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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. L.....I.........T.......T.......T.......T.......T.......T..J

     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)