of work distribution exercised the power of Registrar and passed the impugned orders. However, as per the requirement of section 34-A of the Act, 1951, the said order of work distribution cannot be considered to be an authorization specifically to exercise the power of Registrar and such delegation by Collector in favour of Deputy Collector has not been done. 12. Ex consequentia, the orders passed by respondent No. 1 which are impugned in this petition as Annexure-P/9 dated 2-8-2021 and Anenxure-P/10 dated 14-9-2021 are hereby set aside. 13. Petition is, accordingly, allowed. No order as to cost.