The final countdown

When does a trustee’s resignation become effective? The answer to that question may determine whether or not the trusteeship elections to the Bombay Parsi Punchayet (BPP) will be held under universal adult franchise (UAF) in the next few months.

Following an exhaustive two-and-a-half-day hearing January 8-10, 2008 before the divisional bench of the Bombay High Court justices Dr S. Radhakrishnan and Anoop V. Mohta will have to decide whether trustees Minoo Shroff, Dinshaw Tamboly, Maneck Engineer and Burjor Antia who resigned from the board following differences with their fellow trustee Dinshaw Mehta could legally withdraw the resignations as certain formalities had not been complied with. Justice Roshan Dalvi had ruled in favor of the BPP trustees and the World Alliance of Parsi Irani Zarthoshtis (WAPIZ) founder trustees who initiated the legal proceedings had gone into appeal. The four BPP trustees along with Mehta and Dadi Engineer had drawn up and submitted a scheme permitting every Parsi/Irani Zoroastrian over the age of 21 (subsequently reduced to 18) to vote directly for the trustees of the BPP as and when vacancies arose. As a minimum of three trustees is required to constitute a quorum, if the resignation of the four is upheld, then the quorum requirement would not be met.

But BPP counsel Iqbal Chagla argued that the election scheme only requires a majority of the trustees to amend this scheme and there is no mention of a quorum. It is "competent for the majority of the trustees to file a scheme,” argued Chagla. Even if their lordship decided the resignations were valid "the scheme is competent,” as the remaining two trustees both endorsed the amendments, he persisted.

WAPIZ counsel Virender Tulzapur­kar dismissed Chagla’s contention stating that his argument about the majority "is no good.” The decision to amend the scheme would have to be "backed by discussion taken at a meeting… (The two trustees) cannot claim ‘We are a majority. We will do what we like.’” A resolution would have to be passed at the meeting endorsing the changes, argued the counsel.

He contended that once the trustees had communicated their desire to the other trustees, the resignation became effective. "The scheme envisioned a unilateral resignation of trustees,” not bilateral, he argued.

While noting the earlier schemes did not have any provision for resignation of trustees but only for members of the Anjuman Committee (AC) which elects trustees, Tulzapurkar claimed "the same grounds” for resignation applied to trustees. "When you want to resign you must make it known,” he observed. The requirements of the scheme were "complied with” as the resignation letters were "submitted and received by the trustees… the communication is complete…

"Clause 39 does not say (the letter must be addressed to) the office of the trustees.” The clause should not be read "in a pedantic manner which the other judge (Roshan Dalvi) has done.” The trustees’ "intention is clear. See the reasons why they want to resign. They cannot work with each other. The trustees don’t see eye to eye…

"This (the election scheme) is not the constitution of India. It must be interpreted in the manner in which it is intended,” argued the counsel. "The letters were addressed to the chairman, not to any Tom, Dick and Harry… The chairman says he accepts (the) resignation. ‘I see your point of view’ he says.”

Tulzapurkar argued that the letters were received by all the trustees and that the two who did not resign (Dinshaw Mehta and Dadi Engineer) had asked their four colleagues to withdraw their resignation hence "the intention that all trustees must have knowledge of an unequivocal desire to resign” had been realized.

Even if a change report was not filed with the Charity Commissioner’s (CC) office, that did not mean the resignation was not effective, said Tulzapurkar. He cited the example of company directors who resign but whose resignation is not filed with the Registrar of Companies for months or even years. The filing only "facilitates the knowledge” to the general public and was not the factor for "determining the liability” that accompanies such a post, he said. By resigning and withdrawing their resignation, the trustees were "taking away the right” of the AC to elect trustees.

Chagla retorted that the right was being taken from the AC and was being "given to the general public.” Stating that the office of a trustee was not the same as a corporate director or a member of a club but a more "onerous responsibility,” Chagla argued that due process had to be observed. "If knowledge (of the resignation) is all that is required, (the trustees could) write a letter to the editor of the Jam-e-Jamshed… the whole (community) would know about it. But we cannot treat the resignations so lightly.” He contended the individual letters had to be addressed to all the trustees, not just to "Dear Minoo” and it had to be received at the office of the trust. "It is not sufficient to say ‘I resigned.’ (One) must apply to the board.” The resignation "cannot be done in an informal manner… (this) makes nonsense of the entire trust deed… Mr Shroff carrying a copy of the letter (to the other trustees) has no meaning. Nor is Mr Shroff (their) agent.”

He cited the precedent of former trustees such as Shiavax R. Vakil, P. P. Khambatta and Jamsheed Kanga sending their letters of resignation to the board and being presented to and accepted by all the trustees.

If no procedure is stated for resignation, then an application has to be made to the CC, said Chagla. The change report must be accepted by the CC. When Shroff presented the letters to the CC he was told to present them in the prescribed format and also told to reconsider his decision.

Solicitor Rusi Sethna appearing for an intervener contended that the High Court had no jurisdiction to hear the appeal. The matter rightfully lay with the City Civil Court according to the Bombay Public Trust Act. Though the contention has been litigated before and rejected, Sethna believed the matter had not been fully heard and he had new judgments to bolster his contention.

Sethna said he was opposed to adult franchise as the election contest could "disintegrate into a political” farce. UAF "leaves the field open to anyone or anybody.” Radhakrishnan observed that even the chief minister and prime minister are elected by adult franchise. That’s why "we are suffering,” countered Sethna. Politicians "make promises that are never kept.”

Radhakrishnan: The voters should elect candidates on the basis of their "caliber, not promises… If a larger number have a say, what is the problem?... Have you read the Constitution (of India)?” It says a government "by the people.”

"The (election) scheme does not say this,” countered Sethna. "I would welcome donor members getting 10 votes.” Sensing that his line of reasoning was not in step with the times Sethna candidly stated, "I’ll call myself a dinosaur… antediluvian.”

Chagla alleged Sethna’s arguments were "without any substance” and the jugements cited by him were filed regarding a case for eviction and were not applicable "to all legal proceedings.”

As regards adult franchise, he said, "Finally all the trustees have yielded to the desire of the community.” Those opposing the change were "status quoists” and "vested interests.”

Tulzapurkar said his clients would drop their opposition to adult franchise if everyone had only one vote. The present proposal is to permit donors two votes. Out of 26,000 registered voters, around 1,200 are donors who would have two votes each or 2,400 totally. "This is not a democratic way of functioning,” he added.

His clients also opposed people from out-of-Bombay being given voting rights. "Thana, Poona… have their own punchayets. I have no right there. The (arrangement) should be reciprocal.”

Chagla countered he was "a little surprised” by Tulzapurkar’s argument. You "can’t take away rights (to vote for out-of-Bombay people conferred) since 1910.”

Former BPP trustee and intervener Rustom Tirandaz pooh-poohed Sethna’s contention that good men would not be elected under adult franchise by pointing out that Sir Pherozeshah Mehta contested under the old AC scheme and lost. The electorate at that time was around 95.

He alleged that while WAPIZ contended the four trustees no longer held office, WAPIZ founder trustee Khojeste Mistree "took (Minoo Shroff) to sign a document” authorizing the transfer of a lease from the BPP to Frasho Properties Management Pvt Ltd for the Shanazeen building property in which Mistree is a flat owner. When it suited Mistree, Shroff "is a nobody,” alleged Tirandaz, and at other times he "is a chairman.”

Tirandaz further alleged that no item regarding the resignation was placed on the agenda of the BPP trustees’ meetings. He noted that while WAPIZ opposed out-of-Bombay Zoroastrians being given voting rights, the biggest donors to the Bombay community were The Hong Kong Anjuman, the Zartoshty brothers and others. "You can’t have double standards,” he argued.

An Alert Zoroastrians Association (AZA) leader Zeree Jehangirji called for a "pragmatic” approach in letting the donors have two votes. Out-of-town Zoroastrians could vote by being present in Bombay and not by proxy, he noted. Referring to the long legal battles that had preceded the hearing, Jehangirji stated, "the community is tired.”