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High Court Of Madhya Pradesh
A. P. Sen, J.
DEO PARASNATHJI MOUSUMA GHANSHYAM BUDHU SINGHAI
Versus
FIRM KANHAIYALAL KOMALCHAND GODRE
Decided On : Jan 10,1969
On a plain construction of section 34-A of the Act, it would appear that the requirements are twofold; (i) there has to be 'an order in writing' by the Registrar, delegating all or any of his functions to any revenue officer; (ii) such revenue officer to whom the powers are delegated should not be below the rank of a Sub-Divisional Officer.
Section 34-A 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 to 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.
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. [Para 8
The mere insertion of section 34-A in the principal Act as a provision enabling the delegation of powers by the Registrar of Public Trusts would not, however, ipso facto, result in any ex post facto delegation. It would still be necessary, in view of the language used in that section, to enquire in each case when the question arises, whether in that case there was, in fact, an order in writing by the Registrar, delegating all, or, any of his powers under the Act. [Para 12
( 1. ) THIS revision under section 115 of the Code of Civil Procedure filed by the plaintiff-trust Shri Deo Parashnathji at Sagar is directed against an order of the Second Additional District Judge, Sagar, dated 4th August 1967, holding that it had not been duly registered as a public Trust under the madhya Pradesh Public Trusts Act, 1951 and directing in terms of section 32 (1)thereof that the proceedings in suit shall remain stayed until the trust gets itself duly registered as such,
( 2. ) THE material facts are these. The parties admittedly stand in the relation of landlord and tenant. The plaintiff sued for ejectment of the defendant from a house belonging to the trust, alleging itself to have been registered as a public trust. The defendant, however, pleaded section 32 (1) as a bar to the tenability of the suit, on the ground that the trust had not been validly registered. The Minutes of the proceedings, Ex. P-11, show that the application under section 4 for its registration as a public trust had been entertained by the Deputy Commissioner, Sagar as the Registrar of Public Trusts and forwarded for enquiry and report to the Additional Deputy Commissioner, Sagar. In due course, the Additional Deputy Commissioner recommended that the trust be registered as a public trust, vide his report dated 23-10-1954 to the deputy Commissioner. It, however, appears that the file, although marked to the Deputy Commissioner, was, in fact, dealt with in the final stages, by one shri S S. Shukre, Extra Assistant Commissioner, Sagar, who, styling himself as the "personal Assistant and Registrar, Public Trusts, Sagar", passed the impugned order dated 12-11-1954, registering the plaintiff-trust as a public trust under section 6 of the Act. It is the validity of that order which is in question in these proceedings.
( 3. ) AFTER a trial of the relevant issues, the learned Judge had previously held that though the plaintiff was a public trust, it had not been validly registered in the manner required by law and accordingly, made a direction that it should get itself duly registered. Against that order, the plaintiff had filed Shri Deo parasnathji v, Kanhaiyalal Komalchand Godre (Civil Bern. No. 888 of 1865.) which was allowed by Shiv-dayal, J. , by his order dated 1-11-1965 and the suit remanded for a trial on the following additional issues :-"7- Whether the order dated 12-11-1951 was passed by Shri 8- S. Shukre, Personal Assistant and the Registrar of Public Trust? 8. If so, whether Shri Shukre was the authority competent to act as Registrar, Public trusts, under the M. P. Public Trusts Act, 1951?"
On issue No. 7 the learned trial Judge has now found that the impugned order, ex. P-1 dated 12-11-1954, was passed by Shri S. S. Shukre in his capacity as the personal Assistant and Registrar of Public Trust, Sagar, and on issue No. 8, that Shri Shukre was not an authority competent to act as the Registrar of Public Trusts under the Madhya Pradesh Public Trusts Act, 1951. He has further held that section 34-A, inserted by the Madhya Pradesh Public Trusts (Amendment and Validation) Act, 1964 (XVII of 1964) does not validate the impugned order, because there was no "order in writing" by the Registrar of Public trusts, delegating all or any of his powers and duties to him, as envisaged by that section. The contention that Shri S. S. Shukre had acted within his jurisdiction, in registering the plaintiff-trust as a public trust can hardly be accepted. In Shall Fariduddin v. Mohd. Akbar (1957 N L J 651.) the Nagpur Bench (Mudholkar and Kotval, JJ.) of the Bombay High Court held that the Deputy Commissioner is a persona designata under section 3 (1) of the Madhya Pradesh Public Trusts act and consequently he alone can act as the Registrar of Public Trusts. A similar question arose for consideration in this Court in Budhulal v Registrar of public Trusts (1864 M P L J 887.) wherein Naik and Bhargava, JJ. , following the view in Shah fariduddins case
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