Bombay High Court
Kersi Randeria And Another vs Armailty Tirandaz And 5 Ors. And Phiroze ... on 12 January, 2022
Bench: S.J. Kathawalla, Milind N. Jadhav
KANCHAN PRASHANT DHURI Digitally signed by KANCHAN PRASHANT DHURI Date: 2022.01.14 18:55:11 +0530 i Kanchan P Dhuri 1 / 15 1-IAL-29161-202Lodt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INTERIM APPLICATION (L) NO. 29161 OF 2021 IN APPEAL (L) NO. 29157 OF 2021 IN MISCELLANEOUS PETITION (L) NO.7007 OF 2021 KERSI RANDERIA 2 NOSHIR DADRAWALA ... APPELLANTS se Wi bh VERSUS ARMAITY TIRANDAZ VIRAF MEHTA XERXES DASTUR BOMBAY PARSI PANCHAYAT ...RESPONDENTS AND | PHIROZE AMROLIWALA ZEREE JEHANGIRJEE ...NON-PARTY RESPONDENTS ALONGWITH MISCELLANEOUS PETITION NO. (L) 29493 OF 2021 MRS. ARMAITY RUSTOM TIRANDAZ MR. VIRAF DINSHAW MEHTA MR. XERXES VISPI DASTUR .» PETITIONERS VERSUS THE CHARITY COMMISSIONER MR. NOSHIR HOMI DADRAWALA MR. KERSI JAMSHED RANDERIA ... RESPONDENTS Kanchan P Dhuri 2 / 15 1-IAL-29161-2021.odt Mr. Karl Tamboly alongwith Ms. Kausar Banatwala and Ms. Neuty Thakkar instructed by Mr, Tushar Goradia for the Applicants/Appellants. Mr. Firoz Bharucha alongwith Mr. Hormuz Mehta, Mr. Yohaann Limathwalla instructed by J. Sagar Associates for Respondent Nos.1 and 3. Mr. Kunal Dwarkadas instructed by Mr. Kuber Wagle for Respondent No.2. Mr. Jamsheed Master instructed by Mr. Purazar Percy Fouzdar for Respondent Nos.5 and 6. Ms. Armaity Tirandaz present through video-conference. Mr. Noshir Dadrawala present through video-conference. Mr. Kersi Randeria present through video-conference. Mr. Xerxes V, Dastur present through video-conference. Mr. Viraf Mehta present through video-conference. Mr. Sharan Jagtiani, Senior Advocate, Amicus Curiae, present. CORAM: S.J. KATHAWALLA AND MILIND N. JADHAV, JJ.
DATED : JANUARY 12, 2022.
(through video-conferencing) P.C. :-
1, By this Order we propose to take on record consent Minutes of Order agreed to between the contesting parties to the proceedings before us. On 12" January 2022, after the consent Minutes of Order was finalized as between the parties, the Appellant Nos. 1 and 2 and Respondent Nos. 1, 2 and 3 have, by appearing through video conference, each confirmed their acceptance and consent to the consent Minutes of Order in the presence of their respective advocates.
2. The consent Minutes of Order, inter alia, sets out a process agreed to by all parties for holding elections for the position of all seven (07) trustees of Respondent No. 4 Trust. However, it is necessary to refer to certain background facts Kanchan P Dhuri 3 / 15 1-TAL-29161-2021.odt and some of the proceedings in this Order itself for completeness. Description of parties is as per the causé title to Appeal (L) No. 29157 of 2021.
3. - Respondent No. 4 is a Public Charitable Trust known as " Funds and Immovable Properties of the Parsee Punchayet of Bombay", more commonly known as "Bombay Parsi Punchayet". The Appellants and Respondent Nos. 1 to 3 are the current trustees of Respondent No. 4 Trust.
4, By an Order dated 18 June 1910, passed in Suit No. 689 of 1906, this Court had originally sanctioned a scheme for election of trustees of Respondent No. 4 Trust ("the Scheme"). The Scheme has subsequently been amended by this Court from time to time by its Orders dated 27" July 1931, 7" February 1935, 2™4 April 1970, 16" June 1992, 23" October 1992, 6 January 1993, 1% April 2005, 21* August 2006 and 5 April 2007.
5, Clause 13.1 of the Scheme provides that, there shall be seven (7) trustees of Respondent No. 4 Trust. Along with the Appellants and Respondent Nos. 1 to 3, one Zarir M. Bhathena and one Yazdi H. Desai were the 7 elected trustees of Respondent No, 4 Trust. Zarir M. Bhathena passed away on 24" June 2020. Yazdi H. Desai submitted his resignation as a trustee on 23 December 2020. He subsequently passed away on 2"' November 2021. Thus, there are two vacancies on the Board of Trustees of Respondent No. 4 Trust, one from 24" June, 2020 and the other from 23 December, 2020.
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6. Under Clause 16 of the Scheme, when a vacancy occurs in the office of a trustee due to any reason other than efflux of time, an election is required to be held to fill that post. If such election is not held within three months from the date when the vacancy occurs, the existing trustees are required to approach a Judge of this Court in Chambers seeking extension of time to hold such elections. The trustees of Respondent No. 4 Trust filed Miscellaneous Petition (L) No. 3064 of 2020 in the Registry of this Court, seeking extension of time to fill the vacancy caused by the death of Mr. Zarir M. Bhathena. By an Order dated 21* September 2020, a Learned Single Judge of this Court granted extension of time to the trustees to hold elections to fill that vacancy by a period of six months from 23" September 2020 ie. by 23" March 2021,
7. By a Public Notice dated 2" January 2021, the present trustees of Respondent No. 4 Trust publicly announced elections for the aforesaid two vacancies on the Board of the Trust, which were then scheduled to be held on 14" March 2021. It appears that disputes arose amongst the present trustees in March 2021, shortly prior to the scheduled date of elections owing to Respondent Nos. 1 to 3 deciding to postpone the elections on the ground of rising Covid cases in the city, The Appellants herein filed Miscellaneous Petition (L) No. 7007 of 2021 seeking cancellation of the resolutions, and in particular the resolution dated 9" March 2021, passed to postpone the elections. A Learned Single Judge of this Court by his Order dated 11 March Kanchan P Dhuri 5 / 15 1-IAL-29161-202Lodt 2021 declined ad-interim reliefs in favour of the Appellants herein in that Miscellaneous Petition.
8, The Appellants challenged that Order by filing Appeal (L) No. 7209 of 2021 before this Court. By an Order dated 12" March 2021, a Division Bench of this Court disposed of the Appeal by consent of all the existing 5 trustees, by re-scheduling the elections for the two vacancies on the Board of Respondent No. 4 to 23 May 2021.
9, In view of the restrictions imposed by the State of Maharashtra in April 2021 on account of the second wave of the Covid-19 pandemic, the trustees moved Miscellaneous Petition (L) No. 8074 of 2021 before the Learned Single Judge of this Court seeking postponement of the scheduled elections by 2 to 3 months, The same was granted by a Learned Single Judge of this Court by an Order dated 7" April 2021.
10. The elections, therefore, to fill in the two vacancies on the Board of Respondent No. 4, never came to be held. However, instead of proceeding with the election to fill in the aforesaid two vacancies, the five existing trustees signed a document styled as " Consent Terms" on the letterhead of Respondent No. 4 Trust (Exhibit H to Appeal (L) 29157 of 2021), which was dated 20" October 2021 and by which they agreed to hold elections for the entire Board of 7 trustees of Respondent No. 4 trust on 27" March 2022, By the document styled as " Consent Terms" it was further agreed that a Petition would be filed seeking an amendment to the Scheme Kanchan P Dhuri 6 / 15 1-IAL-29161-2021.0dt reducing the term of office of a trustee from 7 years to 5 years; and further, to reduce the maximum number of terms a person can serve as a trustee from 3 to 2 terms. It was further stated that the term of office of the existing 5 trustees shall be deemed to expire on the date when 7 new trustees are elected and assume office after the elections scheduled on 27" March 2022. It was also stated that the elections would not be delayed or postponed save and except in the case of the same being impossible due to any Government imposed lock-down.
iL. The present Appellants moved a praecipe dated 16" November 2021 before a Learned Single Judge of this Court, seeking to tender the aforesaid document styled as Consent Terms on the letterhead of Respondent No.4 Trust. The Appellants also filed Interim Application (L) No. 24946 of 2021 seeking directions against Respondent Nos. 1 to 3 to act in consonance with the document styled as Consent Terms on the letterhead of Respondent No. 4. The Learned Single Judge also being the Chamber Judge granted time to the parties to file the Consent Terms in the necessary format required by this Court. Accordingly, the Appellants and Respondent Nos. 1 to 3 executed undated Consent Terms reiterating what they had agreed to in the document dated 20° October 2021 styled as Consent Terms and executed on the letterhead of Respondent No. 4 trust. However, Respondent No. 2, whilst signing these Consent Terms qualified his.consent by stating that he was agreeable to the same subject to the proposed amendment to the Scheme being filed and sanctioned by an Kanchan P Dhuri 7 f 2 1-IAL-29161-2021.0dt order of the Bombay High Court.
12, In view of the above qualification expressed by Respondent No. 2, the Learned Single Judge by his order dated 6" December 2021, which is impugned in this Appeal, did not take the Consent Terms on record and stated that the Interim Application filed by the Appellants be heard on merits. 13, Before the respective parties' agreement to the Consent Minutes of Order, this Appeal was heard by us, At that time, it was argued by the Appellants that the insistence for elections to be held after the proposed amendment to the Scheme is heard and decided is only to delay the proposed elections for the post of all seven (7) trustees beyond 23 March 2022. This is because before any such proposed amendment to the scheme can be sanctioned, a 14-day Public Notice is required to be given and beneficiaries of the Trust are entitled to be heard thereon. The Appellants expressed an apprehension that in order to delay the elections, Respondent Nos. 1 to 3 would ensure that various objections are filed, which will have to be heard and decided, and which will most likely delay the election scheduled on 27% March 2022. The Appellants argued that the same is because owing to the current depleted Board of five trustees, Respondent Nos. 1 to 3 enjoy a majority thereon as against the Appellants.
14, On the other hand, the Respondent Nos. 1 to 3 had argued that they have no intention of delaying the proposed elections for the post of all 7 trustees of Kanchan P Dhuri 8 / 15 1-TAL-29161-2021.odt Respondent No. 4 Trust. It was further pointed out that to expedite matters, Respondent Nos. 1 to 3 have already filed Miscellaneous Petition (L) No. 29493 of 2021 seeking the sanction of this Court to the proposed amendments to the Scheme. Notice of the same has already been given to the Charity Commissioner as required under the Scheme. It is in fact the Appellants who have opposed Miscellaneous Petition (L) No. 29493 of 2021 before a Learned Single Judge of this Court. The entire objective behind first trying to get the Scheme amended and then holding elections is to ensure that there is no uncertainty surrounding the elections or their outcome. Holding elections for the post of all seven trustees in one go is in the larger interest of the trust and its beneficiaries, as every such election is held at a considerable cost to the trust irrespective of whether the same is for one or more post. In the past, the Respondent No. 4 Trust was required to hold elections for filling in one post at a time owing to vacancies created on the Board of Trustees. To obviate such additional and unnecessary cost, the trustees have all decided to step down from the date on which charge is handed over to the new Board of seven trustees elected at the proposed elections, notwithstanding the fact that all the present trustee's term of office extends beyond March 2022. Respondent Nos. 1 to 3 submitted that they are not agreeable to hold elections prior to the proposed amendment to the Scheme as sought for in Miscellaneous Petition (L) No. 29493 of 2021 is decided by this Court.
15. After the present matter was heard for some time and across various Kanchan P Dhuri 9 / 15 1-IAL-29161-2021.odt dates, the present 5 trustees, i.e., the Appellants and Respondent Nos. 1 to 3 have arrived at the following consensus and agreement as to the way forward in resolving their disputes and differences especially keeping in mind the larger interest of the community:
(a) Miscellaneous Petition (L) No. 29493 of 2021 may be heard by us along with the present Appeal and disposed of by this Bench and that this may be treated as a presentation or re-presentation of the proposed scheme for amendments and alteration of the Scheme to this Bench, which would also be exercising powers of the Chamber Judge by reason of the aforesaid Appeal having arisen from an Order of the Learned Chamber Judge.
(b) Immediately upon the disposal of Miscellaneous Petition (L) No, 29493 of 2021, a Schedule for early elections for the post of all seven trustees may be fixed by this Court, and all the existing trustees undertake to abide by that schedule and handover charge to the newly elected Board of Trustees, notwithstanding that the same may be prior to the end date of any existing trustees term of office.
(c) The existing trustees and their Advocates have signed Consent Minutes of Order dated 12" January 2022 and have tendered the same and requested us to pass an Order in terms thereof (As noted above, the existing five trustees of the Respondent No. 4 Trust appeared before this Court via Video Conference and confirmed their acceptance of the Consent Minutes of Order dated 12" January 2022).
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16. We have considered the joint request made by the existing trustees of Respondent No. 4 Trust. We have also considered the Order impugned before us, the documents styled as Consent Terms dated 27" October 2021, the undated Consent Terms signed by the trustees and the Scheme. We have also taken note of the fact that the Scheme requires that there should be seven trustees of Respondent No. 4 Trust. As on date, the trust is functioning with only five trustees owing to the unfortunate deaths of Mr. Zarir M. Bhathena and Mr. Yazdi H. Desai (who had earlier resigned from the office of trustee). Therefore, it is necessary that elections are held to ensure that there are 7 elected trustees of Respondent No. 4 trust. Such elections must be held at the earliest. Elections have not yet been held. It is not in the interest of the Trust or its beneficiaries to allow the matter to linger. We take note of the fact that every election held comes at a significant cost to the Respondent No. 4 Trust, which monies may otherwise be deployed for the welfare activities carried out by Respondent No, 4 Trust. We are informed that there are various venues at which voting stations are to be set up across the city of Mumbai for the beneficiaries of the trust who are members of the Parsi Irani Zoroastrian community to cast their ballots; EVM Machines are required to be procured; staff is required to be deployed and various allied and ancillary activities are required to be carried out, all of which would necessarily require substantial amounts to be spent by the Tust.
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17. Therefore, it is in the interest of the Respondent No. 4 Trust, and in this regard all trustees unanimously agree, that elections for the post of all seven trustees be held at the same time as opposed to elections to fill in only two vacant posts, which would then require staggered elections to be held in future as the terms of different trustees would come to an end on different dates.
18. Holding elections for all seven posts at the same time would be cost- effective both now and in the future.
19. Further, we are of the opinion that it would be in the interest of all concerned that elections are scheduled immediately after the decision in Miscellaneous Petition (L) No. 29493 of 2021 as all concerned would be aware of the final nature of the Scheme on the date of the elections. We are therefore of the opinion that Miscellaneous Petition (L) No. 29493 of 2021 be heard and decided at the earliest so that the elections can in turn be held at the earliest.
20. Considering the nature of the Impugned Order and the Consent Terms arrived at amongst the trustees and considering that the questions involved in this Appeal and also considering that the consensual arrangement agreed upon in this Appeal are integrally connected to the proposed amendments to the Scheme in Miscellaneous Petition (L) No. 29493 of 2021, we are agreeable to the unanimous request by all five trustees that this Bench should consider and dispose of Miscellaneous Petition (L) No. 29493 of 2021 along with the present Appeal in Kanchan P Dhuri 12 f/f 15 1-IAL-29161-2021.0dt accordance with law.
21. We are conscious of the fact that the Scheme at several places requires any proposed amendment to the Scheme to be heard by the Judge in Chambers. Considering the nature of the present proceedings and the fact that the rival parties before us have arrived at a consensus and compromise, we believe that this Appellate Bench, which is considering an Appeal that arises from an Order of the Judge in Chambers and is therefore exercising such jurisdiction, would be in a position to consider and dispose of Miscellaneous Petition (L) No. 29493 of 2021 along with the present Appeal to be decided by us. This would also be in furtherance of the compromise arrived at by the parties as reflected in the foregoing paragraphs of the Order and in the Consent Minutes of Order.
22. Only by way of abundant caution, the Registry of this Court shall place a copy of this Order before the Hon'ble The Chief Justice of this Court so that necessary administrative orders can be passed in this regard.
23. In view of the above, we are inclined to take the Consent Minutes of Order dated 12" January 2022 signed by the Appellants and Respondent Nos. 1 to 3 and their respective Advocates on record. The Consent Minutes of Order are also signed by the Advocate on record for Respondent Nos.5 and 6 i.e. Mr, Phiroze Amroliwala and Zeree Jehangirjee. Respondent No.6 has also personally signed the Consent Minutes of Order. Respondent No.5 is overseas, and his Advocate states that Kanchan P Dhuri 13, / 15 1-IAL-29161-2021.0dt he is agreeable to the Consent Minutes of Order and that he shall personally confirm the same by sending an email to that effect from his personal email-id. The Consent Minutes of Order dated 12" January 2022 is accordingly taken on record and marked 'X' for identification, Order in terms of the Consent Minutes marked 'X'. The signed Consent Minutes of Order dated 12" January 2022 are, for convenience, reproduced at the end of this Order.
24. In view of the same the following directions are issued with the consent of the Appellants and Respondent Nos. 1 to 3:
(i) Miscellaneous Petition (L) No. 29493 of 2021 to be heard and disposed of by the Appellate Court along with the present Appeal to be heard by us.
(i) The trustees shall issue Public Notices on 15" January 2022 in the Parsi Times and in the Jam-e Jamshed and Mumbai Samachar newspapers on 16" January 2022 in terms of the draft notices annexed to the Consent Minutes of Order marked X. The Public Notice in Gujarati will be a true and correct Gujarati translation of the Draft Public Notice annexed to the Consent Terms.
(iit) The Public Notice shall provide for a link to the soft copy of Miscellaneous Petition (L) No. 29493 of 2021 and / or the Scheme and shall mention that any person interested in making any submissions with respect to the proposed amendments and additions to the Scheme may do so on 1" February 2022 via Video Conference or physical hearing, as the case may be depending upon the Standard Kanchan P Dhuri 14 / 15 1-IAL-29161-2021.0dt Operating Procedure prevailing on that date. The Public Notice shall also specify that the link to the VC hearing will be made available on the website of the Bombay High Court i.e. http://www. bombayvhighcourt.nic.in/.
(iv) Miscellaneous Petition (L) No. 29493 of 2021 shall be listed along with this Appeal before us on 1* February 2022. Any person entitled to be heard in respect thereof shall be heard by us on that date.
(v) Immediately upon disposal of Miscellaneous Petition (L) No. 29493 of 2021 we shall fix the schedule for elections for the post of all 7 trustees of Respondent No. 4 trust. The undertaking of the Appellants and Respondent Nos. 1 to 3 that they shall abide by the election schedule fixed by us and hand over charge to the newly elected Board of Trustees notwithstanding that the term of any existing trustee may otherwise have extended beyond the date of new elections and new trustees being appointed, is accepted as an undertaking to this Court.
(vi) The undertakings contained in the Consent Minutes of Order dated 12"
January 2022 are accepted as undertakings to this Court.
(vii) Mr, Sharan H. Jagtiani, a Senior Advocate of this Court, is appointed as Amicus Curiae to assist us in these proceedings.
(viii) It is agreed by all existing trustees, and accordingly directed, that Respondent No. 4 Trust shall keep the voter list updated as far as possible. In this regard, any member of the Parsi Irani Zoroastrian community who wishes to request Kanchan P Dhuri | is / 15 1-IAL-29161-202L.odt Respondent No. 4 Trust to update its voter list, for any reason whatsoever, may do so in writing on or before 15" February 2022 after which date no such communication shall be considered and the voter list shall be final for the purposes of the proposed upcoming elections.
(ix) Only by way of abundant caution, the Registry shall place this Order before the Learned The Chief Justice for passing necessary administrative orders in this regard.
25, Stand over to 1" February 2022 along with Miscellaneous Petition (L) No. 29493 of 2021.
(MILIND N. JADHAV, J.) (S.J. KATHAWALLA, J.) aeed is ad ad i kal aw A LA & OL. PT eT lf DOU a oT a LIND. TARE SS C _ trek valoijaar2. , Mankind as wr) IN THE HIGH COURT OP UDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INTERIM APPLICATION (L) NO. 29161 OF 2021 IN APPEAL (L) NO. 29157 of 2021 IN MISCELLANEOUS PETITION (L) NO.7007 OF 2021
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1. KERSI RANDERIA gy PL. ea 2, NOSHIR DADRBWALA 77 ...APPELLANTS
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VERSUS
1. ARMAITY TIRANDAZ VIRAF MEHTA
2. BL jo: 3, XERXES DASTUR 7 " 4. BOMBAY PARSI PANCHAYAT .,.RESPONDENTS
5. PHIROZE AMROLIWALA
6. ZEREE JEHANGIRJEE ...NON-PARTY RESPONDENTS gh LBL Yo, CONSENT MINUTES OF THE ORDER 1, Respondent No. 4 is a Public Charitable Trust known as "Funds and Immovable Properties of the Parsi Panchayat of Bombay", more commonly known as "Bombay Parsi Panchayat".
The Appellants and Respondent Nos. 1 to 3 are the current trustees of Respondent No. 4 Trust.
2. By an Order dated 18" June 1910, passed in Suit No. 689 of 1906, this Court had originally sanctioned a scheme for election of trustees of Respondent No. 4 trust ("the Scheme"). The Scheme has subsequently been amended by this Court from time to time by its Orders dated 27" July 1931, 7" February 1935, 2° April a for \e fRT 1970, 16" June 1992, 23 October 1992, 6" January 1993, 1* April 2005, 21 August 2006 and 5" April 2007.
3. Under Clause 13.1 of the Scheme, there shall be 7 trustees of Respondent No. 4 trust. Along with the Appellants and Respondent Nos. | to 3, one Zarir M. Bhathena and one Yazdi H. Desai were the 7 elected trustees of Respondent No. 4 trust. Zarir M. Bhathena passed away on 24" June 2020. Yazdi H. Desai submitted his resignation as a trustee on 23" December 2020. He subsequently passed away on 2" November 2021. Thus, as on date there are two vacancies on the Board of Trustees of Respondent No. 4 trust.
4, Under Clause 16 of the Scheme, when a vacancy occurs in the office of a trustee due to any reason other than efflux of time, an election is required to be held to fill in that post. If such election is not held within three months from the date when the vacancy occurs, the existing trustees are required to approach to a Judge or this Court in Chambers seeking extension of time to hold such elections. The trustees of Respondent No. 4 trust filed Miscellaneous Petition (L) No. 3064 of 2020 in the Registry of this Court seeking extension of time to fill the vacancy caused by the death of Mr. Zarir M. Bhathena. By an Order dated 21 September 2020, a Learned Single Judge of this Court granted extension of time to the trustees who hold elections to fill that vacancy by a period of six months from 23" September 2020 i.e. by 23 March 2021.
5. By a Public Notice dated 2" January 2021, the present trustees of Respondent No. 4 trust publicly announced elections & er Laer i for the aforesaid two vacancies on the Board of the Trust, which were then scheduled to be held on 14% March 2021, Disputes arose amongst the present trustees in March 2021 shortly prior to the scheduled date of elections owing to Respondent Nos. 1 to 3 deciding to postpone the elections on the ground of rising COVID cases in the city. The Appellants herein filed Miscellaneous Petition (L) No. 7007 of 2021 seeking cancellation of the resolutions passed to postpone the elections. A Learned Single Judge of this Court by his Order dated 11" March 2021 declined ad-interim reliefs in favour of the Appellants herein in that Miscellaneous Petition. The Appellants challenged that order by filing Appeal (L) No. 7209 of 2021 before this Court. By an Order dated 12 March 2021, this Court disposed off the Appeal by consent of all the existing 5 trustees, by re-scheduling the elections for the two vacancies on the Board of Respondent No.4 to 23 May 2021,
6. In view of the restrictions imposed in by the State of Maharashtra in April 2021, the trustees moved Miscellaneous Petition (L) No. 8074 of 2021 before the Learned Single Judge of this Court seeking postponement of the scheduled elections. The same was granted by a Learned Single Judge of this Court by an Order dated 7" April 2021.
7. The elections to fill in the two vacancies on the Board of Respondent No. 4, never came to be held. However, the 5 existing trustees signed a document styled as "Consent Terms" on the letterhead of Respondent No. 4 trust which was dated 20" October 2021 by which they agreed to hold elections for the entire Board © gee Ve [ of 7 trustees of Respondent No. 4 trust on 27" March 2022. They further agreed to file a Petition seeking an amendment to the Scheme reducing the term of office of a trustee from 7 years to 5 years and further to reduce the maximum number of terms a person can serve as a trustee from 3 to 2 terms. They further agreed that the term of office of the existing 5 trustees shall be deemed to expire on the date when 7 new trustees are elected and assume office post the elections scheduled on 27" March 2022. They further agreed that the elections would not be delayed or postponed save and except in the case of the same being impossible due to any Government imposed lock-down.
8. The present Appellants moved a praecipe dated 168 November 2021 before a Learned Single Judge of this Court, seeking to tender the aforesaid document styled as Consent Terms on the letterhead of Respondent No.4. The Appellants also filed Interim Application (L) No. 24946 of 2021 seeking directions against Respondent Nos. 1 to 3 to act in consonance with the document styled as Consent Terms on the letterhead of Respondent No. 4. The Learned Single Judge of this Court granted time to the parties to file the Consent Terms in the necessary format required by this Court. Accordingly, the Appellants and Respondent Nos. 1 to 3 executed undated Consent Terms reiterating what they had agreed to in the document dated 20 October 2021 styled as Consent Terms and executed on the letterhead of Respondent No. 4 trust. The same was opposed by the Respondents, However, Respondent No. 2, whilst signing these Consent Terms qualified his consent by stating that he was agreeable to the same subject to the proposed amendment to the ae mn VM ART [ Scheme being filed and sanctioned by an order of the Bombay High Court. It is also Respondent No, 2's contention that the Consent terms of October 12 terms was not to be taken on record in any legal proceeding and the same were obtained by mis-
representation and coercion.
9, In view of the above qualification expressed by Respondent No. 2, the Learned Single Judge by his order dated 6" December 2021, which is impugned in this Appeal, did not take the Consent Terms on record and stated that the Interim Application filed by the Appellants be heard on merits. The Respondent No. 2 has filed its reply in Interim Application (L) No. 24946 of 2021.
10. The Respondent Nos 5 and 6 intervened in Miscellaneous Petition (L) No. 7007/2021 and contended that the electoral rolls were not updated and that the Appellants and Respondents No. | - 3 were entering into consent terms which contemplated holding of elections, the winners.of which would be subjected to the terms of an amended scheme of elections without the amended scheme being in the public domain.
HL. Subsequently, Respondent Nos. 1 to 3 have filed Miscellaneous Petition (L) No. 29493 of 2021 seeking sanction of this Court for amending the Scheme. The amendments proposed are that the term of office of a trustee should be reduced from 7 years to 5 years and further that the maximum number of terms a person can serve as a trustee be reduced from 3 terms to 2 terms. The Appellants have no objection to the proposed amendments to the scheme. _A .
Ze ART \ = le
12. The Appellants and Respondent Nos. 1 to 3 i.e the existing Trustees abovenamed agree that Miscellaneous Petition No. 29493 of 2021 be heard by the Division Bench of this Hon'ble Court comprising of Hon'ble Justice Mr. S. J. Kathawalla and Hon'ble Justice Mr. M. Jadhav. It is further agreed that all objections / suggestions / comments by any concerned members of the Parsi Irani community, if any, to the proposed amended Scheme of Elections as envisaged in Miscellaneous Petition No. 29493 of 2021 will also be heard by the Division Bench of this Hon'ble Court comprising of Hon'ble Justice Mr. S. J. Kathawalla and Hon'ble Justice Mr. M. Jadhav.
13. It is agreed by all parties that the attached public notice along with a translated copy of the same in Gujrati shall be published in the Jam-e Jamshed newspaper and Mumbai Samachar newspaper on January 16, 2022 calling for objections from concerned members of the Parsi Irani community, if any, to the proposed Scheme Of Elections. A copy of the public notice is attached as Annexure A. 14, The parties abovenamed agree that immediately upon the disposal of Miscellaneous Petition No. 29493 of 2021 by the Division Bench of this Hon'ble Court, this Hon'ble Court shall fix the schedule for election for the post of all seven trustees of the Respondent No. 4 Trust, and the parties further agree and undertake that all the current Trustees of the Respondent No. 4 Trust namely Mrs. Armaity Tirandaz, Mr. Viraf Mehta, Mr. Xerges Dastur, Mr. Noshir Dadrewala and Mr. Kersi Randeria shall abide by the election schedule which will be set by the Hon'ble Division * te Yh ART I ee gy"
Bench of this Hon'ble Court for holding elections to fill the vacancy of seven Trustees. In arriving at this decision, the current Trustees also consider the fact that three more seats will fall vacant by October 2022, requiring fresh elections; and that each election costs the Respondent No. 4 Trust around Rs. 40,00,000/- (Rupees Forty Lakhs).
15. The abovenamed Trustees viz the Appellants and Respondent Nos. | to 3, as well as Respondent No. 4 Trust hereby agree and confirm that each of their term of office shall expire on the date the new Trustees assume office after holding of elections as per the schedule fixed by this Hon'ble Court as set out above, notwithstanding that their term of office as a trustee may otherwise have been scheduled to go on till a later date. The parties agree and undertake to hold elections as per the schedule to be fixed by this Hon'ble Court and the same shall not be cancelled, save and except for elections not being permissible as per the Standard Operating Procedures as issued by the concerned authority / State Government.
16. During the hearing of Interim Application (L) No.25676 of 2021 in Miscellaneous Petition No. 7007 of 2021, the Respondent Na. 5 and Respondent No. 6, (being the Non-Party Respondents in Appeal (L) No. 29157 of 2021) were provided inspection of the voter register maintained by the Respondent No. 4 Trust. After taking inspection the Non-Party Respondents have submitted an Affidavit, whereby they have listed what according to them are the anomalies in the voters list of the Respondent No. 4 Trust. The Respondent No. 4 Trust and the Trustees undertake to the carry OMe ART / out appropriate amendments to the voters list to ensure that all anomalies as pointed out by the Non-Party Respondents are carried out to ensure the voters list is rectified, subject to necessary verification. It is however made clear that the Non-Party Respondents will not in any manner object to the veracity of the voters list at any point in time for holding the election. Respondent No. 5 and Respondent No. 6 are at liberty to raise their objections to the proposed scheme (if any) as and when the Hon'ble Division Bench hears the objections of the public at large.
Dated this 12" day of January 2022 ' Advocate for Appellant in Appeal (L) No.29157 of 2021 Tushar A. Goradia Adv.
Advacate for Respondent Nos.1 % 29157 of 2021 JSA Advs & Solicitors Advocate for Respondent No.2 in Appeal (L) No. 29157 of 2021 d 3 in Appeal (L) No. ines Appellant No. | Kersi Randeria Noshir Dadrewala Za ea~ A f= Mee No.2 BL
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hea. Today Respondent No. Armaity Tirandaz Respondent No.2 Viraf Molita ae ' Respohident Nod fer Xenges Dastur pL Advocate 'for Respondent No. 5 and 6 in Appeal (L) No. 29157 of 2021 Purazar P, Fouzdar Adv. Respondent No.5 Phiroze Amroliwala [TT Zeree Jehangirjee Awvexute A 0 PUBLIC NOTICE IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS INHERENT AND EXTRAORDINARY JURISDICTION MISCELLANEOUS PETITION NO. (L) 29493 OF 2021 In the matter of Scheme for the Election of the Trustees of the Funds and Immovable Properties of the Parsi Punchayet Bombay ("Scheme"), AND In the matter of amendments to the Scheme.
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Mrs, Armaity Rustom Tirandaz )
2. Mr. Viraf Dinshaw Mehta ) . Mr. Xerxes Vispi Dastur ) . Petitioners Versus . The Charity Commissioner . Mr. Noshir Homi Dadrawala . Mr. Kersi Jamshed Randeria Nene Se" See .». Respondents All the Members of the Parsee/Irani Zoroastrian Community are hereby informed that the Petitioner Trustees of the BPP, Bombay, have jointly filed the above Miscellaneous Petition for sanction of proposed amendments to the Scheme for the Election of the Trustees of BPP. Respondent Nos. 2 and 3 Trustees have informed the Hon'ble Bombay High Court that they do not have any objection to the proposed amendments to the Scheme for the Election of the Trustees of BPP being permitted by the Hon'ble Court.
A gist the proposed amendments are as follows:-
(a) Limiting term of office of a Trustee to five years and to provide that a person cannot be a Trustee for more than an aggregate period of ten years during his lifetime.
sas ART ofr (b}) Such other consequential amendments as are necessitated by the above amendments, The proposed amendments to the Scheme are as follows:
2.1 2.2 2.3 2.4 i. DEFINITIONS a. "Term" means a period of five (5) years from the date on which a Trustee assumes office (it is clarified that any time lost between the date on which the Trustee is declared elected and the date on which he assumes office due to any reason whatsoever including any court order will not be excluded in computing such period of five (5) years).
b. "Term Limit" means any two Terms, with or without hiatus, that is, no Parsi can be a Trustee for more than an aggregate period of ten years, during his lifetime. Provided however, notwithstanding anything contained herein, every Parsi who was elected as a Trustee for the first time during his lifetime, anytime after 5.4.2007 (that is, the Effective Date under the present Scheme) but before 18.10.2015, shall be entitled to one further Term of five (5) years, irrespective of the period he has already been a Trustee.
A Trustee will occupy office for the Term, subject however to the Term Limit.
Rule 13 of the Scheme stands deleted.
Rule 24 (b) of the Scheme stands deleted.
In Rule 25, the word 'seven' shall be substituted by 'five'.
3. TRANSITIONAL PROVISIONS Notwithstanding anything contained herein, this Scheme, when sanctioned by the High Court, Bombay, will apply to a Trustee elected at any Election held after Ist January 2022 (irrespective of the Effective Date being later), so far as it relates to the Term / Term Limit of such Trustee.
er Kt ager VM ART we i? " I The above Petition has been peremptorily fixed for hearing before the Division Bench of the Bombay High Court comprising of Hon'ble Justice Mr. S, J.
. Kathawala and Hon'ble Justice Mr. M. Jadhav on February 1, 2029 by way of video conferencing or physical hearing or hybrid as per the SOPs prevalent on the date. A link to attend the VC/hybrid hearing will be available on the website of the Bombay High Court (www. bombayhighcourt.nic.in).
Any member of the community who desires to be heard in respect of the proposed amendments to the Election Scheme, may be heard thereon cither in person or through a duly appointed Counsel / Advocate before the Honourable High Court.
A copy of the above Miscellaneous Petition taken out therein may be obtained between 11.00 am. to 5.00 p.m. on any working day against payment of necessary charges of Rs. 100/- per petition copy from the office of DSK Legal, C-16, Dhanraj Mahal, 3rd Floor, Apollo Bunder, Colaba, Mumbai -- 400001, India [email protected] [email protected] Alternatively, the Miscellaneous Petition can be downloaded by accessing the following link:
https://dsklegal-
my.sharepoint.com/ 'b:/p/zaid_mansuri/EdmexjQPQStGovmCiqQ68]8BKj2kwa ipn VOV4Ww8pY 6qUA 2e=yH9gh6 Dated this 15" day of January 2022.
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(Mr. Aspi Sarkari, CEO) On BEHALF OF THE TRUSTEES OF THE PARSI PUNCHAYET, BOMBAY 209 DR. D.N.Road, Fort Mumbai 400 001.
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gh fe Be IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INTERIM APPLICATION (L) NO. 29161 OF 2021 IN APPEAL (L) NO. 29157 of 2021 IN MISCELLANEOUS PETITION (L) NO.7007 OF 2021 KERSTI RANDERIA & ANR ...APPELLANTS VERSUS ARMAITY TIRANDAZ & ORS ... RESPONDENTS PHIROZE AMROLIWALA & ANOTHER ...NON-PARTY RESPONDENTS We Dep / fo CONSENT MINUTES OF ORDER Qh 7 Dated this 12" day of January 2022 TUSHAR A, GORADIA Advocate for Appeilants JSA ADVS & SOLICITORS Advocate for Respondent Nos.1 and 3 | DSELBGAL Kubek WAGLE Won Advocate for Respondent No.2 PURAZAR FOUZDAR Advocate for Non party Respndents