Jamsheed Kanga vs Parsi Panchayat Funds and Properties

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Bom) 321

2011 (3) ALL MR 171
High Court of Judicature at Bombay
D.Y. CHANDRACHUD & ANOOP V. MOHTA
Jamsheed Kanga & Another
Versus
Parsi Panchayat Funds and Properties & Others
Appeal No.256 of 2010 IN Originating Summons No.1909 of 2009 IN Suit No.3091 OF 2009 With Chamber Summons No.854 & 1728 of 2010
Decided on : 11-03-2011

Advocates appeared:
For the Appellants:I.M. Chagla, Senior Advocate with F.E. Devitre, Senior Advocate with Jimmy Avasia, Yugandhara Khanwilkar i/b. M/s. Dastur Dadhich, Kalambi, Advocates.
For the Respondents:R.A. Dada, Senior Advocate with Percy Ghandy i/b. M/s. Try Legal, E.P. Bharucha, Senior Advocate with Karl Tamboly i/b. Kartikeya & Asso, N.G. Thakkar, Senior Advocate with R.G. Seth i/b. R.G. Seth & Co., Advocates.

Headnote:Constitution of India - Articles 25 and 226-Secular activity-Administration of a Religious Institution/an endowment made for religious purposes-A secular activity- Administration of an endowment not constitutes a part of religious practice of custom.-The position in law is well settled. The administration of a religious institution or an endowment made for religious purposes is a secular activity. Hence, it has been held, for instance, that the Legislature is competent to enact a law regulating the administration and governance of a religious or charitable institution or endowment. The administration of an endowment does not constitute a part of religious practice or customs.
       Constitution of India - Article 25(1)-Deed of Trust- Power of Trustees-Parsi Zoroastrain priest-Trustees have no power either to ordain a priest or divest priest of entitlement which follows upon being ordained.-A Parsi Zoroastrain priest, upon being ordained, is empowered to perform the rites and ceremonies of Zoroas- trian faith. The trustees cannot by their decision over ride the religious authority of the priest conferred upon him by the supreme religious faith. The empowerment of the priest to perform religious rites and ceremonies is as a person duly ordained in the tenets of the religion. The trustees have no power either to ordain a priest or to divest the priest of the entitlement which follows upon being ordained.
       Constitution of India - Article 226-Interpretation of document-Deed of Trust-A power to exclude a duly ordained Zoroastrain Priest from performing obsequial ceremonies for a Parsi Zoroastrain in accordance with religious rites and ceremonies of faith-Cannot be conferred upon trustees by Court-Such a power not conferred upon trustees by Deed of Trust-Reading any such power into Deed of Trust in absence of any explicit provision not permissible.-The Court would not be justified in conferring upon the trustees a power to exclude a duly ordained Zoroastrian Priest from performing obsequial ceremonies for a Parsi Zoroastrian in accordance with the religious rites and ceremonies of the faith. Such a power has not be conferred upon them by the Deed of Trust. Reading any such power into the Deed of Trust in the absence of explicit provisions or, at any rate one which arises by necessary implication, would be impermissible.
       Constitution of India - Article 226-Writ Court-Constitutional Court-Judges of-Duty of- Guarantees of equality, liberty, freedom and dignity which constitution enacted over last 60 years and more changed in fundamental ways face of Indian Society and Policy-Judges of Constitutional Court must straddle a careful path, a path different to precedent but conscious of constitutional ethos and evolving face of Indian Society.-The guarantees of equality, liberty, freedom and dignity which the Constitution has enacted have over the last sixty years and more changed in fundamental ways the face of Indian Society and the policy. As Judges of the Constitutional Court that the High Court is, we must straddle a careful path a path which is deferential to precedent but conscious of the Constitutional ethos and the evolving face of Indian Society.
       Bombay High Court (Original Side) Rules, 1980 - Chapter 7, Rule 238-Originating summons-A beneficiary under a Deed of Trust-Entitled in law to institute an originating summons for determination of any question affecting rights or interests of persons claiming to be beneficiaries.-A beneficiary under a Deed of Trust is entitled in law to institute an Originating Summons for the determination of any question affecting the rights or interest of persons claiming to be beneficiaries. In the action which emanates from an Originating Summons, the applicant may seek a direction to the trustees to do or abstain from doing any particular act in their character as trustees. The jurisdiction of the Court is discretionary for if the Court is of the view that the matter in respect of which relief is sought cannot conveniently and properly be disposed on an Originating Summons, the Judge may decline to pass an order on the summons and refer parties to a suit. Where the Court is of the view that the matter is fit to be dealt with on an originating summons, it is vested with a broad jurisdiction to pronounce such judgment as the nature of the case shall require. The order made by the Judge is drawn as a decree and Court is empowered to issue directions touching the carriage or the execution of the decree.
       Constitution of India - Articles 14 and 25-A legislation-Vesting power of excommunication-Legality of-A legislation penalises power of excommunication-Cannot be sustained as a measure of social welfare or reform under Article 25(1) of Constitution. -A legislation which penalises the power of excommunication could not sustained as a measures of social welfare or reform under Article 25(1) of the Constitution.

JUDGMENT :

D.Y. Chandrachud, J.

The genesis of the dispute:

1. The Appellants, who are members of the Parsi Zoroastrian community residing in Mumbai moved the Court in an Originating Summons for the determination of questions relating to the powers/authority of the trustees of the Parsi Panchayat's funds and properties; the rights of the beneficiaries under a Deed of Trust of 1884; and for the proper administration of the Trust. The cause for instituting the proceedings is a ban imposed by the present trustees on two Parsi Zoroastrian Priests, Mr.Framroze Mirza and Mr.Khushroo Madon, from performing prayers or religious ceremonies at Doongerwadi (the Towers of Silence) and at two Agiaries (Fire Temples) which are vested in the Trust. The Agiaries in question are the Godavara Agiary at Fort and the S.F Jokhi Agiary at Godrej Baug, Malabar Hill, Mumbai. The ban has been imposed on the two priests, as a result of certain ceremonies conducted by them, which according to the trustees, are “irreligious”, these being (i) praying for the dead who were cremated; (ii) performing Navjote ceremonies of children of Parsi women married to nonParsi spouses; and (iii) performing marriage ceremonies according to Zoroastrian rituals of any Parsi marrying a nonParsi. The ceremonies have not been conducted either within the premises of the Towers of Silence or the two Fire Temples. The Trust is impleaded as the First Defendant, while the trustees are Defendant Nos.2 to 8.

2. On 9 June 2009, a resolution was passed by the trustees. The text of the resolution is as follows:

“Consideration to prevent renegade Priest from performing religious prayers at Doongerwadi, and, also in two Fire Temples under our control, namely Godavara Agiary and Godrej Baug Agiary. Trustee Mr.Khojeste Mistree informed the Board that recently, Mr.Framroze Mirza and Mr.Khushroo Madon, who perform unreligious ceremonies like praying for the dead, who were cremated, and perform Navjote ceremonies of children of Parsi girls married to non-Parsi Husbands, and perform marriage ceremonies as per Zoroastrian rituals of any one Parsi marrying a non-Parsi spouse were found to be performing Paldast Ceremonies at our Doongerwadi premises. He further reminded the Board that High Priest Dasturji Dr.Kaikhushru M.Jamasp Asa had earlier informed the Trustees of all Religious Institutions like Agiarys, Atash Behrams and Doongerwadi to boycott the services of these two renegade mobeds, who also advertise their services in the Parsi Press. Ch.Exec. Mr.M.P. Colah, informed the Board of Trustees that such instructions were issued to the Panthaki of Godavara Agiary and Godrej Baug Agiary, which were under our control and also the Manager of Doongerwadi, in late 1990. However, with the passage of time, the said instructions must have been diluted, and hence, such a lapse may have occurred at our Doongerwadi premises.

The Board instructed the Administration to once again remind the staff at the Doongerwadi that no prayers should be undertaken by Mr.Framroze Mirza and Mr.Khushroo Madon. The said instructions should also be given to Panthakis of both the Agiarys under our control.”

3. On 11 September 2009, a notice was put up that the two priests should at no point of time be permitted to perform obsequial ceremonies at Doongerwadi. Moreover, if any other priests were found to follow in the footsteps of the two priests, it was stated that similar action would be taken against them as well.

4. The Second Plaintiff protested against the ban imposed on the two priests and made an impassioned plea for harmony, in place of dissension, in the community:

“All persons, including Dasturjis, can have beliefs of their own. In this case, Dasturji Madon’s personal beliefs are in fact shared by many likeminded Zoroastrians today, including many residing abroad. Can we not agree to disagree on certain beliefs and lie in peace and harmony with each other? Do we, as an enlightened community, wish to be accused

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2011 Supreme(Bom) 321

Cases Referred (7)