Problems in Poona – III

It is the contention of five trustees of the Poona Parsee Panchayat (PPP) — Tehmasp Bharucha, Dara Irani, Firdous Kayani, Porusasp Mehta and Hoshang Dorabjee — that the construction of Aspandiar Baug at the south side of Survey No 603, Lullanagar, Poona, on the land below the Anjuman Dakhma, would have brought in huge funds by way of the difference between the price of each flat and the actual cost of construction per sq ft, which monies would have enabled the PPP to fulfill the objects of the trust.

With such funding the PPP could have, on its own, brought to fruition all the laudable projects on the anvil such as an old people’s home, an agiary, a library and an education institution, without having to approach people for donations, they explain while responding to certain statements regarding the project made by abstaining trustees Jamshed Bokdawalla and Adil Sarondewala as well as former PPP trustee Eruch Irani quoted in "Problems in Poona – II” (Parsiana, March 21, 2009).

In addition to all these benefits, the community would have also enjoyed another valuable advantage — the encouragement of more marriages within the fold. "We have already witnessed many marriages of our members within the community when the Bai Maneckbai P. B. Jeejeebhoy buildings were built and the flats allotted. This would have increased and encouraged further marriages within the community. The members of the community have lost this opportunity,” they regret.

There was absolute transparency in the appointment of the subcommittee to discuss, decide on the allotment, agreement, construction and floating of tenders, explain the trustees. The Aspandiar Baug proposal, to construct and give flats on long lease and recover the cost from the allottees, was passed unanimously by the general body in 2000, before permission was sought from the Joint Charity Commissioner (JtCC), Poona.

While deciding on Application No 15/06 and before passing orders JtCC, Poona, S. Y. Padhye had read, discussed and considered the deed of settlement of the settlor, Khan Saheb Aspandiar Rustom Irani. Eruch Irani filed Application No 21/08 for revocation of this order 17 months later, much after the order had been passed and tenders invited. The five trustees have challenged the order passed by JtCC, Poona, G. D. Tadwalkar on September 18, 2008 rescinding the earlier one by filing a writ petition in the Bombay High Court (HC). The writ has now been admitted by the HC and is pending final hearing.

Complainant Irani was himself a trustee and secretary of the PPP when the scheme to lease out flats and recover the cost was proposed, unanimously approved and passed by the general body in the 46th annual general meeting, state the five. The scheme had previously been circulated and proposed in the 46th annual report of the PPP, the trustees allege.

Regarding Bokdawalla and Saronde­wala’s contention that they were not aware about the deed of settlement or the modified scheme and signed the application for permission in good faith on the representation and advice received by them, the trustees write that they do not wish to cite the contents of their affidavits since the matter is before the HC and hence sub judice. But, they ask: "Can a trustee who has been in office for more than 10 years and another for five years state that he had not read the deed of settlement or the modified scheme or minutes of the earlier meetings especially when he was a trustee and a party to the application filed for modification of the scheme of the PPP before the Charity Commissioner, Poona?”

Irani’s statement, that the deed of settlement was not read by the Charity Commissioner, "can only be imaginary,” they claim. The trustees point out that Irani was not present when the matter was conducted and hence cannot make such a comment. Irani signed the plan prepared by the PPP’s architect M/s I. Chaney and Associates. He was the signatory on the layout plan for the said south side of Survey No 603. Of this layout only one of the 15 acres was to be used for the construction of Aspandiar Baug to raise funds for construction for flats for poor Zoroastrians, the old people’s home, an agiary, etc.

The five trustees emphatically deny that these plans were signed only to save the land from the Urban Land Ceiling Act. Had this been the case, why were plans for the north side of Survey No 603 and all other lands totally admeasuring more than 30 acres not signed and submitted to the Poona Municipal Corporation? they ask. "It is obvious that these plans were submitted with the intention to construct thereon. These lands below the Anjuman Dakhma are the same lands on the south side of Survey No 603” they write by way of clarification, so that the community should know the other side of the story.

Ginwalla’s complaint

In connection with the complaints filed by Rustom Ginwalla regarding non-submission of accounts on time, the five trustees explain they have in turn filed an application with the District Court, Poona, to strike out the two charges of "malfeasance and misfeasance,” framed by the JtCC against the PPP. The JtCC frames charges whenever a case is filed under Section 41(d), but it is the contention of the trustees that since there is no substance at all in the complaint, nor has any case been made out, this action was uncalled for and Ginwalla’s petition should have been dismissed at the stage of framing the charges itself.

Ginwalla had undertaken, on June 10, 2006, before the general body at the 48th annual general meeting, that he would withdraw the litigations filed by him against the PPP, they note. He wrote a letter to the PPP dated June 12, 2006, stating that he is withdrawing his application filed under Section 41(d) of the Bombay Public Trusts Act, 1950. On that very same day he also wrote to the JtCC, Poona, that his application should be treated as withdrawn. It is unfortunate that such people cannot honor commitments given to the general body, the five trustees write, for despite this Ginwalla continued with the petition and arguments were advanced and heard by the JtCC.

It was only when the previous JtCC started dictating his judgment to his stenographer in the open court that Ginwalla informed the court that he had filed a transfer application for this case to be heard in Bombay before the Charity Commissioner there and requested the court not to proceed further, the trustees recount. In all fairness, though it was not necessary for him to do so, the JtCC did not proceed with the judgment and told Ginwalla to either get the case transferred or to obtain a stay order. He gave Ginwalla more than a month’s time to obtain the transfer order.

It was during this period that the JtCC was transferred and the next incumbent took up the matter. Ginwalla withdrew the application for transfer of the matter to Bombay and arguments were heard on framing of the charges. The JtCC then framed the charges, despite the fact that there was not a single word in the complaint about acts of malfeasance and misfeasance, the five note. The trustees therefore filed an application in the Poona District Court to strike out these two charges.

The five trustees conclude that the JtCC has merely framed the charges, and that evidence has yet to commence. "We have faith in the judiciary, unlike Ginwalla who, in his application for transfer, had alleged that ‘he has apprehension in the impartiality of these courts in the Poona region and that he will not get justice.’”