Bombay High Court
Kersi Randeria And Another vs Armailty Tirandaz And 5 Ors. And Phiroze ... on 4 February, 2022
Bench: S.J. Kathawalla, Milind N. Jadhav
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KANCHAN IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRASHANT
DHURI
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed by
KANCHAN
PRASHANT DHURI
Date: 2022.02.05
INTERIM APPLICATION (L) NO. 29161 OF 2021
22:10:20 +0530
IN
APPEAL (L) NO. 29157 OF 2021
IN
MISCELLANEOUS PETITION (L) NO.7007 OF 2021
Kersi Randeria and another ... Appellants
Versus
Armaity Tirandaz and others ... Respondents
And
Phiroze Amroliwala and another ... Non-party Respondents
ALONGWITH
MISCELLANEOUS PETITION NO. (L) 29493 OF 2021
WITH
INTERIM APPLICATION (L) NO. 2881 OF 2022
AND
INTERIM APPLICATION (L) NO. 2767 OF 2022
Mrs. Armaity Rustom Tirandaz and others ... Petitioners
Versus
The Charity Commissioner and others ... Respondents
.........
Mr. Karl Tamboly alongwith Ms. Kauser Banatwala and Ms. Gauri Sakhardande
instructed by Mr. Tushar Goradia for the Appellant.
Mr. Sharan Jagtiani, Senior Advocate, Amicus Curiae assisted by Mr. Priyank Kapadia
Mr. Himanshu Takke, AGP for Charity Commissioner.
Mr. Jamsheed Master alongwith Mr. Purazar Fouzdar instructed by Mr. Purazar
Fouzdar for the non-party Respondents (Phiroze Amroliwalla and Zeree Jehangirjee).
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Mr. Firoz Bharucha alongwith Mr. Zaid Mansuri instructed by DSK Legal for
Petitioners in MP(L)/29493/2021 (Ms. Armaity R. Tirandaz, Mr. Xerxes V. Dastoor,
Mr. Viraf Mehta).
Mr. Yatin Malvankar for the Applicant Mr. Adil Dinshaw Irani (IAL/2767/2022).
Mr. Anoshak Daver alongwith Ms. Ashita Goradia and Ms. Priyal Savla instructed by
Mr. Aagam J. Doshi for Mr. Urvax Dhanda & Mr. Behram S. Irani.
Mr. Berjis Minoo Desai, present.
Mr. Hoshang Jal Bejon, present.
Mrs. Anahita Yazdi Desai, present.
Mr. Kersi Randeria, Appellant, present.
Mr. Viraf D. Mehta, present.
Mr. Xerxes Dastur, present.
Mr. Noshir Dadrawala, present.
Mr. Kaikhushroo Sam Irani, present.
Mr. Jehangir Patel, present.
Mr. Daara Patel, present.
Mr. Zoru Bhathena, present.
Mr. Kersi Sethna, present.
.........
CORAM : S.J. KATHAWALLA AND
MILIND N. JADHAV, JJ.
DATED : FEBRUARY 4, 2022
(through video-conferencing)
P.C. :-
1. The Learned Advocate Mr. Zaid Mansuri of DSK Legal who has addressed an email dated 4th February, 2022 to the Amicus Curiae, seeks to unconditionally withdraw the said email. The said email is allowed to be withdrawn unconditionally.
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2. Pursuant to our Order dated 12th January 2022, the Registry of this Court had placed the above matters before the Learned the Chief Justice of this Court, who has passed an administrative Order for transferring Miscellaneous Petition (L) No. 29493 of 2021 before us, to be heard along with the present Appeal (L) No. 29157 of 2021.
3. In compliance with the directions contained in Paragraph 24(ii) of our Order dated 12th January 2022, the Trustees of the Funds and Immovable Properties of the Parsee Punchayet of Bombay ("Bombay Parsi Punchayet") issued public notices in newspapers on 15th and 16th January 2022.
4. Various members of the Parsi / Irani Zoroastrian community have come forward and have made representations(which are in the nature of suggestions, or objections, or both) in respect of the proposed amendments to the Scheme for Elections of Trustees of the Bombay Parsi Punchayet, as follows:
(a) Mr. Adil Dinshaw Irani has taken out Interim Application (L) No. 2767 of 2022 stating his objections to the proposed amendments and seeking to intervene in the matter;
(b) Mr. Rumy Zarir has taken out Interim Application (L) No. 2881 of 2022 seeking to intervene in the matter and make suggestions in respect of the proposed amendments to the Scheme for elections;
(c) Ms. Zuleika Homavazir, Ms. Anahita Desai Mr. Phiroze Amroliwalla, Kanchan P Dhuri 4 / 11 1-IAL-29161-2021-pd.odt
Mr. Zeree Jehangirji, Mr. Behram Irani, Mr. Urvax Dhanda, and Mr. Zoru Bhathena have each submitted Affidavits stating their respective suggestions in respect of the Scheme for elections;
(d) Mr. Hoshang Jal has submitted an Affidavit stating his objections to the proposed amendments to the Scheme for elections;
(e) Senior Advocate Mr. Darius J. Khambata and Advocate Mr. Berjis M. Desai have proposed and submitted comprehensive amendments to the Scheme for elections which now includes a Code of Conduct, which Scheme incorporates the amendments which were advertised pursuant to our Order dated 12th January, 2022.
5. Miscellaneous Petition (L) No. 29493 of 2021 and Appeal (L) No. 29157 of 2021 were listed before us on 1st February 2022 when the learned Amicus Curiae appointed by us in this matter, the Trustees along with their respective Advocates, as well as the persons mentioned by us above and the respective Advocates who represent some of them, were present before us. In addition, Advocate Kaikhusroo Sam Irani and Mr. Dara Patel were present in person seeking to be heard in the matter. The representations made by various members of the community, either in person or through their Advocates were heard at some length. After considering the various suggestions made by the members of the community present before us, the suggestions made by the learned Amicus Curiae and especially considering the comprehensive Scheme for elections including the Code of Conduct proposed by Kanchan P Dhuri 5 / 11 1-IAL-29161-2021-pd.odt Senior Advocate Mr. Darius J. Khambata and Advocate Berjis M. Desai, the present Trustees of the Bombay Parsi Punchayet requested the Court to place the matter on 3 rd February, 2022 to enable them to agree upon comprehensive amendments to the Scheme for elections and to accordingly tender draft amendments to incorporate the revised draft Scheme with the Code of Conduct for sanction into Miscellaneous Petition (L) No. 29493 of 2021. In our Order dated 1 st February, 2021 recording the same, Miscellaneous Petition (L) No. 29493 of 2021 has inadvertently been referred to as Miscellaneous Petition (L) No. 7007 of 2021, and shall be corrected accordingly.
6. The matter was listed on 3 rd February, 2022 when the more comprehensive Scheme and Code of Conduct submitted by Senior Advocate Mr. Darius J. Khambata and Mr. Berjis Desai (which incorporates the original amendments which were submitted for sanction in Miscellaneous Petition (L) No. 29493 of 2021 at the time of filing), further amended by the respective Trustees through their Advocates and reviewed by the Learned Amicus Curiae were considered at great length. After detailed discussions and with the assistance of their respective Advocates and the Learned Amicus Curiae, the Trustees were able to agree on the content of the proposed amendments which would substitute the amendments for which sanction was sought in Miscellaneous Petition (L) No. 29493 of 2021.
7. Towards the end of the hearing, the Trustees of the Trust namely Ms. Armaity R. Tirandaz, Mr. Xerxes V. Dastur and Mr. Viraf D. Mehta requested the Court for some more time to enable them to fully consider the amendments once, Kanchan P Dhuri 6 / 11 1-IAL-29161-2021-pd.odt before Miscellaneous Petition (L) No. 29493 of 2021 was amended, especially to see if any provisions of the existing Scheme ought to be incorporated in the new comprehensive Scheme which would now be submitted for sanction. At this request, the matter was stood over to today.
8. Today, the matter was heard by us from 9:15 a.m. to 10:30 a.m. and again from 10:30 a.m. to 1:45 p.m. In addition to the clauses deliberated upon yesterday, various other clauses in respect of which Ms. Armaity R. Tirandaz, Mr. Xerxes V. Dastur and Mr. Viraf D. Mehta had concerns over, were discussed at length and the language of the proposed amended Scheme for elections of Trustees of the Bombay Parsi Punchayet was agreed upon by all the present Trustees of the Bombay Parsi Punchayet. The Code of Conduct was extensively discussed and various suggestions made by the Trustees were considered.
9. We note here that Trustees Mr. Kersi J. Randeria, Mr. Noshir H. Dadrawala and Mr. Xerxes V. Dastur agree that the proposed Scheme should provide for casting and counting of votes by VVPAT Electronic Voting Machines, whereas Trustees Ms. Armaity R. Tirandaz and Mr. Viraf D. Mehta have expressed their objection to this change. It is Mr. Viraaf Mehta's submission that casting of votes by VVPAT EVMs is susceptible to abuse and is otherwise a financial burden on the resources of the Trust. However, since three out of the five current Trustees have, by majority, agreed to have a clause providing for casting of votes by VVPAT EVMs, Ms. Armaity R. Tirandaz and Mr. Viraf D. Mehta have agreed that the revised Kanchan P Dhuri 7 / 11 1-IAL-29161-2021-pd.odt comprehensive Scheme which will now be submitted for sanction of this Court may incorporate casting of votes by VVPAT EVMs, subject to their dissent being recorded and their right to be heard in this regard when the proposed Scheme comes up for consideration and sanction before this Court.
10. In this regard, insofar as the aspect of financial burden of using VVPAT EVMs is concerned, Mr. Berjis Desai offers that any cost of deputing VVPAT EVMs over and above the cost of conducting an election by paper ballot may be met from a donation of Rs. 1 Crore which he will donate to the Trust in the form of a corpus to be used for the purpose of meeting the cost of deploying VVPAT EVMs. The balance amount available after this election may be invested for the purpose of meeting the cost of deploying VVPAT EVMs in subsequent elections. He states that in view of this donation, he does not propose to contest the upcoming Election or propose / second any candidature. Should the Trust become financially self sufficient to meet the cost of deputing VVPAT EVMs in the future, the monies contributed by them may be used for any other charitable purpose of the Trust.
11. That apart, we note that since the Trustees were at odds regarding whether any upper age limit should be prescribed in the Scheme where it provides for the terms of eligibility of a candidate, for the present, all the current Trustees have agreed to submit the draft Scheme without prescribing any such upper age limit. However, they agree that as and when the proposed Scheme comes up for sanction Kanchan P Dhuri 8 / 11 1-IAL-29161-2021-pd.odt before this Court on the returnable date or any time thereafter, the Court may, upon considering the representations made by the members of the community, decide the upper age limit to be provided for in the Scheme.
12. In view of the above, all the present Trustees of the Bombay Parsi Punchayet will jointly tender a revised Scheme for Elections of the Trustees of the Bombay Parsi Punchayet which includes a Code of Conduct, and the revised Scheme including the Code of Conduct, once tendered will be marked as 'X' for identification. The Trustees jointly request that the Petitioners in Miscellaneous Petition (L) No. 29493 of 2021 be permitted to replace Exhibit 'B' to Miscellaneous Petition (L) No. 29493 of 2021 with the revised Scheme so tendered.
13. As regards the Code of Conduct, Point No. 10 provides that 'No Parsi Media shall publish any defamatory article or letter about any candidate. It is clarified that this Clause shall apply to the publication 'Parsi Junction' as well.' Some of the Trustees represented before this Court that there are some other publications received by the members of the Parsi community whose editors / owners / publishers ought to make a statement that they will abide by this requirement set out in the Code on Conduct. Ms. Anahita Desai has made a statement before the Court that in the 'Wapiz Page' published by her, no defamatory material shall be printed in the form of an article or letter or advertisement about any candidate and / or his / her family members. Mr. Kersi Sethna, editor of Parsi Junction, has stated before us that the said publication Kanchan P Dhuri 9 / 11 1-IAL-29161-2021-pd.odt 'Parsi Junction' shall not publish any defamatory material in the form of an article or letter or advertisement about any candidate and / or his / her family members. Mr. Kaikhushroo Irani who publishes 'Pol-Khol' states that the said publication will not come out with any issue before the next elections are held and results are declared. The above statements are accepted as undertakings to the Court.
14. Considering the joint request made by all the Trustees of the Bombay Parsi Punchayet, the Petitioners in Miscellaneous Petition (L) No. 29493 of 2021 are permitted to amend Miscellaneous Petition (L) No. 29493 of 2021 and replace Exhibit 'B' thereof with the Scheme to be marked 'X' for identification, with permission to make consequential amendments to the averments made in the Petition in view of substitution of Exhibit 'B'. The amendments are to be carried out not later than 7 th February, 2022 and reverification is dispensed with.
15. In view of the above, the following directions are passed by consent of all the current Trustees of the Bombay Parsi Punchayet:
(a) The Trustees shall issue fresh public notices on 6th February, 2022 informing members of the Parsi / Irani Zoroastrian community of the amendments to Miscellaneous Petition (L) No. 29493 of 2021 and brief particulars of the revised Scheme as required under clause 37 of the existing Scheme.
(b) The matter is adjourned to 22nd February, 2022 when this Court shall consider the proposed amendments to the Scheme. Any person entitled to be heard in respect thereof shall be heard by us on that date.
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(c) The Trustees shall issue public notices on 6 th February 2022 in Parsi
Times and in the Jam-e Jamshed and Mumbai Samachar newspapers.
(d) The public notice shall provide for a link to the soft copy of the revised Scheme and Code of Conduct and shall mention that any person interested in making any submissions with respect to the proposed amendments and additions to the existing Scheme may do so on 22nd February, 2022 via video conference or physical hearing, as the case may be depending on the standard 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 that is https://bombayhighcourt.nic.in/.
(e) It will not be mandatory for the Trustees to make a copy of the Miscellaneous Petition (L) No. 29493 of 2021 available to the members of the community.
(f ) Miscellaneous Petition (L) No. 29493 of 2021 shall be listed before us on 22nd February, 2022. Any person entitled to be heard in respect thereof shall be heard by us on that date.
(g) 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 the Bombay Parsi Punchayet. The undertaking of the Trustees that they shall abide by the election schedule fixed by us and handover charge to the newly elected board of Trustees is accepted as an undertaking to this court.
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(h) This order is in addition to and not a modification of the order dated 12 th
January, 2022.
S.O. to 22nd February, 2022 at 10.30 a.m.
( MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. )