JUSTICE HAS BEEN SERVED!
ARMAITY TIRANDAZ AND DINSHAW MEHTA EMERGE VICTORIOUS IN PROTECTING THE INTEREST OF THE TRUST.
Supreme Court slams the Trustees of the BPP and directs them to follow due process of law and call for Fresh bids … Public Notice Imminent!
A lot of rumours are doing the rounds about who won and who lost in the PARSI LYING IN HOSPITAL (PLIH) case of Bombay Parsi Punchayet (BPP) before the Supreme Court.
After reading the Order, it is apparent that the long and tiring battle of sitting Trustee Mrs. Armaity Tirandaz and I has finally paid off and justice has been served. For the last two years Armaity Tirandaz and I have been fighting tooth and nail to protect one of our landmark properties –the Parsi Lying In Hosptial (PLIH). This hospital was on the verge of being leased at a throw away price by the Managing Committee members to one Krimson Developers owned by Prakash Khubchandani who is an associate/ business partner of one of the driving force of the Managing Committee.
Armaity and I filed the case on one principle – TRANSPARENCY! The case filed by us was simple. The BPP should be transparent in their actions and ensure that the property be leased out to the highest bidder only after advertising for the same and thereafter inviting fair and transparent bids/offers for the property.
You will remember – The PLIH is a heritage hospital owned by the BPP. The said hospital was managed by a Managing Committee, which had come to a standstill since last over thirty years. Sometime in 2014 members of a Managing Committee transposed themselves as Trustees and entered into an illegal Agreement to Lease with Krimson Developers, without advertisement and without calling for competitive offers. Even though this property belonged to the BPP, the Managing Committee, behind the back of the real Trustees and owners of PLIH, illegally tried to lease off this property by pretending to be its Trustees. This Agreement to Lease was entered in a closed door arrangement by Managing Committee members with Krimson without inviting other bidders or other offers.
The bottom line is NO PUBLIC ADVERTISMENT WAS GIVEN BY THE BPP CALLING FOR OFFERS
Initially in 2011-12 all seven Trustees unanimously filed a WRIT Petition in the Bombay High Court alleging fraud against the members of the Managing Committee and Krimson for wrongly getting approval from the Charity Commissioner by posing as Trustees and Owners of PLIH though they were only Managing Committee members only for day to day management of the Hospital.
However once the dispute and division in the board among the Trustees occurred, the majority Trustees decided to side with the Managing Committee and Krimson and they abdicated their original complaint of fraud committed by the Managing Committee members.
Having no choice, Armaity and I filed the case to save the PLIH. After filing the case in the Supreme Court and revealing the true picture of the case, Supreme Court in 2015 was pleased to issue a Stay /Status Quo Order against the Trustees. Krimson realizing that their modus would be exposed withdrew its offer and terminated the Agreement by its letter dated 3-11-2015 in fear of strictures being passed against it by the Supreme Court.
Since then we have been trying to withdraw the SLP as it was now infructuous and whilst we have to spend lakhs of rupees on legal fees from our own funds but both the Trustees and the Managing committee were insistent on going on as the lakhs of rupees of their legal fees was not being paid by them from their own pockets but were using charity/community funds to sponsor the litigation in a vindictive and vengeful manner.
The Supreme Court in its Order dated 22 March 2017 rightly pointed out that since the agreement with Krimson has been terminated in November 2015, nothing in this petition survives. The Supreme Court in its order has categorically stated that it will not go into merits of the charges made by the two sides against each other as nothing now survives after termination of Agreement by Krimson. Their special application to the Supreme Court for demand of levying damages/costs of Rs. 1.5 crores on us was also dismissed.
Supreme Court has laid down that due process of law should be followed for any fresh offer for the PLIH. This means that finally, a Public Notice will be issued inviting interested bidders to make their offers in a fair and transparent manner.
Unfortunately since Thursday, some Managing Committee members and their proxies have been circulating whatsapp messages stating that Armaity and I were unsuccessful in their petition before the Supreme Court. To set the record straight had Armaity and I lost the petition then Krimson today would have control over the property. However today because of the efforts of Armaity and Dinshaw, Krimson has been kicked out of the property and the BPP Trustees have now been directed by the Court to follow due process of law to ensure the interests of the beneficiaries are taken care of first.
It is indeed shameful that Trustees who use charity funds to fight vengeful litigation are spreading such hate amongst the community. Until 2015, the BPP used to auction its flats in order to raise funds, hence it was unfathomable that an asset worth over Rs. 100 Crores was not advertised and auctioned but instead simply leased away in a private closed door deal to a builder.
The reviving of this defunct hospital was indeed required. However it was the manner in which certain BPP Trustees operated in cahoots with the Managing Committee, that forced us to approach the Supreme Court for equitable reliefs.
Armaity and I had only one request – Let there be a public advertisement in a fair and transparent manner and thereafter let the agreement to lease be given to the highest bidder, including Krimson if he was the highest.
This would ensure that the community asset gets its worth. Please do note, my personal opinion is that this property should remain within the community and the community should pool in funds to revive the asset. Cost of construction of two floors can be recovered from our Parsi doctors against giving them allotment right of one floor in the prime locality of Fort so that the property continues to remain within our community. My view is unfortunately not shared by the majority BPP trustees who instead feel it is better to secretly giving it away to a builder for a pittance.
To safeguard a community asset we have endured hell. We have been called vile names in the press and in court. Even though we are both past our 70s, we have fought this case visiting Delhi again and again. Not one BPP Trustee bothered to attend the Supreme Court hearings every month to protect this asset, however they were the first ones who were willing to give it away to a developer in a closed door deal.
We have spent lakhs of our personal funds on this case for nothing in return, whilst our Trustees have spent trust/charity funds of the community to fight this case – against Transparency. We hope the current majority BPP Trustees learn from this and instead use the powers given to them wisely and ensure that our assets are taken care of and not given away to friends or business partners to suit their causes, like they gifted a Rs. 4 crore flat to the ineligible Dr. Farokh Master, Earning declared income of Rs. 5 lakh a month but is the doctor treating one of the Trustees, for free or to another ineligible allotte Arzan Khambatta being nephew of Kersi Randeria’s business partner, Arnavaz Mistry, though earning Rs. 1.5 lakh pm for a donation of just Rs. 8 lakhs against an offer of Rs. 60 lakhs for the same flat.
To conclude I would like to quote for our Trustees Excerpts of the Order dated 22 March 2017 dictated by the Supreme Court in this case which is applicable solely to them towards the way they should be operating the Trust and its assets like the PLIH:
‘IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4375 OF 2017
(ARISING OUT OF SLP (C) No.30666/2015)
Dinshaw Rusi Mehta & Anr. ….Appellant(s)
VERSUS
The State of Maharashtra & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
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.
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 case.
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 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 beneficiaries.
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.
……………………………………..
[R.K. AGRAWAL]
……………………………………….
[ABHAY MANOHAR SAPRE]
New Delhi,
March 22, 2017’
Sincerely
Dinshaw Mehta
