“Not maintainable”

"This application is malafide… (pursued) for extraneous and collateral reasons,” asserted counsel Percy Ghandy on behalf of his clients, the six trustees of the Bombay Parsi Punchayet (BPP). He was defending their right to deny records and minutes to co-trustee Noshir Dadrawala in the case before the Assistant Charity Commissioner A. E. Shingane on July 19, 2010. Ghandy sought to prove Dadrawala’s collusion with the "so-called reformists,” particularly members of the Alert Zoroastrians Association whose "avowed object is to prevent the trustees from doing good by engaging them in vexatious and frivolous litigation.” By portraying Dadrawala as the l’enfant terrible, he was seeking to establish that the alienated trustee was "not worthy of their trust or confidence.”

During the Bombay High Court hearing from May to October 2009 when six trustees had challenged the Joint Charity Commissioner’s (JCC) ruling on the issue of allocation of flats to 104 applicants, Dadrawala was "acting against the interest of the trust. He was arrayed against us. He was a party respondent. When the High Court directed the petitioners to file an affidavit regarding the number of flats available for allotment, he was not a petitioner. In such a situation I’m justified in not giving him records which he may share with my opponents,” argued Ghandy. "He had ample opportunities between May and October 2009” to voice his objection in the High Court "but he did not. Why? He was advised not to say anything because he had no leg to stand on.” After the High Court passed the final order disposing of the matter, he made a grievance before the Charity Commissioner (CC). "Can he now agitate before you? Can the Charity Commissioner sit in judgment on matters that arose before the High Court, which the High Court is seized of and has disposed of? My submission is that it cannot. This forum has no jurisdiction,” expressed Ghandy.

He further referred to the writ petition regarding alleged fraudulent dealings in B. S. Panthaky Baug which when challenged by the trustees, Dadrawala chose not to join as party petitioner implying that he was "aligning himself with the opponents of the trust.” Neither did Dadrawala support the trustees when they challenged the JCC’s ruling that six trustees should be removed from office because they have not complied with his order.

When Shingane enquired, "Whether you were prosecuted?” Ghandy responded, "We got a stay from the High Court.”

Citing three Bombay High Court judgments, Ghandy insisted, "This application (filed by Dadrawala) is not maintainable under section 41A (of the Bombay Public Trust Act) since he is not asking for an administrative decision... Section 41A does not contemplate adjudication on dispute.” According to his interpretation the CC can only give directions under section 41A on issues "relating to the proper administration of the trust or the application of income…” and not when there is a "controversy or dispute.”

Disappointed with Dadrawala for wanting "to remain a trustee” and yet "niggling, creating difficulties…helping and assisting the opponents,” Ghandy placed before Shingane excerpts from Dadrawala’s book wherein he had expressed that "dissenting trustees may record their dissent but accept the majority view with grace or resign.”

Ghandy’s last argument for the day was that according to the scheme of the BPP settled by the High Court, clause 32 stipulates that whenever there is a difference of opinion among the trustees, the same should be decided by the majority with the chairman enjoying the casting vote. "Such a decision shall bind the rest and shall be adopted and acted upon,” states the scheme. Preempting an argument that this scheme concerns only elections and not the general working of trusts, Ghandy stated that it also concerns the "day-to-day functioning of the trust.”

With Ghandy’s arguments not yet over, the next date for hearing was set for the afternoon of August 6, 2010.

In the meantime Dadrawala’s pleas for the minutes of the Wadia Committee (WC) continue to be ignored (see "Missing the minutes,” Parsiana, July 21, 2010). In his reminder of July 21, 2010 addressed to BPP chairman Dinshaw Mehta he writes, "It is now almost seven weeks since I sent this e-mail to you and the BPP CEO (Mehli Colah). This item continues to feature on our Tuesday agenda since weeks but continues to be held in abeyance for apparently no valid reason. Yesterday I specifically and very politely requested you to take this item up. However, you pretended to go deaf…”

The alienated trustee had sought minutes of all the WC meetings held since October 2008 "whether still in draft stage, signed and approved or not.” Since Mehta had earlier contended that minutes are shown only to those who attend the meetings and Dadrawala’s absenteeism disqualified him from this privilege, Dadrawala’s new mission was to ascertain the number of WC meetings held and the attendance record of the seven trustees. He was also keen to learn about the procedure adopted by the previous board of trustees and whether only those trustees who were present at meetings were permitted a preview of the minutes.

Another issue that has rankled Dadrawala is Mehta’s message in the July issue of The BPP Review where, in the context of announcing the 40 allottees of flats at Panthaky Baug, he mentioned, "As trustees it has been a difficult task, but we have tried to work towards a harmonious solution and all the trustees (barring Noshir Dadrawala) have given their support.”

Objecting to this statement, Dadra­wala wrote to Mehta on July 21, "As you are aware, I have participated in several meetings for shortlisting the 400 applicants for Panthaky Baug and you may recollect that at all these meetings the process and deliberations were very harmonious. I therefore consider the insertion of this line, particularly in the context of allotment of flats at Panthaky Baug, both inappropriate and misleading.

"Also with regard to ‘support’ so far the only issue on which I have differed with my colleagues is with regard to the issue of the present board not allotting flats to the 104 applicants cleared and approved by the previous board (including yourself). On virtually every other contentious issue, whether with regard to opposing the special audit or the ban against (Ervads Khushroo) Madon and (Framroze) Mirza, I have joined my colleague trustees…

"It was rather amusing to hear your comments a few weeks ago with regard to the 40 applicants shortlisted by us recently. You said: ‘With the best of our efforts we don’t know if the people we have shortlisted are deserving or not and whether some of those that we rejected are more deserving than the ones we selected!’ I wonder why the same liberal, magnanimous and philosophical view was not applied with regard to the case of the 104 deserving applicants?”