•^ ^ © 3 IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR {CHHATTISGARHl WRIT PETITION N0. /2004/ PETITIONERSS 1. 1..^:1 ^ .^ .^^ ^' ./^•" n: .^ ^-/. -/ '/ ^••^ .^ ^ ^ '^ RESPONDENTS VERSUS 1. 2. Sri Gopal Jee Mahaprabhoo Evam Maa Chandrahasini Devi Mandir, Public Tmst, Chandrapur, P.S. and Tah. Dabhra, District Janjgir- Champa, through : Its Managing Trustee, Sauran Singh, aged about 55 years, son of Shri N.P. Singh, resident of Chandrapur, P.S. and Tah. Dabhra, District Janjgir-Champa (Chhattisgarh) Sauran Singh, aged about 55 years, son of Shri N.P. Singh, occupation — cultivition, presently engaged with Sri ibpal Jee Mahaprabhoo Evam Maa Chandrahasini Devi M^ndir, Public Trusf, Chandr^ipur, resident of Chandrapur, P.S and Tah. Dabhra, District Jaiijgir- Champa (Chhattisgarh) Vijay Kumar Agrawal, son of Shri Syamchand Agrawal,^aged jibout 45 years, occupatiori^^'^resently Tresurar of Sri Gopal Jee Mahaprabhoo Evam Maa Chandrahasini Devi Mandir, Public Trust, Chandrapur, Resident of Chandrapur, P.£ and Tah. Chandrapur, Dilitrict Janjgir-Champa (Chhattisgai'h) The State of Chhattisgarh, through : Secretary, D,epartment of Revenue, D.K.S. Bhawan, Mantralay, Raipur (C.G.) The Secretary, Department of Charitable Religious Trust, ^ £k^<rvv/M-e^rh. ^ M Mantralay, D.K.S. Bhawan, Raipur (Chhattisgarh) 3. The District Collector, District Janjgir-Champa (Chhattisgarh) 4. The Sub Divisional Officer (Revenue), Tah. Dabhra, District Janjgir-Champa (Chhattisgarh) 5. The Registrar Public Trust / Sub Divisional Officer (Revenue), Tah. Dabhra, District Janjgir-Champa (Chhattisgarh) 6. The Tahsildar, Tah. Dabhra, District ^, Janjgir-Champa (Chhattisgarh) /"' /r WRIT PEHTIOPLUND^RARTICLES 226/227 OF THE CONSTITUTION OF INDIA A. ^. I'-^^li^ ^r^-sss^-?^- HIGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shi-i Prashant Kumar Mishra Writ Petition No. 593/2004 PETITIONERS RESPONDENTS : Sri Gopal Jee Mahaprabhoo Evam Maa Chandrahasini Devi Mandir and others Versiis The State of Chhattisgarh and others Appearance: Shri S.N. Nande, counsel forthe petitioners. Shri R.R. Sinha, Panel Lavvyer for the State. WRIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA ORAL ORDER (07.02.2011) Challenge has been thrown to the order passed by the Sub Divisiooal Officer (Revenue) Dabhra District Janjgir-Champa on 30/09/2003 (Aiinexure A-l) titled as Enquiry Report (Janch Prativedan) and in pursuance thereto proceeding for recovery of the difference amount of Rs.3,17,130/- has been iiiitiated against the petitioners vide Anner-ure A-2 and demand notice has been issued vide Aiinexure A-3 at page 20 and 20-A. (2) Case ofthe petitioner, in short, is that the petitioner No.l is the Deity which is a Public Trust. Petitioners No.2 and 3 are the tmstees of the petitioner No.l trust. During the relevant period of time construction ofa concrete road from Chandrapur Bus Stand to Manji Tola was made by the tmst. Though the work was audited and a -^ report was submitted by the auditor under section 15, 16 and 17 of ___.__._^' .~<<» ^^ \i v-y ^...:,-/- ••f^ the C.G. Public Tmst Act, 1951 and no misappropriation or misconduct was found, yet on the complaint of the MLA ofthe area the constiiiction work was re-evaluated in the absence of petitioner and thereafter the order ofrecovery was issued. (3) Learned counsel for the petitioners would submit that from the docunient annexed with the writ petition particularly the enquiiy report as well as the communication issued by the Sub Divisional Officer, Dabhra to Tahsildar Dabhra and by the Executive Engineer PWD Champa Division to Collector Champa it does not appear that the said Sub Divisional Officer has exercised powers as Registrar Public Trust nor any proceeding was drawn under section 23 of the Act as the said provision presupposes existence of an adverse order against the tmst or tnistees, as the case may be, indicating gross iiegligence, breach of trust, misapplication or misconduct causing loss to the Public Trust, and in the absence ofsuch observation by the auditor or for that matter by the jurisdictional Registrar, the enquiiy report as well as the proceedings for recovery is nonest, without jurisdiction, and de hors the provision contamed in the Act, 1951. (4) Leamed Panel Lawyer appearing on behalf of the State would submit that if source of power is available under the Act non- mentioning of the provision would not render the proceeding as without jurisdiction, if othervvise the Sub Divisional Officer was competent to fuiictioii as Registmr. He would also submit that tlie petitioner has alternative remedy offiling aii appeal before the Court ^- ~%^.,^' ^7 -3 - i.e. Principal Civil Court of origmal jurisdiction, under section 24 of the Act and a petition under Article 226/227 is not the proper jurisdiction to decide disputed questions offacts regarding valuation ofthe work done or correctness ofthe subsequent report for which evidence is required to be adduced by the parties, (5) True it is that in the enquiry report (Annexure A-l) or the communication issued by the Collector, Land Record Janjgir-Champa to Sub Divisional Officer (Revenue) Dabhra (Aiinexure A-2) or the demand notice (Aiinexiire A-3) at page 20 and the communication issued by the Sub Divisional Officer (Revenue) Dabhra, District Janjgir-Champa to the Tahsildar Dabhra at page 20-A do not anywhere mention that the authorities have discharged their function as Registrar Public Trust. Though the petitioner has pleaded that there was a favourable audit report in its favour yet copy ofthe audit report is not placed in the record of the writ petition, however at the same time, on a reading ofthe enquiry report also it is not reflected therein that the report ofthe auditor submitted under the provisions ofthe Act itselfhas been taken account of. In the enquiry report it is also mentioned that the enquity was iiiitiated for submitting answer to a Assembly question raised by concerned MLA. Thus, the argument raised by learned counsel for the petitioner is prima facie correct that concerned Registrar ofPublic Trust has not drawn any proceeding yet in view ofthe argument raised by leamed counsel for the respondents ythat concemed Sub Divisional Officer was competent to function as 0 Registrar as well as for the reason that an appeal under section 24 of the Act can be preferred before the Court to challenge the order of recovery, this Court is of the opinion that the petitioner should avail the alternative remedy offiling an appeal under section 24 ofthe Act before the Principal Civil Court oforiginaljurisdiction. (6) The petitioner may file an appeal within a period of 90 days from today. Section 24 (2) and (3) provldes that pending disposal of the appeal proceeding for surcharge can be stayed on sufficient reason being shown by the appellant. Having regard to the discussion niade heremabove this Court prima facie finds that the matter needs to be adjudicated by the Appellate Court and since question regarding competency of the Sub Divisional Officer (Revenue) Dabhra to fiinction as Registrar at the relevant time, whether the proceeding was drawn under the Act 1951, and vvhether the jurisdiction to proceed under section 23 in the absence of any adverse report of the auditor was available, are all to be addressed by the Appellate Court, therefore prima facie it appears proper in the interest ofjusticeto stay the proceeding for recovery during pendency of petitioners application for grant ofstay before the Appellate Court. (7) With this obsen7ation, the instant petition stands disposed of. G^ Sd//- Prashant Kumar Mishra Judge