§ Section 91, CPC 1908

(1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate may be instituted —

(a) by the Advocate General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

§ Four points

• The problem it solves. At common law a private person could sue in respect of a public nuisance only if he had suffered special damage over and above that suffered by the public generally. Section 91(1)(b) removes that requirement for a suit brought by two or more persons with leave.

• The 1976 change. The clause formerly required the consent in writing of the Advocate General. It now requires the leave of the Court, which is quicker and keeps the decision with the court.

• The reliefs. A declaration and injunction, or such other relief as may be appropriate. The relief must be directed at the public wrong.

• Sub-section (2) preserves the private right. A person who has suffered special damage retains his ordinary right of suit, and need not use the section at all.

§ Section 92(1) (in substance)

In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate, to obtain a decree —

(a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; (cc) directing a trustee who has been removed, or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to it;

(d) directing accounts and inquiries; (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require.

§ The three conditions for a Section 92 suit

All must be satisfied:

• A trust created for public purposes of a charitable or religious nature, express or constructive. A private trust, or a trust for a determinate body of individuals, is outside the section.

• A breach of the trust, or a need for the court's direction in the administration of it.

• The relief claimed must be one of those in sub-section (1). A suit claiming relief outside that list is not a Section 92 suit, and the procedural requirements of the section do not apply to it.

§ The representative character

The suit is brought in a representative capacity, to vindicate a public right in the trust, not a personal right of the plaintiffs.

So the test is the purpose of the suit, not its form. Where the real object is to establish the plaintiff's own private right, the suit is not one under Section 92 even if a relief in the list is formally claimed.

The leave of the court is a condition precedent. A suit falling within the section instituted without leave is not maintainable, and leave is granted with a view to the interest of the trust rather than of the plaintiffs.

§ The bar, and the cy pres power

Sub-section (2): the bar. Save as provided by the Religious Endowments Act, 1863, or by any corresponding law in force, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of such a trust except in conformity with that sub-section.

The effect. Where the section applies, its route is the only route: a suit claiming a listed relief must be brought by the Advocate General, or by two or more interested persons with leave, in the court named.

Sub-section (3): cy pres. The Court may alter the original purposes of an express or constructive trust and allow the property to be applied cy pres, in the situations there set out, including where the original purposes have been as far as may be fulfilled, cannot be carried out, provide a use for part only of the property, or have ceased to provide a suitable and effective method of using the property.

The idea behind cy pres, as near as possible, is that a charitable purpose that can no longer be served should not cause the property to fall out of charitable use altogether.

§ Section 93, CPC 1908

The powers conferred by Sections 91 and 92 on the Advocate General may, outside the presidency towns, be, with the previous sanction of the State Government, exercised also by the Collector or by such officer as the State Government may appoint in this behalf.

The subject

A public nuisance or other wrongful act affecting, or likely to affect, the public

A breach of an express or constructive trust for public purposes of a charitable or religious nature, or a need for the court's direction

Who may sue

The Advocate General, or two or more persons with the leave of the court

The Advocate General, or two or more persons HAVING AN INTEREST IN THE TRUST, with the leave of the court

Special damage

Expressly not required for a suit under clause (b)

Not relevant; the requirement is an interest in the trust

The reliefs

A declaration and injunction, or such other relief as may be appropriate

The eight reliefs listed in sub-section (1)

The court

The ordinary court having jurisdiction

The principal Civil Court of original jurisdiction, or a court empowered by the State Government

Exclusivity

Sub-section (2): the section does not affect an independent right of suit

Sub-section (2): no suit claiming a listed relief may be instituted except in conformity with the section

Special power

None

Sub-section (3): the cy pres power to alter the original purposes of the trust