Clarification issued jointly by Jamsheed Kanga & Homi Khusrokhan

There appear to be several misunderstandings concerning the Settlement entered into on 17.02.’15 in the matter of the Notice issued by the BPP in 2009 threatening a ban against other Priests and imposing a ban on two priests Er. Framroz Mirza & Er. Khushroo Madon, prohibiting them from praying at Doongerwadi and the two Agiaries under the BPP’S charge. Now that the Hon’ble Supreme Court on 27^th April, 2015 has accepted the Settlement, we clarify as under:

1. We approached the Bombay High Court since the larger mobed community was under the threat of a ban by the BPP.  The Notice threatened “similar action” against any other priest “found to follow in the footsteps of Ervads Madon and / or Mirza”.  It was for the first time the BPP had issued such a Ban Notice.  We approached the Bombay High Court seeking an interpretation of the Trust Deed of 1884 on whether the Trustees had the power to issue such a ban. Striking down of the ban was in the interest of the community and was imperative for the entire mobed community. Our court action was not undertaken just for the benefit of these two priests alone. In fact Er. Mirza claimed on 2^nd March 2010, by filing his own affidavit in the Bombay High Court, that he had no intention of defying the ban and had no desire to pray at Doongerwadi.

2. The Judgment of the Division Bench on March 2011 makes it abundantly clear that “Under the Deed of Trust of 1884, the trustees are not entitled to prevent any ordained Parsi Zoroastrian Priest from performing Zoroastrian religious rites and ceremonies in the premises of the Towers of Silence (Doongerwadi) and the two Agiaries”.  This ruling is of paramount importance and henceforth will hold good for all time to come – It has now become the ‘law of the land’. Thus, we have achieved our primary objective of ensuring that no other Priest is subjected to any ban by the BPP.

3. Clause 4 of the settlement reads “It is agreed that the Petitioners as Trustees shall permit and suffer the use of the Doongerwadi Complex by every Parsi Zoroastrian, who opts for the Dokhmenishini system, as a place of exposure of a deceased Parsi Zoroastrian and the performance of Zoroastrian religious rites and ceremonies, carried out as per Parsi-Irani customs, by using a duly ordained Parsi priest of his/her own choice”. By using the exact words, viz. permit and suffer, found in the Trust Deed of 1884, we have re-emphasized in the strongest possible terms that whilst trustees may have certain rights & powers, they also have certain obligations & duties cast on them. There is no question whatsoever hereafter of their interfering in the choice of a priest by the family of the deceased.

4. In Clause 9 of the settlement the only right given to the Trustees to exclude a priest from praying at Doongerwadi is if the priest “within the Trust property does any act contrary to religion or misconducts himself.” It goes on to say “The Petitioners as Trustees have powers and duties to ensure that a priest charge-sheeted or convicted of an offence involving moral turpitude should not be allowed to conduct prayers at the Doongerwadi complex and the aforesaid two Agiaries, unless such charge sheet is dismissed or conviction set aside.” It should be noted the power to exclude is therefore now confined to these 2 situations alone and that any act contrary to religion has to be within the Trust property and not elsewhere.

Items 2, 3 and 4 above affected the entire community, were of utmost importance and were ‘deal-breakers’ for us.

5. The Settlement expressly clarifies that issues of conversion, how a duly ordained Parsi-Zoroastrian Priest ceases to be a Priest, and the powers, duties or rights of the High Priests did not arise in the proceedings.  Thus, the Settlement does not deal with these issues.  The Trustees have stated that they are not claiming the power to decide that a duly ordained Parsi-Zoroastrian Priest ceases to be a Priest.

6. We have heard concern expressed about the statement in Clause 3 of the Settlement that the “The Petitioners state that they are Trustees of a Religious and Charitable Trust”.  The Settlement does not confer any religious powers on the Trustees in their administration of the secular activities of the Doongerwadi and 2 Agiaries.  The Settlement provides that the Trustees are not seeking to expand the scope of their powers and duties beyond the Deed of Trust of 1884. It needs to be explained that under Clause 26 of the Judgment of the Division Bench in our matter, it has been stated that “The position in law is well settled. The administration of a religious institution or an endowment made for religious purposes is a secular activity”.

7. That leads us to the last concern being expressed regarding the alleged discrimination against Er. Khushroo Madon. Unfortunately just as there were certain deal-breakers for us, this became a deal-breaker for the other side. Even at the last meeting considerable time was spent by us in trying to remove this requirement of an affidavit that restricts Er. Madon’s presence at Doongerwadi to praying for members of his immediate family, but unfortunately our efforts were in vain and finally were compelled to take the difficult call that the benefit to every priest who gains from this settlement for all time to come, far outweighs the benefit to a single individual. In every settlement there has to be some give & take and this unfortunately is one we had to ‘give’. Looking at it positively, no mobed, including Er. Madon’s sons, will ever have to undergo any bans from the Punchayet henceforth.

8. One continuing concern for us was the SLP filed by five of the six High Priests in the Supreme Court (though they had not appeared in the Bombay High Court).  This SLP has also now been withdrawn by the High Priests.  Thus, the erudite judgment dated 11^th March 2011 of the Division Bench of the Bombay High Court, stands with the few modifications as agreed upon in the Settlement.  We believe this is a victory for the entire community.