Problems in Poona - II

The article "Problems in Poona” (Parsiana, February 21, 2009) has resulted in a flurry of clarifications and explanations being received from trustees, present and past, of the Poona Parsee Panchayat (PPP) regarding the Aspandiar Baug project, as well as from community activist Rustom Ginwalla about his own crusade against the workings of the trust.

Sitting trustees Adil Sarondewala and Jamshed Bokdawalla have both written to clarify that they are not signatories to the writ petition filed in the Bombay High Court by the PPP as they are opposed to the trust’s funds being "wasted” on litigation. Sarondewala explains that the PPP has seven trustees on its board, of which only five are signatories to the writ. Though Bokdawalla and he had registered their objections to the filing of the writ, the other five trustees stated in the writ that "as the two were not available to sign the vakalatnama at the time of filing the writ petition” they have been made respondents. This is not correct, the two dissenting trustees vehemently maintain.

"The truth is that I had objected in our adjourned board meeting held on October 25, 2008 as mentioned in point No 4 of the said meeting’s minutes that ‘I would not be able to join and sign the appeal.’ I had also given (the) reason for not wanting to sign, which was not minuted by the trustees… In the board meeting held in November, my co-trustee Jamshed Bokdawalla had also asked the board to rectify the minutes and incorporate my reason for objecting which was still not done.”

In his letter to the PPP dated November 30, 2008 Sarondewala placed on record his dissent thus: "no more (of) the Panchayat’s funds should be spent in payment for litigations but used for some good charitable purposes.” He also voiced disapproval at the ratification of payment of fees to the advocate who had filed the writ petition and stated: "It is my personal opinion that the judgment and order passed by the honorable Joint Charity Commissioner (JtCC) of not allowing us to construct the buildings should be accepted.”

Reiterating Sarondewala’s stand, Bokdawalla states that they "did not sign (the writ petition) as we did not want funds of the Panchayat to be spent. We even viewed that the judgment (of the JtCC) be accepted in true spirit.” Complaining about the fact that the reasons for these objections were not recorded in the minutes, Bokdawalla felt this was done because "the other five trustees felt it could go against them in the court. Hence we both were made respondents.”

Sarondewala and Bokdawalla have also individually submitted affidavits in the Bombay High Court on February 2, 2009 "for the limited purpose of opposing admission of the petition” and to clarify that it is not true that they "were not available at the time of signing the petition and therefore, joined as party respondent as alleged by the petitioners.”

Permission had been obtained from the JtCC S. Y. Padhye in 2006 for developing the lands below the Anjuman Dakhma, which were donated over half a century ago by Khan Saheb Aspandiar Rustom Irani for creating housing stock for the Zoroastrian community. This permission was challenged by former trustee Eruch Irani as being against the wishes of the settlor and, on September 18, 2008, JtCC G. D. Tadwalkar had revoked it in a hard-hitting judgment. The PPP then moved the Bombay High Court in appeal on November 29, 2008.

Eruch Irani defends his action against the PPP with: "A fraud is always a fraud and even if noticed after 17 months remains a fraud… I do not see anything wrong in the delay in applying and safeguarding the property of the trust which has been donated for the poor and the needy and not for the rich and the greedy.” He has also enclosed a copy of the original Deed of Settlement of Khan Saheb Aspandiar which details how he wished the property to be utilized by the trustees of the PPP for the community, a settlement on behalf of himself and his legal heirs. "This very document which forms the basis was not mentioned nor was it produced when the trustees made the application to the Charity Commissioner asking for permission to construct these two buildings (on Survey No 603), instead the copy of an affidavit of the granddaughter who does not have the right to amend the Deed of Settlement was produced to misguide the court.”

The Deed of Settlement, which states that the land in question "should not be sold, alienated or disposed of,” was produced when Ginwalla objected to the cost of construction as being on the higher side. It was at that stage that the JtCC perused the document only to see if any reference was made to cost, but his attention was not drawn to this particular clause, Eruch explains. Also, "the valuation report is for Survey No 603 North Side which is permitted by the Deed of Settlement to be sold and not for Survey No 603 South for which the permission was being obtained.”

The former trustee clarifies that he "signed the development plans submitted to the Pune Municipal Corporation (PMC) for the entire Survey No 603 South Side as the board of trustees had then felt that the land would be acquired under the Urban Land Ceiling Act. The PMC approved the plans, which were paid (for) by P. B. Jeejeebhoy Trust. I am not a signatory to these plans that have been submitted for two buildings on one acre out of these 15 acres which is on lease for 99 years which is as good as sale. This is not permitted by the Deed of Settlement.”

Ginwalla’s crusade

Ginwalla is distressed that two issues — of Aspandiar Baug and his suit in the JtCC’s court for removal of the PPP trustees — have been "merged (by Parsiana). One has no connection with the other. My suit is of much wider significance than the Aspandiar (Baug) case,” he informs. "I had appeared in person and had fought the case, initially in the JtCC’s court as well as the appeal in the District Court.” On January 28, 2009 the District Court dismissed the appeal filed by the PPP trustees regarding failure to submit accounts on time.

It may be recalled that on April 3, 2006 Ginwalla had filed an application (No 6/2006) under Section 41D of the Bombay Public Trusts Act, 1950, with the JtCC, Poona, for the removal, suspension or dismissal of the present trustees for "persistent default… in submitting the accounts” as well as for neglecting their duties. Voluminous documents were produced on record and the "respondents have admitted in their notes/synopsis… that there is default in submission of accounts.”

In his order dated December 27, 2007 JtCC G. D. Tadwalkar passed an order in favor of Ginwalla, framing charges against the PPP trustees. As the case was going up for trial, the trustees obtained a stay from the Poona District Court under Section 72 of the Act, until Ginwalla made a personal appearance in that court. This was done on August 4, 2008 and the stay was lifted. On January 28, 2009 the District Court dismissed the appeal filed by the PPP trustees, on the ground that "There is… no substance in the contention that the JtCC has not given reasons because the impugned order contains detailed reasons. Within the limited scope of revisional jurisdiction of this court, it cannot be said that the said order is illegal, null or void. Therefore, even if revision is maintainable, it deserves the same fate of dismissal,” thereby vindicating Ginwalla’s crusade.

When Parsiana contacted PPP chairman Tehmasp Bharucha about the order of the District Court dismissing the revision application by the PPP, wanting to know whether the Panchayat intended to appeal, he responded with: "This is not a ‘win’ for Ginwalla or a ‘loss’ for the PPP. The matter will now revert to the JtCC who will conduct proceedings and decide the outcome.”