The long wait over - for now

Two years of agony for countless Parsis in search of accommodation finally ended with the Joint Charity Commissioner (JCC) S. P. Kulkarni on December 3, 2015 permitting the Bombay Parsi Punchayet (BPP) trustees Yazdi Desai and three others "to withdraw unconditionally” the application for safeguarding trust properties that prompted the Charity Commissioner (CC) to pass the status quo order on all BPP properties passed on December 16, 2013. The much anticipated withdrawal following the pledge given to do so during the October election campaign by the newly elected BPP trustees will free up around 200 vacant flats in the various housing colonies. Occupation of some of those premises could start early next year.

Yazdi Desai (left) and Muncherji Cama, at loggerheads

"The withdrawal (under Section 41 E of the Bombay Public Trust Act, 1950) is permitted and all the ad interim/interim orders are vacated, as the main petition... does not survive,” states the JCC order. He turned down a request for a six-week stay on execution of his order as asked for by Chaitanya Chavan, the lawyer representing BPP trustee Muncherji Cama. Chavan said his client "may take the matter to the highest forum in appeal.”
The original stay by the CC was on all the then seven trustees, Cama being one of them. His BPP trusteeship status is in dispute before the CC’s office following his letter of resignation from the trust and his subsequent withdrawal as the letter was technically incorrect.
Former BPP chairman Dinshaw Mehta who vigorously opposed the status quo withdrawal before the JCC on December 1, in a volte face told the JCC the next day that "I am withdrawing my opposition.” He noted that his son, Viraf, who became a BPP trustee this October, and others pleaded with him not to obstruct the proceedings, citing the trauma families in search of housing were facing. "I will accept withdrawal (of the status quo order) in the interest of the community,” Mehta said.
BPP trustee Noshir Dadrawala who was present at the December 2 hearing thanked Mehta. Earlier he had appealed to Kulkarni to rescind the status quo order. "Let the trust function,” he pleaded on behalf of the new board. The day before BPP trustees Kersi Randeria and Zarir Bhathena were present along with former trustee Khojeste Mistree (who was also present the next day). Desai’s wife Anahita was present at all the three final hearings.
Mehta had opposed the withdrawal at the hearing on December 1 demanding an apology from the present chairman Yazdi, along with his three former trustees, Arnavaz Mistry, Jimmy Mistry and Mistree for "defaming and denigrating” him. They had filed complaints with the CC’s office under section 41E of the Bombay Public Trust Act which pertains to the safeguarding of trust property and Section 41D asking for his removal as a trustee, alleging financial malfeasance. "They (Desai and others) swindled me of lakhs of rupees and brought allegations against me,” Mehta claimed.
Chavan argued that the JCC was obliged to investigate the charges of misappropriation made so that there would be no financial loss to the trust. "Section 41E has to meet its logical end,” he averred. The counsel referred to the Dady House transaction where premises changed hands and an allegation was made that Rs 45 lakhs had been siphoned off. "There is no submission (about) who has taken the 45 lakhs... there is some breach of trust. Let all trustees be under suspicion...there are ample powers with the CC to see the accounts are properly managed.”
"They fabricated facts,” Mehta contended. "Khojeste Mistree went before a magistrate to make some complaint of embezzlement.” Though the report prepared by May this year cleared Mehta of wrongdoing, Mistree had not till "December 2 filed a protest petition” against the findings, pointed out Mehta. He alleged a "political motive” behind the charges and claimed the four who then constituted a majority on the seven-member board, "did not allow me to operate.”
Kulkarni explained he was "not trying the (withdrawal) application on merit.” He pointed out that the status quo order that was passed two years ago was "not on the merits” of the case. It was but an interim order to safeguard the properties till further hearings were held or the matter disposed of. The trustees "should have got it modified at the right time,” the JCC observed. No one, however, approached the CC.
Mehta referred to a news item in the Parsi Times of November 28, 2015 wherein it is mentioned: "The new trustees… have approached and met the JCC informally to understand the situation and to discuss the way forward.” Kulkarni reportedly told them he had not passed the status quo order and had taken charge only two months prior. "He told the new trustees to appear before him on the next date,” December 1.
Mehta commented: "The paper is owned by one of the trustees (Randeria)… behind our back they came and met you.” Kulkarni replied, "If anybody comes I cannot throw them out… they ought not to have come. When a matter is sub judice no one should approach this court… they should have given notice to the other side.” He termed the publication of the news "a cheap publicity stunt.”
In an affidavit sworn on November 30 this year and handed over to the JCC on December 2, Cama alleged Desai deliberately extended the status quo order in order to safeguard two flats, one occupied by him and his wife in Rustom Baug and the other by his brother at Godrej Baug.
Cama stated that a flat was allotted in Godrej Baug to Yazdi’s father "in exchange of his earlier accommodation of one room kitchen at Nowroz Baug.” When the Godrej Baug flat "was allegedly unable to accommodate the (Yazdi’s) family due to the father’s medical condition,” Yazdi sought "a bigger flat at Rustom Baug in exchange of the said Godrej Baug flat.”
According to Cama both Yazdi and his father "unconditionally undertook to surrender the said Godrej Baug flat on allotment of a bigger flat… three bedrooms, a hall, and a kitchen admeasuring about 1,500 square feet of carpet area on (a) non-transferable and non-inheritable… leave and license basis” in Yazdi’s mother-in-law’s name at Rustom Baug. Aside from a monthly rent of Rs 1,500, a refundable deposit of Rs 26,00,000 was given.
Cama alleges that Yazdi’s in-laws and wife moved into the larger premises but let the brother remain at Godrej Baug. Upon the death of his mother-in-law Yazdi "who was impelled by an illicit objective to retain possession of both the said flats cleverly devised an instrument for sending the whole issue… into a moratorium.” Hence Yazdi "sought a blanket perpetual order of injunction to restrain only (Mehta) from transferring the properties of the said trust, in order to eradicate every possible threat to his unlawful possession,” Cama alleged.
(At that hearing in December 2013 Mehta questioned the CC as to why only he was being singled out and not the others. The CC then extended the ban on all the seven trustees – editors)
Cama further alleged that Yazdi was opposing the withdrawal of Cama’s resignation "in order to achieve a position in the board whereby (Yazdi) is ensuring that no adverse resolution is passed endangering his unlawful possession of both the aforementioned flats.”
Cama claimed that Yazdi "has begun preventing me from attending the meetings of the board of trustees” thereby reducing the number of trustees to six. In a tie vote, Yazdi "being the chairman of the board of trustees, is therefore empowered to cast (his) vote twice as his second vote becomes a tiebreaker.”
As the CC said he would pass his orders the next day, Yazdi was not able to file a reply to the allegations on December 3. Parsiana therefore informed Anahita to send Yazdi’s reply/affidavit should they want their response to the charges to be published. Accordingly, a copy of Yazdi’s unfiled "Rejoinder to Affidavit” was emailed to Parsiana on December 4.
Yazdi claimed "all the ascribed motives are blatantly false and fabricated” and termed as ridiculous the allegation that the three other trustees who filed the 41E and 41D applications "did so just to protect my selfish interests and help me derive personal benefit from the trust.”
As regards the Godrej Baug and Rustom Baug flats, Yazdi states, "the Rustom Baug flat was not an exchange application but an application to give up the Godrej Baug flat in lieu of not having to pay the security deposit component to the BPP/R. N. and N. N. Wadia trusts… and having to only pay the outgoing tenant, and (that) this application was rejected… That is why we had to pay the full security deposit of Rs 22.40 lakhs (40% of the value of the Rustom Baug flat, which was the policy in 2002) in addition to Rs 33.60 lakhs paid to the outgoing tenant… We paid what was asked of us and strictly followed the policy and procedure laid down.”
Yazdi also states that the leave and license agreement dated October 1, 2002 "clearly stated that the persons who will be residing in the Rustom Baug flat are my mother-in-law (the licensee), my wife and myself. If as (Cama) alleges, it had been decided by the BPP and ourselves that we would be giving up the Godrej Baug flat, my father and brother’s name would perforce need to be added in the leave and license agreement (for Rustom Baug), which was not. Also the BPP would have filed a case against me for failing to give up the Godrej Baug flat which it has not done.
"The license fee paid by us for the Rustom Baug flat is what is charged to all in similar circumstances.”
Noting that during the election campaign this September and October the subject of the flats was never brought up, Yazdi remarked, if the accusations were true they "should have been brought out at election time.”
Regarding the disputed resignation of Cama and his non-attendance at BPP board meetings, Yazdi claimed that Cama "has been trying to work (out a) compromise to come back as a trustee without having to go through the re-election and wanted me, as the reporting trustee to withdraw the change report. When I refused to do so… out of vengeance (Cama) has taken out this… dishonest affidavit. As late as last evening (December 2), just after the hearing, (Mehta) told a sitting trustee (Dadrawala) that if the change report of (Cama) was withdrawn, this whole litigation would disappear.”
Regarding attendance of the meetings Yazdi pointed out that Cama "has not attended a single meeting of the BPP from end of May 2015.” At that time Mehta was the chairman. "What prevented him from attending meetings from May 2015 when (Mehta) was chairman till October 2015?”
Yazdi also alleged "the misappropriation of trust funds (case before the magistrate) is not being brushed aside, but is being taken up in the right forums.” He did not specify which these were.