“The battle of the ban”

Rather than rule on granting interim relief in the originating summons (OS) on whether the Bombay Parsi Punchayet (BPP) trustees have the power to bar two priests from performing religious ceremonies at Doongerwadi, the Jokhi Agiary at Godrej Baug and the Godavra Agiary in the Fort area, Bombay High Court Justice V. M. Kanade decided to hold the final hearing on February 15, 2010.

Iqbal Chagla, the counsel for petitioners Jamsheed Kanga and Homi Khusrokhan argued that the judge was within his powers while hearing an OS to grant an ad interim injunction permitting the priests to perform religious ceremonies at Doongerwadi and elsewhere until the suit was disposed of.

If the court can grant "final relief, I am entitled to interim relief,” stated Chagla. The petitioners, he argued, "are entitled to have priests of their choice” to perform religious ceremonies for them. Noting that the BPP had cited the opinion of five high priests, Chagla stated, "There is no such nomenclature as high priests in the ecclesiastical hierarchy. There is no such thing as a high priest and a low priest. They are all ordained priests,” he noted. It is out of respect that some priests are given the prefix "high.”

Chagla also noted that in places such as Delhi and Mahableshwar and elsewhere where Parsis were either buried or cremated "the same ceremonies are conducted. In Bombay they are termed irreligious. The simple question is whether duly ordained Parsi priests can be barred from coming to Doongerwadi and performing ceremonies” for people to be consigned to the Towers of Silence. Chagla said an OS seeks the "opinion of the court. (The petitioners) are asking for interpretation of the trust deed… The final ruling is binding on all parties.”

Counsel for the BPP Rafique Dada and Ashutosh Kumbhakoni argued that the law provides no such provision for relief.

Kumbhakoni maintained that an OS is "not an adversarial suit between parties.” If the court accepted Chagla’s arguments "there would be no difference between a suit and an originating summons… no relief can be asked.”

Dada, also representing the trustees, said the judiciary was "under no obligation to make (an interim order) unless the court decided” to do so. Dada asked for four weeks’ time to file a reply as there were "serious contentions made here. I must have enough time.” This was in response to Kanade’s suggestion that instead of deciding on interim relief, he would have a final hearing in two weeks’ time. The judge then set the date of February 15 at 3 p.m. to decide "on all issues raised by all parties.”