Dr. Ram Manohar Lohiya National Law University: Submitted To Submitted By

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

CIVIL PROCEDURE CODE

Suits relating to public nuisance and public charities

Submitted To

Submitted By

Mr. Vipul Vinod

Ayush Pratap singh

Assistant Professor, Law

B.A. LLB(HONS) IVth semester SECTION-

“A” 170101042

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ACKNOWLEDGEMENT

It is of great satisfaction and a matter of privilege to work on a project of Civil Procedure Code. I express my deep gratitude to my teacher Mr. Vipul Vinod Assistant Prof. (Law). He helped me to understand and remember important details of the project work. I am thankful to the Hon’ble Vice Chancellor, Prof. S.K. Bhatnagar who provided me all possible resources for making of this project. At last but not the least, I am thankful to my parents and friends who encouraged and motivated me to make the best possible efforts for the completion of this project

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CONTENTS  Table of authorities………………………………………….. 4  Introduction…………………………………………………. 5-6  Public nuisance in general…………………………………... 7-8 

The concept of nuisance in Indian jurisprudence………….... 7-8

 Public nuisance in CPC…………………………………….. 9-10  Landmark cases relating to public nuisance………………... 11-13  Remedies in cases of public nuisance ……………………… 14-15  Public charities in CPC……………………………………... 16 

Objective of section 92 in CPC…………………………… 17

 Distinction between private and public trust………………….17  Landmark cases…………………………………………….... 18-20  Conclusion …………………………………………………… 21  Bibliography …………………………………………………. 22

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TABLE OF AUTHORITIES

Municipal Council, Ratlam v. Shri Vardhichand & Others (1980 K. Ramakrishnan and others v. State of Kerala and others Mc Mehta vs union of india Chairman Madappa Vs. M. N. Mahanthadevaru & Ors [1965] INSC 211 (11 October 1965) Biswanath vs sri thakur radha ballabhji AIR 1967 1044 Swami parmathmanand saraswati &ANR vs ramji tripathi &ANR 1974 AIR 2141 975 (SCR) (1) Chairman Madappa Vs. M. N. Mahanthadevaru & Ors [1965] INSC 211 (11 October 1965 Shivanand c.r. &anr vs sri h.c. gurusidappa & ors

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INTRODUCTION

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“Whether it is the noise of the loudspeakers or the dug up roads, the occurrences of public

nuisance are numerous. Unnecessary and incessant honking of horns to blocking the sun in a public park, the concept of nuisance is spanned in a vast sphere of our lives. While earlier, nuisance claims were generally instituted by individuals for damages, public nuisance claims through class litigation and public interest litigations are a relatively new addition in the Indian context. It has to be realized that Environment protection is not a pre-occupation of the educated and the affluent and the disposal and control of toxic waste and governmental regulation of polluting industries is public interest oriented. It is nothing but immense insensitivity of the Indian society that the biggest issue of public nuisance, environment-deterioration, goes unnoticed by most of the people, save a few public spirited people, who take up this responsibility of preserving the environment upon themselves.” Public interest litigations (hereinafter PILs) have emerged as an instrument to set the wheels into action and work towards a sustainable environment. 2

“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 consent in writing of the Advocate General, 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;

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'Law Teacher | Lawteacher.Net' (Lawteacher.net, 2019) accessed 25 March 2019. 'Find Lawyers | Advocates | Legal Service In India - Advocatekhoj' (Advocatekhoj.com, 2019) accessed 25 March 2019. 2

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(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) authorizing 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 court may alter the original purposes of an express or constructive trust created for public purposes of. a charitable or religious nature and 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: (I) Where the original purposes of the trust, in whole or in part,— (i) Have been, as may be, fulfilled; or (ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or (J) Where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or (K) 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 (L) 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 (M) 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

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(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.

PUBLIC NUISANCE THE CONCEPT OF NUISASNCE IN INDIAN JURISPRUDENCE 3

“Like major other fields in civil jurisprudence, India borrowed the concept of nuisance from

Common Law. Before the conceptualization of the Code of Civil Procedure in 1908, the liabilities incurred in the offence of nuisance emanated from the common law interpretation of ‘civil wrongs’ that imposed a tortious liability on the wrong-doer. This tortious liability was a capable ground for claiming damages for the injury caused due to the prevalence of the cause of nuisance for a considerable span of time. Therefore, the concept of nuisance is not statutorily developed in the Indian civil jurisprudence. However, through a spate of adjudication on the same, as well as elaborated criminal interpretation of nuisance as well as its application in tort law has given it a definite dimension.” There is no universally accepted definition on nuisance. In fact the term ‘nuisance’ is incapable of an exact definition. But its concept is well understood. There must be interference with the use or enjoyment of land, or some right over or in connection with it, causing damage to the plaintiff. Halsbury defines it as an injury to the right of a person in possession of property to undisturbed enjoyment of it and results from an improper use by another of his own property. According to Blackstone, it is something that “worketh hurt, inconvenience or damage”.The act must result into both danger and injury to cause an actionable nuisance. Acts which seriously interfere with the health, safety, comfort or convenience of the public generally or which tend to degrade public morals have always been considered public nuisances and wrongful acts affecting public. Speaking generally, such acts arise from callous disregard of other people’s welfare and interest.

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Nuisance can be broadly classified into two categories: private nuisance and public nuisance. Private nuisance: Nuisance in its conventional sense refers to the offence of private nuisance emanating from the customary right to enjoyment of one’s own property without interruption to the extent that the rights of another do not stand to be abridged in the course. Reasonableness plays a crucial role in deciding whether an act constitutes actionable nuisance or not. Since private nuisance is categorically the nuisance caused to individual and not the public at large, it cannot be made the subject of an indictment. However, it can constitute a sufficient cause of action of a civil suit claiming damages and injunction. 4

“Public nuisance: Public nuisance has not categorically been defined in the Code of Civil

Procedure, 1908. However, for the purpose of adjudication of the cause, the definition has been borrowed from section 268 of the Indian Penal Code, 1860. According to section 268, a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.” The distinction between private and public nuisance is a matter of fact and not law and can collapse in situations where the right being violated is a public right but the injury is caused to an individual and not the public at large. In many cases it essentially is a question of degree. An example of such a situation is obstruction of a highway affecting houses adjacent to it. In such cases, even though the number of people being affected is not large, the right being violated is public in nature. Unlike private nuisance, public nuisance does not consider easement rights as acceptable defence for nuisance. Merely the fact that the cause of nuisance has been in existence for a long time does not bar any challenge against it as no length of time can legalize a public nuisance.

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'Environment, Law And Society Journal' (Environment, Law and Society Journal, 2019) accessed 25 March 2019.

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PUBLIC NUISANCE IN CPC Public nuisance derives support from section 91 of CPC that lays down the procedure for initiation of a civil suit for the offense of public nuisance. Being purely procedural, the section gives the flexibility of seeking parallel remedies in criminal jurisdiction or damages under law of torts. The marginal note of section 91 reads: public nuisance and other wrongful acts affecting the public. Inclusion of ‘other wrongful acts affecting public’ besides public nuisance widens the scope of the section to incorporate various situations which although do not fall under the accepted straitjacket definitions of nuisance, yet are a cause of discomfort and inconvenience to the public. For instance, courts have read slaughtering of cattle on a public street or encroachment upon a public street by construction of buildings as legitimate cause of action for a claim for public nuisance by the virtue of it being a wrongful act against public. Section 91 of CPC states that (1) In the case of a public nuisance the Advocate General or two or more persons having obtained the consent in writing of the Advocate General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case. (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions. As per the General Clauses Act 1897, the definition of nuisance for the purpose of section 91, CPC has to be borrowed from section 268 IPC. The definition of nuisance excludes from its ambit the instances of legalized nuisance. Legalized nuisance are cases when the nuisance cause is statutorily approved and in the interest of greater good and social welfare. For instance, the running of railway engines and trains or establishment of the yard, despite being a legitimate cause of nuisance, is not punishable under IPC or a valid ground for invoking Section 91. Though much hasn’t been said about the inclusion of clause 1 in section 91, it is believed that inclusion of the Advocate General as the initiator of the suit for public nuisance was to act as a safety check arrangement to the expansive and broad definition of nuisance and the subjectivity of

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‘wrongful acts against the public’. Later, by the 1976 amendment, the provision of two or more persons filing a suit for public nuisance with the consent of the advocate general was added to section 91. Such active involvement of the Advocate General in public nuisance suits was to ensure that suits are not initiated with malicious intentions, with the sole purpose of creating impediments for the party alleged with causing nuisance. This rule however does not extend to representative cases when a member of the community whose rights are being restricted by the act of public nuisance files the claim. In such suits, the leave of the court is not necessary. Even in cases when certain rights are provided to the entire community, but immediate damage by the nuisance occurs to an individual, leave of court is not mandatory. 5

“Clause 2 of Section 91 permits the existence of a parallel suit for the same cause of action in

criminal jurisdiction through a PIL or as a civil suit for private claims. It also allows an individual aggravated by the nuisance to file for damages his individual suit. This is primarily so because section 91 in its entirety does not create any rights or deprive anyone of their existing rights. It merely states the procedural guidelines for instituting a civil suit when the cause of action is public nuisance. Consequently, it does not control representative suits under order I, rule 8 or modify the right of a person to sue apart from the provision of this section. This means that if a group initiates a suit for declaration of a particular right, it does not fall under the category of suit for public nuisance and hence mandates the prior approval of the advocate general. However, the existence of such right is a necessary prerequisite. For instance, a suit against a religious procession is maintainable under Section 91 only if the infringement of some right and even if the consequent damage caused is not proved. Similarly, member of the public can maintain a suit for removal of obstruction of a public highway, if his right of passage through it is obstructed, without proof of special damage.”

'World’S Largest Collection Of Essays! | World’S Largest Collection Of Essays! Published By Experts' (World’s Largest Collection of Essays! Published by Experts, 2019) accessed 25 March 2019 5

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LANDMARK CASES RELATING TO PUBLIC NUISANCE  Municipal Council, Ratlam v. Shri Vardhichand & Others (1980)

FACTS:Residents of informal settlements sought to hold the Municipality of Ratlam accountable to its obligation to protect by ending a public health nuisance caused by pollution discharged by a nearby alcohol plant and to its obligation to fulfil by providing sanitation facilities aimed in part at reducing public health risks associated with waste collecting in water near the residents homes . Residents (the respondents) of a neighbourhood in the Municipality of Ratlam (the petitioner) filed a complaint at the Sub Divisional Magistrate. The Magistrate found the facts proven and ordered the Municipality to provide for sanitation services, a drainage construction and closure of pits with mud to stop mosquito breeding, within two months. A failure to comply with this order would lead to criminal prosecution for failure to abate a public nuisance . The Municipal Council contested the petition on the ground that the owners of houses had chosen to live in that area, fully aware of the insanitary conditions, thereby precluding their right to complain. The Municipal Council also pleaded financial difficulties in the construction of drains and provision of services .The order of the Magistrate was dismissed by the Sessions Court, but was subsequently upheld by the High Court. The Municipality then appealed the High Court’s decision to the Supreme Court.

DECESION:The Supreme Court upheld the High Court’s view affirming the Magistrate’s order. The Supreme Court ordered the Municipal Council to immediately abide by its obligation to protect by halting pollution from the alcohol plant flowing into the community. It also ordered the Council to immediately begin to take steps to meet its obligation to fulfil by providing a sufficient number of public latrines for use by men and women separately, to provide water supply and scavenging service morning and evening to ensure sanitation, and required the Municipal authorities to meet this obligation within six months of the Court’s order. The Court added that if its order was not implemented municipal authorities could face criminal sanctions as well as hold them in contempt

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of court. The Court also ordered the State Government to give special instructions to the responsible body for malaria eradication to stop the mosquito breeding in this area within a reasonable time. Further; ‘The Municipality will not merely construct the drains but also fill up cesspools and other pits of filth and use its sanitary staff to keep the place free from accumulations of filth.’ The Court also held that the Municipality if resources were limited, it needed to prioritize mitigation of such public health nuisances over low priority items and elitist projects, request loans and grants from State Government, and use the savings in the area of public health expenditures that will be realized by implementing the Court’s order.

 K. Ramakrishnan and others v. State of Kerala and others This case highlighted the danger of smoking. The Petitioner sought orders to prevent the smoking of tobacco in any form in public places and to order the state to take appropriate measures to prosecute and punish all persons guilty of smoking in public places and to treat such smoking as a nuisance under the Penal Code. The court held that smoking in public places violated the atmosphere and was noxious to the health of persons present. It decided that public smoking of tobacco in any form whether in the form of cigarettes, cigars, beedies or otherwise was illegal, unconstitutional and violated Article 21 of the Constitution of India. Moreover, tobacco smoking in public places fell within the mischief of the penal provisions relating to “public nuisance” as contained in the Indian Penal Code and also the definition of air pollution as contained in the statutes dealing with the protection and preservation of the environment, in particular the Air (Prevention and Control of Pollution) Act, 1981.

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 M.C. MEHTA VS UNION OF INDIA FACTS:-

The Taj Mahal, an ivory-white marble mausoleum, is acclaimed to be one of the most priceless national monuments, of surpassing beauty and worth, a glorious tribute to man’s achievement in Architecture and Engineering. However, the Taj is threatened with deterioration and damage not only by the traditional causes of decay, but also by changing social and economic conditions which exacerbate the situation. The Taj, a monument of international repute, is on its way to degradation due to atmospheric pollution. The degradation of the Taj Mahal led M.C. Mehta, an environmentalist and a public interest attorney to file a public interest litigation before the Supreme Court in 1984. The petitioner sought appropriate directions to authorities concerned to take immediate steps to stop air pollution in the Taj Trapezium Zone and save the Taj Mahal

DECESIONS:In this landmark judgement, the Supreme Court espoused the cause of protection of national heritages such as the Taj Mahal from deterioration and damage due to atmospheric and environmental pollution. The Court based its judgement on the Precautionary Principle and Polluter Pays Principle, thereby, making them an integral part of the environmental jurisprudence of our country. The Supreme Court has assumed a proactive role and made liberal use of the public interest litigation in protecting fundamental environmental interests. The judicial activism exercised by the Supreme Court for protection of the environment in this case demonstrates the increasing significance of environmental litigation in India.

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REMEDIES IN CASES OF PUBLIC NUISANCE “6As mentioned above, section 91, clause 2 permits the concomitant existence of individual as well as suits under other laws for relief for public nuisance. Since public nuisance is an offence both in civil and criminal jurisprudence, the reliefs range from punitive to pecuniary (generally in case of private claims). In public nuisance cases, the most common relief is the injunction order for continuing the act causing nuisance or an order for removal of the cause by the magistrate. Therefore, the remedies for public nuisance are: 1. Criminal Prosecution under such section of chapter XIV of the Indian Penal Code as may be applicable to the case. Sections 269 to section 291 enlist provisions for punitory remedies with imprisonment, fine or both. For attracting provisions of chapter XIV, it is not necessary that the annoyance should injuriously affect every single member of the public within the range of operation, it is sufficient that nuisance disturbs the people living in the vicinity.” 2. Removal of nuisance or stopping the nuisance-causing activity by the orders of the magistrate under section 143 and 133, CrPC. Section 133 of CrPC allows the magistrate to order removal of the nuisance causing agent or activity from the locality provided that he is satisfied that the nuisance affects or injures number of people enough to attribute ‘public nature’ to the right being violated, the dispute is not of private nature, between two members or groups of public or the dispute is a case of emergency or imminent danger to public interest as in cases of pollution by industries. 3. Action under this section by the Advocate General, or two or more persons with the leave of the Court where a declaration or injunction or some other appropriate relief is desired to put an end to a public nuisance.

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'Lawyersclubindia - Law, Lawyers, Advocates, Law Firms,Legal Help, Legal Experts,Judgements, Social Network For Lawyers, Legal Community, Law Help, Indian Lawyers' (Lawyersclubindia, 2019) accessed 25 March 2019.

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“This is when the remedy is sought under section 91 of the CPC where a suit is filed either by the

advocate general himself or by two or more people in representative capacity with the prior consent of the advocate general or the leave of the court. The reliefs available to the parties in such cases are temporary or intermittent injunction if the injury complained of is either irreparable or continuous.” Even if no substantial damage is caused by the act, injunction can be granted if the nature of nuisance-causing act is such that it can obstruct public rights in future. Declaration of can also be sought as a remedy. 4. Action by a private individual, where he has sustained some extraordinary damage by it. As mentioned in part I( A), the distinction between private and public nuisance collapses in cases where an individual is caused damage by the act of nuisance which prima facie violates a public right. In such a case, invoking clause 2 of section 91, an individual can file a claim for damages or injunctions for violation for some right without prior consent of the Advocate General or the leave of the Court if there is sufficient proof of violation of his some of his or her existing rights. As per the amended provision, no such sanction is required and independent locus is conferred on every person aggrieved by public nuisance or wrongful act to file a suit for declaration or injunction. For instance, if the petitioner’s land that is used by everyone in the village( public right) as a passage is dug for making a channel by the authorities, a sufficient cause of action for initiating a suit under clause 2 of article 91 is created. Apart from this section no individual can maintain an action against another for a relief against public nuisance except on proof of special damage. Besides civil suits and criminal cases, another way of realizing these remedies is through the instrument of public interest litigations or PILs. In the last two and a half decades, PILs have emerged as a striking balance of citizen-consciousness and judicial activism to work for the welfare of all. The next section of this paper aims to trace the history of PILs in India and their use to check public nuisance detrimental to the environment.

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'A Digital Assistant For Lawyers Empowering Advanced Research & Analytics - Lawsfeed' (LawsFeed, 2019) accessed 25 March 2019.

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PUBLIC CHARITIES IN CPC A suit under section 92 of CPC is a suit of special nature for the protection of public rights in the public trust and charities. it presupposes the existence of a public trust of a religious or charitable character.8 “A suit for a declaration that a certain property appertains to a to a religious trust may lie under the general law, but is outside the scope of section 92. A suit framed under the section 92 of CPC the only reliefs which the plaintiffs can claimand the court can grant are those enumerated specially in different clauses of the section courts have to be carefully to eliminate the possibility of a suit being laid against public trust under section 92 by persons whose activities were not for protection of the interest of the public trusts”. First and the foremost requirement of an application under section 92 is the plaintiffs should bring the suit to vindicate the right of the public. leave of the court once granted no fresh permission is required if the original plaintiff dies. The suit under 92 of CPC is a representative suit it is filed representing the public at large. Once leave is granted and it has attained finality, if the persons who are the were to die and in their place others are substituted is not necessary that all those persons who are substituted should again seek leave of the court, to prosecute the suit it is because the permission is granted to the public at large and not to the individual plaintiff. Therefore, if the original plaintiff dies and others are substituted in their place as the permission is granted for the public the permission granted earlier holds good even in respect of them. Section 92 applies only when religious or charitable trust is for a public purpose in order to find out whether a trust is a public trust or charitable or religious nature contemplated by section 92 of CPC. The court must look to the real substance of the trust and the primary intention of the creator of the trust. The suit contemplated by section 92 proceeds on the allegation breach of public trust or is founded on the necessity of having direction from the court regarding the administration of such trust. The question whether a particular mutt forms a public religious endowment or is a private institution must be judged in the light of the evidence in each case. The origin of the mutt if it is known , its antiquity , the nature of the gifts of the property made to it , the way how these have been treated by its head the long established usage and custom of the institution all these throw a valuable light that whether the mutt is a public religious endowment or a private institution.

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'Macarthur Foundation' (Macfound.org, 2019) accessed 25 March 2019.

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OBJECTIVE OF SECTION 92 IN CPC The object of the section in requiring the Advocate-General to institute a suit, or permission of the court before suits are instituted, is to protect public interests and the interests of the institution, on the one hand, and to discourage impecunious and improper persons indulging in vexatious and improper suits against trustees, on the other.

DISTINCTION BETWEEN PRIVATE TRUST AND PUBLIC TRUST Section 92 relates to those charities only in which the public are interested. The endowment must be for a public purpose of a charitable nature and the beneficial interest must be vested in the public in general or a considereable section thereof. The distinction between a private and public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof.While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. When there is a deed of endowment the decisions whether the trust is public or private must turn on the construction of the deed, aided by such considerations as are admissible in law. But where there is no deed regard must be had to repute, usage of the object-matter concerned and other circumstances. The word ‘trust’ is used in S. 92, not in any technical sense and would include Hindu or Muhammadan religious endowment. Where removal of the trustees for misconduct or breach of trust is alleged the test which must be applied is whether the acts or omissions complained of disclose conditions which render intervention necessary in order to save the trust property. 9“Errors of judgment or miscarriage of discretion have to be disregarded unless they be sufficiently chronic. There must be want of fidelity or dishonest and corrupt motives or deliberate or wilful neglect or deliberate misfeasance.”

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The “two persons” referred to in S. 92 of the Code are two individuals and the fact that the two persons were father and son and members of a joint Hindu family would not convert them into one person for the purpose of that section.

LANDMARK CASES RELATING TO PUBLIC CHARITIES

Chairman Madappa Vs. M. N. Mahanthadevaru & Ors [1965] INSC 211 (11 October 1965) FACTS:In a suit under s. 92 of the Code of Civil Procedure, a decree was passed settling a scheme in respect of a muth, Under para (11) of the scheme two persons were appointed as joint managers, and under para. (12) they were given liberty to apply for directions to the District Court as and when occasion arose for carrying out the scheme. The respondent one of the two managers appointed under the scheme, made an application to the District Judge seeking direction to sell cattle and cultivation rights of lands belonging to the muth. In spite of objections by the appellant, the other manager, the District Judge directed the sale. The appellant unsuccessfully appealed to the High Court. In appeal to this Court the appellant contended that in view of s. 92(1)cl. (f) of the Code of Civil Procedure the District Judge had no jurisdiction to make the order; on the other hand the respondent relied on paras (11) and (12) of the scheme to support his contention that the District Judge had jurisdiction.

DECESION:It is open in a suit under s. 92 of the Code for the settlement of a scheme to provide in the scheme itself for modifying it whenever necessary by inserting a clause to that effect. A suit for the settlement of a scheme is analogous to an administration suit and so long as the modification in the scheme is for the purpose of administration such modification could be made by an application under the relevant clause of the scheme, without the necessity of a separate suit under s. 92 of the Code the provisions of which were not violated by such a procedure.

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BISHWANATH V. SRI THAKUR RADHA BALLABHJI AIR 1967 1044

RATIO DECENDI:To invoke S. 92 of the Code of Civil Procedure, three conditions have to be satisfied, namely, (i)

the trust is created for public purposes of a charitable or religious nature;

(ii)

(ii) there was a breach of trust or a direction of the court is necessary in the administration of such a trust;

(iii)

(iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the three conditions is not satisfied, the suit falls outside the scope of the said section.

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 and having obtained the consent in writing of the Advocate-General, 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.

SWAMI PARMATMANAND SARASWATI & ANR, Vs RAMJI TRIPATHI & ANR1974 AIR 2141 1975 SCR (1) FACTS:It had not been proved ,that Krishna bodh ashram was validly installed as the Shankaracharya of the Math but that the suit as it was brought for the vindication of the right of Krishnabodhashram to the headship of the Math, was not maintainable under s. 92 of the Civil Procedure Code.The High Court dismissed the appeal on the basis that the suit was incompetent under s. 92 of the Civil Procedure Code.It is clear from the allegations in the plaint that the plaintiffs primarily wanted a

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declaration from Court that Krishnabodhashram was duly installed as the Shankaracharya of the Math on June 25, 1953, that he came into possession of the properties of the Math and, therefore, the Court should appoint him as the Shankaracharya of the Math.It is, therefore, clear that if the allegation of breach of trust is not substantiated cr that the plaintiff had not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail, and, oven if all the other ingredients of a suit under s. 92 are made out, if itis clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of S.If the real purpose in bringing the Suit was to vindicate the general right of the public to have the rightful claimant appointed to the office.

DECESION:A suit under S. 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section.

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CONCLUSION Despite availability of remedies in civil, criminal as well as constitutional jurisdiction, public nuisance, garbed behind the need for development, has become a vice which our society has failed to combat successfully.

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“Despite the spate of laws on the subject of environment, we find

ourselves in a situation where we are standing at the brink of precipice of sustainability in our environment. More than new laws, what is required is the effective implementation of the existing ones.” The State should take up the responsibility to ensure that industries and other development activities with potential to cause irreparable damage to environment or obstruct an important public right by being a cause of nuisance, are kept in statutory check. Section 92 of cpc only when a religious or charitable trust is for a public purpose . in order to find out whether a a trust is a public trust or a charitable or religious nature contemplated by section 92 of cpc the court must look to the real substance of the trust and primary intention of the creator of the trust . the suits contemplated by section 92 proceeds on the allegation of breach of public trust or is founded on the necessity of having direction from the court regarding the administration of such trust.. The question whether a particular mutt forms a public religious endowment or a private institution must be judged in the light of evidence in each case.

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'JSTOR' (Jstor.org, 2019) accessed 25 March 2019.

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BIBLIOGRAPHY BOOKS 1) Takwani,C.K, Code of Civil Procedure, 8th edition, 2017, Eastern Book Company, Lucknow 2) Mulla, Code of Civil Procedure, 8th edition, 2017, LexisNexis. WEBSITES 1) www.manupatra.com 2) www.vakilno1.com 3) www.jstor.com 4) cji.gov.in.

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