Suits Relating to Public Matters

Definition

Part V of the CPC (S.91 to S.93) provides for suits brought not to vindicate a private right but to protect the public:

• S.91: a suit for a declaration, injunction or other relief against a public nuisance or other wrongful act affecting, or likely to affect, the public.
• S.92: a suit about a public trust of a charitable or religious nature, for breach of trust or where the direction of the court is needed for its administration.
• S.93: outside the presidency towns, the powers of the Advocate-General may be exercised by the Collector or an officer appointed by the State Government, with its previous sanction.

Ordinarily only a person whose own right is affected can sue. Part V is an exception, so that public wrongs do not go unchecked merely because no individual has suffered special damage.

Legal Framework

Core Content

Public Nuisance and Wrongful Acts (S.91)

• Who may sue: The Advocate-General, or two or more persons with the leave of the court (S.91(1)).
• No special damage: The two or more persons need not show any special damage to themselves.
• Relief: A declaration and injunction, or other relief appropriate to the case.
• Savings: A person who has suffered special damage keeps his independent right to sue in his own name (S.91(2)).
• Meaning: "Public nuisance" takes its meaning from S.268 IPC, now S.270 of the Bharatiya Nyaya Sanhita, 2023.

Public Charities (S.92)

• Conditions:
  • the trust is an express or constructive trust;
  • it is created for public purposes of a charitable or religious nature;
  • there is an alleged breach of trust, or the court's direction is needed for its administration;
  • the suit is filed in a representative capacity to vindicate the rights of the public, not a private right;
  • the relief claimed is one of those in S.92(1).
• Who may sue: The Advocate-General, or two or more persons having an interest in the trust who have obtained the leave of the court.
• Forum: The principal Civil Court of original jurisdiction, or another court empowered by the State Government, within whose limits the whole or part of the subject matter of the trust lies.
• Reliefs (S.92(1)):
  • (a) removing any trustee;
  • (b) appointing a new trustee;
  • (c) vesting any property in a trustee;
  • (cc) directing a removed trustee, or a person who has ceased to be a trustee, to deliver possession of trust property;
  • (d) directing accounts and inquiries;
  • (e) declaring what proportion of the trust property shall be allocated to a particular object of the trust;
  • (f) authorising the trust property to be let, sold, mortgaged or exchanged;
  • (g) settling a scheme;
  • (h) granting such further or other relief as the nature of the case may require.
• Bar (S.92(2)): No suit claiming any of these reliefs about such a trust may be brought except in conformity with S.92(1).

Leave of the Court

• Leave is a condition precedent to a suit by two or more persons.
• Notice to the proposed defendants before leave is granted is advisable but is not a statutory requirement. Leave granted without notice does not make the suit bad; the defendants may apply to revoke it, and that application must be decided on merits (R.M. Narayana Chettiar, 1990; Vidyodaya Trust, 2008).

Cy Pres (S.92(3))

Cy pres (as near as possible): where the original purpose cannot be carried out, the court applies the property to a purpose as near as possible to it. Under S.92(3), the court may alter the original purposes of the trust where:

• (a) the original purposes have been fulfilled, as far as may be, or cannot be carried out at all, or cannot be carried out according to the instrument or the spirit of the trust;
• (b) the original purposes use only part of the trust property;
• (c) the property and other property for similar purposes can be more effectively used together for another purpose, having regard to the spirit of the trust;
• (d) the original purposes were laid down by reference to an area that has ceased to be a unit for such purposes;
• (e) since they were laid down, the original purposes have been adequately provided for by other means, have ceased as useless or harmful to the community, have ceased to be charitable in law, or have ceased in any other way to be a suitable and effective use of the property.

Advocate-General Outside Presidency Towns (S.93)

• The powers of the Advocate-General under S.91 and S.92 may also be exercised by the Collector or an officer appointed by the State Government.
• This requires the previous sanction of the State Government.

Maxims and Policy

• Ubi jus ibi remedium (where there is a right there is a remedy): public rights need a procedural route to court.
• Cy pres (as near as possible): a public trust is not allowed to fail merely because its original purpose has become impossible.
• Policy of leave: Leave protects trustees from vexatious suits by busybodies, while allowing genuine members of the public to sue.

Old Law to New Law

• 1976 Amendment (in force 1 Feb 1977):
  • S.91(1) was substituted. Earlier, a suit by two or more persons needed the written consent of the Advocate-General; now it needs the leave of the court.
  • In S.92(1), "leave of the Court" replaced "consent in writing of the Advocate-General".
  • S.92(3) (cy pres) was inserted.
• 1956 Amendment (in force 1 Jan 1957): Clause (cc) was inserted in S.92(1).
• IPC to BNS: The definition of public nuisance in S.268 IPC is now S.270 BNS.
• State laws: Many States have their own religious and charitable endowment laws; S.92 does not apply to religious trusts in Bihar (Bihar Act 1 of 1951).

Requirements

To decide whether a suit under S.92 is maintainable, check:

• Trust: Is there an express or constructive trust?
• Public purpose: Is it for public purposes of a charitable or religious nature, as opposed to a private trust?
• Cause: Is there an alleged breach of trust, or is the court's direction needed for administration?
• Capacity: Is the suit brought to vindicate the rights of the public, not the personal right of the plaintiffs (Swami Parmatmanand)?
• Plaintiffs: Is it filed by the Advocate-General, or by two or more persons interested in the trust?
• Leave: Have those persons obtained the leave of the court?
• Relief: Is a relief in S.92(1)(a) to (h) claimed?
• Forum: Is it in the principal Civil Court of original jurisdiction or an empowered court?

To decide whether a suit under S.91 is maintainable, check:

• Public wrong: Is there a public nuisance or other wrongful act affecting, or likely to affect, the public?
• Plaintiffs: Is it the Advocate-General, or two or more persons with the leave of the court?
• Relief: Is a declaration, injunction or other appropriate relief claimed?

Illustrations

1. Encroachment on a public road: A builds a wall across a public road. B and C, who use the road but suffer no special damage, may sue under S.91 with the leave of the court. D, whose shop is cut off, has special damage and may also sue in his own name (S.91(2)).

2. Misappropriation by a temple trustee: The trustee of a public temple sells temple land and keeps the price. Two devotees may sue for his removal and for accounts under S.92(1)(a) and (d), after obtaining leave.

3. Private dispute: X claims to be the rightful head of a public math and sues to oust Y. The suit is for X's personal right and is not a suit under S.92, though it may be an ordinary civil suit (Swami Parmatmanand).

4. Cy pres: A trust was created to run a leper asylum, but the disease has been eradicated in the area. The court may apply the funds to a hospital for other diseases under S.92(3)(a) or (e).

Key Cases

Swami Parmatmanand Saraswati v Ramji Tripathi (1974) Swami Parmatmanand Saraswati v Ramji Tripathi 1974

• Facts: A suit under S.92 was filed about a math, but the real object was to establish one person's right to be its head.
• Held: S.92 applies only where the suit is to vindicate the rights of the public in a public trust, on the ground of breach of trust or the need for directions for administration. A suit to vindicate the individual right of a person is outside S.92. The court looks at the substance of the plaint, not its form.
• Principle: A S.92 suit must be a representative suit to protect public rights.

R.M. Narayana Chettiar v N. Lakshmanan Chettiar (1990) RM Narayana Chettiar v N Lakshmanan Chettiar 1990

• Facts: Leave under S.92 was granted without notice to the proposed defendants, who challenged the suit.
• Held: It is desirable to give notice to the proposed defendants before granting leave, but the section does not require it. Leave granted without notice does not invalidate the suit; the defendants can apply to revoke it.
• Principle: Notice before leave under S.92 is advisable but not mandatory.

Vidyodaya Trust v Mohan Prasad R (2008) Vidyodaya Trust v Mohan Prasad R 2008

• Facts: Leave was granted under S.92 for a suit against the appellant trust, and the trust challenged the grant of leave.
• Held: Leave is a condition precedent. The court must look at the plaint to see whether the suit is really for the public interest in the trust or to settle personal disputes. On notice, it took the same view as R.M. Narayana Chettiar.
• Principle: S.92 is for public rights, not personal grievances; leave is a condition precedent.

Distinctions

Criticism and Debate

• Leave as a filter: Leave keeps out vexatious suits, but the absence of a mandatory notice means trustees may face suits without being heard first. The courts have tried to fill the gap with the advice in R.M. Narayana Chettiar.
• Overlap with State laws: Endowment Acts in many States create their own authorities, so S.92 often yields to them. Students must check the State law before applying S.92.
• S.91 in disuse: Since public interest litigation became common, S.91 suits are rare; but a civil suit allows full evidence and is the better route for disputed facts.
• Cy pres and donor intent: S.92(3) lets courts alter the donor's purpose. Critics say this can override the donor's wishes; supporters say it keeps public property in public use.

Essay Outline

1. Introduction: Private and public rights; why Part V exists.
2. S.91: public nuisance; plaintiffs; no special damage; S.91(2).
3. S.92: conditions; reliefs (a) to (h); the S.92(2) bar.
4. Leave: condition precedent; notice (R.M. Narayana Chettiar, Vidyodaya Trust).
5. Representative character: Swami Parmatmanand.
6. Cy pres: S.92(3).
7. 1976 changes: from consent of the Advocate-General to leave of the court.
8. Critique and conclusion.

Recall Check

1. Who may sue under S.91, and must they show special damage?
2. What are the conditions for a suit under S.92?
3. What did the 1976 amendment change in S.91 and S.92?
4. Is notice to the defendants mandatory before leave under S.92?
5. When may the court apply trust property cy pres?
6. Who exercises the Advocate-General's powers outside the presidency towns?

Flashcards

Q1: Under S.91, who may sue in respect of a public nuisance? A1: The Advocate-General, or two or more persons with the leave of the court, even without special damage.

Q2: Does S.91 bar a private suit by a person who suffers special damage? A2: No. S.91(2) saves independent rights of suit.

Q3: What must two or more persons obtain before suing under S.92? A3: The leave of the court (consent of the Advocate-General before 1977).

Q4: Is a suit to establish one's personal right to be head of a math a S.92 suit? A4: No. S.92 is for vindicating public rights (Swami Parmatmanand, 1974).

Q5: Is notice to the defendants a condition for leave under S.92? A5: No. It is advisable but not mandatory (R.M. Narayana Chettiar, 1990).

Q6: Which provision allows cy pres application of trust property? A6: S.92(3), inserted in 1976.

Q7: What is the effect of S.92(2)? A7: A suit claiming any relief in S.92(1) about a public trust can be filed only in conformity with S.92(1).

Q8: Who may exercise the Advocate-General's powers outside the presidency towns? A8: The Collector or an officer appointed by the State Government, with its previous sanction (S.93).