Archive

"Only the actions of the just

Smell sweet, and blossom in their dust.”

 J. Shirley, Death the Leveller. 

Babulnath Mandir is a very conspicuous landmark from the sea and from land. It is a beautiful and important temple, next perhaps only to the Mahalaxmi Temple, for the Hindu community. Being a neighbor to the Doongerwadi property it has a certain significance in the Parsi Panchayet history and needs mentioning at some length.

In the year 1774 one affluent sonar (goldsmith) Pandu Shivji wanted to build a temple at Babulnath where the temple of that name stands today. It was then an open land contiguous and almost level with the plateau on the Western slope of the Doongerwadi Hill property of the Bombay Parsi Punchayet. As soon as the trustees heard of Pandu’s intention, they informed him that the land was considered holy as the Parsi dead lay in nearby towers and sobriety was of the essence. Pandu told the trustees that he was only building a shed for his servant and bullocks and the matter rested there. But Pandu built a sort of a temple with adjuncts that made a temple and Hindus from nearby places including Girgaum used to go there for darshan. To do so they had to pass through Punchayet land over the sidis leading to the towers.

In 1792 Pandu became an insolvent and land with the structure which was the temple was auctioned through the Sheriff on the orders of the Mayor’s Court of those days. It was bought by one Rev M. Burrows. He enjoyed the produce of the land including about 75 toddy trees and in 1800 Hormusji Bomanji Wadia, an influential member of the Punchayet, bought this land including the structure for Rs 14,000, to be gifted to the Punchayet. Wadia wanted to stop Hindus using their land and intended to do away with the structure. Immediately the Hindus set about thwarting this intention.

Strange to say, in a purely civil suit for proving ownership of property, the government of the day took up the cause as its own, ferreted out a Malahrao, some distant poor relative of Pandu, and made him file a suit in the Recorder’s Court in 1808 at the expense of the East India Company against Wadia, who still owned the land. The Advocate-General assisted by Mr Macklin represented Malahrao through J. Cumberley, Solicitor, and Barrister Wodehouse repre-sented Wadia, through J. Humphreys, Solicitor. The question at issue, as directed by the said Court as a Court of Equity, was whether the said land called Babulnath Hill was in the possession of the defendant (Wadiaji) or in the possession of the Hindu community. The Advocate-General was at pains to show it was a property dedicated as temple with Urcha and/or pratistha ceremonies and Pandu had made it over to the Hindu community. Evidence was led on both sides. The defendant claimed that the land was too near the dokhmas and if frequented by people as residents or sojourners for purposes of prayer, etc it would disturb the sobriety of the place. Vendidad, Vajar Kard Dini, Minoe Kherad were brought into evidence and Benares Shastris were brought in to prove that it was not a properly dedicated temple. The Saddar Adaulat, i.e. Government itself, brought in its own Pundits as witnesses, who showed that the temple was dedicated according to the Shastra. The case went on for five days and Recorder Sir James Macintosh gave his judgment in favour of the Hindus. The judgment had a peculiar tint savouring of superciliousness and the whiteman’s burden.

In the course of the Advocate-General’s address it was stated that the Ling and Salaoonkha were found from the ground while digging and there was a folk tale that there was a Shiva temple which was destroyed by the Portuguese and the Ling and Salaoonkha lay buried somewhere. The defendant tried to show that it was manufactured by a Pir Mahomed.

We give below a few extracts from the judgment, which would go to show how the Recorder was doing tightrope-walking keeping his balance between the Hindus and the Parsis:

"I think that both parties will acknowledge that we have investigated with the utmost patience, labour, and respects, rites of sepulchre and of wor-ship, all of which are repugnant to our manners, and some to our moral principles. In this respect we have only done our duty. We do not affect to tolerate the religions of our subjects as if they were matters of sufferance and indulgence. We protect them equally and vigorously, and we take care that they shall be no more treated with insult or levity in this court than they would be by judges who deemed the rites to be sacred…

"The Hindoos have strong claims on our attention from the mere circumstances that they form the vast majority of our subjects in India; and as one of the earliest of civilized nations, they will not be contemplated by liberal and generous minds without some portion of compassionate respect. The Parsees are a small remnant of one of the mightiest nations of the ancient world, who, flying, from persecution into India, were for many ages lost in obscurity, till at length they met a just government under which they speedily rose to be one of the most opulent mercantile bodies in Asia. In this point of view I consider their prosperity with some national pride. I view their wealth as a monument of our justice, and I think we may honestly boast that the richest inhabitants of this settlement are not of the governing nation. This little tribe is on other accounts interesting. They have preserved the activity of their minds and the vigour of their bodies during a residence of a thousand years in India... 

"They (Parsis) are said to be ‘purse-proud.’ Even this unamiable quality is a mark of some progress. Wealth must be secure before men can be purse-proud.

"The Parsee merchants are intelligent enough to know and feel the difference of their present from their former condition. They know that as long as they lived under tribunals which could be influenced by favour, they were poor and miserable and that they have become rich and flourishing since they were subject to courts where favour and partiality would be considered as a greater abomination than those sacrilegious pollutions which they hold in the greatest abhorrence. If they were again to fall under courts that could be influenced, their wealth would speedily vanish.

"We are to protect all our subjects in the exercise of that religion which they think right, as we are not to measure it by the standard which we ourselves think right.”

Macintosh referred to Nusserwanji Maneckji’s evidence to the effect that ‘the rites of the Ling’ would be an ‘intrusion in the neighbourhood of their tombs’ and added,

"Here we see the immutable character of an Asiatic race. The remains of those Persians who three and twenty centuries ago, in the armies of Xerxes destroyed the Temples of Idols, who were among the most ancient monotheists and iconoclasts of the world, still preserve their abhorrence of idolatry, and show it with peculiar force against those idolatrous symbols which though they are to be found from the mountains of Tibet to the Appenines, are always peculiarly abhorrent from the moral sentiments of man unperverted and undegraded by superstition.”

According to the Recorder the land was for 30 years a public place and should remain as such. And it did.

Thus the Punchayet lost a valuable piece of land and Wadiaji his money but the Punchayet had no rancour. In fact as we shall presently see it wanted good neighbourly relations with a sister community and it will be for the reader to see if the good sentiment was readily requited.

Mulji Jetha’s Request, 1865:

Six decades passed by without any special event and during this period the Hindus had a full right of way over the Punchayet land to reach the temple from Gamdevi via the steps that led to the top of Doongerwadi. By his letter dated July 18, 1865 Thakkar Mulji Jetha, by whose name the cloth market is still known, stated that for a long time the Hindus were using two routes to reach the temple on the hill, one via the Punchayet land, and another via Shangadas Vijbhu­khandas’ land. He would like to build steps from the latter land, as both the routes were difficult of approach, and also build a six foot wall on both sides. The Trustees accepted the offer but suggested a seven foot wall. Nothing happened for another five years and a son of Mulji by name Sunderdas offered to build steps from the Back Bay side (Chowpatty), if the trustees gifted a part of their land on that side. This would completely obviate the necessity of Hindus approaching the temple from the Punchayet land. He would see that the Hindu Mahajan entered into an agreement and in the event of any breach the land with structures, etc. would be returned to the Punchayet without any compensation. The Punchayet referred the offer to their Solicitors, M/s Auckland Prentice and Bishop to draw up a draft of the agreement. In October 1871 the draft was received from the Solicitors, Prentice Craigie and Owen. It was approved and the Secretary was asked to take signa-tures of all parties concerned. For a year the matter remained dormant and on a stamped paper of one rupee Sunderdas wrote on August 20, 1872 and repeated the offer on the earlier terms attaching a plan, stating the Hindus would be allowed to use the new route only if they stopped using the old one, i.e., from the Punchayet land. It is to be noted that even the new route was on Punchayet land. Even so the trustees accepted the offer.

The extracts given by us here are from Sir James Macintosh’s judgment delivered on August 2, 1808. It had appeared in the Bombay Courier of Saturday, August 20, 1808. As the Punchayet did not have this in its records Bomanji Behramji Patel copied it verbatim on good ledger paper, got it bound and sent it to the Punchayet for record. 

The pleasure was short-lived.. By their letter dated August 29, 1872 M/s Herne, Cleveland and Piele served a notice as follows on behalf of their client Wasoodeo Laxmanji, described as the owner of the temple:

"We are instructed by Mr Wasoodeo Luxumonjee the owner of the temple of Shree Baboolnath to state that the Punchayet has lately stopped a passage leading to the Temple of Baboolnath from the Road which leads to the Parsee Tower of Silence.

"You are probably aware that the passage in question has been used by the predecessors of our clients and the Hindoo public for upwards of a century and consequently the Punchayet has no right to stop it. 

"We are therefore instructed to give the Punchayet Notice through you and require them to reopen the said passage forthwith otherwise our client will without further communication proceed against the Punchayet as he may be advised holding them responsible for all costs and charges incidental thereto.”

The temple was in the ownership of Sunderdas for over 26 years with whom the Punchayet was to enter into agreement for the new arrangement. Sunderdas asked the Secretary to send the notice to him and he would do the needful. On reference the Punchayet Solicitors advised not to answer to the notice as a case was pending in the court to decide the ownership of the Temple.

Mulji Jetha renews request, 1876:

Time now is 1876. The case is decided against Wasoodeo, and Sunderdas having died his father Mulji Jetha offered to get the road done at his expense.

Babulnath gets Trustees:

In 1880 again a suit was filed against the owners and by a judgment of 1884 the ownership passed into the hands of five trustees for administration under a scheme. These trustees wanted to rebuild the temple. On their request in 1885 the Punchayet accommodated them to keep some of the dismantled and other material on the Punchayet land. Even till this day the agreement-to-be had not materialised. In 1885 the whole story was repeated and it was decided to get an agreement done between the new Trustees of Baboolnath and the Punchayet.

The Baboolnath Trustees requested one year’s moratorium for the use of the Punchayet land when the new steps would be ready at Mulji Jetha’s expense. He would also pay for the expenses of the agreement. The Trustees asked their Solicitors to make a draft of the agreement and valued the thousand square yards to be given to the Hindus at two rupees per square yard for purposes of the agreement and stampage. By the time the year of grace was 1887 and the land to be parted with rose from 1,000 to 1,500 sq yards. But, nothing happened.

In 1891 the Baboolnath Trustees asked for more land, this time over 4,700 sq yards and this after 25 years of negotiations and the Punchayet’s good neighbourly sentiment. One would think it would end there but it did not. The new Temple was ready by 1892 but the agreement was still in the air. By 1893 the demand went up to over 8,600 sq yards and when the Punchayet surveyor actually surveyed according to the plan submitted by the Baboolnath Trustees the land admeasured 10,220 sq yards. The Trustees however decided to give only 4,712 sq yards on condition our lands were not used any more and a six ft wall would demarcate the boundary. There is certainly a limit to Oliverian twists and the Punchayet’s patience had run its course. Inspite of that the Hindus wanted to give up 394 sq yards and in its stead asked for 479 sq yards; and these 85 more sq yards the Parsis gave if only it meant good neighbourliness. And was that the last of it? No, there was more yet to come. But all the same the much-talked-of agreement had been signed, sealed and delivered on April 5, 1904.

1911 AD:

With this the scene shifts to 1911 AD. On the contiguous land the Trustees had their Fever Hospital. The Babulnath Trus­­tees had started some digging in such a way as to jeopardise the Pun­chayet’s right of way. The Pun-chayet gave notice through their Solicitors. The other side merrily kept up dig-ging and in the process broke the Punchayet drain pipes. When called upon to repair them, instead of doing so they started lowering the pipes. The Punchayet got the pit filled and kept a ramoshi to guard the place. The Secretary wanted firm handling as the good intentions were being repaid with opposite actions.

The Babulnath Trustees then started to build two chawls on their land and dumped their materials on the Punchayet land without even a semblance of request for permission.

The Solicitors explained to the Trustees of the Punchayet the implications of Sections 22 to 27 of the Indian Easements Act, 1882 and finally a notice was sent. The Babulnath Solicitors replied on March 3, 1912 and said:

"We have seen our client Mr Walji Jivraj, the Managing Trustee of the above Temple and the subject of your letters of the February 7, last and of the 20th instant and are instructed by him to assure you that the Trustees have no desire to deprive your clients of the right of way given to them by the Conveyance of the April 5, 1904 and that as soon as their present work is finished they will be happy to indicate to your clients the route for the right of way over their land from the gate marked W on the plan annexed to the said conveyance.

"Our clients will also repair the compound wall and make good any damage that may be done to your clients’ property by reason of the excavation. Our clients will also put in proper order your clients’ drain pipes within eight days and your clients need not entertain any anxiety in the matter.

"We trust this letter will allay all your clients’ apprehensions in the matter.”

Municipality errs, but sets things right:

Precept and practice are at times at variance with each other and where self-interests clash they assume negative aspects. Since nothing was done by the other side, the Municipality was asked to set the pipes right and they started lowering them and joining them up with the adjoining manhole. When asked the Municipal Drainage Engineer replied: "Mr. S. N. Hate, Engineer, on behalf of the Trustees of the Babulnath Temple asked permission in his letter dated May 6, 1913 to let the Trustees connect their drain and carry it along the passage as they had amicably settled the matter with the Parsi Punchayet. In reply to the letter the Engineer was requested to point out the work and the exact place where it was to be carried out and Mr Valji brought his plumber with him and showed the work to my Inspector. Mr Valji pointed out that one pipe only would be required to be placed to connect their premises to the drain of the Parsi Punchayet and my Inspector informed him that the Municipality will have no objection if he obtained permission to do so from the Trustees of the Parsi Punchayet. If you will please let me know that no amicable settlement has been arrived at between you and the Babulnath Temple authorities as stated by Mr Hate, I will ask Mr Valji to sever the connection made to your drain.”  The Drainage Engineer was informed that the information given to him by the other side was incorrect and the status quo should be restored. The Engineer asked Valji Jivraj to either remove the short length of drain pipe with which "you have joined the Parsi Punchayet drain to your inspection chamber near the latrine or to amicably settle the matter with the Trustees of the Parsee Punchayet.” What the Municipality should have done first was sought to rectify later on protest from the Trustees of the Parsi Punchayet.

The Babulnath Trustees did nothing in spite of a notice. The matter, therefore, came up before a Magistrate, when the Babulnath Trustees asked for one month, but the Magistrate gave only 15 days.

A Tapidas who also came into the picture was a much harder nut than others. He could not keep the road leading to the Punchayet property clean and the Trustees had to spend on it. Under a Covenant of the Conveyance of April 5, 1904 any structure built by the other side was to be two feet away from the Punchayet boundary and yet hardly 22 inches were kept clear, while building the chawl. How the two inches could help the party concerned is a matter of conjecture for any one. Even storm water holes in the compound walls, where there was a natural water course, were filled up by the other side, reopened by the Punchayet, and filled up again, an action entirely devoid of good neighbourliness and against the covenant. Even when their wall fell down and destroyed or damaged Punchayet property and the Trustees gave notice, they accused the Trustees of having bored an extra hole in the wall which meant more water damaging their wall. They even accused the Trustees of having employed lathi-wielding ramoshis. Then there were personal consultations and the following was arrived at between the Punchayet and Dahyabhai Tapidas on August 2, 1912:

•The Babulnath Trustees would repair the carriage road to Punchayet property before Divali.

•The Babulnath Trustees would repair the compound wall at their expense putting it on a sound foundation.,

•Punchayet drainage pipe was on public passage and they had no right to touch it. If they were to put it up on the Punchayet road the Trustees would consider.

The water course was an old established fact and Dahyabhai said he would consider joining it up with theirs.

The Babulnath Trustees were then asked to put it all in writing which was not done. After being reminded Tapidas wrote on  August 16, 1912 to which the Punchayet replied by its letter of August 23, 1912 as follows:

"I am directed by my Trustees to state that they are surprised that you should assert that the disputes between them and you were settled when you were clearly given to understand both in writing and orally that the interview was to be without prejudice and that you were to make your proposals in writing, and thereafter our Board would consider whether to agree to them or not. They are also surprised that there should not be the slightest allusion in your letter to the rebuilding of the fallen and cracked wall, although it was the most important matter in the dispute. They also cannot accept the three matters touched upon in your letter for they leave practically every thing to be done by you according to your own convenience, at your own choice and at your own time. If proposals are to be seriously. made by you, please let them be in the terms of those made at the interview or in the terms of the notice given to you by our Solicitors of  July 25, 1912.

"The matter will then be considered by my Trustees. Please also understand that the proposals must be made before September 1 next for according to their resolution if they are not so made our Solicitors will be requested to go on with the work of drafting and filing the plaint.”

The Trustees get firm:

For the first time the Trustees got quite firm with the Babulnath Trustees and it had its desired effect. Dahyabhai Tapidas agreed to repair the approach road, to repair and restore the compound wall, to set up the drainage pipe, and to allow the storm water through the premises.

In this process of a dingdong correspondence and lawyers’ consultations and notices the Trustees had incurred an expense of over Rs 500, which in spite of threats Dahyabhai did not pay and the Trustees had to write off.

While constructing the approach road Dahyabhai put up a step perhaps to desist the Punchayet from using vehicles, but the Trustees removed it and filled it with earth and rubble. Even the road built was narrow and Dahyabhai was asked to make it broad.

And, finally, the chawls built by the Babulnath Trustees some time in 1913. The Punchayet Trustees, in order to preserve their right of easement, air, light, etc. put up a wooden framework with corrugated sheets on the same in 1915. In or about the year 1939 a part of it crumbled and as the Trustees were about to repair and put up new sheets the Babulnath Trustees approached the Trustees of the Punchayet ‘not to­ re­create the same and to repair and strengthen the remaining portion of the screen’ and an agreement dated December 17, 1940 was entered into ­between the two sets of trustees and registered under No 326B of Book No I dated April 29, 1941. (In App. ‘Y’ we give the agreement.)

As Lord Chesterfield once said:

"A man’s own good breeding is the best security against other people’s ill manners.”

Reprinted with permission from the History of the Bombay Parsi Punchayet 1860-1960 by Sapur F. Desai.