Flat affidavit

The Bombay High Court (BHC) has directed the Bombay Parsi Punchayet (BPP) to file an affidavit in two weeks’ time stating the number of vacant flats available with them for allotment, vacant flats that cannot be allocated and the reasons thereof and the total number of flats allotted since the litigation over allotment began in December 2006.

A divisional bench of Chief Justice Swatanter Kumar and Justice Amjad Sayed passed the order after a one-and-a-half-hour hearing on April 28, 2009 regarding the allotment of 104 flats. Several of the allottees, BPP trustees (chairman Dinshaw Mehta, Khojeste Mistree and Noshir Dadrawala) and Alert Zoroastrians Association (AZA) leaders Kersi Randeria and Percy Patel were present.

The order for the affidavit followed arguments between the battery of lawyers present regarding the number of flats available for allotment. BPP counsel Rafiq Dada argued that only 74 flats were available for allotment so how could 104 flats be given?

Out of the 74 available the BPP had allotted flats to 64 out of the 104, said Dada. Hence the question arose as to whom the balance 10 flats should be allotted. The trustees felt more deserving applicants were on the waiting list who had a higher merit rating than the 40 out of the 104 who were not to be allotted flats at the present time, argued the counsel.

"Out of the 104 the Charity Commissioner (CC) has not told us who gets the flats. That is left to us to decide. Seventy-four were selected by us out of the 104. Forty have to wait. (They are) much lower on the merit rating scheme.”

The question before the judges was the "40 versus 10 we believe should get it,” said Dada. He then explained to the court that the merit rating scheme gave points according to the hardships suffered by the applicants. Those who were homeless, whose houses may have collapsed or were moving from sanatoria to sanatoria as well as young couples waiting to be wed were given the highest priority.

The former board of trustees "overlooked” the 900 people on the waiting list who "did not have the money to approach the CC or join in the (BPP) elections… see that justice is done” to them, Dada pleaded.

"The CC cannot decide what the trustees have to do.” He alleged that some of the 40 allottees were "crorepatis.” One applicant possessed an ownership flat in Poona. "He wants a holiday flat” in Bombay, alleged Dada. People who were 240 or 626 on the merit rating scheme were getting precedence over the top 10 highest rankers. Two of the 104 allottees had migrated.

Dada noted that of the 42 interveners in the case represented by lawyer Iqbal Chagla, 15 were included in the list of 64 selected by the BPP. So the question remained of only 27.

"In all there are 91 flats so 104 people cannot be accommodated,” said Dada "some flats are necessary for transit accommodation,” he observed while seven are dilapidated including three which were in chawls (bathrooms not attached).

"Randeria had argued that out of turn (allotments) would be considered. How can Randeria override” the merit rating system, questioned Dada? The new trustees elected in October 2008 approached the CC stating they had "serious objections” to the allotments and "wanted to review the matter.”

"They made an application in writing” to the CC requesting permission to review the matter. The request was rejected, said Dada.

Kumar: "The 64 allottees are acceptable to both sides?”

Rajni Iyer, lawyer for the 64: "Accepted by the old and new board of trustees and the CC. (Acceptance) common to all three.”

Informed decisions

Chagla urged the judges not to get "involved in the nitty gritty” of the allotments "only the principles.” He stated the earlier trustees had spent eight to 10 months "examining the entire matter” under the CC’s directions. The present chairman who also served on the old board as a trustee alleged the former trustees were "pressured and intimidated into submitting to the 104 allotments,” said Chagla. "Mehta’s only objection was that an election was around the corner and so matters should be deferred.” The other trustees disagreed stating the allottees "had waited long enough.” After that Mehta did not object and was "party to the process,” said Chagla.

"Is it now open to him” to question the allotments? he asked.

Chagla also stated that after the divisional bench of Kumar and Justice Dr Dhananjaya Chandrachud passed orders on March 17 and March 24, 2009 to the effect that no further steps should be taken by any of the parties involved in the litigation, the new board of trustees on April 21, 2009 had on its agenda allotment of flats and had "given allotments of flats to those outside the 104… political games are being played,” alleged Chagla. Persons who they "liked” or who "supported them in the elections” were given preferential treatment.

"It is not open (to the new board of trustees) to treat (court) orders with such scant respect,” said Chagla.

Dada: "The trustees have not affected any allotments. What wrong have they committed? No letters” have been issued.

Chagla also contended that it was not correct "for successor trustees to reopen decisions taken by erstwhile trustees… unless fraud is involved…

"They knew what they were doing,” he added. Advertisements had been placed in the newspapers regarding the allotments, hearings took place before the CC, they "took informed decisions.”

Regarding the application to review the allotments by the new trustees, the CC "said no,” recalled Chagla. "You have given letters of allotment. How can you reopen (the matter)? The (present) chairman had no objection to any one of the 104. He was sitting with the other trustees. How does he come and tell your lordships… that the decision was pursuant to pressure put on them?” He alleged Mehta now claims he "dissented at every stage. It suits him to (say he was) not pressured (but) ‘I was a dissenter.’”

Chagla noted the CC had been told 91 flats were available for allotment and four were residents/tenants exchanging flats. The statement showing 91 flats was "signed by the senior executive, BPP.” Allotment letters given for flats in Bharucha Baug will not be effected as the flats "are to be kept vacant. Earlier trustees did not say that,” stated Chagla. Regarding flats being earmarked for transit, Chagla inquired "for whom?… The CC’s (order for alloting) flats must be implemented. What is the infirmity in his order… the trustees say ‘leave it to us’ (to decide allotments). How can you turn the clock back?... All 104 must be treated equally. Sixty-four cannot be preferred.”

Iyer: "In the absence of flats why should all suffer? If 104 flats are not available… 64 should not be kept vacant.”

Kumar to Dada: "File an affidavit.”

Nilimi Dutta (appearing for Firoze Balsara and Zeree Jehangirji who moved the petition to suspend/dismiss the trustees under section 41D of the Bombay Public Trusts Act): "The 104 list came from the BPP. There was no scrutiny, no verification by the CC. He had gone on the statement made.”

Chagla: "The court can appoint someone to select (the allottees) not the trustees.”

Dada: "I suggested a retired Supreme Court judge. My friend did not accept it.”

Dutta: "The BPP has 5,000 flats. The Punchayet does not state the flats they have in posh areas. A mapping exercise has to be done of all 5,000 flats.”

Dutta debunked the yardstick of the merit rating scheme when allotting flats. "One third of applicants had crossed the income limit and the BPP was willing to take deposits of 20 to 25 lakh” (rupees) from them. They "remove flats from the poor and give (them against) security deposits. Where is the merit rating scheme?” she asked.

Chagla: "What (flats) does the trust have available?”

Kumar then directed the BPP to file an affidavit disclosing the number of vacant flats available and the number of flats allotted since December 2006.

In March this year the Jt CC N. V. Deshmukh had stated that the trustees had committed "willful disobedience of a lawful order” by not allotting the 104 flats sanctioned by the prior board.

The issue of sale of ownership flats at Panthaky Baug remains to be argued. The Jt CC D. S. Purohit had found the trustees in breach of trust as Behram Panthaki’s will stated when donating the land that it was for the poor and needy.

The BPP is disputing both these rulings before the divisional bench of the BHC.

The next date of hearing is fixed for June 19, 2009.