:1: bgp bgp bgp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.167 OF 2007 NO.167 OF 2007 NO.167 OF 2007 IN IN IN ORIGINATING ORIGINATING ORIGINATING SUMMONS NO.1406 OF 2006 SUMMONS NO.1406 OF 2006 SUMMONS NO.1406 OF 2006 IN IN IN ORIGINATING ORIGINATING ORIGINATING SUMMONS SUIT NO.3065 OF 2006 (O.S.) SUMMONS SUIT NO.3065 OF 2006 (O.S.) SUMMONS SUIT NO.3065 OF 2006 (O.S.) 1. Khojeste Mistree, of Mumbai Indian Inhabitant, residing at 2nd Floor, Shanazeen Hughes Road, Mumbai - 400 007. 2. Hoshang N.Wania of Mumbai Indian Inhabitant, residing at Kismet Building, 3rd Floor, flat No.3, 122-A, Shahid Bhagat Singh Road, Mumbai - 400 005. 3. Yazdi H.Desai, of Mumbai, Indian Inhabitant, 7/4, Rustom Baug, ..Appellants Byculla, Mumbai - 400 027. (Ori.Plaintiffs) VERSUS VERSUS VERSUS 1. Bombay Parsi Punchayet, a Religious and Charitable Public Trust registered under the Bombay Public Trusts Act,1950 having its registered office at 209, Dr.D.N. Road, Fort,Mumbai - 400 001. 2. Minoo Rustomji Shroff, of Mumbai, Indian Inhabitant, residing at Ashoka Apartment, 7th Floor, Rungta Lane, off. Napean Sea Road, Mumbai - 400 026. 3. Dinshaw K.Tamboly of Mumbai, Indian Inhabitant, residing at Mani Manor, Plot No.803-A, Dr.Ambedkar Road, Dadar Parsi Colony, Dadar, Mumbai - 400 014. 4. Maneck H.Engineer of Mumbai, Indian Inhabitant, residing at P-6, Cusrow Baug, Shahid Bhagat Singh Road, Colaba Causeway, Mumbai - 400 005. 5. Burjor H.Antia of Mumbai, Indian Inhabitant, :2: residing at 72, Ocean View, Next Colaba Bus Depot, Mumbai - 400 005. 6. Dinshaw R.Mehta of Mumbai, Indian Inhabitant, residing at Rusi Mehta Building, B.Desai Road, Breach Candy, Mumbai - 400 026. 7. Dadi B.Engineer of Mumbai, Indian Inhabitant, residing at Shiv Shanti Bhuvan, 1st Floor, M.Karve Road, Mumbai - 400 020. 8. Charity Commissioner, Maharashtra State, Mumbai having his office at Dharmadaya Ayukta Bhavan, Dr.Annie Besant Road, ..Respondents Worli, Mumbai - 400 018. (Ori.Defendants) Dr.V.V.Tulzapurkar, Senior Advocate with S.Jagthiani and Ms.Patwardhan i/b.M/s.Solemn & Co.for the Appellants. Mr.I.M.Chagla, Senior Advocate with D.J.Khambatta, Senior Advocate with Mr.Shyam Mehta with Mr.S.V.Doijode with Mr.P.A.Kabadi and Ms.Falguni Thakkar i/b. M/s.Doijode & Associate for Respondent Nos.1 to 7. Mr.P.G.Lad, A.G.P. for State-Respondent No.8. CORAM CORAM CORAM :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & ANOOP ANOOP ANOOP V.MOHTA,JJ. V.MOHTA,JJ. V.MOHTA,JJ. JUDGMENT JUDGMENT JUDGMENT RESERVED ON : 10TH JANUARY,2008 RESERVED ON : 10TH JANUARY,2008 RESERVED ON : 10TH JANUARY,2008 JUDGMENT JUDGMENT JUDGMENT PRONOUNCED ON : 30TH APRIL,2008 PRONOUNCED ON : 30TH APRIL,2008 PRONOUNCED ON : 30TH APRIL,2008 JUDGMENT JUDGMENT JUDGMENT (PER : DR.S.RADHAKRISHNAN,J.) (PER : DR.S.RADHAKRISHNAN,J.) (PER : DR.S.RADHAKRISHNAN,J.) 1. By this Appeal, the Appellants are challenging the order dated 8th February,2007 passed by the learned Single Judge which was passed with regard to an Originating Summons seeking opinion/answers on the following questions which were answered as indicated against each question: i) Whether under the provisions NO of the Scheme including Clause 61 read with Clause 49(g) of the Scheme :3: for the election of Trustees of the Funds and Immovable Properties of the Parsee Punchayat of Bombay (Exhibit "B" hereto), Defendant Nos.3,4 and 5 have vacated their office as Trustees of the 1st Defendant Trust on submission of their resignation contained in the Letter of Resignation dated 19th June,2006 (Exhibit"C" hereto). ii) Whether under the provisions NO of the Scheme including Clause 61 read with Clause 49(g) of the Scheme for the election of Trustees of the Funds and Immovable Properties of the Parsee Panchayat of Bombay (Exhibit"B" hereto), Defendant No.2 has vacated his office as Trustee of the 1st Defendant Trust on submission of his resignation contained in the Letter of Resignation dated 20th June,2006 (Exhibit"D" hereto.) iii) Whether after submitting Does not resignations as Trustees effective arise. from a specified date, it is permissible for Defendant Nos.2 to 5 who were elected and appointed by the Anjuman Committee as Trustees of the 1st Defendant, to rejoin the Board of Trustees of the 1st Defendant by withdrawing their resignations ? 2. The learned Senior Counsel Dr.Tulzapurkar pointed out that the reasons given by the learned Judge with regard to question Nos.1 and 2 are as under: i) The letter of resignation by a Trustee has to be addressed to and received by all the Trustees. The letter of resignation by Respondent Nos.3,4 and 5 and the letter of resignation by Respondent No.2 are not addressed to and received by the Trustees. The letters are not in accordance with the mandate of the Scheme. ii) The letter of resignation of Respondent Nos.3,4 and 5 was received by the Chairman. The concept of a Chairman of Trust is unknown to law. In the absence of any specific express provision :4: in the Scheme, no additional powers, duties, rights or responsibilities can be given to any one of the Trustees as all the trustees must act. It is not the function of the Chairman to do the ministerial act of forwarding resignations of some trustees to the other trustees. iii) The letters of resignation are not written to all trustees and they are not accepted by all trustees. iv) There is no compliance with the provisions of clause 39 of the Scheme. v) The receipt is required to be of the letter of resignation and not by acquiring knowledge from a newspaper or any other publication. 3. Dr.Tulzapurkar, the learned Senior Counsel for the Appellants also pointed out that in view of the above, the learned Judge had recorded, that question No.3 was not required to be answered as the Learned Judge has given a finding that there was no valid resignations. 4. Under the aforesaid facts and circumstances of the case, the learned Senior Counsel Dr.Tulzapurkar raised the following questions in the present Appeal. i) When the scheme contemplates a unilateral act of resignation, is any action further to the act of communicating unequivocally the intention to resign in present, necessary to make the resignation effective. ii) In the absence of any specific provision in the scheme providing for the manner of submitting resignation by a Trustee, when the factum of resignation is communicated to the concerned parties and such parties have acknowledged receipt of resignation and acted on that basis by requesting for withdrawal of resignations, can the resignations be treated as ineffective, on the ground that the letters of resignation were not addressed to the Trustees. :5: iii) Can the Trustees having accepted the fact of resignation and having acted on that basis, be permitted to resile from that position involving legal consequences, so as to prejudice the rights of the members of the Anjuman Committee to fill up the vacancies caused by resignations. 5. Dr.Tulzapurkar, the learned Senior Counsel gave a brief out-line of the entire matter starting right from the year 1906 till 8th February,2007. 1906 Scheme framed by Bombay High Court in Suit No.689 of 1906. 18/06/1910 Amendments to the scheme. to 06/01/1993 12/06/1944 Order of Blagden J. in Misc. Petition No.73/1944 holding that it is competent for a Trustee to resign his or her office as a Trustee. 01/04/2005 Order allowing amendments to the Scheme (not relevant as the amendments not effective on the dates of letters of resignation of Respondent Nos.3 to 5 and of Respondent No.2) 19/06/2006 Letter of Resignation of Respondent Nos.3 to 5 addressed to Respondent No.2 (Chairman) copy endorsed to Respondent No.8. 19/06/2006 Letter from Respondent No.2 to respondent Nos.3 to 5 acknowledging receipt of letter dated 19th June,2006 from Respondent Nos.3 to 5 to him. 20/06/2006 Letter of resignation of Respondent No.2 addressed to Respondent Nos.6 and 7 with a copy to Respondent No.8. 20/06/2006 Respondent No.2 delivered to Respondent No.6 his letter dated 20th June,2006 and a copy of the letter dated 19th June,2006 of Respondent Nos.3 to 5 with copies of both the letters to be delivered to Respondent No.7 (as stated by Respondent No.2 in his affidavit dated 29th January,2007). :6: 21/06/2006 Letter of Respondent Nos.2 and 3 to 5 to the members of Anjuman Committee confirming their respective resignations from the office of Trustees. Prior to Respondent No.7 received from 26/06/2006 Respondent No.2 the letter dated 20th June,2006 of Respondent No.2 and a copy of the letter dated 20th June,2006 of Respondent Nos.3 to 5 as stated by Respondent No.7 in para 4 of his affidavit dated 29th January,2007. 26/06/2006 Letter of Respondent Nos.6 and 7 requesting Respondent NO.2 and Respondent Nos.3.3 to 5 to withdraw their resignations. 29/06/2006 Letter of Respondent Nos.2 to 5 addressed to Respondent Nos.6 and 7 withdrawing their resignations. 28/06/2006 Published Statement of Respondent Nos.2 to 7 that Respondent Nos.2 to 5 had agreed to rejoin the Board of Trustees. 19/10/2006 Originating Summons taken out by Appellants. 08/02/2007 Impugned order. 6. Dr.Tulzapurkar, thereafter to understand the entire controversy in a proper perspective referred to a comparative statement of relevant clauses of the Scheme for the election of Trustees of funds and immovable properties of the Parsi Panchayat of Bombay. The comparative chart reads as under: Scheme as amended Scheme as amended by Amended scheme No Order dated Order dated 06/01/93 effective from 7/02/1935 (Exhibit-"A" of Misc 21/09/2006 Petition No.4/2000) sanctioned under orders dated 01/04/05 and 21/08/06. 1.1.1. 62A. Any member 39. Any member of the 38.Any member of the of the Anjuman Anjuman Committee may Anjuman Committee :7: Committee may resign by a letter in may resign by a apply in writing writing to the letter in writing to to the Trustees Trustees and such the Trustees and to resign as resignation shall such resignation such member and take effect from the shall take effect such resignation date of the receipt from the date of the shall have effect of such letter by receipt of such from the date of the Trustees. letters by the receipt of his Trustees. or her application. 2.2.2. 71.any member of 49.Any member of the 47.Any member of the the Anjuman Anjuman Committee Anjuman Committee Committee shall shall cease to be a shall cease to be a vacate his member of such member of such office as a Committee : Committee : member of such Committee :- a) If such member a) If such person has a) If such person ha been sentenced been convicted by a has been convicted by any Court to Court in India for an by a Court in India imprisonment or offence involving for an offence whipping for an moral turpitude and is involving moral offence punishable sentenced in respect turpitude and is with imprisonment thereof to imprisonmen sentenced in respect for a term for not less than six thereof to exceeding six months. imprisonment for not months, or to less than six months transportation b) If he is found to such sentence not be of unsound mind by b) If he is found to having been a Court of competent be of unsound mind subsequently jurisdiction. by a Court of reversed or Competent quashed. c) If he applies to jurisdiction. be adjudicated an b) If he should by insolvent. c) If he applies to reason of mental be adjudicated an or bodily infirmity d) If he is adjudged insolvent. becomes incapabale an insolvent. of acting. d) If he is adjudged e) If he should by an insolvent. c) If he should by reason of mental or reason of mental or bodily infirmity be e) If he should by bodily infirmity incapable of acting. reason of mental or becomes incapable bodily infirmity be of acting. f) If he ceases to incapable of acting. profess the d) If he should Zoroastrian Faith. f) If he ceases to cease to profess profess the the Zoroastrian g) If such person Zoroastrian Faith. Faith. resigns from the Anjuman Committee. g) If such person resign from the Anjuman Committee. 3.3.3. 56.Every member of the 55.Every membe Anjuman Committee as the Anjuman :8: constituted at the time Committee as when any such vacancy constituted at the as in Rule 52 herein time when any such before mentioned shall vacancy as in Rule have occurred shall, 50 hereinbefore on applying for the mentioned shall same at the office of have occurred shall the Trustees and on on applying for the payment of such fee as same at the office the Trustees may from of the Trustees and time to time fix, be on payment of such entitled to be supply fee as the Trustees with a copy of such may from time to list as in Rule 54 time fix, be hereinbefore mentioned entitled to be after the expiration supplied with a copy of 21 days from the of such list as in date when such vacancy Rule 53 hereinbefore as in the last rule mentioned after the mentioned shall have expiration of 21 occurred. days from the date when such vacancy as in the last rule mentioned shall have occurred. 4.4.4. 80.All the rules 60(a).All the Rules 59(a). all the Rules hereinbefore hereinbefore contained hereinbefore contained for for regulating the contained for regulating the procedure at the regulating the procedure at the election of the member procedure at the election of the of the Anjuman election of the members of the Committee shall mutatis mutatis mutatis members of the Anjuman Committee mutandis mutandis mutandis apply to the Anjuman Committee shall so far as election of a Trustee shall mutatis they may be to fill a vacancy in mutandis apply to the applicable apply the office of the election of a Trustee mutatis mutatis mutatis mutandis mutandis mutandis to Trustees. to fill a vacancy in the election of a the office of the trustee to fill a Trustees. vacancy in the office of Trustees except - a) In so far as they are modified by the Rules hereinbefore contained. b).......... c).......... 5.5.5.81.Any Trustee 61. 61. 61. A Trustee shall 60. 60. 60.A trustee shall shall vacate his vacate his office on vacate his office on office if he shall the happening of any the happening of any become a Bankrupt or event in connection event in connection Insolvent or on the with him which would with him which would happening of any under the rules under the rules event in connection hereinbefore contained hereinbefore with him which would if it had happened in contained if it has :9: under the rules connection with member happened in hereinbefore of the Anjuman connection with contained if it had Committee have member of the Anjuman happened in rendered it necessary Committee have connection with a for such member of the rendered it necessary member of the Anjuman Committee to for such member of Anjuman Committee cease to be a member, the Anjuman Committee have rendered it or if he should be to cease to be a necessary for such absent from India for member, or if he member of the more than twelve should be absent from Anjuman Committee to consecutive months India for more than vacate his office, without leave from the twelve consecutive or if he should be Board of Trustees or months without leave absent from India if he should be so from the Board of for more than 12 absent for more than Trustees or if he consecutive months 18 consecutive months should be so absent without leave from under any for more than 18 Board of Trustees, circumstances. consecutive months or if he should be under any so absent for more circumstances. than 18 consecutive months under any circumstances. 6.6.6.96.Whenever doubt 80.Whenever doubts 79. Whenever doubts shall arise as to shall arise as to the shall arise as to the the construction to construction to be construction to be be placed upon any placed upon any placed upon any provisions of this provision of the Scheme provision of the scheme it shall be it shall be competent Scheme it shall be competent to the to the Trustees and on competent to the Trustees and on the the written Trustees and on the written requisition requisition signed by written requisition signed by a majority a majority of the signed by a of the Anjuman Anjuman Committee it majority of the Committee it shall shall be incumbent Anjuman Committee it be incumbent upon upon the Trustees to shall be incumbent the Trustees to submit such doubts upon the Trustees to submit such doubts to the Judge in submit such doubts to the Judge in Chambers for to the Judge in Chambers for decision as to the Chambers for decision as to the construction to be decision as to the construction to be placed on such construction to be placed on such provision. placed on such provision. provision. . 88.When the date of 87.When the date of any application or any application or of receipt of any of receipt of any application to the application to the trustees is referred trustees is to in this Scheme it referred to in this shall be understood Scheme it shall be to be the date of understood to be the receipt of such date of receipt of application in the such application in office of the the office of the Trustees. Trustees. :10: 8.105A (a) When the 88. When the date 88. When the date date of any of any application of any application application or of or of receipt of or of receipt of receipt of any any application any application application to the to the Trustees is to the Trustees is trustees is referred referred to in this referred in this to in this Scheme Scheme it shall be Scheme it shall be it shall be understood to the understood to be understood to be the date of receipt of date of receipt of date of receipt of such application in such application such application in the office of the in the office of the the office of the Trustees. Trustees. trustees, (b) and then the Secretary of the Trust is referred to it shall be understood to include a Joint Secretary. 7. Dr.Tulzapurkar, the learned Senior Counsel for the Appellant also contended that the resignation of a Trustee can be analysed with reference to Clause 61 read with Clauses 49(g) and Clause 39 of the Scheme. 8. The learned Senior Counsel emphasised that in the absence of any provision in the Scheme requiring acceptance of the resignation, the resignation is an unilateral act by a Trustee and it becomes effective when such resignation is communicated to the other Trustees. The other Trustees are not required to take any action and the resignation takes effect from the date of the receipt of such communication and the resignation is intended to operate in praesenti. 9. In that context Dr.Tulzapurkar referred to a judgment of the Hon’ble Supreme Court in the case of Union Union Union of of of India & Ors. Vs. Gopal Chandra Misra (1978) India & Ors. Vs. Gopal Chandra Misra (1978) India & Ors. Vs. Gopal Chandra Misra (1978) :11: 2 SCC 301 SCC 301 SCC 301, especially paragraphs 24 to 30 and 41 which read as under: 24. ’Resignation’ in the dictionary sense, means the spontaneous relinquishment of one’s own right. This is conveyed by the maxim : Resionatio est juris propii spontaneu refutatio (See Earl Jowitt’s Dictionary of English Law). In relation to an offence, it connotes the act of giving up or relinquishing the office. To "relinquish an office" means to "cease to hold" the office, or to "Loose hold of" the office (of Shorter Oxford Dictionary); and to "loose hold of office", implies to "detach", "unfasten", "undo or untie the binding knot or ling" which holds one to the office and the obligations and privileges that go with it. 25. In the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both, the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e.g.American Jurisprudence, Second Edn., Vol.15A, page80), although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the office, which implies cessation or termination of, or cutting asunder from the office. Indeed, the completion of the resignation and the vacation of the office, are the casual and effectual aspects of one and the same event. 26. From the above dissertation, it emerges that a complete and effective act of resigning office is, one which severs the link of the resign or with his office and terminates its tenure. In the context of Article 217(1), this test assumes the character of a decisive test, because the expression "resign his office" - the construction of which is under consideration - occurs in a proviso which excepts or qualifies the substantive clause fixing the office-tenure of a Judge up to the age of 62 years. 27. Before applying this test to the case in hand, it is necessary to appreciate the true nature of the letter, dated May 7,1977, sent by the Judge to the President. 28. The substantive body of this letter (which has been extracted in full in a foregoing part of :12: this judgment) is comprised of three sentences only. In the first sentence, it is stated : "I beg to resign my office as Judge, high Court of Judicature at Allahabad". Had this sentence stood alone, or been the only content of this letter, it would operate as a complete resignation in praesenti, involving immediate relinquishment of the office and termination of his tenure as Judge. But this is not so. The first sentence is immediately followed by two more, which read : "I will be on leave till July 31,1977. My resignation shall be effective on August 1,1977". The first sentence cannot be divorced from the context of the other two sentences and construed in isolation. It has to be read along with the succeeding two which qualify it. Construed as a whole according to its tenor, the letter dated May,7 1977, is merely an intimation or notice of the writer’s intention to resign his office as Judge, on a future date, viz., August 1, 1977. For the sake of convenience, we might call this communication as a prospective or potential resignation, but before the arrival of the indicated future date, it was certainly not a complete and operative resignation because, by itself, it did not and could not, sever the writer from the office of the Judge, or terminate his tenure as such. 29. Thus tested, sending of the letter dated May 7,1977 by appellant 2 to the President, did not constitute a complete and operative resignation within the contemplation of the expression "resigns his office" used in proviso (a) to article 217(1). Before the arrival of the indicated future date (August 1, 1977), it was wholly inert, inoperative and ineffecitve, and could not, and in fact did not, cause any jural effect. 30. The learned Judges of the High Court (in majority) conceded that appellant 2 "cannot be taken to have resigned on a date prior to August 1,1977", and "the vacation of the seat may be on (the) future date", "because he made his choice to resign from August 1,1977", yet, they hold that "the factum of resignation became complete the moment respondent 1 (Shri Satish Chandra) in his handwriting, sent a letter of resignation of the President of India" and on May 7, 1977, itself, cut short the date of retirement of the Judge from September 1,1986 to August 1,1977, and there could be "no withdrawal of the same unless the Constitution so provided". 41. The general principle that emerges from the foregoing conspectus, is that in the absence of anything to the contrary in the provisions :13: governing the terms and conditions of the office/post, an intimation in writing sent to the competent authority by the incumbent,