\y IN THE HIGH COURT OF CHATTISGARH AT BILASPUR WRIT PETITION (227) N0^^)2y2009 PETITIONERS< T^^- Ap^\k^h^$f Durga Prasad Mahobiya, Son of Late Shri Itwari Lal Mahobiya, Aged about 47 years, Resident of Barai Para, Durg, (C.G) VERSUS ^ RESPONDENT:5 ^ '^.,^: ^K^"""' 1. Chairman Revenue Board Chhattisgarh, Bilaspur, Circuit Court at Raipur, (C.G) \^2. Mahant Yegyanand Brahmchari, Son of Mahant Gautainanand Brahmchari, Aged about 54 years, Resident of Borsi, Patwari Circil no. 19, Revenuelnspector Circle, Durg/1, District Durg, (C.G)-^^\ic-^K^- WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ^Aet^ Petitjoner HEGH COURT OFCHHATTISGARH : BILASPUR WRIT PETITION (227) N0.2002 OF 2009 Durga Prasad Mahobiya Respondents Versus Chairman, Revenue Board & Another Post for pronouncement of the order on ^ ^ day of January, 2010 Sd/- Prashant Kumar Mishra Judge ^ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (227) N0.2002 OF 2009 Petitioner Durga Prasad Mahobiya Respondents Versus Chairman, Revenue Board & Another t11 !1 (Writ Petition under Article 227 of the Constitution of india) Single Bench : Hon'ble Shri Prashant Kumar Mishra, J. Present:- Shri Gautam Khetrapal, Advocate for the petitioner. Shri H.B. Agrawal. Sr. Advocate with Ms Itu Rani Mukherjee, Advocate for the respondent No.2. OR D E R (Passed on this ^y'dav of January, 2010) The short question arising for determination in this petition under Article 227 of the Constitution of India is that whether the Sub Divisional OfRcer. Durg, is competent to function as Registrar, Public Trust, with respect to the petitioner's application dated 26-6-2006, which was filed by the petitioner for registration of Shri Nar Narayan Mandir (forshori "the Mandlr") situated at Borsi, Durg, as Public Trust under the provisions of the Chhattisgarh Public TrustsAct, 1951 (forshort'theAct.1951"). !t is not in dispute that the petitioner has filed an application dated 26-6-2006 before the SDO, Durg, in the capacity of the said officer being Registrar. Pubiic Trust for Durg District, for registration of the Mandir as Public Trust. The respondent No.2 herein namely; Mahant Yegyanand Brahmchari moved an bbjection on 10-11-2CX)6 ^ fchallenging the maintainabEIEty of the application fited by the --"^ petitioner and the continuation of proceedings by the SDO, Durg, on the groundthat the said officer has not been designated as Registrar, Public Trust, Durg, inasmuch as there is no order in writing by the CoIlector,Durg, delegating his power to the sajd SDO in exercise of powers under Section 34-A ofthe Act, 1951 allowing him to function as Registrar, Public Trust. Durg. 3. The SDO, Durg, acting as Registrar, Public Trust, Durg, by his order dated 4-6-2007 (Annexure - P/2) rejected the said objection raised by the respondentNo.2 to hold that he is competent to discharge the functions and powers of Registrar, Public Trust, Durg, as the Collector, vide his order dated 23-3-2007, has held mentioning therein that by order dated 2-1-1979 issued by the Collector, Durg, the SDOs of Durg, Balod and Bemetara have been authorized to perform the duties of the office of Registrar. Public Trust, in their respective Sub DJvisions. 4. On the basis of the aforesaid order of the Collector. Durg, the SDO. Durg, conciuded that he is competent to function as Registrar, Public Trust, Durg, on the application moved by the petitioner on 26-6-2006. The SDO, Durg, thereafter. took up the application for jnitiation of enquiry under Section 5 ofthe Act, 1951 and passed an order to that effect on 16-8-2007 (Annexure - P/3). It is this order, which was challenged by the respondent No.2 before the Board of Revenue. 5. The respondent No.2 herein preferred an appeal, which was iater on converted into a revision before the Board of Revenue^ to chalienge the order passed by the SDO, Durg, on 16-8-2007 ;/ rejecting his objection regarding maintainability of the applicatjon f&^\ ^?-..,...-.^. ^i ^w-y filed by the petitioner. The Board of Revenue, by its order dated 30-1-2009 (Annexure - P/1) has allowed the revision and consequently has sustained the objection filed by the respondent No.2 and the application filed by the petitioner on 26-6-2006 has been found to be not maintainable, as according to the Board of Revenue on the said date the SDO, Durg, was not designated as Registrar, Public Trust, Durg. Shri Khetrapal, learned counsel appearing for the petitioner submitted that the application moved by the petitioner was competent before the SDO, Durg, because the objection raised by the respondent No.2 was earlier decided on 4-6-2007, which was not assailed by the respondent No.2 before any higher Court or authority. Learned counsel further submitted that in any case there being a notification issued by She Collector, Durg, dated 24-3-2007 (Annexure - P/4) in exercise of powers under Section 34-A of the Act. 1951, the application filed bythe petitioner was maintainable. Per contra, Shri Agrawal, Searned senior counsel appearing with Ms Mukherjee, learned counsel for the respondent No.2 submitted that the SDO, Durg, could not have entertained the application on 26-6-2006 when it was presented before the SDO and, therefore, the entire proceedings are without jurisdiction. Learned senior counse! further submitted that the issue has been decided by the High Court of Madhya Pradesh jn the matter of Shri Deo Parasnathji Mousuma Ghanshyam Budhu Singhai v. Firm •^ /^\ \ ^. ^..^.y/ '%-&y ^-^-^'gfti'"-1"' Kanhaiyalai Koma!chand Godre1, copy of the said decision has been annexed by the respondent No.2 along with his return. 8. I have heard.iearned counsel appearing for the parties at tength, perused the pleadings and the documents appended thereto. 9. The application preferred by the petitioner for registering the Mandir as Public Trust was submitted under the provisions of the Act» 1951. Section 4 makes a provision regarding registration of Public Trust and Section 5 thereof speaks about inquiry for registration. The Registrar is thereafter obliged to record the findings under Section 6 ofthe Act» 1951 . On completion of enquiry and thereafter the Registrar is supposed to make entries in the register. To challenge the said findings and entries the civil suit is majntainable before the Civil Court as provided under Section 8 of theAct,1951. . 10. Sections 34 and 34-A of the Act, 1951 are germane for consideration and decision ofthe issue raised in this petition. They are reproduced hereunder: "34. Inquiries by Registrar. - Where in any case an enquiry is to be made by the Registrar under this Act, he may himseif make the enquiry or may forward the case for investigatlon and report to any revenue officer not below the rank of a [Deputy Coliector]. 34-A. Delegation of powers by RegisSrar. - 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 br any of his powers and duties under this Act to any revenue officer of his district not below the rank of a Sub Divisjonal Officer." 1972 MPLJ 206 •^f-% ^ f^Z ":^^^^ yi y^'- 11. The provlsions contained in Section 34-A of the Act, 1951 was jntroduced by M.P. Act No.17 of 1964, prior to this there was no power with the Registrar to delegate his power to any other officer. 12. In the matter of Shri Deo Parasnathji Mousuma Ghanshyam Budhu Singhai (supra), the High Court of Madhya Pradesh has held that the distribution memo issued by the Collector distributing work amongst the Deputy Collectors working in his district does not amount to an order in writing to delegate his powers to Registrar under Section 34-A ofthe Act, 1951. It has also been held in paras 11 & 12 of the said decision that insertion of Section 34-A of the Act, 1951 does not result in any expostfacto delegation but for that an order in writing issued by the Registrar delegating all or any of his powers under the Act is necessary. 13. Though the ratio laid down by the High Court of Madhya Pradesh in the matter of Shri Deo Parasnathji Mousuma Ghanshyam Budhu Singhai (supra) is categorical to the effect that the distribution memo does not amount to an order in writing yet at the same time in paras 11 & 12 observed that jf there is an order in writing under Section 34-A of the Act, 1951 by the Registrar delegating all or any of his powers under the Act, the requirement of ex post facto delegation would be available for validating the Act performed by such delegatee. 14. In the case before this Court though the Board of Revenue is correct in saying that prior to 24-3-2007 the SDO, Durg, could not have exercised the powers of Registrar, Public Trust, but yet. since ^ on the said date the Registrar, Public Tmst/Collector, Durg, has issued an order in writing (Annexure - P/4) delegating all his powers under the Act, 1951 to the SDOs of al! Sub Divisions of District Durg, thus from the said date the SDO, Durg was competent to perform and discharge the functions of Registrar, Public Trust. The application fiied by the petitioner on 26-6-2006 had not been acted upon or rather cognizance was not taken by the SDO, Durg, prior to 16-8-2007 when for the first time the SDO, Durg. ordered for an enquiry under Section 5 of the Act, 1951. In fact even on 4-6-2007 when the objection filed by the respondent No.2 regarding majntainability was rejected by the SDO, Durg, the order of delegation issued by the Collector, Durg dated 24-3-2007 was in existence. 15. Keeping in view the object of the Act, 1951 which says that where as it is expedient to reguiate and to make better provision for the adminEstration of pubiic religious and charitable trusts in the State and to see that it shquid be included as to whether a particular reljgious place is a Public Trust or not. dismissa! of the application on technical grounds in spite of existence of an order of delegation in writing, may not be in the interest of justice, and therefore, the order passed by the Board of Revenue deserves to be set aside. 16. This Court, therefore, finds that by virtue of the order in writing issued by the Collector, Durg, dated 24-3-2007 (Annexure - P/4) delegation ali of his powers under the Act, 1951 has been made In favour of the SDO, Durg, and applying the prindples of doctrine of ex post facto deJegation the SDO, Durg, was competent to dea! .with the appEication though fi!ed prior to 24-3-.2007. Et is also to be seen that if any application is presented on or after 24-3-2007, the said application wouid be maintainable before the S.D.0., Durg belng the Reglstrar, Public Tmst, Durg, therefore, to hold that the earlier application, on which cognizance was taken by ordering an enquiry under Section 5 of the Act, 1951 only after 24-3-2007, is withoutjurisdiction, would not serve the interest ofjustice. 17. In view of the above, the impugned order passed by the Board of Revenue is set aside. The S.D.0., Durg shall now proceed with the enquiry on the application filed by the petitioner for registration of the Mandir as public trust in accordance with law and on its own merits without being influenced by any observation made in this order. 18. In the resuit, the writ petition is allowed to the extent indicated above. No order as to costs. Gowri Sd/- Prashant Kumar Mishra Judge