Friday, 5 May 2017

Whether court can take judicial notice of subsequent events While deciding appeal?

Having heard the learned Counsel for the
parties at length and on perusal of the record of the
case, we are of the opinion that it is not necessary
for this Court to decide any of the points urged by
the learned counsel on account of certain
subsequent events which took place during the
pendency of this litigation. In our opinion, the
subsequent events brought to our notice have a
direct bearing over the controversy involved in this
case and hence they deserve to be taken note of for
deciding the appeal.
CIVIL APPEAL No. 4375 OF 2017

Dinshaw Rusi Mehta & Anr.
The State of Maharashtra & Ors. 
Citation: AIR 2017 SC 1557

2) This appeal is filed against the final judgment
and order dated 30.04.2015 passed by the High
Court of Bombay in Writ Petition (c) No. 938 of 2013
whereby the High Court rejected the petition filed by

the appellants herein for quashing and setting aside
the judgment/order dated 06.08.2011 passed by the
Charity Commissioner-respondent No.2 herein vide
which the Charity Commissioner has granted
permission to the respondents under Section 36 of
the Bombay Public Trusts Act 1950 on the
conditions stipulated therein.
3) We herein set out the facts, in brief, to
appreciate the issues involved in this appeal.
4) There is one public and charitable Trust called
"Parsi Lying-in Hospital" (hereinafter referred to as
“PLIH”) having its office at A.K.Naik Marg, Fort
Mumbai. The Trust is registered under the
provisions of the Bombay Public Trusts
Act,1950-now substituted by the Maharashtra
Public Trusts Act (hereinafter referred to as "The

5) The PLIH owned a land admeasuring 1,294 sq.
yards together with garden of 624 sq. yards on C.S.
Nos. 741 and 742, Flora Fountain at Mumbai. The
Secretary of State for India in Council had allotted
this land to PLIH for a period of 99 years by
executing Indenture of Lease. The land was allotted
for setting up a charitable Hospital in Bombay. In
accordance with the terms of the grant, the PLIH
constructed charitable Hospital on the land and
continued its activities for few years after making it
an operational.
6) On 01.02.1924, PLIH resolved to transfer the
said Hospital to another Public Trust called "Parsi
Punchayet Funds and Properties, Bombay" also
known as "Bombay Parsi Punchayet" (hereinafter
referred to as "BPP”). The transfer resolved was
approved by the Bombay High Court vide order
dated 01.02.1924 in Suit No.126 of 1924. The
Government of Bombay vide their resolution
3Page 4
No.5628 dated 01.04.1924 granted sanction to the
transfer and accordingly executed a lease deed in
favour of BPP in relation to the aforementioned
7) Insofar as the Management of the Hospital was
concerned, one Managing Committee of PLIH used
to look after its day-to-day management. It may be
mentioned that some Trustees of BPP also used to
be on the Board of Trustees of PLIH as their
8) The Hospital continued its activities for few
years and then remained closed for a long time for
various reasons. The Trust through their Trustees
then decided to re-start the Hospital in collaboration
with others, who are expert in running and
managing the Hospital.
9) With this objective in forefront, the Managing
Committee of PLIH on 22.03.2011 entered into a
lease agreement with one company called Krimson

Health Ventures Private Limited (for short called
“KHPL”). In terms of this agreement, KHPL was
permitted to renovate/rebuild one super specialty
hospital at their cost on the leased land. The
agreement contained several terms and conditions
on which the project was to be accomplished. It is,
however, not necessary to set out the details of the
agreement which has no bearing over the issue
involved in the appeal.
10) The Trustees of PLIH then applied to the
Charity Commissioner of Bombay under the Act for
grant of approval to the aforementioned scheme/
agreement. By order dated 08.07.2011, the
Assistant Charity Commissioner granted approval to
the Scheme/agreement. By another judgment/order
dated 06.08.2011, the Charity Commissioner
accorded approval to the PLIH for execution of lease
deed in favour of KHPL to enable it to start the

11) This grant of approval, as mentioned above,
gave rise to litigation. One group of the Trustees of
BPP filed a writ petition in the High Court of
Bombay, out of which this appeal arises,
challenging the legality and validity of the Scheme
and the approval granted by the Charity
Commissioner for the use of land/hospital. The
challenge was founded on grounds inter alia with a
prayer to declare the scheme/agreement and the
order of Charity Commissioner/Assistant
Commissioner as being bad in law as the same,
according to the writ petitioners, was not in the
larger interest of the Trust.
12) By impugned order dated 30.04.2015, the High
Court disposed of the writ petition and, in effect,
upheld the scheme and the orders of the Assistant
13) It is against this order of the High Court, the
writ petitioners (one group of Trustees) felt aggrieved

and carried the matter to this Court in this appeal
by special leave. In the meantime, the term of one
Trustee (writ petitioner) expired. He is, therefore, no
longer on the Board of Trustees of PLIH.
14) Heard Mr. Shyam Divan, learned senior
counsel for the appellants and Mr. C.U. Singh, Mr.
Dushyant Dave and Mr. K. Radhakrishnan, learned
senior counsel for the respondents.
15) Learned senior counsel appearing for the
respective parties argued several legal and factual
points trying to justify their stand taken in the writ
petition including making allegations and counter
allegations by highlighting the conduct of rival
groups of the Trustees and tried to show as to how
these groups pursued their stand and caused injury
and loss to the Trust, Trustees and its beneficiaries.
16) On the other hand, an attempt was made by
another group of the Trustees to show that the
scheme/agreement was conceived in the best

interest of the Trust and was rightly upheld by the
Charity Commissioner and the High Court.
17) Having heard the learned Counsel for the
parties at length and on perusal of the record of the
case, we are of the opinion that it is not necessary
for this Court to decide any of the points urged by
the learned counsel on account of certain
subsequent events which took place during the
pendency of this litigation. In our opinion, the
subsequent events brought to our notice have a
direct bearing over the controversy involved in this
case and hence they deserve to be taken note of for
deciding the appeal.
18) During the pendency of the litigation, KHPLrespondent
No. 18 herein, in whose favour the
transfer of land was made by BBP/PLIH for setting
up a new hospital informed the BBP/PLIH vide their
letter dated 03.11.2015 and 17.11.2011 that KHPL
is now no more interested in continuing with the

project for the reasons mentioned in their letters. By
these letters, KHPL terminated the agreement.
These letters were replied by BPP/PILH vide letter
dated 22.12.2011.
19) Be that as it may, in our opinion, when the
scheme/agreement impugned in this litigation
stands terminated and is not being given effect to by
the parties (may be for any reason with which we
are not presently concerned in this litigation) or in
other words when the scheme/agreement cannot
now be given effect to due to parties’ own volition,
there does not arise any need for this Court to
decide its legality or correctness on merits.
20) When the impugned scheme/agreement no
longer subsists and not alive, there is no occasion to
decide its legality and correctness on legal side
because any decision, even if rendered, would be of
no avail to the parties.

21) It is for this reason, we decline to examine the
points urged in this appeal and express no opinion.
Indeed, in such circumstances, in our opinion, the
writ petition out of which this appeal arises has
rendered infructuous for all practical purposes.
22) In the light of foregoing discussion and further
having regard to the nature of controversy and
lastly, keeping in view the manner in which the
parties prosecuted this litigation against each other,
we are inclined to dispose of this appeal with
observations and certain directions mentioned infra
which we consider are apposite in the facts of the
23) First, the scheme/agreement in question
would not be given effect to by the parties in the
light of respondent No. 18 (KHPL)’s two letters
dated 03.11.2015 and 17.11.2011;
24) Second, the BPP and PLIH would be at liberty
to enter into any other arrangement, scheme etc. in

relation to the land/hospital in question, if they so
consider it to be just and proper and in the interest
of the Trusts/beneficiaries with any person, body,
Corporate, organization, firm etc. If the Trust(s)
resolves to do so, then it will be given effect to after
ensuring all necessary compliances/formalities/
requirements contained in the Trust Deed and the
Act and after obtaining necessary approval from the
Charity Commissioner as required under the Act;
25) Third, we have not expressed any opinion
regarding issue of the termination of the agreement
made by respondent No. 18 - KHPL qua BPP/PLIH
and vice versa because it was not the subject matter
of this litigation.
26) We, therefore, leave the parties to get their
rights decided against each other arising out of the
agreement, if any, in appropriate forum in
accordance with law; and

27) Fourth, the Trustees will take all decisions in
relation to the affairs of the Trust keeping in view
the directions of the author of the Trust after
ensuring compliance of the provisions of the Act and
after obtaining due approval of the competent
authority from time to time;
28) Before parting, we consider it apposite to
observe that a Trust is an obligation arising out of
confidence reposed in the Trustee(s) that he/they
would discharge it faithfully for the benefit of the
Trust and its beneficiaries.
29) When the Trustee accepts the confidence so
reposed in him, it becomes his duty to do everything
in compliance with the author's wish and to do
nothing that may amount to betrayal of the
confidence so reposed on him.
30) In other words, it is the duty of every Trustee
whether jointly or/and severally to fulfill the object
and the purpose of the Trust and obey the
1Page 13
directions of the author of the Trust given at the
time of its creation. This is his moral as well as legal
duty recognized under the Act.
31) We have noticed from the record that the
Trustees who belong to Parsi community enjoy high
status in the society and are persons of eminence in
their respective fields. There should, therefore, be
no reason as to why any trustee should try to cause
any harm to the interest of the Trust(s) or for that
matter should act prejudicially and against the
interest of the Trust.
32) There may be difference of views when issues
relating to the affairs of the Trust are debated
amongst the Trustees but what should be the
uppermost behind everyone's viewpoint is "interest
of the Trust and the beneficiaries" while projecting
everyone's viewpoint. That would be, in our opinion,
his real selfless service to the Trust and its

beneficiaries. It will bring good for the Trust and its
33) We hope that the Trustees would keep in mind
these observations while discharging individual and
collective duties and every Trustee would ensure
that the Trust is able to do charity in letter and
spirit for the good of humanity-Indeed that being
the only wish of the creator/author while forming
the Trust.
34) Learned counsel for the respondents by
referring to order dated 13.10.2015 passed by this
Court lastly urged that heavy cost should be
imposed on the appellants (writ petitioners) because
they dragged the Trust and the Trustees in this
fruitless litigation which caused loss and injury to
the Trust.
35) However, keeping in view our observations
made supra and the fact that we have declined to

examine the issues on merits, we refrain from
imposing any cost on any party to the appeal.
36) With these observations/directions, the appeal
stands disposed of finally.


New Delhi,
March 22, 2017
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