This Article is written by Naina Kumari of Pt. Som Chandra Dwivedi Vidhi Mahavidyalaya pursuing BA LLB , 5th year during her internship at Ledroit India.
ABSTRACT
Public charitable and religious trusts play a vital role in Indian society by serving collective social, educational, and religious purposes. However, mismanagement, breach of trust, and misuse of trust property have frequently necessitated judicial intervention. Section 92 of the Civil Procedure Code, 1908 (CPC) provides a special procedural mechanism to regulate suits relating to public charities. A distinctive feature of such suits is the mandatory involvement of the Advocate General or the requirement of his consent, which acts as a safeguard against frivolous litigation.
This article critically examines the legal framework governing public charities suits under Section 92 CPC, with particular emphasis on the role, powers, and responsibilities of the Advocate General. Through an analysis of statutory provisions, landmark and recent case laws, and judicial interpretations, the article highlights how the Advocate General functions as a protector of public interest while balancing access to justice. The study also evaluates practical challenges and suggests reforms to enhance transparency and accountability in public charity litigation.
Keywords: Public Charitable Trusts, Section 92 CPC, Advocate General, Public Interest Litigation, Trust Administration, Civil Procedure
SCOPE OF THE ARTICLE
This article covers the following aspects:
- Concept and nature of public charitable and religious trusts
- Historical background and objectives of Section 92 CPC
- Essential ingredients of a suit under Section 92 CPC
- Procedural requirements and reliefs under Section 92
- Role, powers, and duties of the Advocate General
- Judicial interpretation through landmark and recent case laws
- Distinction between private and public trusts
- Critical analysis and contemporary challenges
- Suggestions and reforms
- Conclusion
INTRODUCTION
Charitable and religious endowments have existed in India since ancient times, deeply embedded in social and cultural traditions. Temples, mosques, dharamshalas, educational institutions, and hospitals established for public benefit are examples of such trusts. Given the public nature of these institutions, their management directly affects society at large. Consequently, legal mechanisms have been developed to ensure accountability and proper administration.
Section 92 of the Civil Procedure Code, 1908 serves as one such mechanism, providing a specialized procedure for instituting suits relating to public trusts of a charitable or religious nature. Unlike ordinary civil suits, these proceedings are representative in character and aim to protect public interest rather than individual rights.A unique and crucial safeguard under Section 92 CPC is the involvement of the Advocate General. His consent or participation is mandatory, ensuring that litigation is not motivated by personal grievances or malice. This article undertakes a detailed examination of Section 92 CPC, with a focused study on the Advocate General’s role as a gatekeeper and guardian of public interest.
Public trusts – either religious or charitable, are vital communi-tarian instruments for the provision of public facilities, social services, and various cultural activities. They assist in vindicating human rights and im-plementing a robust social inclusion policy. However, trusts are vulnerable to various conundrums which inter alia include the abuse of funds and property, mismanagement, fraud, negligence, indifference, and internal disagreements between the trustees. Thus, it becomes the responsibility of the legal system to maintain the sanctity of trusts in order to meet the expectations of the donors as well as the public.
CONCEPT OF PUBLIC CHARITABLE AND RELIGIOUS TRUSTS
A public trust is one created for the benefit of the public or a section of the public. Charitable purposes typically include relief of poverty, education, medical relief, and advancement of any object of general public utility.
The Supreme Court in Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt (1954) recognized the public character of religious and charitable institutions and emphasized state supervision to prevent maladministration.
HISTORICAL BACKGROUND AND OBJECT OF SECTION 92 CPC
Section 92 CPC traces its origin to Section 539 of the Code of Civil Procedure, 1882. The provision was retained and refined in the 1908 Code to strengthen judicial control over public trusts.
The primary objectives of Section 92 CPC are:
- To prevent misuse of public charitable or religious property
- To provide a representative remedy for public grievances
- To avoid multiplicity of suits
- To ensure that litigation is initiated only in bona fide cases.
The involvement of the Advocate General ensures that only genuine disputes concerning public interest reach the courts.
ESSENTIAL INGREDIENTS OF SECTION 92 CPC
For a suit to fall under Section 92 CPC, the following conditions must be satisfied:
- Existence of a trust for public charitable or religious purposes
- Breach of trust or necessity for court directions regarding administration
- Reliefs claimed must be those enumerated under Section 92
- Suit must be representative, not for personal rights
- Consent of the Advocate General or institution by him.
Failure to fulfill any of these conditions renders Section 92 inapplicable.
RELIEFS AVAILABLE UNDER SECTION 92 CPC
Section 92 CPC provides for specific reliefs, including:
- Removal of trustees
- Appointment of new trustees
- Vesting of trust property
- Direction for accounts and inquiries
- Framing or modification of schemes
- Grant of further or incidental reliefs.
These reliefs aim at correcting administrative failures rather than granting individual remedies.
ROLE OF THE ADVOCATE GENERAL UNDER SECTION 92 CPC
- Statutory Position of the Advocate General:The Advocate General is the highest law officer of the State under Article 165 of the Indian Constitution. His role under Section 92 CPC is not merely procedural but constitutional in character.
- Grant of Consent: A Gatekeeping FunctionThe most significant role of the Advocate General is granting prior consent for instituting a suit. This consent is mandatory and acts as a filter against vexatious litigation.In R.M. Narayana Chettiar v. N. Lakshmanan Chettiar (1991), the Supreme Court held that consent is a condition precedent and not a mere formality. https://indiankanoon.org/doc/1665133/
- Advocate General as Protector of Public InterestWhile granting consent, the Advocate General examines:
•The public nature of the trust
•Allegations of breach
•Bona fides of the plaintiffs
•Public interest involved
His role is quasi-administrative and aims at safeguarding charitable institutions from unnecessary judicial interference.
- Institution of Suit by Advocate General HimselfSection 92 also empowers the Advocate General to directly institute a suit. This power reinforces his role as a custodian of public interest.
- Limitations on the Advocate General’s RoleThe Advocate General does not adjudicate disputes or determine rights. Courts have clarified that refusal of consent does not bar other legal remedies, such as suits under general civil law.
JUDICIAL INTERPRETATION: LANDMARK AND RECENT CASE LAWS
Landmark Case: Vidyodaya Trust v. Mohan Prasad (2008)
The Supreme Court emphasized that the essence of Section 92 lies in the nature of the relief sought, not merely the allegations made.
Facts:
The dispute concerned Vidyodaya Trust, a public charitable trust. Certain beneficiaries alleged mismanagement, breach of trust, and improper administration by the trustees. A suit was filed seeking reliefs such as removal of trustees and proper management of the trust. The main issue was whether the suit was maintainable under Section 92 of the Civil Procedure Code, 1908, and whether the trust was a public charitable trust attracting that provision.
Held:
The Court held that Section 92 CPC applies only to public charitable or religious trusts and only when the suit seeks reliefs specified under the section for the benefit of the public. Since the trust was public in nature and the allegations related to breach of trust and administration, the suit was maintainable under Section 92 CPC, subject to statutory requirements.
Recent Case: Church of North India v. Lavajibhai Ratanjibhai (2005)
The Court reiterated that disputes involving personal rights of trustees fall outside Section 92 CPC.
Facts:
The dispute arose over the management and control of properties belonging to the Church of North India (CNI). Certain individuals claimed rights over church property and questioned the authority of the Church and its governing bodies. A suit was filed raising issues of internal administration, property management, and applicability of Section 92 of the Civil Procedure Code, 1908.
Held:
The Supreme Court held that Section 92 CPC is applicable only to public charitable or religious trusts and only when the suit seeks reliefs enumerated under the section. The Court clarified that disputes relating merely to title or possession of property or internal management without alleging breach of public trust do not fall under Section 92 CPC. Consequently, the suit was not maintainable under Section 92.
CRITICAL ANALYSIS AND CONTEMPORARY CHALLENGES
Despite its importance, Section 92 CPC faces criticism due to:
- Delay in obtaining consent
- Lack of transparency in decision-making
- Absence of clear guidelines for Advocate General
- Possibility of political influence
Courts have suggested adopting objective criteria and time-bound decisions to address these concerns
SUGGESTIONS AND REFORMS
1.Framing uniform guidelines for granting consent
2.Mandatory reasoned orders for refusal
3.Digital submission and tracking of consent applications
4.Periodic review of public trust administration
5.Awareness among beneficiaries regarding legal remedies
Constitutional Perspective:Advocate General as a Constitutional Trustee of Public Interest
Beyond Section 92 CPC, the role of the Advocate General must be viewed through a constitutional lens. Under Article 165 of the Constitution of India, the Advocate General is entrusted with advising the State Government on legal matters. When granting consent under Section 92 CPC, the Advocate General does not act as a private legal advisor but as a constitutional guardian of public faith and trust property.
The Supreme Court has recognized that public trusts form part of public welfare governance, indirectly linking them with Directive Principles of State Policy, particularly Articles 38 and 39.
Doctrine of Parens Patriae and Section 92 CPC
The doctrine of Parens Patriae (State as guardian of those unable to protect themselves) is an underlying principle behind Section 92 CPC. Since beneficiaries of public trusts are indeterminate and dispersed, the State—through the Advocate General—acts as a representative of collective public interest.
Indian courts have implicitly applied this doctrine while justifying the mandatory consent requirement.
Doctrine explained – Supreme Court observations
Distinction Between Section 91 and Section 92 CPC
A rarely discussed but crucial aspect is the distinction between Section 91 CPC (public nuisance) and Section 92 CPC (public trusts). While both require Advocate General’s consent, the nature of harm and relief differs substantially.
This comparative understanding strengthens the doctrinal clarity of the Advocate General’s role.
CPC Sections 91 & 92 – Comparative reading.
Role of Advocate General in Scheme Framing and Modification
In many Section 92 suits, courts frame or modify schemes for trust administration. Though the Advocate General does not frame schemes, courts often rely on:
- His submissions
- Institutional neutrality
- Experience in public administration
This gives the Advocate General an indirect yet influential role in shaping governance models of public charities.
Scheme framing under Section 92 CPC
Intersection with Religious Freedom under Article 26
Section 92 CPC frequently intersects with Article 26 (Freedom to manage religious affairs). Courts have held that judicial supervision under Section 92 does not violate religious freedom when:
The interference is administrative
Not doctrinal or ritualistic
The Advocate General’s scrutiny ensures that suits do not become tools to interfere with religious autonomy.
Article 26 & administration of religious trusts
Academic Commentary on Section 92 CPC
Scholars argue that Section 92 CPC is a form of early public interest litigation, predating modern PIL jurisprudence. The Advocate General’s consent requirement ensures institutional legitimacy.
Research paper on evolution of public interest litigation.Indian Section 92 CPC is inspired by English equity jurisdiction, where the Attorney General represents the Crown in charitable trust matters. The Indian Advocate General mirrors this role, emphasizing the continuity of common law traditions.
CONCLUSION
Section 92 CPC serves as a vital instrument for protecting public charitable and religious trusts from mismanagement. The Advocate General plays a central role as a guardian of public interest, ensuring that litigation is genuine, necessary, and beneficial to society. While judicial interpretation has strengthened the provision, practical challenges remain. A balanced approach—combining administrative efficiency with judicial oversight—can further enhance the effectiveness of Section 92 CPC. Ultimately, the provision reflects the legal system’s commitment to preserving public trust property for present and future generations.
Section 92 of the Civil Procedure Code, 1908 stands as a significant legal safeguard for the protection and proper administration of public charitable and religious trusts in India. These trusts are not merely private arrangements but institutions holding property and authority in trust for the benefit of society at large. Recognizing their public character, the legislature has consciously incorporated a special procedural mechanism that balances judicial oversight with restraint, ensuring that courts intervene only in genuine cases of mismanagement or breach of trust.
The role of the Advocate General under Section 92 CPC occupies a central and constitutionally significant position. By requiring his consent or enabling him to institute suits, the provision entrusts the Advocate General with the responsibility of acting as a guardian of public interest. This gatekeeping function prevents frivolous, vindictive, or politically motivated litigation, while simultaneously enabling bona fide grievances to be addressed through judicial process. His role reflects the doctrine of parens patriae, wherein the State assumes responsibility for protecting collective public rights where individual beneficiaries are indeterminate.
Judicial interpretation has further strengthened this framework by clarifying the scope of Section 92 and subjecting the Advocate General’s discretion to principles of fairness, good faith, and limited judicial review. However, to ensure continued relevance and effectiveness, greater transparency, uniform guidelines, and procedural efficiency are essential. Ultimately, Section 92 CPC embodies the legal system’s commitment to preserving public trust property, upholding donor intent, and ensuring that institutions meant for public welfare continue to serve society with integrity and accountability.
