Full Judgment Text
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CASE NO.:
Appeal (civil) 5682 of 1999
PETITIONER:
ABID HATIM MERCHANT .
Vs.
RESPONDENT:
JANAB SALEBHAI SAHEB SHAIFUDDIN & ORS.
DATE OF JUDGMENT: 03/02/2000
BENCH:
U.C.Banerjee, A.P.Misra
JUDGMENT:
BANERJEE,J.
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The issue before the Court in this Civil Appeal
against the judgment of the Bombay High Court is rather
short, to wit, whether the avowed object with which Sir
Adamji Peerbhoy the great Philanthropist founded the trust
for Dawoodi Bohra Community in 1883 A.D. needs a change of
object under Cypres doctrine having regard to
consititutional parameters so as to make the Trust truly
secular in nature since the situation of the early 19th
century may not suit the purpose in the 21st century. The
respondent Trust contended that the preamble to the
Constitution itself declares India to be secular and as such
what was possible in 1883 may not be proper and in line with
lofty ideas of our Constitution since the constitutional
mandate is to be obeyed in its observance rather than in its
breach and it is this concept which is said to have prompted
the Trustees of Sir Adamji Peerbhoy Sanatorium Trust to move
the City Civil Court for variation and amendment to the
scheme of the Trust as sanctioned by the Court in 1931.
Incidentally, be it noted that the expression Cy-pres in
common English acceptation means and implies as near as
possible (to testators or donors intentions when these
cannot be precisely followed).
In Halsburys Laws of England (4th Ed. Vol.5B) cy
pres doctrine has been referred to as below: The cy-pres
doctrine: Where a clear charitable intention is expressed,
it will not be permitted to fail because the mode, if
specified, cannot be executed, but the law will substitute
another mode cy-pres, that is, as near as possible to the
mode specified by the donor.
An application cy-pres results from the exercise of
the courts ordinary jurisdiction to administer a charitable
trust of which the particular mode of application has not
been defined by the donor. Where he has in fact prescribed
a particular mode of application and that mode is incapable
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of being performed, but he had a charitable intention which
transcended the particular mode of application prescribed,
the court, in the exercise of this jurisdiction, can carry
out the charitable intention as though the particular
direction had not been expressed at all.
The primary rule to be observed in the application of
the cy-pres doctrine is that the donors intention must be
observed as far as possible. Thus, if the donor names a
particular object which is capable of taking effect, any
application cy-pres that becomes necessary must be
restricted within the limits of that object, and the mode of
application must as far as possible coincide with his
wishes.
A charity may by cy-pres to the original object even
though it seems to have no trace of resemblance to it, if no
other can be found which has a nearer connection, but
objects nearer the donors intention will always be selected
in preference to those more remote.
The doctrine of Cy-pres as noticed by this Court in
Ratilal vs. State of Bombay (AIR 1954 SC 388) and as
developed by the Equity Courts in England stands adopted by
our Indian Courts since a long time past. B.K.
Mukherjea,J. (As His Lordship then was) speaking on behalf
of Bench stated:- When the particular purpose for which a
charitable trust is created fails or by reason of certain
circumstances the trust cannot be carried into effect either
in whole or in part, or where there is a surplus left after
exhausting the purposes specified by the settler the court
would not when there is a general charitable intention
expressed by the settler, allow the trust to fail but would
execute it cy pres, that is to say, in some way as nearly
as possible to that which the author of the trust intended.
In such cases, it cannot be disputed that the court can
frame a scheme and give suitable directions regarding the
objects upon which the trust money can be spent.
Subsequently, this Court in N.S. Rajabathar Mudaliar
vs. M.S. Vadivelu Mudaliar and Ors. (1970 (1) SCC 12)
observed:
The cy-pres doctrine applies where a charitable trust
is initially impossible or impracticable and the Court
applies the property cy-pres, viz., to some other charities
as nearly as possible, resembling the original trust.
Having dealt with the situation for the applicability
of the doctrine cy- pres and before adverting further in the
matter, however, certain factual details ought to be noticed
at this juncture. The records depict that the Collector of
Bombay on 8th May, 1886 as per the request of Sir Adamji
Peerbhoy granted lease of a plot of land at Queens Road,
Bombay for a period of 99 years commencing from July, 1884.
The lease deed itself contained an option to the lessees to
renew the lease for a further period of 99 years. A social
benefactor, as Sir Adamji was, however, used the land for
the purpose of a mosque and also constructed a building
having three wings for charitable purposes. Incidentally,
Sir Adamji after his death was buried within the compound of
leasehold land whereupon a tomb was erected. Records
further depict that on September 22, 1927, a suit was filed
(Suit No.960 of 1927) in the High Court at Bombay, for
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declaration that the entire property cannot but be dealt
with as a trust property and the High Court in June, 1931
passed a decree by way of a sanctioned scheme and the Trust
since then came to be known as Sir Adamji Peerbhoy
Sanatorium Trust. It appears that in 1944, the third wing
or wing C of the property was requisitioned under the
Defence of India Rules, 1935 for Polish Red Cross Hospital
and after the departure of the Polish Red Cross Hospital, a
Society called Saifee Hospital Society came to be registered
with an object to give medical help to the members of the
Dawoodi Bohra Community and started running a hospital in
wing C with however, the infra structural facility,
available through purchase, as was existing with the Polish
Red Cross Hospital. It is since then the hospital is being
run till this day by the Saifee Hospital Society and later
registered as Saifee Hospital Trust on and since Ist
January, 1973. On records therefore we do find at this
juncture the existence of Sir Adamji Peerbhoy Sanatorium
Trust as also the Saifee Hospital Trust. Needless to record
here that all proper authorisations from the appropriate
statutory agencies were obtained to run the hospital by the
Saifee Hospital Trust. The establishment of Saifee Hospital
Trust, however begins the era of litigation: Application
before the court wherein change of objects and also
sanctions were sought on the ground that what was possible a
century ago cannot possibly be restricted in the manner as
it was and Saifee Hospital Trust is rather firm in its
conviction that in 21st century question of restricting a
super speciality hospital to a particular community of a
particular religion may not sub-serve the need of the hour
and call of the day for the country. The Saifee Hospital
Trust has been contending that the constitutional parameters
cannot but be adopted so as to make it a true secular State,
as professed in the Constitution. Cypres doctrine for the
change of objects was sought and such a change was granted.
The matter went from court to court without however any
variation in favour of the change of objects. The High
Court in no uncertain terms recorded that the judgment of
the learned Judge of the City Civil Court does not warrant
any interference on any of the findings and as such
dismissed the appeal. Before coming to the findings of the
City Civil Court be it noted that during the course of the
hearing of the appeal before the High Court several civil
miscellaneous applications came up for hearing and in one
such application the High Court observed as below:-
It is quite obvious from the character of this
litigation that the appellants do not desire to allow it to
be concluded and this is just one more ploy at a hopelessly
late stage to have the entire proceedings reopened before
the Trial Court were asking for an additional issue which
inevitably means additional evidence etc. This is one of
the litigations where every conceivable aspect of the matter
has not only been agitated by the parties but has already
been decided by the Trial Court. After hearing this appeal
on merits for a considerable period of time, we are of the
view that it is impermissible to grant this application.
The Civil application accordingly fails and stands
dismissed.
Coming back to the findings of the Court on the Cypres
issue, records depict that by a judgment and order dated 5th
August, 1991 the Bombay City Civil Court granted the
application filed for variation and amendment to the scheme
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of Adamji Peerbhoy Sanatorium Trust framed in terms of the
order of the High Court in 1931 as noticed above. The
appellant herein however, by reason of being aggrieved moved
the High Court in First Appeal bearing No.1078 of 1991 but
the same was summarily rejected and subsequently Letters
Patent Appeal came to be filed before the High Court and the
same was also rejected as noticed above and hence this
Special Leave Petition against the order of rejection of the
Letters Patent appeal, before this Court. After
considerable hearing of the matter we also had a feeling
that the appellant is not very keen to have the proceedings
concluded at this juncture. But our apprehensions were
allayed by the learned Advocate appearing in support of the
appeal when certain proposals were considered to be
otherwise reasonable and as a matter of fact this Court
records its appreciation for all round efforts of the
learned Advocates appearing for the parties including that
of the added respondent, namely, the Jamat in coming to a
very reasonable amicable solution as detailed hereinbelow
and in this subsequent factual backdrop, we are thus not
called upon to embark upon an enquiry as to applicability of
the Cypres doctrine in the contextual facts.
Incidentally, the State Government being a primary
party in the matter of resolution of disputes by reason of
the lease spoken of earlier, this Court thought it fit to
issue notice to the State Government and the State
Government as per the directive of this court did make
certain submissions which we will immediately refer to
hereinbelow, but before so doing the agreed minutes of the
Order are placed below:-
1. The Orders of the City Civil Court at Bombay in
Charity Application No.18 of 1976 dated 5.8.1991 and
22.10.1991 as modified by the Order of the Bombay High Court
dated 15.7.93 in Letters Patent Appeal No.103 of 1991 are
confirmed save and except as modified by the following
directions: 2. 30 (Thirty) beds in the proposed Saifee
Hospital shall be reserved for treatment of members of the
Dawoodi Bohra Community free of charge (inclusive of 20 beds
as provided in the Order of the City Civil Court, Bombay
mentioned above). Such beds and treatment to be provided to
economically needy Dawoodi Bohras regardless of whether they
have taken the Oath of Allegiance (Misaq) or not, and
regardless of whether they have been excommunicated or not.
The criterion of economic need shall be as determined by the
Maharashtra Government for other charitable hospitals from
time to time. 3. Wings A and B of the Adamji Peerbhoy
Sanatorium Trust property shall not be demolished unless and
until a sum of Rs.1 crore (inclusive of Rs.50 lakhs ordered
by the City Civil Court at Bombay) is deposited by the
Trustees of Saifee Hospital Trust in a separate Bank Account
to be opened for this purpose. The utilisation of the said
sum of Rs.1 crore shall be in accordance with the Orders
referred to in Clause 1 above. It is placed on record that
a sum of Rs. 1 crore has already been deposited by the
Saifee Hospital Trust on 23rd November, 1999.
4. The Trustees of Saifee Hospital Trust undertake to
this Court and are accordingly directed to complete the
construction of the Sanatorium Wing of the proposed building
of minimum built-up area of 16,000 square feet within five
years from the date of commencement of demolition of Wings A
and B of the Adamji Peerbhoy Sanatorium Trust property. The
plans annexed to the Affidavit of Mudrekabhai Saheb T.
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Zakiuddin dated 8.10.1997 at Volume XIV pages 2237 to 2262
filed in this Court shall be amended to bring the entrance
of the Sanatorium Wing to the front of the building facing
Maharishi Karve Marg. The cost of the construction of the
Sanatorium Wing of the proposed building with the minimum
built up area of 16,000 square feet and within the time
frame as indicated above shall be borne by the Saifee
Hospital Trust. The Trust would also furnish the Sanatorium
fully so as to make it a comfortable living and resting
place for the Musafirs. It is further clarified that the
entire maintenance of the Sanatorium as also Dargah and the
open space shall be effected by the Saifee Hospital Trust in
the same way and manner as of the Hospital. 5. The open
area adjacent to the Mosque and Dargah in the Adamji
Peerbhoy Sanatorium Trust property which is shown in green
colour in the plan annexed to the Affidavit of Respondent
No.11 dated 8.10.1997 at page 2253 of Volume XIV filed
herein shall be used exclusively for the purposes of the
Mosque and shall always be available to the Mosque for the
use of devotees. 6. Upon completion of the project, an
openable gate shall be placed on the East and West sides of
the newly constructed property for the purpose of
distinguishing separately the areas of the Sanatorium,
Mosque and Dargah from the area of the Hospital. These
gates which shall ordinarily be kept locked shall be
designed and placed in a manner so as to facilitate without
any obstruction the entry, exit, passage and movement during
emergencies of fire brigade vehicles, ambulances and hearses
around the property. The gates however shall be under the
care and custody of the Saifee Hospital Trust but a set of
duplicate keys would be kept with the Caretaker of the
Sanitorium for use during any emergency. It is made clear
that in the normal course of events, locking arrangement and
opening and closure of the gates shall be with the Saifee
Hospital Trust excepting however in emergencies as noted
above. 7. The gates and entrances to the Sanatorium and
Mosque portions of the building shall bear only the name of
Sir Adamji Peerbhoy Sanatorium and/or Sir Adamji Peerbhoy
Sanatorium Trust. The gates and entrances to the Hospital
portion of the building will bear the name of Saifee
Hospital and/or Saifee Hospital Trust on the gate posts, and
the name of Sir Adamji Peerbhoy Sanatorium and/or Sir Adamji
Peerbhoy Sanatorium Trust on the opposite gate posts in
letters of equal size and prominence. If the name of Saifee
Hospital or Saifee Hospital Trust is put up on any exterior
surface of the Hospital Wing then the name of Sir Adamji
Peerbhoy Sanatorium Trust shall be placed alongside the same
or one after the other with due regard to the Aesthetics of
the Building with equal size and prominence. 8. It is
placed on record that the State Government is otherwise
prepared to renew the lease but by reason of the fact that
the State Government is not a party to these agreed minutes.
The details and particulars in regard thereto would appear
herein below under the head directions. 9. The Trustees of
Saifee Hospital Trust undertake that the entire ground rent
for the Adamji Peerbhoy Sanatorium Trust property will be
paid by the Saifee Hospital Trust for and on behalf of Sir
Adamji Peerbhoy Sanatorium Trust. However, in the event of
non-payment of such a rent for a period of three months the
State Government being the lessor will intimate Sir Adamji
Peerbhoy Sanatorium Trust and called the latter to pay the
arrears within further period of three months together with
the current rate of rents and in the event, however, there
is any failure to pay on the part of Sir Adamji Peerbhoy
Sanatorium Trust, however, within the period, as aforesaid,
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the property lease deed shall stand automatically terminated
and the land and constructions thereon shall stand vested on
to the State Government excepting however, the area for the
Dargah and Mosque and the open land adjacent thereto as
earmarked in the plan. In the event, however, on payment by
Sir Adamji Peerbhoy Sanatorium Trust by reason of the
default of the Hospital Trust, the property shall stand
vested on to Sir Adamji Peerbhoy Sanatorium Trust. The
forfeiture as above, on both counts however shall be subject
to the existing law as regards the relief against
forfeiture. 10. Save and except the modifications in the
Scheme of the Adamji Peerboy Sanatorium Trust as granted by
the City Civil Court at Bombay in its order dated 5.8.1991,
the original Scheme of the Trust as settled by the Bombay
High Court in 1931 stands confirmed and thus shall remain
operative and in force in all other respects. 11. The
confirmation of Orders as above of the City Civil Court at
Bombay and the High Court of Judicature at Bombay by this
Court are however without prejudice to the right of the
parties to adopt such remedies as are available in law
against the concerned Trustees for any malfeasance or
misfeasance. 12. All contentions other than those
expressly decided by the City Civil Court and High Court and
as dealt with hereinbefore in this order by this Court are
kept open.
As noticed above the State Government not being a
party in regard to amicable resolution of disputes between
the two trusts, but since the presence of the State
Government being otherwise necessary due notice was issued
to the State Government and upon hearing Mr. Mohta, learned
Senior Advocate appearing for the State of Maharashtra and
regard being had to the affidavit filed in support thereof,
we do feel it expedient to issue the following directives to
the State Government. These directions are however in
addition to the agreed terms as noticed and not in
derogation therewith. Incidentally, be it noted that the
directives are however in conformity with the Affidavit
filed by Shri Jagdish Kashinath Gharat, Under Secretary to
Government of Maharashtra, Revenue and Forest Department and
affirmed on 10th January, 2000. The directives are as
below:- (i) The orders given under the Government Memorandum
No.S- 30/91/211923 CR No.46/J-2, dated 28.2.94 for renewal
of lease of the said land in favour of the Trust stands
cancelled by this Order. (ii) The Policy laid down under
Government Resolution No.LND 1085/134222 CR No.184/J-2,
dated 5.10.99 for renewal of the expired Government lease
from Greater Bombay is made applicable in this matter as a
Special Case and the lease is being renewed from the date
1.7.83 to 31.12.98 in favour of Sir Adamji Peerbhoy Trust.
The ground rent at the rate of 1% on the 50% concessional
value of the value calculated as per the market value
prevailing at the time of expiry of the lease i.e. on the
date 1.7.83 shall be charged at the time of the renewal.
(iii) The lease of the said land shall be renewed for the
further period of 30 years from the date 1.1.1999 and for
that purpose, the ground rent at the rate of 1% on the
amount arrived at after calculating 50% concessional value
of the land at the market rate prevailing on the date 1.1.99
shall be charged as the said land would be used for
hospital/religious purpose. (iv) The ground rent rate shall
be hiked by 10% after every 10 years. (v) On the expiry of
30 years period of the lease, the period thereof shall be
extended and the lease be renewed at the option of the
lessee and in the event of failure to exercise the option
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above on the part of the concerned Trust (Sir Adamji
Peerbhoy Sanatorium Trust) the Sub- lessee (as is spoken of
hereinbelow) would have the right to renew the lease and be
treated for all intents and purposes the lessee of the land
though however, upon receipt of information pertaining to
failure to renew the lease sofar as Sir Adamji Peerbhoy
Sanatorium Trust is concerned. Further renewal also shall
be on the same terms and conditions as regards the quantum
of rent to be fixed in the light of the market rate then
prevailing on the respective dates of future renewal. (vi)
The State Government is hereby directed to accord permission
to use the land for Saifee Hospital and also for the
Sanatorium in terms of wishes and desires of Sir Adamji in
the building of the Trust as well as to sub-lease the land
under the said building to Saifee Hospital Trust. (vii) The
documentation of the said lease shall be prepared by the
Government Solicitor and Joint Secretary, Law and Judiciary
Department and the cost incurred therefor shall be borne by
the Lessee or the Sub-lessee. (viii) 25 beds shall be
reserved for Government employees in the Hospital of Saifee
Hospital Trust. (ix) Sir Adamji Peerbhoy Trust and Saifee
Hospital shall take precaution, while carrying out new
construction for the Hospital, to see that no, let or
hindrance is caused to the religious place as well as the
graveyard located there. (x) While renewing the lease of
Sir Adamji Peerbhoy Sanatorium Trust due regard be had to
the covenant, provisions and stipulations as are available
in the lease deed of 1888 excepting, however, the rate of
rent as mentioned hereinbefore. The appeal and other
miscellaneous applications stands disposed of on the basis
of the Agreed Minutes and the directions on to the State of
Maharashtra as above with due reservation of right as
noticed hereinabove. We once again do record our
appreciation for the efforts made by the learned Advocates
appearing for the parties herein including Shri V.A. Mohta,
learned Senior Advocate appearing for the State of
Maharashtra, for the assistance rendered in resolution of
disputes between the parties in the manner as above. We do
feel it fit and proper to record that needful should be done
to see that the solemn objects with which Sir Adamji
Peerbhoy Sanatorium Trust was created are respected and in
the same way the requirements of the Hospital also be met on
essential terms, on the expectation of which this order is
passed as above. Parties are directed to bear their own
costs.
.J (S.B. Majmudar)