Problems in Poona

Applicants for housing in the proposed Aspandiar Baug project of the Poona Parsee Panchayat (PPP) will have to wait, perhaps for several more years. Over half a century after Khansaheb Aspandiar Rustom Irani donated lands below the Anjuman Dakhma to the PPP for creating housing stock for members of the Parsi/Irani community, the matter remains mired in litigation. The plot rests on the south side of Survey No. 603, Munjeri (now known as Lulla­- nagar).

Permission for the construction of two buildings of nine storeys each to be given on lease for 99 years by recovering the cost of construction from the allottees was granted by S. Y. Padhye, Joint Charity Commissioner (JtCC) of the Poona Region vide Application No. 15/2006 on November 21, 2006. But the approval was challenged by former PPP trustee Eruch Merewan Irani vide Complaint No. 21/2008 under Section 36 (2) of The Bombay Public Trusts Act 1950 mainly on the grounds of "concealment of material facts by the trustees” and the fact that the "desire of the settlor was residential quarters for poor and middle class Parsee, Irani Zoroastrians.” G. D. Tadwalkar, the succeeding JtCC, Poona Region, in a hard-hitting judgment on September 18, 2008 revoked the earlier order.

Trustees of the PPP have subsequently moved the High Court in Bombay with a writ petition dated November 29, 2008 challenging the JtCC’s order.

In his complaint Eruch Irani had contended that the deed of settlement was not filed but was suppressed from the JtCC and that the valuation report of land shown was for the north side of Survey No. 603 and not the south side. He maintained that the donor had in his deed of settlement stated that construction on the south side could only be allowed if any Zarathushti was willing to construct houses "for poor and middle class Parsis and Irani Zortosties” and hand them over to the PPP to manage. His case was that the trustees obtained the orders for Aspandiar Baug by practicing fraud, misrepresentation and concealment of facts from the JtCC Poona.

However, the trustees have clarified that Eruch Irani failed to mention that he had signed the layout plan submitted to the Poona Municipal Corporation (PMC) in 1998-99 for the south side of Survey No. 603, that he had applied in 2007 to be appointed on the subcommittee for the Aspandiar Baug project and that he was a trustee of the PPP when this resolution was proposed and passed unanimously at the annual general meeting on March 20, 2000.

The trustees have also placed on record an affidavit made by Armaity Rustom Irani, granddaughter of the donor, in which she has stated that as the legal heirs she, her sister Gordafrid Aresh and their mother Shirine Rustom Irani have no objection to the scheme proposed by the trustees. "The lands donated by my grandfather had been lying vacant and unutilized for a long time… (On frequent enquiry) we had been informed by the trustees of the PPP that it was very difficult to find donor(s) to put up buildings on the south side… of Survey No. 603. Further, most of the poor and needy Zoroastrians would be accommodated in the buildings constructed on Survey No. 607… I have read the scheme and objects of the PPP which permits the trustees to develop and alienate the property. We have no objection of any sort to the trustees… constructing residential buildings (on the land) donated by our ancestors and to give the flats on long lease basis to persons who can pay the cost of the said flats.” In fact, she added that both she and her sister are among the 281 persons who have applied for flats in the project on payment of their cost to the PPP.

In their writ petition of November 29, 2008 the trustees have questioned why Eruch waited 17 months before making his complaint. They have also clarified that there has been no concealment or suppression of facts since JtCC Tad­walkar has mentioned that the deed of settlement had been perused by his predecessor, which would not have been possible had the deed not been placed on record. In fact, before passing orders JtCC Padhye had considered the deed of settlement as also the scheme (constitution) of the PPP, along with objections raised by community activist Rustom Ginwalla before allowing the scheme for Aspandiar Baug, the writ petition states. Hence the application for revocation was filed on wrong presumptions and will ultimately be decided by the High Court.

In a missive dated January 11, 2009 sent to Parsiana, Ginwalla states that he had filed Application No. 6/2006 under Section 41D of The Bombay Public Trusts Act, 1950 with the JtCC, Poona, on April 3, 2006 for the "removal, suspension or dismissal of the present trustees.” In response to this, JtCC Tadwalkar had, in his order dated December 27, 2007 framed the following charges: "that, you opponents made persistent default in the submission of accounts report or return; that, you opponents continuously neglected your duty or committed malfeasance or misfeasance or breach of trust in respect of the Trust.” A copy of the order has been enclosed by Ginwalla who explains that "as the case was going up for trial, the trustees obtained a stay from the District Court, Poona under Section 72 of the Act, till I made an appearance in that Court. This was duly complied with and my say (statement in person) was given on August 4, 2008. Hence, the stay has been lifted.”