w w w . L a w y e r S e r v i c e s . i n


Zuleika Firdosh Homavazir VS Parsi Panchayat Funds and Properties and Others.

    Appeal (L) No. 6826 of 2021
    Decided On, 12 March 2021
    At, High Court of Judicature at Bombay
    By, THE HONORABLE JUSTICE: S.J. KATHAWALLA & THE HONORABLE JUSTICE: VINAY JOSHI
    By, JJ
    For Petitioner: Rajiv Singh, R.M. Vanoo and A.J. Uniyal And For Respondents: Somasekhar Sundaresan, R.K. Satpalkar, Pinkesh Shah i/b Mulla & Mulla and Craigie Bount & Caroe


Judgment Text

1. The Trustees of the Bombay Parsi Punchayet (Trustees) have scheduled Elections on 14th March, 2021 for filling up two vacancies on the Board of Trustees of the Bombay Parsi Punchayet.

2. The Nomination Form submitted by the Appellant above named is rejected by the Trustees on the ground that Shri Rustom Nanabhoy Jeejeebhoy who has proposed the nomination of the Appellant has renounced the Zoroas-trian faith and has embraced Christianity.

3. The Appellant thereupon filed the above Suit - Originating Summons seeking determination of 14 questions, which essentially pertain to the Scheme for Election of the Trustees of the Funds and Immovable Properties of the Parsi Punchayet of Bombay and moved the Learned single Judge seeking urgent reliefs in Interim Application (L) No. 6147 of 2021 in (O.S.) Suit (L) No. 5425 of 2021.

4. The Learned single Judge passed a detailed Order dated 8th March, 2021, inter alia recording therein that the key aspect to be determined by the Court is whether the disqualification of the Appellant from contesting the election of Trustees consequent upon invalidation of her Nomination is in accordance with the Rules framed under the Scheme which was sanctioned and amended and modified by this Court.

5. The Learned single Judge in his Order further observed that the issue raised in the Originating Summons will need a more detailed hearing; the Interim Application has been filed wherein the Appellant seeks ad-interim reliefs and it is this Application that has been taken up for urgent reliefs. The urgent reliefs sought by the Appellant before the Learned single Judge was to stay the operation of an email communication dated 18th February, 2021 and as reflected in a Public Notice dated 20th February, 2021, invalidating the nomination of the Appellant. The Appellant also sought an urgent direction to the Trustees to permit her to contest the Trustees' the Election which is scheduled to be held on 14th March, 2021 and modify the List of Candidates in the Public Notice dated 20th February, 2021 and thereby include the name of the Appellant. The Learned single Judge by his Order dated 8th March, 2021 rejected the Application of the Appellant seeking urgent reliefs. The Appellant being aggrieved therefrom has filed the above Appeal.

6. The relevant facts in the matter are in brief set out hereunder:

6.1. The Trustees of the Bombay Parsi Punchayet are elected under the 'Scheme for the Election of Trustees of the Funds and Immovable Properties of the Parsi Punchayet of Bombay', which has been sanctioned and amended and modified from time-to-time by this Court (hereinafter referred to as the Scheme').

6.2. Under the Clauses 1 and 2 of the Scheme, the Trustees of the BPP are required to constitute a Committee to be called "ANJUMAN COMMITTEE". The Anjuman Committee is to consist of (a) all Parsis whose names are borne on the General Register; and (b) all Parsis whose names are borne on the Donor Register. Under Clause 3 of the Scheme, the Trustees have to continue maintaining the General Register, which would comprise of (a) all Parsis whose names are borne therein as on the Effective Date; and (b) Every Parsi whose name is not previously entered in the General Register and whose name does not appear on the Donor Register, will be entitled to have his/her name entered in the General Register and such entry shall be Effective as on the date of receipt of his or her application. Clause 3(e) of the Scheme provides that at any Trustee Election held after the Effective Date, only those persons whose names are reflected in the General Register, 60 days immediately preceding every such Trustee Election, shall be eligible to vote. A similar provision is found with regard to the Donor Register in Clause 4(c) of the Scheme. Clause 18 of the Scheme provides that every candidate for the Trustee election shall be proposed and seconded by one member each of the Anjuman Committee. 'Effective Date' is interpreted to mean the date on which the Scheme is sanctioned by the High Court.

6.3. The Trustees of the BPP issued a Public Notice dated 2nd January, 2021 setting out therein 'Schedule of Election' with regard to the filling up of two vacancies on the Board of Trustees of the BPP. As per the said Public Notice, the elections were scheduled to be held on 14th March, 2021. It was categorically stated in the said Public Notice that the Effective date being 13th January, 2021, the Registers will be frozen as on 13th January, 2021, at 5.15 p.m. (being 60 days prior to the date of election) and only those persons whose names appear on the General Register and the Donor Register as on 13th January, 2021, will have the right to vote on 14th March, 2021. The said Schedule of the election also provided that the final list of the Members of the General/Donor Register will be available up to 18th January, 2021 on payment of Rs. 300/-. The last date for filing the nomination was 1st February, 2021 and the last date for withdrawal of the nomination was 16th February, 2021. The names of the candidates were to be published latest by 20th February, 2021 and 21st February, 2021 and as stated above, the election is scheduled to be held on 14th March, 2021.

6.4. On 19th January, 2021, the Appellant purchased the list of persons whose names were shown on the General and Donor Registers by making payment of Rs. 300/-. A receipt has been issued to her by the office of the Trustees of the Parsi Punchayet Funds and Properties acknowledging that they have received an amount of Rs. 300/- towards "Purchase of one CD having B.P.P. voters details. The Appellant also rd purchased the updated list from the office of the BPP on 3rd February, 2021.

6.5. The Appellant being desirous of contesting the election scheduled to be held on 14th March, 2021, submitted her Nomination Form to the BPP on 29th January, 2021, wherein her nomination has been proposed by one Shri R.N. Jeejeebhoy and seconded by Ms. Khorshed Dadi Antia. The names of Shri R.N. Jeejeebhoy and Ms. K.D. Antia admittedly appeared on the General Register maintained by the BPP on the day the Appellant submitted her nomination form to the BPP and continue to appear till date.

6.6. According to the Appellant, after she filed her Nomination on 29th January, 2021, certain messages started circulating on social media i.e. on WhatsApp Groups etc. that Shri R.N. Jeejeebhoy, her Proposer, has allegedly renounced the Zoroastrian faith and has embraced Christianity. She therefore, attempted to get in touch with her Proposer to confirm the veracity of such messages, but being unsuccessful and since the next two days were holidays and the office of the BPP was st closed, she out of abundant caution, submitted a Letter dated 1st February, 2021 to the office of the BPP stating that her father be treated as Co-Proposer to her Nomination.

6.7. On 11th February, 2021, the CEO of the BPP addressed a Letter to the Appellant, inter alia stating therein that the Trustees have received letters from some of the voters as well as candidates informing them that her Proposer Shri R.N. Jeejeebhoy is not a Parsi within the meaning of the Scheme of Elections, as he has renounced the Zoroastrian faith by converting to Christianity. The said letter addressed to her, asked her to confirm the said position with him. By the said Letter, the Appellant was also informed that the Scheme of Election does not provide for any Co-Proposer. The Appellant was called upon to forward the response within two working days.

6.8. The Appellant responded to the communication received by her from the CEO of the BPP dated 11th February, 2021, wherein she inter alia recorded as under:

a. The name of Shri R.N. Jeejeebhoy has not been struck of from the Register of Voters for any reason, including the allegation that he is not a Parsi within the meaning of the Scheme of Elections on the ground of his renouncing the Zoroastrian faith by converting to Christianity.

b. She is not privy to any such information about her Proposer Shri R.N. Jeejeebhoy renouncing the Zoroastrian faith by converting to Christianity, nor has Shri Jeejeebhoy indicated the same at any point of time to her and that she is as ignorant of such information as the Trustees are.

c. As stated in the Letter of the Trustees, the information regarding Shri R.N. Jeejeebhoy is based on the letters received by them from certain voters and candidates, and in the absence of any verification or concrete evidence, such information is mere hearsay and cannot be given any credence.

6.9. On 11th February, 2021, the CEO of the BPP also forwarded a communication to Shri R.N. Jeejeebhoy recording therein that he has proposed the candidature of the Appellant and informing him that they have received letters from the members of the community as well as the candidates that he has renounced the Zoroastrian faith and presently is a member of the Christian community and requested him to state on Affidavit the correct facts within two days from the date of receipt of the communication. From the communication, it appears that no material in the form of complaints etc., received by the BPP was forwarded to Shri Jeejeebhoy.

6.10. The CEO of the BPP by his communication dated 15th February, 2021 addressed to the Appellant, reiterated that there is sufficient material on record to indicate that Shri R.N. Jeejeebhoy has converted to Christianity. The communication also mentioned that in the interest of fair play and transparency, he has called upon Shri Jeejeebhoy to disclose the correct position, which he has not done. The CEO also alleged in his communication that the statement of the Appellant that she is not aware whether Shri R.N. Jeejeebhoy has converted to Christianity is incredible, to say the least. The CEO of the BPP by his communication also alleged that since the Scheme stipulates that the Proposer has to be a Parsi within the meaning of the Scheme, if Shri Jeejeebhoy is not a Parsi within the meaning of the Scheme on the date of him having proposed the nomination of the Appellant and that since religious apostasy is an extremely serious matter, the same has to be considered in that light. The CEO of the BPP also stated in his communication that with over 31000 members on the registers maintained under the Scheme, the Trustees or the administration surely cannot be expected to know as to which of them has committed an act of religious apostasy and has ceased to be a Parsi. The CEO also went on to say that nothing prevented the Appellant from filing a fresh nomination and mat the Scheme provides that if more than one form is received from any candidate, the details to be published shall be as per the first valid form received from such candidate and the filing of a fresh nomination stating that her father is a Co-Proposer does not amount to filing a fresh nomination at all.

6.11. The Appellant by her communication dated 16th February, 2021 addressed to the CEO of the BPP, responded to the above communication of the CEO dated 15th February, 2021 as under:

a. When a Trust who maintains a General Register of Parsis is not aware whether a member of the community has renounced his religion and ceased to be a Parsi or not, then how can an ordinary member of the community be expected to know whether an individual has renounced his religion and ceased to be a Parsi.

b. The very fact that her Proposer Shri R.N. Jeejeebhoy has proposed her nomination, itself establishes that she was not and is still not aware whether Shri R.N. Jeejeebhoy has renounced his religion and has ceased to be a Parsi.

c. Had Shri R.N. Jeejeebhoy renounced his religion and ceased to be a Parsi, then he himself would not have signed the Nomination Form as a Proposer and that if she had any inkling that Shri R.N. Jeejeebhoy had purportedly converted to Christianity and ceased to be a Parsi, then she herself would not have his name as a Proposer in the Nomination Form.

d. That, in her conversation with Shri R.N. Jeejeebhoy, he has not given her any indication of his renouncing the Parsi faith and that till date Shri R.N. Jeejeebhoy has also not made any declaration, written or otherwise of his purported conversion to any other religion and therefore for the public at large he continues to profess the Zoroastrian faith.

e. Shri R.N. Jeejeebhoy is a well-known Philanthropist and a descendant of Late Sir Jamshedjee Jeejeebhoy, the Founding Member of the Bombay Parsi Panchayat. He is the sitting Trustee of the Byramjee Jeejeebhoy Parsi Charitable Trust. He is also the sitting Trustee of Jeejeebhoy Dadabhoy Agiary (fire temple) at Colaba, Mumbai. He is also a sitting Trustee of the Avabai Petit High School, Bandra, Mumbai, and the very fact the name of Shri R.N. Jeejeebhoy continues to be shown as a sitting Trustee of all these institutions/fire temple itself establishes that he is still a member of the Parsi community.

f. That, if Shri R.N. Jeejeebhoy had converted to any other religion and renounced his Parsi faith, then he would not be a sitting Trustee of any of the Parsi Trusts, even as on date.

g. That, it appears that the BPP is on a witchhunt in order to somehow disqualify and invalidate her nomination for the forthcoming elections.

h. That, the question of Shri R.N. Jeejeebhoy allegedly being converted to some other religion and renouncing the Parsi faith, never arose prior to the filing of her present nomination. It is only after her filing the Nomination Form with the Bombay Parsi Punchayet, that certain rumours started circulating on the social media with regard to the purported change of religion and renouncing of the Parsi faith by Shri R.N. Jeejeebhoy.

i. That, in compliance with the request of the CEO of the BPP, in paragraph 6 of his communication under reply, the Appellant has ascertained the correct position from Shri R.N. Jeejeebhoy, and he has categorically mentioned that he is a member of the Parsi community and professing the Parsi faith.

j. By his communication dated 16th February, 2021, the CEO of the BPP forwarded to the Appellant at 9.02 p.m. on that day, a Letter dated 16th February, 2021, wherein after recording that he is not admitting the correctness of the statements/allegations made by the Appellant in a communication dated 16th February, 2021, in the interest of fair play and transparency, the Appellant is given a final opportunity to obtain a declaration on Affidavit from Shri R.N. Jeejeebhoy, addressed to the Trustees of the BPP, stating that he has not converted to Christianity and continues to profess the Zoroastrian faith by 12.00 noon tomorrow i.e. February 17, 2021.

6.12. The Appellant by her communication dated 17th February, 2021 responded to the communication of the CEO, BPP dated 16th February, 2021 and recorded as under:

(a) That the contents of his communication dated 16th February, 2021 under reply, are completely misconceived, misplaced, misdirected, mischievous, motivated and mala fide.

(b) In order to show false guise and pretext of giving her final opportunity and also showing false fair play and transparency, the CEO has issued a letter under reply, addressed to her in a tearing hurry, reflecting the motives of the BPP, and the talk of fair play and transparency is bogus, false and flimsy and also impractical and impossible to comply with within an extremely short notice period of under 14 hours, and that too issued during night hours, to obtain a declaration/Affidavit from Shri R.N. Jeejeebhoy, with regards to his not having converted to Christianity and still continuing to profess the Zoroastrian faith.

(c) That by the earlier Letter dated 15th February, 2021, the CEO had called upon the Appellant to ascertain the correct position from Shri R.N. Jeejeebhoy in this regard, which she complied with and informed the CEO about the same. Now he has further called upon the Appellant to obtain a declaration/Affidavit from Shri R.N. Jeejeebhoy within 14 wee hours of the night, which is like imposing an impossible condition in order to some how disqualify her nomination.

(d) That the burden lies solely on the Trustees of the BPP to call for an Affidavit from any Parsi not professing the Zoroastrian faith any more, in order to delete his/her name from the List of the General Register of Voters and not on the Appellant.

(e) That Shri R.N. Jeejeebhoy continues to be shown as a Parsi in the General Register of Voters maintained by the BPP, on the date of filing of the Nomination and even as on date, and therefore, any process initiated by the Trustees and decision prematurely given by the BPP, merely on the strength of WhatsApp messages and/or hearsay material and/or any other person's statement or letter, and/or calling for sufficient material, without complying with the process under the Scheme of Elections in respect of the perceived events, and that to subsequent to the filing of her Nomination, is completely irrelevant and inconsequential.

(f) That the Letter of the CEO, BPP does not disclose as to what "sufficient material" (is available) on the record of the BPP to indicate that Shri R.N. Jeejeebhoy has converted to Christianity and the so called "sufficient material" is not disclosed to her.

6.13. On 18th February, 2021, the CEO of Bombay Parsi Punchayet informed the Appellant that she has not been duly proposed within the meaning of Section 20 of the Scheme, as her Proposer is not a Parsi within the meaning of Clause (a) under the caption 'Interpretation' of the Scheme, as he does not profess the Zoroastrian faith.

6.14. From the above, it appears that the Bombay Parsi Punchayet issued a Public Notice dated 18th February, 2021, stating that the Appellant has not been duly proposed within the meaning of Section 20 of the Scheme, as her Proposer is not a Parsi within the meaning of the Scheme (i.e. Clause (a) set out in the Scheme under the caption 'Interpretation') as he does not profess the Zoroastrian faith. Accordingly, her nomination/notice of candidature is invalid.

6.15. As per Election Schedule, the Public Notice was issued by the Trustees of the BPP, wherein the candidatures of all the candidates, except the Appellant, was shown to be valid. It was mentioned therein that the nomination/notice of the Appellant has been rejected as the Proposer is not a Parsi within the meaning of the Scheme and he no longer professes the Zoroastrian faith.

6.16. The Appellant filed the above Suit and Originating Summons on 24th February, 2021 and an Interim Application on 2nd March, 2021. In her Suit, apart from setting out the facts, she stated/alleged that the Trustees have been irked by the fact that the Appellant has filed a Suit against them in this Court being Suit No. 626 of 2015, exposing their misdoings.

7. The Learned Advocate appearing for the Appellant has taken us through several Clauses of the Scheme, the entire correspondence annexed to the Plaint, the Affidavit in Reply filed by the Bombay Parsi Punchayet before the Learned single Judge along with Annexures thereto and the grounds of Appeal, and has submitted that apart from the fact that the Appellant is not expected to have knowledge qua the allegation that the Proposer to his/her candidature has allegedly renounced the Zoroastrian faith, even otherwise, the name of the Proposer Shri R.N. Jeejeebhoy continues to appear on the General Register, a copy of which is supplied to her by the office of the BPP and is not struck of by following the due process prescribed/laid down in the Scheme, goes to show that he is till date accepted as a Parsi for the purposes of the Scheme and is therefore entitled to propose the candidature of any Parsi candidate desirous of contesting the elections held by the Trustees and is also entitled to vote at such elections. It is submitted that the Trustees cannot proceed to hold on to certain material available on social media, i.e. Facebook, WhatsApp Messages etc., to arrive at a decision that Shri R.N. Jeejeebhoy has renounced the Zoroastrian faith and is no more a Parsi, without following the procedure set out in Clause 11 of the Scheme and consequently cannot strike off his name from the register upon mere allegations being made against him, without the same being admitted or established. It is submitted that the entire exercise of rejecting the Nomination of the Appellant is illegal, unfair and mala fide for the reasons more particularly set out in the pleadings and the correspondence exchanged with the BPP, which is annexed to the Plaint.

8. The Learned Advocate appearing for the Bombay Parsi Punchayet admits that the Learned single Judge has not considered Clause 11 of the Scheme which lays down the procedure to be followed for striking out the name of any Parsi from the General/Donor Registers for renouncing the Zoroastrian faith, but has submitted that Clause 11 is not relevant for deciding the present Appeal. He has submitted that the Trustees are completely justified in declaring the Nomination of the Appellant as invalid in view of Clause (a) set out under the caption 'Interpretation', in the Scheme. He has submitted that Shri R.N. Jeejeebhoy was given an opportunity to file an Affidavit, but he has not done so. He has submitted that if this Court is of the view that the Trustees ought to have followed the procedure set out in Clause 11 of the Scheme, the communication addressed to Shri R.N. Jeejeebhoy dated 11th February, 2021 can be treated as a notice under Clause 11 of the Scheme. He has submitted that the Appellant ought to have joined Shri R.N. Jeejeebhoy as party Defendant to the above Suit. He has submitted that the Appeal be therefore dismissed. In a query raised by the Court whether the Trustees will allow Shri R.N. Jeejeebhoy to cast his vote in the election scheduled on 14th March, 2021, the answer is in the negative.

9. We have considered the pleadings as well as the submissions advanced by the Learned Advocates for the parties.

10. The Learned Advocate appearing for the Appellant has relied on Clauses 1, 2, 3 (a), (b), (e), 11, 12(i), 14 and 18 of the Scheme. As against this, the Learned Advocate appearing for the Trustees of the BPP has laid emphasis on Clause (a) of the Scheme, which defines the expression 'Parsi' for the purpose of the Scheme. The said Clauses are reproduced hereunder:

"ANJUMAN COMMITTEE

1. A Committee to be called "THE ANJUMAN COMMITTEE" shall be constituted and maintained in the manner hereinafter mentioned.

2. The Anjuman Committee shall consist of:

(a) All Parsis whose names are borne on the General Register;

(b) All Parsis whose names are borne on the Donor Register;

(c) Persons referred to in (a) above shall be called "The General Members of the Anjuman Committee" and the persons referred to in (b) above shall be called "The Donor Members of the Anjuman Committee".

GENERAL REGISTER

3. The Trustees shall, continue to maintain the "General Register" opened pursuant to the Orders of the High Court in O.S. Appeal No. 1137 of 1987. The General Register will comprise:

(a) All Parsis whose names are borne on the General Register as on the Effective Date.

(b) Every Parsi whose name is not previously entered in the General Register and whose name does not appear on the Donor Register shall, on application to the Trustees in such form as may be from time-to-time be prescribed by the Trustees (but which form will require a declaration that the applicant professes the Zoroastrian faith) and on payment of a registration fees of Rs. 10/- or such other amount as the Trustees may from time-to-time determine, be entitled to have his/her name entered on the General Register and such entry shall be Effective as of the date of receipt of his or her application.

(e) At any Trustee Election held after the Effective Date, only those persons whose names are borne on the General Register as at 60 days immediately preceding every such Trustee Election shall be eligible to vote.

11. Whenever any Parsi whose name appears on the General Register or the Donor Register shall cease to profess the Zoroastrian faith or shall die, the Trustees shall cause his or her name to be struck of from the concerned Register in which such name appears PROVIDED HOWEVER that where the name is sought to be struck of by reason of such person ceasing to profess the Zoroastrian faith, the Trustees shall do so only after issuing to such person a notice in that behalf and considering the cause, if any, that such person may have within 30 days of the receipt of such notice. The decision of the Trustees in that behalf shall be final and binding.

12(i) When any day or days shall have been appointed, as hereinafter mentioned, for a Trustee Election, the Trustees shall cause to be prepared a list of persons entitled to vote at such election being persons whose names appear on the General Register or the Donor Register 60 days immediately preceding the date fixed for such Trustee election. Any error or omission in the list shall not disqualify any voter or affect the validity of any election.

14. Whenever a vacancy shall occur in the office of a Trustee of the Funds and Immovable properties of the Parsi Punchayet of Bombay, the Anjuman Committee shall have power to elect a person who shall at the time of election be a member of the Parsi Community of not less than 30 years of age and who shall have been duly proposed and seconded as hereinafter mentioned to fill such vacancy. Provided, such person is not disqualified under Rules 22, 23A and 24. Provided further that the restriction as to age shall not apply to any candidate who has attained the age of 25 (twenty-five) years and whom a majority of not less than two-thirds of the members of the Anjuman Committee desire to be so exempted by a written requisition to the Trustees bearing their signatures and made at any time whether a vacancy has occurred or not.

18. Every candidate for election to fill any such vacancy in the office of a Trustee of the Funds and Immovable Properties of the Parsi Punchayet as in Rule 14 hereinbefore mentioned shall be proposed by one member of the Anjuman Committee to vote at the election of the Trustee, and seconded by another member of the Anjuman Committee.

INTERPRETATIQN

(a) The expression "Parsi" throughout the Scheme unless otherwise qualified means a Parsi (including an Irani Parsi) whether male or female of the age of 18 years or upwards professing the Zoroastrian Faitii and who shall, if so required by the Trustees, have filed in the office of the Bombay Parsi Punchayet an Affidavit in such form as may be prescribed or required by the Trustees that such male or female, as the case may be, has not renounced the Zoroastrian faith, whether by reason of marriage to a non-Zoroastrian spouse or otherwise, and continues to profess the Zoroastrian faith."

11. From what is stated hereinabove and from the Clauses set out above, the following becomes clear:

a. The Trustees of the Bombay Parsi Punchayet are empowered to hold elections whenever the post of a Trustee of the BPP is vacant, in accordance with the "Scheme for the Election of Trustees of the Funds and Immovable Properties of the Parsi Punchayet of Bombay", which is sanctioned by this Court.

b. As per Clause 1 of the Scheme, the Trustees are required to constitute the Committee to be called the "Anjuman Committee". Clause 2 of the Scheme provides that the Anjuman Committee shall consist of all Parsis whose names appear on the General Register and on the Donor Register. The persons whose names appear on the General Register shall be called "The General Members of the Anjuman Committee and the persons whose names appear on the Donor Register shall be called "The Donor Members of the Anjuman Committee".

c-d. Clause 3 of the Scheme mandates the Trustees to maintain the General and Donor Registers. The General Register will inter alia comprise of all Parsis whose names appear on the General Register as on the Effective Date i.e. the date on which the Scheme is sanctioned by the High Court. The Donor Register comprises of Parsis who have made a donation as set out in the Scheme. Every Parsi whose name is not previously entered in the General Register and whose name does not appear on the Donor Register shall, on application to the Trustees in such form as may be from time-to-time prescribed by the Trustees and on payment of requisite fees, be entitled to have his/her name entered on the General Register and such entry shall be Effective as and from the date of receipt of his or her application.

Sub-Clause (e) of Clause 3 of the Scheme makes it clear that at any Trustee Election held after the Effective Date, only those persons whose names appear on the General Register 60 days immediately preceding every such Trustee Election shall be eligible to vote. Clause 4(c) of the Scheme which is similarly worded, pertains to the Donor Register. It is not disputed that the names of individuals whose names appear on the General/Donor Registers are presumed to be only Parsis practicing the Zoroastrian faith. It is therefore clear that those persons whose names are shown on the General Register 60 days immediately preceding every such Trustee Election has a vested right to vote. In view of this provision, the Trustees have in the Election Programme published by them for the present election to be held on 14th March, 2021, the categorically declared that "the Register will be frozen as on 13th March, 2021 at 05.51 p.m. and only those members whose names appear on the General Register and the Donor Register as on 13th January, 2021 will have the voting right at the forthcoming election". It is therefore also clear that under the Scheme once the registers are frozen as aforestated, no changes can be carried out therein until the holding of the elections and declaration of results, otherwise the purpose of freezing the registers would be lost. Therefore Shri R.N. Jeejeebhoy, whose name admittedly appears to be in the General Register is presumed to be a Parsi practicing the Zoroastrian faith and has a vested right to propose or second any candidate desirous of contesting the forthcoming election as provided in Clause 18 of the Scheme and a vested right to vote thereat under Clause 14 of the Scheme. Therefore, the Nomination of the Appellant the proposed by him on 29th January, 2021 ought not to have been rejected by the Trustees. As explained hereinafter, the right of Shri R.N. Jeejeebhoy to propose the candidature of the Appellant would have ceased, if the Trustees would have struck of his name prior to the freezing of the Registers by following the procedure laid down in Clause 11 of the Scheme.

e. The Trustees have laid great emphasis on the definition of the expression "Parsi" set out in Clause (a) under the caption 'Interpretation' of the Scheme, which clarifies that the expression "Parsi" throughout the Scheme, unless otherwise qualified, means a Parsi (including an Irani Parsi) whether male or female of the age of 18 years or upwards professing the Zoroastrian Faith and who shall, if so required by the Trustees, have filed in the office of the Bombay Parsi Punchayet an Affidavit in such form as may be prescribed or required by the Trustees that such male or female, as the case may be, has not renounced the Zoroastrian faith, whether by reason of marriage to a non-Zoroastrian spouse or otherwise, and continues to profess the Zoroastrian faith.

f. In our view, just because the definition of the expression "Parsi" allows the Trustees to require a Parsi to file an Affidavit stating that he/she has not renounced the Zoroastrian faith and has continued to profess the Zoroastrian faith and Shri R.N. Jeejeebhoy not responding to the letter from the Trustees, does not mean that the name of Shri Jeejeebhoy should be treated as being struck of from the General/Donor Register. In that event the Trustees ought to have followed the procedure set out in Clause (11) of the Scheme, which makes it clear that if Paarsee whose name appears on the General/Donor Register ceases to profess the Zoroastrian faith, the Trustees shall cause his or her name to be struck of from the concerned Register in which his or her name appears 'PROVIDED HOWEVER' that where the Trustees are desirous to strike off the name of a Parsi by reason of him/her ceasing to profess the Zoroastrian faith, the Trustees shall do so only after issuing a notice to such person/Parsi in that behalf and consider the cause, if any, that such person may have, within 30 days of the receipt of such notice. In such cases the decision of the Trustees in that behalf shall be final and binding.

g. In the instant case, the Trustees of the BPP have completely overlooked Clause 11 of the Scheme. The Trustees have on the basis of some complaints received by them alleging that Shri R.N. Jeejeebhoy has converted to Christianity issued an email on 11th February, 2021 to Shri Jeejeebhoy stating that they have received the Nomination of the Appellant proposed by him and have thereafter received letters from the members of the community as well as some of the candidates stating that he has renounced the Zoroastrian faith and embraced Christianity and presently is a member of the community of Hope Church, Mumbai and therefore if the same is not true he should file an Affidavit confirming the true facts as required by the Scheme of Election within two working days. Since the name of Shri R.N. Jeejeebhoy already appears as a Parsi on the Register maintained by the Trustees of the BPP under the Scheme, in our view the Trustees ought to have followed the procedure set out in Clause 11 of the Scheme by issuing notice to Shri R.N. Jeejeebhoy of 30 days, to explain his stand and by categorically setting out therein that upon receipt of his response the Trustees may proceed to strike of his name from the Registers. If the Trustees would have followed the prescribed procedure and if Shri R.N. Jeejeebhoy had failed to respond to the request of the Trustees, the Trustees would have been justified in proceeding to strike of his name and consequently deprive him of the right vested in him to nominate any candidate desirous of contesting the election for Trustees, and also his right to vote at such an election.

h. It is also pertinent to note that it appears from the Letter dated 11th February, 2021 that the Trustees have not forwarded to Shri R.N. Jeejeebhoy any complaints or any material received by them from the complainants. It is also pertinent to note that the Trustees after rejecting the nomination of the Appellant on the ground that her Proposer Shri R.N. Jeejeebhoy had allegedly renounced the Zoroastrian faith, have on 1st March, 2021 i.e. after the Appellant filed the above Suit and Originating Summons in this Court, addressed a letter to Shri R.N. Jeejeebhoy st requesting him to give a declaration/Affidavit by the end of the day i.e. on 1st March, 2021 itself, on the purported ground that the Appellant has attributed certain statements to him in her communication to the CEO, BPP as far back as on 16th February, 2021. It therefore appears that the Trustees themselves were completely confused and not aware of what they were doing. In any event, the notices which are issued by not following the mandate set out in Clause 11 of the Scheme can by no means be termed as Notice under Section 11 of the Scheme and the Trustees not having followed the procedure set out in the said Clause, which would include striking of the name of Shri R.N. Jeejeebhoy from the Registers which appears till date, cannot be heard to contend that Shri R.N. Jeejeebhoy is not entitled to nominate the candidature of the Appellant.

i. An attempt has been made on behalf of the Trustees in the correspondence exchanged between the Appellant and the CEO of the BPP and in their Affidavit in Reply to the ad-interim/interim Application as well as across the Bar, to the effect that the Appellant was aware or ought to have been aware that her Proposer Shri R.N. Jeejeebhoy had embraced Christianity. The Trustees have also sought to give an impression that the onus was on the Appellant to establish that her Proposer had not embraced Christianity, but she failed to obtain an Affidavit from Shri R.N. Jeejeebhoy disputing the allegation made against him by certain individuals to the effect that he has embraced Christianity and renounced the Zoroastrian faith. Relying on certain sentences from her communication it was also sought to be contended that the Appellant has admitted that Shri R.N. Jeejeebhoy was not professing the Zoroastrian faith. Here it is pertinent to note that the Trustees who have provided the Nomination Form to the candidates only require the said Proposer and Seconder to make a declaration that they are the members of the Anjuman Committee consisting of General/Donor Members and they assure the Trustees that the candidate is a Parsi and follows the Zoroastrian religion and he/or she has completed 30 years. However, no declaration is sought either form the Proposer or the Seconder in similar terms that they continue to be Parsis who follow the Zoroastrian faith.

j. In the Election Programme published by the Trustees, it is mentioned that the final list of the members from the General/Donor Register shall be made available to the candidates on payment of charges of Rs. 300/- per CD. The Appellant followed the procedure prescribed in the said Election Programme published by the Trustees and purchased the final list of the persons whose names appeared on the General/Donor Register published by the Trustees on 19th January, 2021 upon payment of Rs. 300/-, the receipt of which is annexed to the Plaint and upon noting that the name of Shri R.N. Jeejeebhoy stands at Serial No. 3.4357 in the General Register and the name of Ms. Khorshed Dadi Antia appeared at Serial No. 25272 in the General Register, got them to propose and second, her Nomination Form which was submitted to the office of Bombay Parsi Punchayet on 29th January, 2021. In fact, the Appellant on 3rd February, 2021 also purchased the updated list from the office of the BPP by once again paying Rs. 300/- for which a receipt was issued to her acknowledging that an amount of Rs. 300/- was paid towards "purchase of updated CD. having list of voters". The name of Shri R.N. Jeejeebhoy also appeared in the updated list of persons whose names appeared on the General/Donor Register subsequently published by the Trustees.

k. It appears that immediately after the Appellant submitted her the Nomination Form on 29th January, 2021, certain rumours and allegations started circulating on WhatsApp Groups and on social media that her Proposer, Shri R.N. Jeejeebhoy had converted to Christianity and renounced the Zoroastrian faith. The Appellant being completely unaware as to the correctness of such allegations, tried to

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contact her Proposer, who was unavailable. The next two days being holidays, the Appellant out of abundant caution, addressed a Letter dated 1st February, 2021 to the Trustees, as it was the last date for filing of the Nomination Form, requesting them to accept her father Shri Firdosh Minocher Homavazir as the Co-Proposer in the Nomination of her candidature. We would at this stage itself make it clear that there is no concept of Co-Proposer in the Scheme of the Election and the Appellant has to stand or fall only on the basis of the original form duly filled in and submitted by her. The Nomination of the Appellant is also not rejected by the Trustees of the BPP on the ground of her Letter dated 1st February, 2021. l. The Appellant therefore scrupulously followed the election programme/guidelines issued by the Trustees of the BPP with regard to her Nomination Form submitted on 29th January, 2021. m. We would also like to emphasise that it is nowhere provided in the Scheme or elsewhere that it is the candidate who has to satisfy/convince the Trustees that his/her Proposer/Seconder whose names appears on the Registers maintained by the Trustees of the BPP on the day of him/her submitting his/her nomination, is a Parsi following the Zoroastrian faith, upon the Trustees having received any complaints that they have ceased to be Parsis by not following the Zoroastrian faith. The duty lies at the door of the Trustees to inquire into such allegation and take action of striking of the name of such Parsi from its Registers by following the procedure laid down in Clause 11 of the Scheme, which procedure is not followed in the instant case. n. We repeat that until the name of Shri R.N. Jeejeebhoy appears on the General Register and is not struck of, the Appellant was fully justified in submitting her Nomination Form proposed by Shri R.N. Jeejeebhoy and the Trustees have incorrectly rejected the same. The Appellant also cannot be faulted for not joining Shri Jeejeebhoy as a Party Defendant to the Suit, because as stated earlier the onus is not on her to establish that Shri Jeejeebhoy has not renounced the Zoroastrian faith as long as the name of Shri Jeejeebhoy appears as a Parsi on the Registers maintained by the Trustees, and the same has not been struck of from the Registers. o. In our view, the Learned single Judge has erred in not considering the relevant Clauses of the Scheme, more particularly Clause 11, which sets out in very clear terms the procedure to be followed by the Trustees, before reaching a final conclusion that the person whose names appears on the General/Donor Register has ceased to profess the Zoroastrian faith and upon being convinced, to strike of his/her name from the General/Donor Register. The Learned Judge has erred in not granting urgent reliefs to the Appellant by relying on the definition of Parsi set out in Clause (a) of the Scheme, under the caption 'INTERPRETATION'. We are therefore convinced that the action on the part of the Trustees of the BPP in rejecting the Nomination Form of the Appellant for the election scheduled to be held on 14th March, 2021, on the ground that Shri R.N. Jeejeebhoy who has proposed her nomination has renounced the Zoroastrian faith and has embraced Christianity, is incorrect. 12. In view of the above, the following Order is passed: i. The decision/Order of the Trustees of the BPP rejecting the Nomination of the Appellant for the election to be held on 14th March, 2021, is set aside. ii. The Trustees of the Bombay Parsi Panchayat shall treat the Nomination of the Appellant as a valid nomination and take all necessary steps as prescribed in the Scheme/Law to enable the Appellant to contest the election for filling up the two vacancies of the Trustees of the BPP scheduled to be held on 14th March, 2021. iii. The Appellant is also allowed to inform the members of the community that she is allowed to contest the election to be held on 14th March, 2021, and that she shall be doing so. iv. Needless to add that the Originating Summons shall be decided by the Learned single Judge without being influenced by the observations made in this Order. v. The Appeal is accordingly disposed of in the above terms. vi. The above Interim Application also stands disposed of.
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