“The enemy within”

Stating that the matter was "too miscellaneous” to merit a rejoinder the Assistant Charity Commissioner A. H. Shingane set a new date of February 11, 2010 at 3.30 p.m. for hearing the application by Bombay Parsi Punchayet (BPP) trustee Noshir Dadrawala against his co-trustees. Dadrawala had filed the rejoinder after the BPP presented their reply to his allegations.

"There is no such procedure for filing a rejoinder. This is permissible only in the High Court. You have to run with the matter,” said Shingane on January 21, 2010 stating the hearing would be "a summary process.”

Lawyer for the BPP Percy Ghandy countered claiming it was not a summary process as "evidence can be led.” Dadrawala’s lawyer Nimesh Shah objected to Ghandy representing the BPP as in some other matters he appeared for Dadrawala along with the other trustees.

"How can he appear against my client?” queried Shah.

Ghandy: "I can.”

Lawyer Vaibhav Nagvekar who also represented Dadrawala asked for an early date but after some discussion the later date was fixed to suit all parties.

BPP chairman Dinshaw Mehta objected to two lawyers representing Dadrawala. "Only one lawyer can represent him,” Mehta argued.

In a text message on January 21, 2010 to Parsiana Dadrawala had noted, "I have not attended a single BPP meeting since January 2010 and it’s my New Year resolution that I will attend only once my powers are upheld by the Charity Commissioner (CC) and he directs my colleagues to treat me with the dignity I deserve on the board.” At the CC’s office Mehta greeted the Parsiana representative but not Dadrawala who was chatting with him.

In his written application to the deputy CC dated November 21, 2009 Dadrawala claimed the trustees passed a resolution on May 19, 2009, directing the BPP chief executive officer (CEO) Mehli Colah "not to give any information to the applicant as regards the business, affairs and activities of the said trust… (in order) to conceal their illegal activities.”

Dadrawala further alleged "there is also no transparency in the utilization of the funds of the said trust. The applicant submits that opponent Nos. 2 to 7, BPP trustees (Mehta, Arnavaz Mistry, Jimmy Mistry, Khojeste Mistree, Yazdi Desai and Armaity Tirandaz) have always concealed from the applicant and have unilaterally decided various important issues relating to the trust. The applicant states that being a duly elected trustee, (he) has all the rights to be acquainted with the records of the said trust.”

In support of his allegations Dadra­wala annexed to the plaint the minutes of the meeting of the BPP board of May 19, 2009 which state, "the board is of the view that it is against the principles of good governance for a sitting trustee to misuse his office and position to demand information from the BPP CEO or any other staff, to fight a case in the High Court against the BPP itself. It is completely inappropriate on the part of trustee Dadrawala to threaten the CEO for dutifully following the principles of good governance by rightly denying (him) the information he seeks, on the grounds of… obvious conflict of interest.

"The board hereby instructs the CEO Mehli Colah not to give trustee Dadra-wala any information as he has presently lost the confidence of the board and is acting against the interests of the BPP by opposing the majority decision of the board of trustees which as per the High Court sanctioned scheme is binding on him and has to be acted upon by him.”

In their reply to Dadrawala’s allegations the remaining six trustees stated that he was one of seven candidates put up for election by the Alert Zoroastrians Association (AZA) and the Adult Franchise for Progress (AFP) "all of whom lost, save and except the applicant. Ever since that day, it is the avowed goal of AZA/AFP to thwart the functioning of the opponent trust and to embroil the trust in one frivolous litigation after another thereby preventing it from fulfilling its objects of ameliorating the condition of the Parsi Zoroastrian community in Mumbai… This had led to an intolerable situation in which the trust is ‘fighting the enemy from within.’ The opponents submit that the applicant has thereby clearly committed breach of trust and is acting against the interests of the trust and its beneficiaries.”

Under the circumstances the trustees "state that they have clearly lost confidence in the applicant as a co-trustee, as (he) has clearly acted in breach of trust and against the interests of the trusts and (they) are therefore justified in refusing to furnish (him) with information which he may then pass on to the adversaries of the trust, with whom he has aligned his interest in… two writ petitions.”

The BPP argued that "the CC cannot resolve disputes between parties by passing quasi-judicial orders under Section 41A.” They further claimed that Dadra­wala’s application is "clearly without jurisdiction, without the authority of law, misconceived, illegal, null and void.”

In his rejoinder dated January 4, Dadrawala refuted the allegations stating they were "very grave and defamatory in nature which shows complete intolerance towards (an)other trustee who is not agreeable to the views of others. This attitude… is itself against the (basic) principle of trusts and associations/societies…”

Noting that the Bombay Public Trust Act 1950 had been amended from time to time to "empower the CC to meet the various situations…the denial of the information sought by the trustees on the grounds that the same can be used against the interest of the trust is against the principle of transparency and good governance. If a trustee cannot be privy to information relating to the trust for management of which he has been elected as the trustee then definitely there is something to hide which cannot be brought in (to the) public domain.”

Being an elected member of the BPP board Dadrawala argues "he has all rights to participate in management and administration of the said trust including to have the knowledge of each and every information and the documents concerning the affairs of the said trust and denial of the same by the majority trustees is interfering with his right to manage and administer the affairs of the said trust... Therefore it is the incumbent duty of the CC to ensure that the trust is managed fairly in accordance with law by allowing all the trustees to have equal opportunity to have access to the information concerning the affairs of the said trust.”