Ban on Priests…The saga so far on wasteful expenditure.
Dear Fellow Zoroastrians,
My letter dated July 14, 2014 addressed to the Trustees of BPP, circulated widely on the net and in Parsi Times, commenting on their having expended so far, a few crores of rupees on litigation in the ‘Ban on Priests issue to be wasteful expenditure has been responded to in Parsi Times issue dated July 26, 2014 by Mr. Khojeste Mistree & Mr. Yazdi Desai, two of the seven Trustees of BPP.
In response to their article published in Parsi Times issue dated July 26, 2014, I have sent a response to the publication. Mr. Jamsheed Kanga & Mr. Homi Khushrokhan have also sent a strongly worded rejoinder to the BPP. Hopefully our points of view should be published in the next issue of Parsi Times due on August 02, 2014.
I firmly believe that the expenditure is not only wasteful and uncalled for, but on going through the 2011 judgement of the Div. Bench of Bombay High Court it is clear that expending funds in the matter was not within the purview of the BPP Trustees. Should anyone be interested in reading the judgement (60 pages) I will be happy to mail them a soft copy.
It is time that the worldwide Zoroastrian community should be made aware of the reckless manner in which some Trustees of BPP are frittering away community funds not to serve the interests of the community but their own interests as self proclaimed defenders of the faith.
This message is being sent in BCC mode to Zoroastrians worldwide for their information; those concerned about the welfare of the community are requested to go through the communications exchanged and draw their own conclusions.
Please feel free to share the details of the message with others, including uploading on community websites.
Dinshaw K Tamboly
Open letter from Dinshaw Tamboly to Trustees of BPP
July 14, 2014
Bombay Parsi Punchayet,
Ladies & Gentlemen,
Re: Ban on Priests
I have since some time now been following, what is uncouthly referred to in some community circles as “the renegade mobeds” case. I believe that the dignity of any human being is inviolable and it does no credit to those who use such insulting and offensive terms to describe others whose views and actions are not in sync with theirs.
From what I have understood so far, the Trustees, ostensibly on the advice from some of the community High Priests, passed a resolution banning two priests from performing ceremonies at two Agiarys of the Punchayat, as well as at the Doongerwadi. This was done for the reason that these two priests were known to be performing Navjote ceremonies for the children of mixed marriages.
This action by the Trustees was challenged in an Originating Summons Suit filed before a Single Judge of the Bombay High Court. The Learned Single Judge before whom the same was agitated found such summary proceedings taken out to be non maintainable, and the suit was dismissed for that reason. The original Plaintiffs filed an Appeal before the Division Bench of the Bombay High Court to challenge such a decision. After several hearings, the Hon’ble Division Bench ultimately allowed the Appeal, and struck down the impugned resolutions, holding that the Trustees of the Punchayat had no powers under the Trust Deed to issue such bans.
The Trustees have filed a Special Leave Petition before the Hon’ble Supreme Court of India for leave to appeal against the Division Bench Judgment of the Bombay High Court. It appears that during the pendency of this Special Leave Petition, attempts have been made to settle the issue amicably out of Court, and for that purpose an expert Mediator was also appointed by the Supreme Court. I am informed that on several occasions, the Mediator has met with the Trustees and the original Plaintiffs both separately as well as jointly, to aid them in arriving at a solution acceptable to all. Whilst I find such attempts laudable, it was distressing to learn that the mediation proceedings had failed, and the matter is now back before the Supreme Court.
As a former Trustee of the Bombay Parsi Punchayat (November 1996 to September 2008, I am familiar with the workings of the Trust, the pressures it faces from within as well as from outside, as also the ultimate goal of charity and philanthropy.
I find it distressing that a matter of this nature, which I perceive to be related to the interpretation of the Trust Deed, and the powers of the Trustees there-under, has dragged on for so long and before so many Courts in the hierarchy of our great Judicial System. Although during my tenure as a Trustee, there was nowhere near as much litigation by or against the Trust as there has been in recent times, I am not unfamiliar with the litigation system. Being aware of the great costs involved in getting decent legal representation, I am sure that this ‘Ban on Priests’ case since its inception till date must have caused the trust to spend a great sum of money. Whilst I can only surmise the amount on the basis of past experience, you as present Trustees would be aware of the actual legal expenses incurred.
However I am sure that whatever be the actual figure, had it been spent on the actual objects of the Trust, it would have been enough to feed, shelter, clothe, medicate and educate several financially challenged members of our community.
I have no doubts that where third parties illegally try to usurp the funds and properties of the Trust, the best possible legal action must be taken and followed to its logical conclusion, but, in a matter such as that of the ‘Ban on Priests’, which in my opinion has been fuelled by the misplaced and misconceived religious beliefs and orthodox egos of some individuals, I find it a shame that vast sums of community funds have being expended, which should have been put to much better and fruitful use.
Ultimately, poor Parsi / Irani Zoroastrians are not going to be better equipped in life whether the two priests in question are allowed to, or disallowed from, performing ceremonies / offering prayers at BPP managed Agiaries or at the Doongerwadi.
BPP Trustees cannot justify their action by taking refuge under the premise that they acted as per direction of the High Priests, because the High Priests are known not to speak in unison, they themselves express views that are not compatible with those of one another, and in the not too distant past there has even been an instance where they had passed a ‘fatwa’ but then retracted when they realised it would not stand legal scrutiny.
Whilst on the High Priests, it will not be out of place to mention that the views expressed and actions taken by earlier High Priests have been at complete variance with the present day High Priests. Surely, religion, rites & rituals cannot keep on changing, depending on the views of individuals occupying the position of High Priests.
To give an example, on the issue for which two Priests have been banned, for performing Navjote ceremonies for the children of mixed marriages, if one were to refer to ‘History of The Bombay Parsi Punchayet’ (1860 to 1960) by Sapur F. Desai, page 13, it is clearly mentioned that Dastur Kekhushroo Jamaspasa (grandfather of our present day Dasturji Jamaspasa) performed the Navjote ceremonies on 26th June 1882 of 9 children born of Parsi fathers and non Parsi mothers.
Further, if you were to refer to ‘The Persian Rivayats’ of Hormazyar Framarz and others (Their version with introduction and notes by Ervad Bamanji Nusserwanji Dhabhar, M.A., published by The K. R. Cama Oriental Institute, Bombay, pages 275-277, dealing with ‘peaceful and forcible conversion’ it very clearly mentions “If they (a grave digger, a corpse burner and a darvand – one of a foreign faith – observe the rules of religion steadfastly and keep connection with the religion and if no harm comes on the Behdins, it is proper and allowable (that is conversion). It is also mentioned that if a Behedin turns darvand, he can be re-converted into our faith by performing certain ceremonies.
From the above two references, I do hope your good selves will realise the futility of the stand that BPP has taken.
You will all be aware that in a very recent judgment dated July 07, 2014, Hon’ble Supreme Court of India has ruled that fatwas have no legal standing or force and cannot be enforced using coercive method. If you all wish I can send a copy of the judgement.
As a former Trustee of BPP, I feel it my duty to counsel the present Trustees that:
a) The practices followed by earlier High Priests were quite different from those being sought to be imposed on the community by some of our present day High Priests.
b) The ban on priests is an ill-conceived idea, not supported by any legal authoritywhich during the tenure of the earlier Boards would never have been resorted to. The present ruling of Hon’ble Supreme Court of India is indicative of how our justice delivery system views fatwas.
c) Funds should not be used for this purpose – it is not within the remit of the BPP to become self-appointed custodians of the faith. The main purpose of BPP is to look after the poor and needy and not waste precious funds on such matters.
d) The BPP Trustees should try to be more inclusive and keep the community together, not divide and cause friction within the community.
Keeping the above in mind, I sincerely hope your good selves will see reason and take all necessary steps to close this controversy once and for all at the earliest. No good will be achieved by continuing with this expensive litigation.
Dinshaw K Tamboly
From Khojeste Mistree & Yazdi Desai to Parsi Times
This case goes much beyond just banning 2 Renegade Priests…….
Khojeste Mistree and Yazdi Desai
In recent days, some members of the community have raised concerns about the amount of monies being spent by the BPP on litigation in the Renegade Priests’ Case. The case is presently pending before the Hon’ble Supreme Court, and one has to wonder why these concerns are being raised now, when the matter is on the verge of being heard by the highest Court of the land. What has compelled these individuals to put pressure on the BPP Trustees to stop spending monies on this particular litigation, days before the Hon’able Supreme Court hears it? Could it be, that they are apprehensive about the Hon’able Supreme Court’s Order being in favour of the BPP’s stand, especially in the face of a 5 member Bench Supreme Court Judgement on Ratilal Gandhi, and hence the pressure to somehow stop the further funding of this case?
Some facts about the case:
Whatever be the reasoning behind the efforts to cripple this litigation, in view of the matter being publicly discussed, it is important to put certain facts before the community.
1) There is no doubt that these days any litigation is extremely costly. But lest the community forgets, it was not the BPP Trustees who initiated this particular litigation! The BPP was dragged to the Hon’able High Court on an issue that would have died a natural death had not 2 individuals (NOT the priests concerned) taken the matter to Court.
2) The reason we say that the matter would have died a natural death, is because the 2 priests concerned, namely Khushru Madon and Framroze Mirza, were unaffected by the ban, which did not allow them to perform ceremonies at the Doongerwadi Complex and the two agiaries controlled by the BPP. They were not interested in challenging it and continued their defiant actions of performing cremation ceremonies and conversions outside the jurisdiction of the BPP, earning richly from a small but affluent group of Parsis, who formed the pro conversion and pro cremation lobbies. One of the priests has even travelled abroad to perform conversions in Tajikstan and elsewhere and has even sought to confer priesthood on a Russian in Sanjan.
3) The matter would and should have ended there, but for the fact that two community members (Mr. Homi Khushrukhan and Mr. Jamshed Kanga) took the issue to the High Court, on the grounds that the BPP trustees had no religious authority to ban priests from praying at the Doongerwadi Complex and the 2 fire Temples under their control.
This, in itself was a misguided exercise, because the BPP trustees have not effected the ban on their own authority. We have simply upheld the authority and implemented the directives of the learned High Priests who head the ecclesiastical group (such as the Sanjana and Bhagaria panths) the 2 renegade priests belonged to and who had imposed a ban on the 2 priests for their cremation-conversion activities.
4) When the Originating Summons came up, the Hon’able High Court threw out the Petition filed by Homi Khushrukhan and Jamshed Kanga. Even at this point of time, the two renegade priests remained indifferent to the outcome of the case. Surely, that should have been reason enough for the matter to have been closed? Surely that was the right time to have shown concern for conserving BPP funds, especially when the 2 renegade priests were not interested in challenging the ban on them?
5) But instead of ending the matter there, more litigation was thrust upon the BPP Trustees! An Appeal was filed with the Divisional Bench against the Order of the Single Judge inthe High Court and the BPP Trustees had no option but to once again spend monies on the litigation.
It is only after the Divisional Bench of the Hon’ble High Court passed judgement against the BPP in favour of the 2 community members, that the BPP Trustees had to challenge the Order in the Hon’able Supreme Court, that concerns for BPP funds being “wasted” on this litigation, began doing the rounds!
Some of the Serious Ramifications of this Order:
In view of the fact that this litigation was not initiated by the BPP in the first place and was thrust upon us, to fault us now for spending funds to defend our action of supporting and enforcing the High Priests’ directives, which are vital to safeguarding our religious traditions, is to unfairly target us!
This case is simply not about 2 priests being banned from praying, professionally, at the Doongerwadi Complex and in the 2 Fire temples controlled by the BPP, as is wrongly being projected by some.
Under the guise of seeking an interpretation of the Trust Deed, a whole lot of other issues have been agitated in the High Court, like the alleged efficacy/failure of Dokhmenashini, the alleged legitimacy of cremation and conversion, the role and authority of the BPP Trustees, the role and authority of the High Priests, etc., as the Judgement has touched on all of these issues.
Read the Judgement which the BPP Trustees are challenging in the Hon’able Supreme Court, which if left unchallenged, would severely undermine the Dokhmenashini system, the authority of the BPP Trustees, as well as the authority of the High Priests and leave utter chaos in its wake. As BPP Trustees we cannot allow this to happen.
Former BPP Trustee Mr. Dinshaw Tamboly has written an open letter to the BPP Trustees regarding the Renegade Priests Case. We would like to refute salient points made by Mr. Tamboly. Mr. Dinshaw Tamboly Seeks to Conflagrate the Issue even further:
Nothing wrong with the term “Renegade Priest”
Mr. Tamboly opens his letter by expressing his distaste for the term “Renegade”. He states that this term is an uncouth term which is “insulting” and “offensive” and should not be used to “describe others whose views and actions are not in sync with theirs”. We wish to draw the attention of Mr. Tamboly to the definition of the word “renegade” as per the Webster’s New Collegiate Dictionary (p. 979) which offers a few meanings, one of which is “having resisted tradition”, “unconventional”, proving in fact that the term is absolutely appropriate and fits in perfectly with the term “renegademobeds” (priests). It does not behove an eminent community member like Mr. Tamboly to unnecessarily try and whip up emotional hysteria, when none should exist.
Mr. Dinshaw Tamboly, has gone on record to question whether BPP charity funds can be used for this litigation. He goes on to ask, shouldn’t these funds be used instead to clothe, shelter, feed, medicate etc. the financially challenged members of our community? One wonders where Mr. Tamboly’s self-righteous indignation had disappeared to, when he himself as Trustee of WZO Trust Funds has used WZO Charity funds, which were specifically donated and earmarked for building houses for the poor in Gujarat, to fund the debt-ridden editor of the Jame, Rusi Dhondy so that he could use the Jame and Dhondy’s name to attack and mock the traditionalists and the orthodox. ! In fact, it is a matter of record that the first major division in the community was caused by Dhondy’s inflammatory writings in the Jame, which were ghost written and funded by the same Mr. Tamboly, from WZO Charity funds!
Closer to present times, Mr. Tamboly is seeking crores from the community to build and maintain a Cremation Prayer Hall, of which he and his nephew are also Trustees. This Cremation Prayer Hall will be open to all communities. Surprisingly, the same Mr. Tamboly who is indignant at the BPP for spending charity funds for the Renegade Priest litigation has taken Rs 1.8 crores from A. H. Wadia Trust, of which BPP Trustee Mr. Munchi Cama is the managing trustee for this Cremation Prayer Hall.
Can we redirect Mr. Tamboly’s same question back to him – shouldn’t this Rs 1.8 crores of Charity funds be used instead to clothe, shelter, feed, medicate etc. the financially challenged members of our community? Using Mr. Tamboly’s own comments “Isn’t it a shame to expend such vast sums of money, which should have been put to much better and fruitful use? Especially when cremation facilities are existing and readily available and accessible in Mumbai? Why waste crores of Charity Funds to build a Cremation Prayer Hall which will also be used by other communities?
Mr. Tamboly appeals to the BPP Trustees to keep the community together and not divide and cause friction. We are a little taken aback by Mr. Tamboly advising us about not causing friction in the community. He seems to have forgotten when he was a BPP Trustee and in the year 2000, the huge uproar and dissent in the community when the erstwhile trustees (including Mr Tamboly) agreed to give a Bungli at the Doongerwadi Complex for cremation purposes. At that time, public meetings addressed by the High Priests and other community leaders were held, door to door signature campaigns were undertaken, petitions and meetings were held with the Trustees to make them rescind their decision, reams were written in the Press, including the secular media. Does Mr. Tamboly not consider that as causing friction and dividing the community? There is even now a case pending in the High Court, filed by the same 2 community members – Homi Khushrukhan and Jamshed Kanga, against the BPP, demanding a Cremate ni Bungli at the Doongerwadi Complex and Mr. Tamboly has given an affidavit strongly supporting them!
It is this kind of double-talk from one of the most vocal critics of the renegade priest litigation, that makes one wonder, if it is Mr. Tamboly’s concern for the underprivileged in our community or for the furtherance of his own radical personal views, which is driving him to question the cost of this litigation.
Why Blame the High Priests?
Mr. Tamboly clearly has a very low opinion about our High Priests, as they do not seem to concur with his reformist beliefs. He says that “…..the High Priests are known not to speak in unison”. Then Mr. Tamboly should similarly have very low opinions about lawyers and doctors – who often give differing opinions. In fact the BPP Trustees, now and when Mr. Tamboly was a Trustee did not speak with one voice over many issues – the analogy should extend to all ?
In fact, in the Renegade Priests matter the High Priests have spoken and supported us, in unison. 5 of the 6 High Priests of India are strongly with the BPP.
It would help, if Mr. Tamboly did some serious reading on priestly history, as he would find out for himself, that the High Priests over the decades have been very united in their religious advice and guidance to the community, at large. Yes, dissent shown by 2 or 3 High Priests over the past 100 years is a fact, which is overly highlighted, but what about the dozens of High Priests over the same period of time, who have unitedly expressed their views on socio-religious matters, with one voice!
What does the BPP Trust Deed State :
Trustees must stay true to the wishes of the Settlors of the Trust. As much as one would like to settle issues amicably, one cannot, as a trustee, compromise on the very principles on which the Trust was entrusted to us. It is sad that Mr. Tamboly, being a former Trustee of the BPP needs to be reminded that the BPP was constituted first and foremost to look after the Doongerwadi complex for the purpose of Dokhmenashini. That is the main Object of the Trust. Charity, philanthropy, housing, etc. were undertaken by the BPP Trustees much later. That is not to say that any of those heads have been neglected by the present BPP Trustees. In fact, the record will reflect that during our term, we have increased monthly financial help to the disadvantaged of our community, the 2nd and 3rd child Scheme has been enhanced substantially, the mobed scheme has been introduced to help our mobeds who earn a pittance, etc. But to expect us not to defend a case which challenges the very authority of the BPP Trustees to protect the Doongerwadi Complex and Dokhmenashini, on the premise that the forced litigation against the BPP Trustees is costly, is audacious and absurd.
Why should the BPP Trustees say no to Cremation and Conversion as well as not encourage a handful of Priests who promote such irreligious activites:
Cremation is against the Zoroastrian religion and therefore cannot be legitimized by the BPP Trustees under any circumstances, more so as the BPP is the apex Body of the Parsi Zoroastrian Community.
Conversion, has the potential to open up the flood gates (especially in view of our vast housing properties) and will weaken the unique ethnic identity of our miniscule community and drive it into oblivion! As Trustees of the apex body of the Parsi Zoroastrian community, we would be abrogating our responsibilities if we were to ignore the potential danger posed to our community by a few renegade priests, who continue to promote cremations and conversions. Our firm position is that no renegade priest should be allowed to perform any ceremonies or rituals in all the BPP controlled religious institutions.
The BPP Trustees and Homi Khushrukhan and Jamshed Kanga are continuing to explore the possibility of out of court settlement, but we certainly are not going to agree to settlement terms which are a sell out. 2 BPP Trustees – Munchi Cama and Dinshaw Mehta who are overwilling to sign consent terms which would give legitimacy to cremation and conversion and destroy the ethnic fabric of our Parsi Irani community, should take a good look at their election manifestos, where they have promised to uphold customs, traditions and follow the High Priests in matters of religion. These 2 trustees should resign and seek re-elections on a pro-cremation and pro-conversion platform.
It is also very pertinent to note that Dinshaw Mehta had no problem spending 2.25 crores upto November 2013 on the Renegade Priests case, but he suddenly changed his religious convictions after 4 Trustees filed a Criminal Complaint against him.
From Dinshaw Tamboly to Parsi Times with c.c. to BPP
July 28. 2014
102, Vikas Building,
11, Bank Street,
Mumbai 400 001.
This is in response to the write up by Messer’s Khojeste Mistree and Yezdi Desai published in your issue dated 26th July 2014. Their response to my letter is all too typical. They have sought to kick around a lot of dirt in the slim hope that in the confusion they hope to create, nobody will realize that they have not actually addressed the issues raised.
I am not going to get sucked into a debate on the issues raised by these gentlemen in respect of proceedings before the Court. Suffice it to say that there is already a judicial pronouncement by the Division Bench of our High Court which very vehemently holds against what these two Trustees are canvassing, and which is now the subject matter of the Special Leave Petition before the Supreme Court.
I am not going to comment on the merits of a matter which is sub-judice.
A lot has been written in the past ad nauseam about my so called radical views. The Trustees in question have once again sought to do the same, in an attempt to sling enough mud toward me so that the attention gets completely diverted away from the current scenario. However in doing so they have overlooked one simple fact. I, unlike the two of them, have no political aspirations. They on the other hand will have to justify to the vote bank at the upcoming elections as to why crores of rupees have been spent on legal fees, in respect an issue which, now by their own admission, does not even have unanimity of opinion amongst all the BPP Trustees themselves, let alone the High Priests.
The allegation that if the Trustees do not continue with such actions then the funds of the community will fall prey to the tentacles of converts is outrageous. One would expect that Trustees of BPP would be aware of laws that govern a Trust. Surely our dear Trustees should be aware that where a Trust provides that its funds can only be used for helping Parsi and Irani Zoroastrians, persons who are not born as Parsis or
Iranis can never lay claim to those funds, however much they may convert to and embrace Zoroastrianism. This is an all too often made attempt to scare the masses that if conversion is not stopped at the threshold level then the funds meant for “us” will soon be used by “them”. Funds and properties of a trust can only be used for those persons who are described as beneficiaries in the Trust Deed. The fact is that if the Trust Deed provides that only Parsi and Irani Zoroastrians are to be beneficiaries, then no non Parsi or Irani, who has converted to Zoroastrianism can ever claim aid from such a trust.
The attempt by these two gentlemen to once again show the WZO Trusts’ in poor light, in the weak hope that it will deflect the attention away from their current administration is laughable. In spite of several such attempts over the years, the work done by the WZO Trusts’ has carried on unfettered for many, many years now. The issue of a cheque issued by WZO Trust to Mr. Rusi Dhondy, erstwhile editor of Jam-e-Jamshed keeps on surfacing time and again whenever I am sought to be criticized. As mentioned many a times in the past, the fact remains that the issue of the cheque was first published in the now defunct publication ‘Parsidom’ (issue dated April 15, 2000) edited by late Mr. Dara Kadva based on half baked information. Subsequently, on learning of the true facts of the matter, late Mr. Dara Kadva was man enough to publish a retraction in ‘Parsidom’ (issue dated May 22, 2001). The worthies who bring up this matter from time to time conveniently forget to recall the retraction, which is illustrative of their mindset.
This bogey does not take these two gentlemen anywhere. Although the allegation is blatantly false, it begs the question – Are these two Trustees seeking to justify the current expenditure on the ground that the WZO Trust had allegedly done something similar in the past?
The comparison of the present issue to the Prayer Hall being constructed for those who opt to be cremated, is childish at best. Spending monies on a cause for which a trust directs, as in the case of the Prayer Hall Trust, and spending monies on something extraneous to the administration of the BPP are two completely different issues.
The allegation that my letter addressed to the Trustees is an attempt to further my so called radical views, is completely false. Again this is a card played once too often by the radical orthodox when they have no answer to a pressing question. Their motto seems to be: When one raises an inconvenient question, sling enough mud in their direction and hope to escape without answering it.
A reading of the write up in question by these two trustees makes two facts abundantly clear:
- The BPP did not affect the ban in question on the two priests of their own accord, but it acted on the “directives” of some of the High Priests. Are we to understand that the administration of the Punchayat affairs is being carried out by the High Priests by remote control?
- The BPP has spent crores of rupees on this litigation, and the spending is not over. Moreover there is a divide amongst the Trustees themselves as to whether this litigation should continue.
Is such expenditure, which is coming out of the collective pockets of the community and not from the pockets of the High Priests or Trustees, justified?
Perhaps a harder and more introspective look is required at the practicality of the matter from within the Punchayet. This will be possible only when some Trustees realize that they are elected to serve the interests of the community and not their own interests as self proclaimed defenders of the faith.
Dinshaw K Tamboly
Bombay Parsi Punchayet,
From Jamsheed Kanga & Homi Khushrokhan to BPP
Jamsheed G Kanga
Homi R Khusrokhan
To: The Chairman and Trustees of the Bombay Parsi Punchayet
29th July 2014
Dear Mr. Mehta,
We were appalled to read an article in the last issue of Parsi Times titled “This case goes much beyond just banning 2 Renegade Priests….” authored by two of your trustees Mr. Khojeste Mistree and Yazdi Desai. The article is nothing but a concoction of half-truths and misleading statements cleverly put together in order to mislead and confuse an unsuspecting reader. It creates an impression that the BPP have no option today but to go back to court,which is completely incorrect. The reader has not been given the slightest indication that in the intervening period of 3 years there have been over 20 settlement meetings and that till recently there was a well-thought-out and painstakingly crafted settlement under consideration between us, which addresses the majority of theconcerns (and canards) raised in the said article. In fact, the Trustees kept calling us for settlement meetings, which was obviously only a sham.
It makes us wonder why these two gentlemen sat with us and participated in these mediation discussions (often extremely unpleasant) for over 3 long years. It also amazes us as to how they managed to ‘convince’ 3 of your other trustees to side with them in favour of returning to court. There is not a single legitimate function of the BPP that your Board of Trustees has been prevented from dischargingby virtue of this judgment during the last three years that the judgment has been in force, viz. since April 2011. Our challenge, to the group of trustees who wish to revert to the Court, to show us even one such instance, remains unanswered to this day.
Let us be clear that the Trustees issued an unprecedented ‘FATWA’ and that is what started these proceedings. We have been very clear from the beginning that it was not the banning of the two priests in particular, which we challenged, but the concept behind it viz. the Trustees imposing their will on members of the Community and taking away the freedom of choice, which is the fundamental basis of the matter. Such a ‘FATWA’ has never been issued in the past. These two Trustees are fully aware that this is the heart of the matter, and yet have chosen to mislead the public by pretending that it is Ervads Madan and Mirza which are the reason for the dispute. Thesetwo gentlemen and all of you have a duty as Trustees for transparency and honesty to the members of the Community. You cannot mislead in this manner. We believe you are today duty bound to issue a clarification to the article published, failing which, each of you would be failing in your duty and responsibility to the Community.
The fact that no one can justify the Rs.3 Crores already spent (or rather misused) on this litigation, is no justification for misleading the members of the Community and giving an incorrect impression. For 3 years, the Trustees have informed the Supreme Court that they wanted a settlement of the matter and sought adjournments. Is this also a false statement made by you to the highest Court of this land? From the very outset, we had made it clear that the fundamental basis of the Appeal Court Judgment would remain untouched, viz. that the Trustees do not have the power to curtail the right of choice of members of this Community. Why then have you wasted time and money on these mediation meetings? Then, please have the courage to say to us that you stand by your illegal, perverse, obdurate view that you have the alleged right to issue such a ‘FATWA’ and fight the matter out in the Supreme Court. Don’t pretend to us and mislead the Supreme Court that you want to settle the matter. This article is the final straw, and we will place it before the Supreme Court at the appropriate time.
The proceedings were never about,nor does the Judgment deal with any religious practices, interfaith marriages, Navjote, cremations, etc. and yet members of the Community are being misled that in some manner the Judgment deals with these issues. The Judgment only deals with the interpretation of the Trust Deed of 1884 and the right of every Parsi Zoroastrian to appoint the priests of his choice at the Doongerwadi and the two Agiaries.
Let us place before you some of the truly astonishing misstatements and half-truths the article contains which need to be set right:
- It is on record both in court proceedings in the Bombay High Court and in every one of the 20 or so mediation meeting held so farthat this matter was never regarding the two priests in question but the BPP’s authority to impose a ban on our freedom to choose the priest of our choice. They conveniently forget to mention that there was an overt and explicit warning in the ban to other priests not to follow in the footsteps of Er. Mirza and Er. Madon. As the judgment states “Implicit in it (i.e. the ban) is a veiled threat to others against the reprisals that may follow, if they were to adopt a course of conduct that the Trustees do not countenance”.
- It is unimaginable how they can claim today that Er. Khushru Madon is no longer interested in challenging the ban and suppress the fact that another intervener (Mr. J S Irani) together with the ARZ have in fact now sought relief from the Supreme Court on behalf of the two priests that the stay granted by the Bombay High Court on the removal of ban notices should be vacatedforthwith and that they should be allowed to pray at Doongerwadi.
- The High Priests have every right to guide, advise and counsel the communityon what they should or should not do,but,clearly,Fatwas are alien to our faith and cannot be accepted. A person can choose to be guided by the High Priests or choose not to be so guided. In any event, the Trustees cannot act beyond their powers or against the terms of the Trust Deed. This is what you have done. The choice of disposal of mortal remains, the choice of priest to offer prayers at the sad moment of death are matters best left to the families of the deceased and others cannot and should not interfere with these difficult decisions, least of all the BPP, at the painful point of separation from loved ones.
Moreover, all the BPP trustees are fully aware and have been given a copy of a written opinion of a very learned and respected former Judge of the Supreme Court (SrikrishnaJ.) that the Judgment of the Division Bench of the Bombay High Court has no bearing whatsoever on the authority of the High Priests. In fact there is no mention of High Priests or their authority in the entire judgment, as neither the High Priests nor they authority was evera question before the court.
- It has time and again been pointed out by us that role of the BPP is unambiguously circumscribed by a Trust Deed – the General Deed of Trust of 1884, which makes it abundantly clear that there is an obligation cast on the Trustees to at all times“permit and suffer the said piece or parcel of land and the several Towers, buildings and erections thereon standing and being first described in the First Schedule hereto (of the 1884 Deed of Trust) to be used and frequented as heretofore by every member of the Parsee Community professing the Zoroastrian religion as a place for exposure of the dead and for the performance of religious rites and ceremonies”. This is obligation is irrefutable and has been in force for 130 years.
- The so-called “Ramifications of the Order” (of the Division Bench of the Bombay High Court) is the most seriously misleading part of the entire article. It is ironic today that it was these same persons,not us, who agitated the verysame issues before the High Court, and, are now attempting to place the consequences of doing so at our door. They chose to use these arguments as a ploy (claiming “serious religious implications”) in order to get our originating summons dismissed. Religion was used (or rather misused) as a mere legal strategy to win a case,when the only issue before the court was a simple interpretation of a Trust Deed. Itwas sought to be widened by the introduction of these same issues, by these same gentlemen, who now allege (incorrectly) that the judgment damages our faith.
The erudite Judgment of the Bombay High Court which they now request should be read by all, in fact,says “To place a perspective is not to destroy a faith”and “The cohesiveness of a faith is maintained by dialogue and not division”. There is great wisdom in this judgment and we would request each of you to read it once again for yourselves.
For your convenience we enclose 2 important extracts from the said judgment:
“18. The Trust Deed plainly makes three things abundantly clear. Firstly, prior to the execution of the Deed of Trust, the trustees of the Parsi Panchayat were endowed with the authority of managing social and religious affairs and/or settling religious, matrimonial and other social disputes between the members of the Parsi Community in Mumbai. Secondly, the position of the trustees of the Parsi Panchayat underwent a transformation upon the execution of the Deed of Trust. At any rate, upon the execution of the Deed of Trust on 25 September 1884, the trustees of the Panchayat became trustees of the funds and immovable properties of the Panchayat. The role of the trustees became divorced from the resolution of religious, social and matrimonial disputes(emphasis added).Thetrustees assumed a secular character. Thirdly, the purpose of the dedication of the properties for the Towers of Silence was that those properties be used as a matter of right by every member of the Parsi Community professing the Zoroastrian religion as a place for the exposure of the dead and for the purpose of religious rites and ceremonies. An obligation was cast upon the trustees to permit and suffer the use of the properties for that purpose. The expression “permit and suffer” recognizes a right in the beneficiaries of the Trust, who are members of the Parsi Zoroastrian Community to utilize the properties for the purpose for which they were dedicated. The right finds a corresponding obligation in the Trustees to permit and suffer the use of the dedicated properties. Enabling provisions are thereupon made, empowering the trustees to keep the properties in good repair. In contrast, the dedication of the properties for the Towers of Silence is mandatory and imperative. A right is recognized in absolute terms in every member of the Parsi Community, who professes the Zoroastrian religion to be able to utilize the Towers of Silence as a place for exposure of the dead and for the purpose of religious rites and ceremonies. The Deed of Trust is couched in language of width and amplitude. The Towers of Silence constitute a sacred element in Zoroastrian faith. The Settlors of the Trust, therefore, contemplated the dedication of the Towers of Silence as a facility for the exposure of thedead of every member of the Parsi Community professing the Zoroastrian faith. The trustees have not been conferred with the power to exclude. Advisedly, the Settlors conferred an entitlement upon every member of the Parsi community professing the Zoroastrian faith as a matter of an important religious purpose. The lack of an exclusionary provision is, in fact, emphasized elsewhere in the Deed of Trust as well”
“29…….While we have indicated these areas of dispute which were urged before the Court, as a matter of record, we clarify that our decision is not based on adopting one or the other of these perspectives. The Court has been concerned in these proceedings with construing the Deed of Trust and it is the Deed of Trust that we have construed.”
- Again ironically, youand Mr Cama asked a day before the article appeared in the Parsi Times to have one more meeting on the last settlement draft, which these gentlemen now describe as a “sell-out”. I am afraid any further meetings would be meaningless and we request you to have a serious discussion amongst yourselves and take a view on the last draft, which we are now reluctant to modify any further as it has become an unending and futile process.While we may have disagreed on many matters, it is to your credit today that only you and Mr Cama appear to have the larger interests of the Community at heart and are very concerned that monies meant for genuine charitable purposes are being wasted on trying to now confirm the ill-conceived fatwa.
- We have taken a very serious view of this highly objectionable article, and are considering what further steps need to be taken in respect of the same.
S/dJ G Kanga S/dH R Khusrokhan