Madhya Pradesh High Court
Praveen Malpani vs Mahendra Singh Gadwal on 15 February, 2018
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. M.A. No.4917/2009
Parties Name Praveen Malpani & another
Vs.
Mahendra Singh Gadwal & another
Date of Judgment 15/02/2018
Bench Constituted Single Bench
Judgment delivered by Justice Sujoy Paul
Whether approved for reporting No/Yes.
Name of counsels for parties Appellants: Mr. R.K. Sanghi, Advocate
with Mr. Rohit Taneja, Advocate
Respondent No.2: Mr. Rahul Mishra,
Advocate.
None for the respondent No.1 despite service.
Law laid down -
Significant paragraph numbers -
(JUDGMENT)
15.02.2018
This appeal filed under Section 24(4) of the M.P. Public Trust Act, 1951 (in short "the Trust Act") assails the judgment dated 23.09.2009, passed in Misc. Civil Appeal No.11/20-2009.
2. The arguments advanced in this appeal are within narrow compass. The parties are at loggerheads on the question of competence of the authority who has passed the order dated 1.06.2009 (Annexure-A/11). The officer who has passed the said order dated 01.06.2009 has exercised his power flowing from Sub- section (2) of Section 23 of the Trust Act. Aggrieved by this order, the appellants preferred appeal before the learned Additional District Judge. The singular point advanced by the learned counsel for the appellants is that the "Registrar" is defined under Section 2(6) of the Trust Act. Section 3 of the Turst Act makes it clear that the Collector shall be the Registrar of the Public Trust in all respect. However, the Registrar/Collector can delegate his power to another authority in consonance with Section 34-A of the Trust Act. The sole ground of attack to the
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MA. No. 4917 of 2009order dated 01.06.2009 is that there was no valid delegation of power which empowered the authority to pass the order dated 01.06.2009. To elaborate, Mr. Sanghi placed reliance on the reply of the respondent No.2 dated 24.08.2009. It is submitted that in view of this reply filed before lower appellate Court, it is crystal clear that the delegation of power was based on a work distribution order dated 20.10.2008, filed alongwith this reply. A plain reading of this work distribution order shows that the said memo of distribution, distributes the administrative work amongst various revenue officers, but by such delegation, power to act as a Registrar cannot be delegated. Mr. Sanghi criticized the impugned judgment by contending that the Court below without dealing with the legal position and the judgment of this Court reported in 1972 MPLJ 206 [Shri Deo Parasnathji Mousuma Ghanshyam Budhu Singhai vs. Firm Kanhaiyalal Komalchand Godre] accepted the work distribution order as a valid delegation of power under Section 34-A of the Trust Act. By placing reliance on various subsequent judgments, learned counsel for the appellants contended that the exercise of power on the strength of such distribution of memo cannot be allowed. Putting it differently, learned counsel for the appellants contended that there has to be an order in writing by the Registrar after due application of mind for the purpose of delegation under Section 34-A of the Trust Act. There exits a difference between the order of distribution of statutory function and the administrative power of allocation of business to all the officers. The Court below has erred in not examining these aspects and has further erred in not following the said judgment of this Court.
3. Per-contra, Mr. Rahul Mishra, learned G.A. supported the impugned order and submits that the work was duly allotted to the officer who has passed the order dated 01.06.2009, which was subject matter of challenge in appeal before the learned Additional District Judge. As per the work distribution memo, the delegation of power is permissible. Reliance is placed on a Division Bench judgment of this Court reported in 1969 MPLJ 680 [Umedi Bhai & others vs. The Collector, Sehore & others].
4. No other point has been pressed by the parties.
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MA. No. 4917 of 20095. I have heard the parties at length and perused the record.
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
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MA. No. 4917 of 2009in 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 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 19.04.19921, 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-P-
3) 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.
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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
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MA. No. 4917 of 2009his 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.
12. In view of aforesaid analysis, I have no scintilla of doubt that the Court below has committed an error of law in not following the ratio decidendi of the judgments of this Court right from the case of Shri Deo Parasnathji Mousuma Ghanshyam Budhu Singhai (Supra). The finding given in the impugned judgment (para 8 to 10) cannot sustain judicial scrutiny. In the result, the orders dated 23.09.2009 & 01.06.2009 are set side. I deem it proper to follow the course adopted by this Court in the case of Ramarayan Tiwari (Supra) and accordingly the Collector, Registrar of Public Trust is directed to decide the matter afresh within three months' from the date of receipt of copy of this order. However, it will be open to the Collector to delegate his power to any other competent authority in consonance with Section 34-A of the Act.
13. With aforesaid directions, the appeal is allowed. No Cost.
(Sujoy Paul) Judge s@if Digitally signed by SAIFAN KHAN Date: 2018.02.15 16:36:17 +05'30'