Postponement in Poona

After Ahmedabad and Bombay it is now the turn of the Poona Parsee Panchayat (PPP) to have elections for trusteeship delayed due to legal tussles.

The election of a new board of PPP trustees scheduled to be held on November 29, 2009, one month before the expiry of the term of the present board on December 31, 2009 has been stayed by the Court of the City Civil Judge, Junior Division. The legal battle was sparked by the disqualification of two candidates, Jamshed S. Bokdawalla and Eruch M. Irani — after their nomination had been initially approved — on the grounds that they are tenants of the PPP and therefore not eligible.

According to the PPP rules, come into force a few years ago, licensees of PPP accommodation are not eligible to stand for office.

PPP chairman Tehmasp K. Bharucha states in a clarification issued by the PPP trustees and forwarded to Parsiana via e-mail on December 28, 2009 that none of the sitting trustees, with the exception of Bokdawalla, has opted for reelection, as they "are not interested in continuing as trustees or delaying the election process.”

On January 4, "the board decided to inform the Joint Charity Commissioner, Poona, to appoint interim trustees from amongst the nine eligible candidates as we do not wish to deprive the new trustees from holding the office as our term has expired on December 31, 2009,” Bharucha wrote in an e-mail to Parsiana dated January 26, 2010. Though no orders have been passed by them in the matter so far, "we have decided (we) are not interested in dealing with trust properties or inducting new licensees, or spending money of the trust, except for day-to-day management and administration like salaries, electricity and water bills, taxes, security, etc and dole money to the poor and deserving Parsis as has been done so far…

"We trustees are willing to sit across the table and sort out the issue amicably with the intervention of one or two senior respected neutral members of the community to hear both the sides and take decision as we do not wish to drag on with litigation.”

On January 5, 2010 five of the seven trustees appeared and filed their reply to Irani’s suit of December 19, 2009, states Bharucha. "After that the suit is fixed for hearing of the application for interim injunction and for written statement. The five trustees have emphatically denied the allegations and have challenged the jurisdiction of the Court of Civil Judge, Junior Division to decide the suit and have also contested the application for injunction on merits.”

One of the contestants Noshir Nanavatti, a retired businessman and chairman of the Indian Red Cross Society, Poona district, in an e-mail to Parsiana dated January 27, 2010 stated, "The constitution does not allow licensees to contest the election. But since the two candidates are not licensees, but tenants of the trust, they felt that they could stand for elections. Tenants having perpetual benefits want to be trustees of the same trust of which they are beneficiaries. But licensees who have limited benefits cannot stand for elections. This is not only unfair to the licensees but goes against the morals of the candidates… Members of the community have asked me as to why no objections were taken in the previous years and why only now. My answer to the same is that if a mistake has taken place years back, it need not continue and it is never too late to rectify the same. I also believe, that no person can be a beneficiary and benefactor (trustee) of the same trust. The Indian Trust Act and the Bombay Public Trust Act (BPTA) also confirm this. However, in India even the law of the land can be challenged in court.”

Meanwhile, community activist/gadfly Rustom Ginwalla, who was granted PPP owned accommodation on leave and license basis on "compassionate grounds because of malignancy problems and three surgeries,” sent Parsiana a letter in which he has protested against the "unfair decision of the trustees to exclude 232 licensees and their family members from standing as trustee.” He complains: "Mr Bokdawalla has taken care to ensure that persons like himself, who are tenants, got elevated to a different class and condemned the licensees to second class citizens not entitled to stand for trustee. I have always been taking up the cause of licensees... severe impediments (have been) placed on them from even becoming ordinary members of the Panchayat. I am now a licensee and have no right to contest and I hold this grudge against Mr Bokdawalla, who was misguided.”

Clarification

Following publication of the election notice, 11 nominations were declared valid after the board had scrutinized them. The list of eligible candidates was displayed on the notice board. On November 21, 2009, during the monthly meeting of the board a notice was received from advocate K. K. Waghmare on behalf of Nanavatti, challenging the eligibility of Irani and Bokdawalla.

Even though as per Clause 9(a) of the scheme of the PPP, the "decision of the trustees by simple majority is final,” Bharucha clarifies, to maintain transparency, legal opinions were sought in the matter before taking the final decision… The board unanimously decided to seek legal opinion from three prominent persons in the legal field, Homa D. Petit, Nadir A. Modi and PPP advocate Parag Erande. A letter seeking opinions on two issues was drafted at the meeting in the presence of all seven trustees.

The queries were: "Whether any tenant of the trust, in occupation of the trust property, is eligible to contest the election for the office of the trustee and hold the office of the trustee of the trust,” and "Whether there is any disqualification against such tenant/lessee from becoming a trustee under the provisions of the BPTA, Income Tax Act, or any prevailing laws applicable to the public charitable trust.”

It was the opinion of both Petit and Erande that the candidates are disqualified, while according to Modi they are eligible, for reasons and legal points expounded by each of them. Based on these opinions, the board decided by a majority decision, 5:2 that Irani and Bokdawalla were disqualified from contesting the election and the candidates were informed in writing about the decision. Bharucha’s clarification further reveals that the board decided to hold the election on December 27, 2009 and the revised list of nine eligible candidates, the date, time and place of election was declared and published.

On the last working day of the court, December 19, 2009 a suit was filed by Irani to declare the election illegal and an ad interim injunction against holding it was granted by the Court of the Civil Judge, Junior Division. These orders were passed without issuing any prior notice or summons to the PPP, writes Bharucha who has made "a request to all the members of the community as well as the PPP, not to be carried away by misleading statements made by anyone.”

However, a letter from Coover P. Mehta and others, forwarded to Parsiana via e-mail on December 17, 2009 has faulted the PPP board for pressing "the panic button” and disqualifying the two contenders, reacting "impulsively” to "a mere notice from an advocate (not a court order) from an aggrieved candidate.” Mehta writes: "As per the legal practice, the board of trustees should have applied their minds and subsequently replied to the said notice through their advocate. However... in this particular case, the 11 candidates were not even informed in the matter and a hasty decision was taken then and there to postpone the election.”

Mehta reveals in his letter that "even in the past, 12 trustees (including Bokdawalla, who continues as a sitting trustee) have been tenants of PPP properties and their own unanimous resolution clearly states that licensees should not be allowed to contest elections as they may claim tenancy in future. This resolution was submitted along with the amendment to the Charity Commissioner by no other person than advocate Erande.”

Regarding the three legal opinions sought by the PPP, Mehta writes Modi specified that both Irani and Bokdawalla are eligible to contest, as they were tenants first, before becoming trustees. Mehta adds, "we have studied all three (opinions)... and only Mr Nadir Modi has replied point by point, and specifically clarified that the section mentioned in the notice, 56G(1)(e) has no relevance in the present context, whereas the other two have remained silent on the above section.”

Also, irrespective of whether Erande’s opinion is right or wrong, there is conflict of interest as he is the PPP’s advocate.

While claiming that they do not hold any brief for the two disqualified candidates or harbor malice against the present trustees, the signatories to the communication feel that once the trustees had formally approved the validity of the nominations of the 11 candidates and the election date, the process should have been allowed to continue as they were well within their rights to do so. All they needed to do was reply to the notice through their advocate. The aggrieved candidate, Nanavatti, could have proceeded legally against the two candidates on his own had he not been satisfied with the reply to his notice. "The trustees would have been vindicated in their bold action,” the letter notes.

A subsequent e-mail from Mehta and others dated December 30, 2009 reveals that "there have been further developments and as Alice would have said, ‘It’s getting curioser and curioser’ in the wonderland of PPP politics!” Alleging that both Irani and Bokdawalla "have been subjected to injustice, inequity and humiliation for no valid reason,” the writers say "any self-respecting person would have done the same,” referring to the suit filed by Irani. "The interim order passed... says that it is an infringement of civil rights of a person.”

As per Mehta’s e-mail, the court order was served on the trustees on December 22, 2009 to refrain from holding election on December 27 as scheduled. The PPP published a notice regarding the postponement of the election in Sakal Times on December 23. "The notice also mentioned that the PPP was not served with any notice of the suit or proceedings before passing the order. This is true. However, it is also true that advocate Dara Irani (trustee-PPP) filed a caveat on behalf of the PPP on December 19, 2009. The inference is clear... that the trustees were well aware of the same; what else would have made them file a caveat?”

On December 28, Dara Irani appeared on behalf of the five trustees and the PPP and asked for time to file their reply as the judge was also on leave. The date for hearing was fixed for January 5, 2010, Mehta’s e-mail notes, adding that "this litigation could have been easily avoided if the trustees had acted judiciously and exercised statesmanship…” (The next date for the hearing is January 29, Nanavatti has stated.) This has caused "the community at large” to feel "frustrated and disappointed... Even the candidates are feeling frustrated and thinking of moving out from the fray.” Featuring on the revised list of nine candidates are Roshan Eruch Chindhy, Jehangir Rustomji Daruwalla, Farokh Behram Irani, Tanaz D. Irani, Pervez A. Kapadia, Rumy P. Mehta, Nanavatti, Bahram Pashutanizadeh and Polly Bhikhaji Patel.

"In the interest of the community we earnestly implore all concerned to work towards an early out-of-court settlement and end this needless controversy; and expedite the matter in court without any delaying tactics,” Mehta’s e-mail concludes, so that "once again, stability and confidence can be restored to the community.”