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High Court Of Delhi
S.S.BHAGAT - Appellant
Versus
N.S.AHLUWALIA - Respondent
Suit 46 of 1974
Decided On : 04/04/1977
TRUST - SUIT - CONSENT - VALIDITY - ADVOCATE-GENERAL - POWERS - SCOPE - NOTICE - NECESSITY - S. 92, CIVIL PROCEDURE CODE.
Fact of the Case:
Plaintiffs, claiming to be trustees of six trusts, filed a suit against the defendant for alleged breaches of trust. The defendant challenged the validity of the consent obtained under Section 92 of the Code of Civil Procedure (CPC) for instituting the suit.
Finding of the Court:
The court held that the consent obtained for the suit was valid and that the Additional District Magistrate (South) Delhi, who was empowered by the Lt. Governor to exercise the powers of the Advocate-General under Section 92, had the authority to grant such consent.
Issues: 1. Whether a valid consent was obtained under Section 92 of the CPC for instituting the suit? 2. Whether the Advocate-General is required to give notice to the defendant before granting consent under Section 92 of the CPC?
Ratio Decidendi: 1. The court held that the order of the Advocate-General under Section 92 is merely an administrative or executive act and cannot be called a quasi-judicial order. The Advocate-General is not required to hold an enquiry or give an opportunity of hearing to the party which might be affected by the giving of his consent. 2. The court held that 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.
Final Decision: The court held that there was a valid consent for the institution of the suit and decided the preliminary issue in favor of the plaintiffs.
( 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 defences to the suit. As regards consent the defence 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
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