[ 1 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION AND IN ITS INHERENT AND EXTRAORDINARY JURISDICTION MISCELLANEOUS MISCELLANEOUS MISCELLANEOUS PETITION NO. 17 OF 2006 PETITION NO. 17 OF 2006 PETITION NO. 17 OF 2006 MINOO RUSTOMJI SHROFF & ORS ... PETITIONERS. VS. THE CHARITY COMMISSIONER ... RESPONDENT AND NOSHIR B. CAPTAIN & NEVILEE K. MUKADAM ... INTERVENORS. WITH NOTICE OF MOTION NO. 1080 OF 2007 MINOO RUSTOMJI SHROFF & ORS. ... PETITIONERS. VS. THE CHARITY COMMISSIONER OF BOMBAY. ... RESPONDENTS. AND MR. FREDDY DALI DIVECHA ... INTERVENOR. [ 2 ] WITH CHAMBER CHAMBER CHAMBER SUMMONS NO. 1401 OF 2006 SUMMONS NO. 1401 OF 2006 SUMMONS NO. 1401 OF 2006 IN IN IN MISCELLANEOUS MISCELLANEOUS MISCELLANEOUS PETITION PETITION PETITION NO.17 OF 2006 NO.17 OF 2006 NO.17 OF 2006 MINOO RUSTOMJI SHROFF & ORS ... PETITIONERS. VS. THE CHARITY COMMISSIONER OF BOMBAY RESPONDENTS. MR. I.M.CHAGLA, SR. COUNSEL WITHMR. DARIUS KHAMBNATTA WITH MR. SHYAM MOHTA, MR. PARG KABADI AND MS. FALGUNI THAKKAR I/B. DOIJODE ASSOCIATES FOR PETITIONERS. MR. PHIROZE C. AMROLIWALLA-INTERVENOR IN PERSON. MR. PERCY PATEL - INSERVENOR IN PERSON. MR. ZEREE B. JAHANGIR INTERVENOR IN PERSON. MR. PRASHANT V. TIKARE I/B. MS.Z.S.IRANIK FOR INTERVENOR DR. SYRUS D. IRANI. MR. P.D.BHUMGARA FOR INTERVENOR - DR. VIRAF JAHANGIR KAPADIA. MR. KIRIT MUNSHI FOR INTERVENOR -KHOJESTE MISTREE, HISANG WANIA AND YAZDI DESAI. MR. PARVEZ DRIVER INTERVENOR IN PERSON. MR. SHAILESH PORIA FOR INTERVENOR - MR.FALI POCHA. MS. UMA WAGLE FOR INTERVENORS - MR. NOSHIR CAPTAIN & MR. NEVILEE K. MUKADAM. MR. S.G.DESHMUKH WITH MR. S.MORE FOR INTERVENOR MR. FREEDY DALI DIVECHA IN NM. 1080/07. ..... CORAM CORAM CORAM : : : A.M.KHANWILKAR, J. A.M.KHANWILKAR, J. A.M.KHANWILKAR, J. DATE DATE DATE : April 5, 2007. : April 5, 2007. : April 5, 2007. [ 3 ] P.C. 1. This petition is presented by the Trustees of Funds and Immovable Properties of the Parsi Panchayat of Bombay (hereinafter for short referred to as the "said Trust".). The said Trust is duly registered under the provisions of the Bombay Public Trusts Act, 1950. This Court on June 18, 1910, formulated a Scheme for the Election of the Trustees of the said Trust in Suit No. 689 of 1906. That Scheme has been amended by this Court from time to time by Orders dated, 27th July, 1931, 7th February, 1935, 2nd April,1970, 16th June, 1992, 23rd October, 1992, 6th January, 1993, 1st April, 2005 and lastly on 21st August, 2006. The Scheme as it stood in terms of the last amendment or modification by this Court and presently in force, has been appended to the Petition as Exhibit "A". The Petitioners assert that it was felt that the Parsi Community had strong conscience that the trustees should be elected by the method of universal adult franchise. It is stated that Parsi community is highly literate and sufficiently intelligent to understand the issues involved in relation to the direct election of the Trustees. As [ 4 ] per the present Scheme, the Elected Register of the Anjuman Committee would be around 3000 in number. It is stated that having regard to the past voting pattern in relation to the election of members of the Anjuman Committee, the voters who are registered would be around 18000. However, out of those, not more than 6000 to 8000 members participate in the election process. It was generally felt that under the present Scheme an electorate of about 8000 would be called upon to elect 3000 persons out of possible 6000 to 7000 candidates. Having realised this anomalous position, these Petitioning Trustees took a conscious and informed decision that the appropriate method of electing the Trustees is by adopting principle of universal adult franchise. For that reason, the Petitioning Trustees have unanimously recommended that instead of electing members of the Anjuman Committee, every Parsi who is registered on the general Register shall have a right to directly vote at the election of the Trustees. Similarly, the methodology for donor members to participate in election has been culled out in the Scheme. It is not necessary to consider in the present proceeding the other contentious issues between the Trustees of the Anjuman Committee or the [ 5 ] other proceedings between them. Suffice it to observe that the Petitioning Trustees have unanimously sought amendment of the existing Scheme so that it will further the interest of the Trust and, which amendments will be in the general interest of community and the Trust. The Petitioning Trustees assert that they arrived at unanimous decision only after considering the views and the suggestions received from the Members of the Parsi Community. The gist of the proposed amendments to the present Scheme is culled out in Paragraph No. 9 of the Petition, which reads thus :- "For the purpose of convenience, the gist of the proposed amendments are set out hereunder :- (a) The Register of the Elected Members of the Anjuman Committee shall be abolished. The Trustees shall make their best endeavours to ensure that a maximum number of Parsi Zoroastrians residing in Mumbai are enrolled on the General Register. Every person who is registered on the General Register at least 60 days before the date of election of a Trustee shall be eligible to vote at every election of a Trustee. Each such person so eligible to vote shall have one vote at each Trustee Election. Every person who is registered on the Donor Register at least 60 days before the date of election of a Trustee shall be eligible to vote at [ 6 ] every election of a Trustee. Each Donor shall have two votes at the election of a Trustee. Separate Ballot boxes and other arrangements shall be made for recording the votes of the General Register and the Donors Register. (b) It shall be clarified, for the removal of doubt that subject to what is stated in Clause 13.1 of the Scheme, Petitioner No.1, Mr. Minoo Shroof, shall be entitled to continue in office of his original term expiring on 2nd August, 2010 but thereafter Petitioner NO.1 shall not be eligible to seek re-election. (c) There shall be a Vice - Chairman, who shall preside at the meetings of the Trustees, in the absence of the Chairman. A their meeting held on 26th September, 2006, Petitioner NO.3, Mr. Dadi Engineer,has been designated as first Vice-Chairman of the Bombay Parsi Panchayat. Whenever Petitioner No.1 ceases to be the Chairman for any reason, whatsoever, Petitioner No.3 shall be appointed as Chairman. This arrangement is only for the present situation not intended to be treated as precedent. (d) Presently, the Trustee seniormost in office is designated as Chairman. This practice shall be continued. However, if all the Trustees, other than the Trustee senior most in office, resolve to displace the seniority principle for that particular appointment;s the Chairman shall then be elected by the Board of Trustees by a majority vote ( including the vote of the person elected as Chairman as well as the Trustee Seniormost in Office). Once a Trustee has been [ 7 ] elected as a Chairman, he shall continue as Chairman until the expiry of his term of the office as a Trustee. (e) A Trustee seeking to resign his office shall address his letter of resignation to the Chairman. the Chairman shall convene a meting of the Trustees to consider such resignation. Such resignation shall become effective as and from the date upon which a change report has been filed to this effect under the provisions of Section 22 of the Act. (f) Such other consequential amendments as are necessitated by the above amendments." 2. It is asserted by the Petitioning Trustees that the proposed amendments have been unanimously approved by all the six Trustees who are the Petitioners before this Court, in the meeting held on 4th October, 2006. A Copy of the Resolution passed in the meeting as also a copy of the scheme incorporating the proposed amendments suggested by the Petitioners has been placed on record. The modified scheme, which the Petitioning Trustees want this Court to approve is appended to the Petition as Exhibit "C". The hearing of this Petition, including the proposed amendments, which are to be considered by this Court, was duly notified by public notice, issued in the news paper, [ 8 ] Mumbai Samachar dated 10.12.2006, having wide circulation amongst the Parsi Community members. Admittedly, a Public notice dated 10th December, 2006, notified in Jam- E -Jamshed, having wide circulation amongst the Parsi Community Members, containing the proposed amendments. The said notice reads thus :- " PUBLIC NOTICE In the High Court of Judicature at Bombay Ordinary Original Civil Jurisdiction And In its Inherent and Extraordinary Jurisdiction Miscellaneous Petition No. 17of 2006 In the matter of amendment of the Scheme for the Election of the Trustees of the Funds and Immovable Properties of the Parsi Panchayat of Bombay ("BPP"). Mr. Minoo R. Shroff & ors. ...Petitioners. Vs. The Charity Comissioner of Bombay ...Respondent. All the Members of the Parsee/Irani Zorastrian Community are hereby informed that all the 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. A gist the proposed amendments are as follows :- (a) The Register of the Elected Members of the Anjuman Committee shall be abolished while Register of Donor Members will continue. The Anjuman Committee will now comprise of (i) All [ 9 ] members registered on the Donor Register as on effective date, (ii) All members registered on the General Register as on effective date. The Trustees shall make their best endeavours to ensure that a maximum number of Parsi Zorastrian, is enrolled on the General Register. Every person who is registered on the General Register at least 60 days before the date of the election of a Trustee, shall be eligible to vote at every election of a Trustee. Each such person so eligible to vote shall have one vote at each Trustee election ( that is, a trustee shall be elected directly by members of the community, i.e. universal adult franchise). Every person who is registered on the Donor Register at least 60 days before the date of election of a Trustee shall be eligible to vote at every election of a Trustee. A Donor shall have two votes at the election of a Trustee. Separate ballot boxes and other arrangements shall be made for recording the votes of the General Register and Donors Register. (b) It shall be clarified, for the removal of any doubt, that subject to what is stated in Clause 13.1 of the proposed Scheme, Chairman Mr. Minoo R. Shroff, shall not vacate office on completion of 21 years as a Trustee but shall be entitled to continue in office for his original term expiring on 2nd August, 2010 and thereafter, he shall not be eligible to seek a re-election. (c) Presently, the Trustee senior most in office is designated as Chairman. This practice shall be continued. However, if all the Trustees, other than the Trustee senior most in office, resolve to displace the seniority principle for the particular appointment the Chairman shall then be elected by the Board of [ 10 ] Trustees by a majority vote ( including the vote of the person elected as Chairman, as well as the Trustee Senior most in office). Once a Trustee has ben elected as a Chairman, he shall continue as Chairman until the expiry of his term of office as a Trustee. (d) A Trustee seeking to resign his office shall address his letter of resignation to the Chairman. The Chairman shall convene a meting of the Trustees to consider such a resignation. Such a resignation shall become effective as and from the date upon which a Change Report has ben filed to this effect under the provisions of Section 22 of the Act, with the Charity Commissioner. (e) Under the proposed scheme for Election of the Trustees, the deposits shall be forfeited, if, the Trustee candidate fails to secure at least 5% of the total votes cast at such an Election. (f) Such other consequential amendments as are necessitated in line with the proposed change in the Rules of the existing Scheme, for the Election of the Trustees of the BPP. . The above Petition has been peremptorily fixed for hearing and final disposal on 8th February, 2007. Any Member of the community who desires to be heard in respect of the proposed amendments to the Election Scheme, may intervene in the said matter before the Honourable High Court and also file an Affidavit and serve a copy thereof upon the Trustees well in advance of the aforementioned date of hearing. A copy each of the above Petition an Chamber Summons No.1401 of 2006 taken out therein maybe obtained from the office of Doijode Associates, Advocates,f 301, Banaji House, 361, Dr. D.N.Road, Flora Fountain, Mumbai 400 001, between 11.00 a.m. to 5.00 p.m. on any working day against payment of [ 11 ] necessary charges of Rs. 100/- per petition copy. . Dated this 05 day of December, 2006. sd/- (B.T.Dastur) Chief Executive. On BEHALF OF THE TRUSTEES OF THE PARSI PUNCHAYET, BOMBAY 209 DR. D.N.Road, Fort Mumbai 400 001." 3. Pursuant to the above notice, affidavits have been filed in this Court by the interested Members of the Trust. Besides, a Chamber Summons and Notice of Motion have also been filed before this Court. Chamber Summons No. 1401 of 2006 is taken out by the Petitioners for the following reliefs :- (a) that pending hearing and final disposal of the above Petition, this Honourable court be pleased to suspend the process of constituting a New Anjuman Committee and holding of election of Trustees under the presently sanctioned Scheme; (b) that pending the hearing and final disposal of the above Petition, this Hon’ble Court be pleased to clarify that Petitioner Trustee No.1 shall be entitled to continue in office of his original term expiring on 2nd August, 2010 or the date on which Trustees elections are held for all seven Trustees in terms of paragraph 12 of the above Petition whichever is earlier; (c) that pending the hearing and final disposal of the above Petition, the Learned Charity Commissioner ( Respondent [ 12 ] above-named) and/or any other officers under the Bombay Public Trusts Act, 1950 be directed not to entertain or proceed with any application or petition filed against any of the Petitioner Trustees Nos. , 4,5 and 6 for the removal and/or any declaration that the said petitioner trustees have ceased to hold office on the ground of their purported resignations; (d) for ad interim reliefs in terms of prayer clause (a) to (c) above; (e) for costs of this Chamber Summons; (f) for such further and other reliefs as the facts and circumstances of the case may require; " 4. Notice of Motion No.1080 of 2007 has been taken out by the applicant- intervenor Mr. Freedy Dali Divecha, for the following reliefs :- " (A) That the Applicant/Intervenor be allowed to intervene in the main Misc. Petition N.17 of 2006 filed before this Honourable Court by the Petitioners therein; (B) The Petitioner therein maybe directed to join the applicant/ Intervenor as a Party Respondent to the Petition. (C) That the Applicant/ Intervenor be allowed to file the detailed reply to the Main Petition No.17 of 2006 filed before this Honourable Court by the Petitioners therein; (D) And for such other Orders/ reliefs as this Hon’ble court may deem fit and proper be passed; " [ 13 ] 5. Affidavits have also been filed by the interested persons either in support of the proposed amendments and/or to oppose the same, by the following persons. 1. Dr. Syrus Darvish Irani 2. Dr. Viraf Jahangir Kapadia 3. Joint affidavit of : i) Mr.Khojeste Mistree, ii) Mr. Hosang N. Wania 4. Mr. Parvez H.Driver 5. Mr. Fali Pocha 6. Mr. Rustom S. Tirndaz. 7. Percy Russi Patel 8. Zeree B. Jehangirji 9. Joint affidavit by i) Mr. Khjeste Mistree, ii) Mr.Hosang N. Wania, iii)Mr. Yazdi H. Desai. 10. Joint affidavit by i) Noshir Burjorji Captain, [ 14 ] ii) Nevilee Kersi Mukadam. 11. Mr. Phiroze Cawasji Amroliwalla 6. Besides filing affidavits, all interested parties, whether having filed formal application for intervention or otherwise were permitted to address the Court during the hearing. The Members who availed of that opportunity are :- (1) Mr. Rustom S Tirandaz. (2) Dr. Viraf Jahangir Kapadia, (3) Mr.Khojeste Mistree, (4) Nevilee Kersi Mukadam, (5) Freddy Dali Divecha. 7. Before considering the matter further, it would be apposite to refer to the stand taken by these members at the hearing. Mr. Tirandaz, reiterated the stand taken in his affidavit that the Petitioners were attempting a half way approach to the principle of universal adult franchise. According to him, it is unfair to provide for two votes to the donor members. He further suggested that there was no tangible reason to provide the age limit of 21 years, as eligibility to cast votes. He further submitted that there was no reason to provide for pre-qualification, such as [ 15 ] number of terms and the like for being Trustee. He further submitted that he was completely in support of the adoption of principle of universal adult franchise and for providing mechanism of direct election. He submitted that the election process, on the basis of proposed change, will have to be concluded within a specified time, the time to be specified by this Court. 7A. . Dr. Viraf Jahangir Kapadia submitted that there was no good reason forthcoming for bringing about the amendments to the Scheme in such quick succession. At the same time, he submitted that he was welcoming the decision of the Trustees to recommend amendments so as to introduce the mechanism of direct election and exercise of universal adult franchise. He further submitted that there was no propriety in permitting two votes to donor members. It is submitted that if the person has an intention to donate, there is no reason why such a person should expect a return in favour of being bestowed with two votes as a donor member. He also offered comments with regard to the proposed amendments regarding the provision for acceptance of resignation of the [ 16 ] trustee. He submitted that there should be some safeguard to intimate change on account of resignation. 7B. . Arguments were canvassed on behalf of Mr. Khojeste Mistree, Mr. Hoshang N. Wania and Mr. Yezdi H. Desai that the present scheme of electing Anjuman Committee is like a direct election. The Anjuman Comittee acts as a safeguard. With displacement of the Comittee there wil be possibility of abuse of power. According to these members, if at all any change is to be brought about, there has to be provision of one vote for one man/voter. It was also argued on their behalf that provisions regarding seniormost Trustee to be the Chairman of the Board is a well established convention. There is no reason to make any modification thereto, even in the slightest manner suggested by the Petitioner. It was also contended that the proposed change suggested by the Petitioners is not bona fide. It is only with a view to do away with the Elected Anjuman Committee, which event has happened in the month of February,2007. Besides, they have reiterated the stand taken in the affidavits filed on their behalf at page No. 133 [ 17 ] onwards. It was also argued that the petition filed by the present petitioners is not maintainable. According to these members, the proposed amendment is silent as to on what days of the week, the polling should be held. It is their apprehension that the polling day will be so arranged, as to make it impossible for a large number of electorates to participate in the election. It is contended that in fact the decision taken by the petitioning Trustees is without authority. It was suggested that the day of Polling or Ballot should be so arranged that there will be turn out of maximum members to vote at the election. 7C. . The next argument was on behalf of Mr. Parvez H. Driver. According to him the Anjuman Committee is working well and there has been no reported logistical problems so far. Therefore, there was no reason to displace the present dispensation by adopting new regime of direct election on the principle of universal adult franchise. According to him, the Petitioning Trustees ought to have consulted the Anjuman Committee and ought to have taken the said Anjuman Committee into confidence before recommending [ 18 ] any change. 7D. . The next member to address was Mr. Falli Pocha. He submitted that the present Committee should be allowed to continue. He was however in favour of principle of universal adult franchise. 7E. . Arguments were also advanced by Neville K. Mukadam. It was suggested that election should be concluded by providing time bound programme. It was next contended that till the new regime or newly elected Trustees take over the office of the Trust, the present Trustees be permitted to continue. It was, however, contended that if this Court were to accept the proposed change, that would run contrary to the Orders passed by Justice Mohite on 21st August, 2006 and moreso, when the first part of that Order has already been acted upon by electiing Anjuman Committee in February, 2007. 7F. . The next member to address the Court was Mr. Freddy Dali Divecha. According to him, there has to be a provision of one vote for one voter. It is argued that the fact that some one has given [ 19 ] donation should not create any right in favour of such person to claim any special treatment. It was submitted that there is nothing wrong with the present system of indirect elections. Moreovr, even if the concept of principle of universal adult franchise is to be adopted, that can be implemented even in case of present set up and it was not necessary to displace the present set up. According him, the elected Anjuman Committee can elect the new Trustees. 7G. Besides making oral submission, written submissions have been filed on behalf of the intervenors Mr. Freeddy Dalai Divecha and Noshir B Captain. 7H. . The petitioners have filed further affidavit dated 4th April, 2007 to place on record that the petitioners were agreeable for suitable modifications in the proposed scheme already submitted for consideration before this Court. In this affidavit, it is agreed that the age limit can be reduced to 18 years for the purpose of eligibility. Suitable change has been indicated in the definition [ 20 ] of "Parsi". The Petitioners have also accepted that the present Trustees shall vacate the office simultaneously with the newly elected Trustees being elected to the office. The Petitioners have suggested appropriate change in Rule 13.1 to reflect this position. The Petitioners have also recommended further change in Rule 52 which relates to resignation and the day from which it should take effect. The Petitioners have also agreed to introduce Rule 13.3, after Rule 13.2, so as to make it clear that the elections shall be held on any Saturday and/or Sunday. There are two other changes noted in this affidavit which are not forming part of the original amendment. According to the Petitioners, the same had remained to be incorporated through oversight. 8. Having gone through the relevant material produced on record by the parties and considering the oral submissions canvassed across the bar, the first question that needs to be addressed is - "Whether this Court has jurisdiction to entertain the present petition so as to undertake the exercise of modifying the [ 21 ] existing Scheme sanctioned by it in the Suit" In my opinion, this issue is no more res integra.For it is rightly argued by the