Provisions of the Code of Civil Procedure Relating to suits in the case of Public Nuisances and Public Charities in India
The provision with regard to the obtaining of Advocate-General’s consent has now been modified by the new provisions of S. 91 (1) which lays down that 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 in the circumstances of the case 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. (S. 91).
Prior to the amendment of S. 92 by the Amendment Act, 1976, the provisions of the section authorised the Advocate-General, or two or more persons having an interest in the express or constructive trust created for public purposes of a charitable or religious nature, to institute a suit in the case of any alleged breach of such trust, but the new sub-section (1) permits, besides the Advocate-General, any two or more persons having an interest in the trust and having obtained the leave of the court, to institute a suit to obtain a decree in respect of the matters specified therein, viz.,
(a) Removing any trustee;
(b) Appointing a new trustee;
(c) Vesting any property in a trustee;
(d) Directing a trustee who has been removed or a person who has caused to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(e) Directing accounts and inquiries;
(f) Declaring what proportion of the trust property or of the interest therein shall be allocated to any particular objects of the trust;
(g) Authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(h) Settling a scheme; or
(i) Granting such further or other relief as the nature of the case may require.
Further, a new sub -section, viz., sub-s. (3), inserted by the Amendment Act, 1976, empowers the court to alter the original purpose of an express or constructive trust created for public purposes of a charitable or religious nature and to allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely:
(a) Where the original purposes of the trust, in whole or in part, have been fulfilled, or cannot be carried out at all;
(b) Where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or
(c) Where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or
(d) Where the original purposes, in whole or in part, were laid down by reference to an area which then was.
but has since ceased to be, a unit for such purposes; or (e) Where the original purposes, in whole or in part, have since they were laid down,—(i) been adequately provided for by other means, or (ii) ceased, as being useless or harmful to the community, or (iii) ceased to be, in law, charitable or (iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust. (S. 92).
The U.P. Public Charitable and Hindu Religious Institutions and Endowments Act, 1976, has repealed the applicability of Ss. 92 and 93 of the Code of Civil Procedure to charitable institutions and Hindu Religious institutions and the endowments thereof to which the Act applies.