Madhya Pradesh High Court
Narottam Singh Narwariya vs The State Of Madhya Pradesh on 12 July, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 12th of JULY, 2022
WRIT PETITION NO. 26995 OF 2021
Between:-
NAROTTAM SINGH NARWARIYA,
S/O SHRI DHAN SINGH
NARWARIYA, AGE 63 YEARS,
OCCUPATION ADVOCATE, R/O
GANDHI NAGAR BHIND M.P.
PRESIDENT MAHARANI
BIRGANGANA AVANTI BAI LODHI
CHATRAWAS TRUST
........PETITIONER
(BY SHRI N.K. GUPTA - SENIOR ADVOCATE WITH SHRI
HARSHIT KULSHRESHTHA - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH PRINCIPAL
SECRETARY, REVENUE
DEPARTMENT, BHOPAL (MADHYA
PRADESH)
2. COLLECTOR/REGISTRAR, PUBLIC
TRUST, DISTRICT BHIND
3. SUB-DIVISIONAL OFFICER, SUB-
DIVISION, BHIND (MADHYA
PRADESH)
2
........RESPONDENTS
(SHRI A.K. NIRANKARI - GOVERNMENT ADVOCATE FOR
STATE)
----------------------------------------------------------------------------------------
This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been filed seeking following relief:-
"1. Hence, it is humbly prayed that writ petition may kindly be allowed and order impugned (Annexure P/1) dated 01.11.2021 passed by Sub Divisional Officer Sub Division Bhind in case No.03/2020-21/B-113 may kindly be set aside.
2. The Sub Divisional Officer be directed to transfer the file to the registrar Public Trust/Collector District Bhind for deciding the petitioner's application under Section 4 of M.P. Public Trust Act for registration of Trust.
3. Any other writ, order or direction as this Hon'ble Court may deems fit in the facts and circumstances of the case be granted doing justice in the matter."
2. It is submitted by the counsel for the petitioner that the petitioner had filed an application under Section 4 of Madhya Pradesh Public Trusts Act, 1951 (in short "Act, 1951") for constitution of a Public Trust. An application under Section 5 of the Act, 1951 was filed raising objection that the SDO is not competent to perform the duties of Registrar, Public Trust as the power can be delegated only by issuing a notification under Section 34-A of the Act, 1951 and not by issuing the work distribution memo. It is submitted that by the impugned order dated 01.11.2021 the 3 SDO/Registrar, Public Trust, Bhind has rejected the application without considering the law laid down by this Court in the case of Santosh Singh Rathore Vs. State of M.P. and others reported in (2020) 2 MPLJ 530 and in the case of Trust Mandir Shri Ram Janki Ji Vs. State of M.P. reported in 2021 (1) RN 39 and the judgment passed by this Court in the case of Anurag Kumar Jain and others Vs. Sub Divisional Officer (Revenue) Cum Registrar, Public Trust and others passed on 21.09.2021 in W.P. No.19981/2020.
3. Time was granted to the State Counsel to make a submission as to whether the powers have been delegated by issuance of notification or have been entrusted by a work distribution memo. Notices were issued on 17.12.2021 and on 13.01.2022 also time was sought to take instructions. Today also, Shri Nirankari sought time to file the return, but looking to short controversy involved in the present case, he was directed to seek telephonic instructions and the case was passed over. In the pass over round, it was submitted by Shri Nirankari that powers were entrusted by work distribution memo and no notification under Section 34-A was issued.
4. Heard the learned counsel for the parties.
5. 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 ?
6. 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 4 duties under this Act to any Revenue Officer of his district not below the rank of a Sub-Divisional Officer.
7. 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.
8. 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 5 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 6 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 7 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 8 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."
9. 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, therefore it is held that the SDO had no jurisdiction to perform his duties as Registrar, Public Trust. Therefore, the impugned order is without jurisdiction.
10. Accordingly, the order dated 01.11.2021 is hereby set aside. The matter is sent back to the Collector, Bhind to decide the proceedings in accordance with law.
911. Before concluding this order, this Court must remind all the officers / Tribunals that while discharging their quasi judicial functions, they have to assign reasons in support of their conclusions. A specific objection was raised before the SDO / Registrar, Public Trust with regard to his competence to perform the duties as the Registrar, Public Trust on the ground that no notification under Section 34-A of the Act, 1951 has been issued and the powers of Registrar, Public Trust cannot be delegated by a work distribution memo. However, the SDO / Registrar, Public Trust rejected the objections without addressing to the objections filed by the petitioner. If an authority has no jurisdiction to exercise its power, then every order passed by it, would be a nullity being without jurisdiction. Thus, it appears that the SDO / Registrar, Public Trust, Bhind had unnecessarily compelled the petitioner to file this writ petition.
12. Accordingly, this petition is allowed with cost of Rs.20,000/- to be deposited by SDO / Registrar, Public Trust, Bhind before the Registry of this Court within a period of 15 days from today. It is made clear that cost so deposited shall not be reimburse by the State.
13. The Principal Registrar of this Court is directed to place the matter before the Court under the head "direction" in case if the cost is not deposited. If the cost is deposited, then the petitioner shall be entitled to withdraw half of the same.
(G.S. AHLUWALIA) JUDGE Abhi ABHISHEK CHATURVEDI 2022.07.15 19:27:26 +05'30'