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S.S. Bhagat and ors. Vs. N.S. Ahluwalia - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtDelhi High Court
Decided On
Case NumberSuit No. 46 of 1974
Judge
Reported inAIR1978Delhi34; ILR1977Delhi485B; 1977RLR404
ActsCode of Civil Procedure (CPC), 1908 - Sections 92
AppellantS.S. Bhagat and ors.
RespondentN.S. Ahluwalia
Advocates: N.S. Bindra,; Ashok Grover,; B.S.C. Singh and;
Cases ReferredSee Shavax v. Masood Hosain (supra).
Excerpt:
.....concerned to see whether there is a valid sanction by a competent authority. it cannot be beyond the sanction. it cannot enquire whether the sanctioning authority has heard the parties, though it can enquire into the competency of the authority to act under sections 92 and 93, code of civil procedure. however, the obtaining of such sanction must be strictly proved, because in the absence of such sanction the suit will be without jurisdiction.; in an application for consent under section 92 code of civil procedure it is not necessary that all the applicants must appear before the competent authority, one of the applicants could appear to pursue the application. even the presence of any of them is not necessary. - - that suit failed on the ground that the subsequent order of the..........by his order dated may 21, 1964 (public witness 2/2). (11) gurdit singh and s. s. bhagat brought a suit (suit no. 410 of 1966) under s. 92 in this court against the defendant. that suit failed on the ground that the subsequent order of the collector graining permission of substitution was passed without obtaining the sanction of the state government. following the authority of the privy council in prem narain v. ram charan and others prithvi raj j. dismissed the suit on december 15, 1971 holding that for the order dated may 21, 1964 there was no previous sanction of the state government for the powers exercised by the collector under s. 92. (12) on april 11, 1972, a fresh application was made to obtain consent. by order dated april 10, 1973 shri ashok nath, additional district magistrate.....
Judgment:

Avadh Behari Rohatgi, J.

(1) Six plaintiffs claiming themselves to be trustees of six trusts have brought this suit under s. 92 of the Code of Civil Procedure (the Code) against N. S. Ahluwalia, the sole defendant. It is alleged in the plaint that the defendant has committed serious breaches of trust.

(2) The reliefs asked for in the plaint are as follows : that the defendant be removed from the office of the trustee; that he be directed to render accounts; that he be ordered to deliver the trust property and a declaration that the property was an endowed property should be made.

(3) In the plaint the plaintiffs say that by an order dated January 11, 1974 they have obtained the consent of the Additional District Magistarate (South) Delhi exercising the powers of the Advocate- General under s. 92 of the Code as conferred upon him by the Lt. Governor Delhi for the institution of the present suit.

(4) The defendant has raised numerous defenses to the suit. As regards consent the defense is that no valid consent has been obtained under s. 92 of the Code. On this plea the following preliminary issue was framed on January 31, 1975 : Whether a valid permission as envisaged within the ambit of s. 92 of the Code of Civil Procedure hats been obtained by the plaintiffs It is this issue which calls for decision.

(5) Section 92 provides for a suit being instituted by the Advocate- General or by two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General.

(6) The present suit has been brought not by the Advocate-General (there is no Advocate-General in Delhi who could act under s. 92, Code of Civil Procedure) but by six trustee's after obtaining the consent of the authority duly empowered to exercise the powers of the Advocate-General.

(7) The consent on the basis of which the present suit has been instituted is dated Jauary 11, 1974. It is embodied in an order of Mr. Naveen Chawla, Additional District Magistrate (South) Delhi (Ex. Public Witness 1/1). It appears from that order that the said Additional District Magistrate was empowered by the Lt. Governor to exercise the powers of the Advocate-General under s. 92.

(8) The order under s. 93 of the Code where by the Lt. Governor appointed the Additional District Magistrate (South) Delhi to exercise the powers of the Advocate-General under s. 92 in respect of the application moved by the present six trustees has been proved on the record. The order is dated November 28, 1973 (Public Witness 3/1). It is signed by Mrs. S. Duggal, Deputy Secretary (Litigation) Delhi Administration. Her signatures were proved by a witness of the department (G. S. Nangia, Public Witness 3).

(9) The signatures of Shri Naveen Chawla on the order dated January 11, 1974 made in exercise of the powers of the Advocate- General conferred upon him under s. 93 have been proved by Additional District Magistrate (North) Shri S. L. Arora, Public Witness 2.

(10) This case has a history behind it. Much time was lost in obtaining consent. Each time consent was obtained death intervened; suit could not be brought. Once when suit was brought it was dismissed. The court held that the Collector did not have the previous sanction of the State Government for the exercise of his powers. On December 15, 1961 Sarvshri Gurbachan Singh and S. S. Bhagat made an application praying that consent be given to them under s. 92 to institute a suit against the present defendant. The Collector, Delhi Mr. S. G. Boss Mullick gave consent by his order dated October 19, 1962 (Public Witness 2/1). As it happened Shri Gurbachan Singh died before the suit could be instituted. An application was then made by one Gurdit Singh for substitution of his name in place of Shri Gurbachan Singh, deceased, for bringing the suit along with Shri S. S. Bhagat, the surviving petitioner. Shri S. G. Bose Mullick permitted Gurdit Singh's name to be substituted in place of Gurbachan Singh by his order dated May 21, 1964 (Public Witness 2/2).

(11) Gurdit Singh and S. S. Bhagat brought a suit (Suit No. 410 of 1966) under s. 92 in this court against the defendant. That suit failed on the ground that the subsequent order of the Collector graining permission of substitution was passed without obtaining the sanction of the State Government. Following the authority of the Privy Council in Prem Narain v. Ram Charan and others Prithvi Raj J. dismissed the suit on December 15, 1971 holding that for the order dated May 21, 1964 there was no previous sanction of the State Government for the powers exercised by the Collector under s. 92.

(12) On April 11, 1972, a fresh application was made to obtain consent. By order dated April 10, 1973 Shri Ashok Nath, Additional District Magistrate (South) gave consent, he having been empowered by the order of the Lt. Governor to exercise the powers of the Advocate-General under s. 92 by letter dated May 25, 1972. On this consent suit could not be brought as K. S. Malik, one of the applicants in the application dated April Ii, 1972, had died on June 19, 1973, before the suit could be filed.

(13) Yet another application had to be moved for fresh consent. This was done on July 23, 1973 wherein Commander G. Nandy Singh became the applicant in place of the deceased K. S. Malik. On this application Mr. Naveen Chawla granted the permission on January 11, 1974, as I have said.

(14) The defendant contends that there is no valid consent obtained for the suit. The grounds of challenge set out in the written statement can be summarised as follows : (a) that no notice was given to the defendant by the Additional District Magistrate before giving consent. (b) Delhi courts have no jurisdiction to hear the suit. (c) The suit is had for misguide of causes of action and multiferiousness. One suit for six trusts cannot be instituted. (d) The suit is outside the scope of s. 92. (e) Plaintiffs have no interest in the trust.

(15) As regards all these objections it is enough to say that it is not the function of the Advocate-General under s. 92 to give a decision on the issues that might arise in the course of the suit under s. 92 and a court of law is competent to come to its own conclusions of fact and law. All that the Advocate-General has to satisfy himself before granting the sanction is that there is a prima facie case and that it is worthwhile that the suit should be tried by a court in the interests of a public charity. Take an example. Whether the plaintiffs in this case have an interest in the trust which would bring them within the scope of s. 92 is one of the issues which will be framed and tried in the suit itself. It is for the court to determine this issue in the light of the evidence adduced before it.

(16) Nor does the law require the Advocate-General to hear the defendant before granting the permission. The reason is that the Advocate-General in exercising the powers vested in him under s. 92 does not perform a judicial function. It is not even quasi-judicial. It is an administrative function which he discharges. He is not compelled by any statutory obligation to hear witnesses, to admit documentary evidence, or to hold an enquiry before granting or refusing consent when he is moved under s. 92 : See Shavax v. Masod Hosain, : AIR1965AP143 .

(17) With the exception of a solitary decision of Mehr Singh J. of the Pepsu High Court in Sadhu Singh Sunder Singh v. Mangalgir Mohatmin Dera Air 1956 Pep 65 the High Courts of Andhra Pradesh, Kerala, Madras, Allahabad, Rajasthan, Jammu and Kashmir, Punjab and Haryana and the former Chief Court of Punjab have all uniformly held that the order of the Advocate-General under s. 92 is merely an administrative or an executive act and cannot be called a quasi-judicial order. The preponderant view is that neither s. 92 nor any other provision of the Code requires the Advocate-General to hold an enquiry or to give an opportunity of hearing to the party which might be affected by the giving of his consent. The Advocate- General has merely to see whether there is or there is not a prima facie case that should be allowed to go to a court of law. He does not decide the rights of the person against whom the suit is intended to be filed as such a person will have full opportunity to present his case before the court in which the suit is filed. The Advocate-General does not decide anybody's rights. Nor does he take away the right of the defendant to the proposed suit to defend the same on all possible grounds available to him in law. He does not give any decision on the merits of the controversy one way or the other. There is no lis before him : See Amrita Nand v. Advocate-General. , Shavax v. Syed Masood Hossuin, : AIR1965AP143 , A. K. Bhaskar v. Advocate-General, : AIR1962Ker90 , Raju v. Advocate-General, : AIR1962Mad320 , K. M. Abdul Kasim v. P. M. N. Mohamed Dawood, : AIR1961Mad244 , Swami Shantanand Saraswati v. Advocate- General, : AIR1955All372 , Shrimali Lal Kasliwal v. Advocate- General Air 1955 Raj. 166(9) and Desraj v. Deputy Commissioner, Jammu and Kashmir Air 1962 J & K 86.

(18) Judges after judges have doubted the correctness of the view of the Pepsu High Court. The numerous authorities on the subject are conclusive against its correctness. The law may thereforee be taken to be settled that the order of the Advocate-General is not quasi-judicial.

(19) It being firmly established that in exercising the powers vested in him under s. 92 the Advocate-General does not perform a judicial function, the question at once arises : what is it that a court has to see to determine the validity of sanction Now where there is a consent all that the court is concerned to see whether there is a valid sanction by a competent authority. It cannot go beyond the sanction. It cannot enquire whether the sanctioning authority has heard the parties though it can enquire into the competency of the Authority to act under Ss. 92 and 93, Code of Civil Procedure.

(20) In this case there is a valid appointment of the Additional District Magistrate (South) by the Lt. Governor to exercise the powers of the Advocate-General under s. 92. That appointment has been duly proved. S. 93 requires and the Privy Council has so held in Prem Narain's case that previous sanction for the exercise of the power must be obtained by the Collector or other officer appointed for each particular case. General sanction by the State Government is not enough. The obtaining of such sanction must be strictly proved because in the absence of such sanction the suit will be without jurisdiction. In such a case the court will not draw a presumption under ss. 114, Evidence Act that all due formalities of law must have been complied with : Satyananda v. Phani Lal, : AIR1955Cal155 .

(21) On the true construction of s. 93 the previous sanction of the Government is necessary in every suit before the Collector or the officer appointed could exercise powers conferred upon the Advocate- General by Ss. 91 and 92 of the Code. The Privy Council in Prem Narain's case (supra) said :

'INtheir Lordships' opinion S. 93 provides for two distinct matters; the appointment of an officer to exercise the powers conferred by Ss. 91 and 92 on the Advocate- General, and the 'previous sanction' of the Local Government to the exercise of such powers: in each case both the appointment and the previous sanction of the Local Government to the exercise of the powers are necessary before the provisions of S. 93 can be utilized.'

(22) Consent in the previous suit was held to be invalid on this ground by Prithvi Raj, J. Consent in the present suit docs not suffer from any such defect. I, thereforee, hold that there is a valid sanction.

(23) Counsel argued that Shri Vinoo Bhagat, plaintiff No. 5, alone was present before the Additional District Magistrate (South) when the application for consent was considered. He said that the remaining five applicants were not present in the consent proceedings, though the application purported to be on behalf of all of them. It was contended that Shri Vinoo Bhagat did not hold any power-of-attorney on behalf of the remaining plaintiffs and thereforee consent given is invalid. This argument is without merit. The reason is plain. The application was signed by all the six applicants as is clear from the evidence of R. L. Gupta Public Witness 4. One of the applicants could appear before the Additional District Magistrate (South) to pursue the application. Even his presence was not required in law. Without issuing notice to the applicants the Collec:or could have decided the application. A notice to the institution or the trustees is not obligatory before granting sanction : See Shavax v. Masood Hosain (supra).

(24) For these reasons I would decide the preliminary issue in favor of the plaintiffs and hold that there is a valid sanction for the institution of the present suit by the plaintiffs.


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