“Willful disobedience of a lawful order…”

The Joint Charity Commissioner (JtCC) N. V. Deshmukh has found five of the six Bombay Parsi Punchayet (BPP) trustees guilty of "willful disobedience of a lawful order issued by the Charity Commissioner (CC).”

Necessary steps "to prosecute the trustees under section 41D of the Bombay Public Trusts Act… will be taken in due course of time,” he ruled vide his order of March 9, 2009.

As the five trustees Dinshaw Mehta, Arnavaz Mistry, Jimmy Mistry, Khojeste Mistree and Yazdi Desai are challenging the allotment order before the Bombay High Court (BHC) on March 17, 2009 "the order to prosecute shall not be implemented till March 21, 2009,” Deshmukh observed.

When the crowd crammed inside the JtCC’s cabin pointed out that March 21 was the New Year, Jamshedi Navroz, Deshmukh replied, "No one is required to come. I will not be allotting flats. This is (purely) between the Charity Commissioner (CC) and the BPP.”

The six BPP trustees had to comply by March 2, 2009 with the JtCC’s order of January 21, 2009 to allot 104 flats to deserving members of the community as per the decision taken by the former board of trustees, one of whom was Mehta. If they wanted to challenge the JtCC’s order the five BPP trustees should have done so prior to March 2. Instead they filed the appeal on March 5, 2009, according to their advocate Percy Ghandy. The BHC set a date of March 12 for the hearing, then postponed it to March 17, due to case load exigencies. "Till then nothing should be done,” pleaded Ghandy. "The High Court is seized of the matter. (The trustees) have challenged (the order) on various grounds. The High Court has still to decide whether the order is proper. Propriety demands (the matter be stayed) when the High Court is seized.”

"It’s a simple question of logistics,” countered Nilima Dutta, the lawyer for the Alert Zoroastrians Association (AZA) and the allottees.

The BPP had seven weeks to comply or appeal the decision. "For four weeks they did nothing,” said Dutta. "After the time for compliance, they appealed. How can they say this is propriety and not proper to hear. The filing date (of the High Court appeal) is after the date of compliance. (They have not) come with clean hands.”

Ghandy: "What is clean hands?” He explained that the trustees had been "tied up with” the formalities arising out of the sudden death of trustee Rustom Tirandaz.

Ignoring Ghandy’s pleadings, Deshmukh proceeded to dictate: "Order dated January 23, 2009… under section 41A was to be complied by the trustees by March 2, 2009. The order is not yet complied. On March 2 (an application) was moved seeking extension of time which was rejected. Today the matter is kept for orders. (The BPP) moved for stay of order…claiming they have filed a writ petition which is coming up for hearing on March 17, 2009. (They have) requested to stay order… request made at this stage in this form is not accepted. It is rejected. (Mehta had asked for a stay as the BPP) advocate K. P. Jadhav was out of India… The matter was kept for orders and not any hearing so application is rejected.

"Section 41A… provides it shall be duty of every trustee… to comply with directions. As referred earlier there is no compliance. This constitutes breach of duty on part of the trustees. Section 67 of Bombay Public Trusts Act provides that contravention of provisions of this Act amounts to an offence. According to me the trustees… by non-compliance have committed an offence.”

Ghandy: (pleading to be heard) "It’s not correct…”

Deshmukh: "Next para…”

Ghandy: "Just hear my submission…”

Deshmukh: "Office to take necessary steps to prosecute the trustees. Section 41D… provides that action be taken against the trustees for willful disobedience of a lawful order issued by the Charity Commissioner. Necessary action will be taken in due course of time. In the facts of the case as submitted before me that the matter today is to be taken up by the Bombay High Court (hence) this order shall not be implemented till March 21.” (On March 17, a divisional bench of the Bombay High Court stayed the passing of the CC order till a retired Supreme Court judge reviewed the 104 allotments.)

After dictating the order Deshmukh noted, "My intentions are clear. Mine is not the last word.” It was brought to his attention that BPP trustee Noshir Dadrawala had stated his willingness to execute the CC’s order.

Deshmukh added, "On the last day trustee Noshir Dadrawala had shown his willingness to implement the order of this authority. The notice for violation is to be taken against all the trustees except Mr Dadrawala.”

Later that evening DNA reporter Ashutosh Shukla asked Mehta for his comments on the JtCC’s order. Mehta reportedly replied (DNA March 10, 2009), "Let the office prosecute us. We will defend ourselves. We have filed an appeal in the High Court. The High Court should have had its say. He passed orders beyond his jurisdiction. Of the 104 cases we reviewed, only 64 were found deserving.”

Sabotage

The earlier hearing scheduled for March 2, 2009 before the JtCC never took place. The timing of the case was switched from 2.30 p.m. to 11.15 a.m. unbeknown to nearly all save Mehta. He appeared in the morning before Deshmukh and asked for a stay stating the trustees wished to challenge the order in the BHC. Deshmukh declined the stay.

At around 2.30 p.m. that afternoon over 25 allottees, the AZA leadership — Kersi Randeria, Zeree Jehangirji and Percy Patel — and three BPP trustees Arnavaz Mistry (accompanied by her daughter Yasmin), Jimmy Mistry (accompanied by his wife Delna) and Dadrawala gathered on the pavement near the CC premises.

They said they had been hoodwinked. By failing to check the daily docket on the CC notice board the evening before or in the morning they fell prey to an old ruse prevalent in the lower courts, changing the hearing time surreptitiously.

"Even the BPP lawyer did not know the time was changed,” said Jehangirji.

Arnavaz and Jimmy left after some time and the rest of the gathering moved to Deshmukh’s chamber after he consented to meet them.

Dutta showed the JtCC the WAPIZ (World Alliance of Parsi Irani Zar-thoshtis) Page clipping dated February 6, 2009 from the Free Press Journal which stated the stand of some of the trustees (Khojeste Mistree and Desai are founder trustees of WAPIZ) as to why 13 allottees were not considered worthy of being given flats.

In lieu of stating their objections to the JtCC, the trustees "have instead (placed) a paid advertisement… (this is) absolutely contemptuous… this is how they comply with your worship’s order.”

Deshmukh: "I asked them to reconsider (the applications). I will not take cognizance” of the newspaper clipping.

Dutta: "It’s a direct contravention of your honor’s order.”

The BPP lawyer Mangesh Chavan stated the matter was correctly placed on the board for 11.15 a.m.

Dutta: "It was put for 2.30 p.m. You said so outside” (the CC’s office).

Deshmukh: "March 9, 2.30 p.m. Matter kept for orders.”

Dadrawala: "I am the dissenting trustee on the board. I want to give all the 104 allottees flats” (applause from gathering). The allottees were asked to vacate the cabin. As they marched out several of them voiced their appreciation to the JtCC: "Thank you saheb,” "God bless you”…

Chavan: "My intention is to challenge the order on the 104 allottees…”

Deshmukh: "No extension. Kept for orders.”

Parsiana asked former BPP chairman Eruch Desai and former BPP trustee Burjor Antia, both senior partners of the reputed law firm Mulla and Mulla which represents the Punchayet, for their reactions to the CC’s censure. Both believed the delay could be condoned by the High Court. "We would have to see the pleading” made to the High Court said Desai who along with Antia had not seen the relevant papers. Desai said there were Supreme Court rulings condoning such delays. Antia said that the issue was in "murky waters… it’s sad and bad.”

Solicitor Berjis Desai, managing partner of J. Sagar Associates, one of the country’s largest law firms who advises the AZA, stated the matter "cannot be condoned.” Asked if there are Supreme Court rulings to the contrary he replied he "was not aware of any such rulings.”

On March 13, Dadrawala issued a press statement via e-mail:

"On Tuesday, March 3, 2009 the board of trustees unanimously decided to commence allotment of flats, pursuant to the order of the Joint Charity Commissioner in respect of the 104 allotments. It truly made me feel blessed, not because ultimately my lone voice of dissent found favor with my entire board, but due to the fact that ultimately the real needy of our community will finally be housed.

"Be it a little late or be it under legal advice to gain sympathy of the Court in the appeal proposed to be filed by all the trustees, except myself, the fact remains that my desire to wipe the tears from the eyes of every needy Parsi stands partially fulfilled.”

When questioned on how many flats would be allotted out of the 104, Dadrawala felt 35 deserving cases, albeit with loyalties to Mehta and WAPIZ may be given the keys to the flats by March 21, Jamshedi Navroz day.

"Earlier I only suspected, but now I am almost convinced that some of the really deserving applicants out of the 104 sanctioned by the previous board will be left in the lurch — in some cases out of sheer personal vendetta. For example, in one particular case among the 104, the chairman has categorically informed the board that there can be no compromise because that particular applicant allegedly insulted his wife!”

As a consequence of the fallout between the trustees over allotment, "On Wednesday, March 4, 2009 I withdrew the Power of Attorney which I had given to the legal and administrative staff of the Bombay Parsi Punchayet.

"Ironically, this prudent move on my part was perceived as ‘unfortunate’ by the BPP board and administration...

"I did not wish to be unknowingly a party to any contempt of any order of any authority/court. I therefore decided that even at the cost of my professional time, I would personally execute each and every document for alienation of any immoveable property of the trust and at this stage take out time to attend the office of the Sub-Registrar of Assurances and admit execution of any such document. I have actually attended to two such cases at Fort and three others at Goregaon.

"On March 9, 2009 I was informed by the administration, at about 11 a.m., that appointment was obtained for executing a couple of documents at Goregaon the same afternoon. I did not go to the Registrar’s office that afternoon (on legal advice)...

"As a consequence of my not attending the Registrar’s office on March 9, the very next day the chairman invited, without my knowledge or consent, a vocal group of about 35 Parsis from among the 104, to accost me at the board meeting held on March 10, 2009.

"Since I was scheduled to leave for Poona early next morning, I had plan­ned not to attend this board meeting. Lots of friends had also advised me not to walk into the trap set for me at 209, Dr D. N. Road that evening. However, listening purely to my voice of conscience, I decided to go (to) the meeting, all by myself.

"When one walks the narrow and difficult path of truth, courage and fortitude comes from the most unknown recesses of one’s being. Just imagine confronting a hostile board and a wrongfully instigated group of agitators, all (by) myself in the BPP board room. I truly felt sorry to see the hallowed precincts of the BPP board room vitiated by unruly ‘mob culture.’ All sorts of pressure tactics were used. However, I refused to succumb under it...”