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“The balance of convenience”

One of the prime reasons cited by Supreme Court (SC) Justices Dr Dhananjaya Chandrachud and Indira Banerjee for permitting the consecrated adarian fire from the Pestonji Aslaji Doongaji Agiary in Bharuch to be shifted to Koparkhairane in New Bombay was, "Allowing the situation to suffer the delays of litigation will lead to a situation where the purpose of ensuring the existence of the sacred fire may be seriously imperiled...The balance of convenience and the need to prevent irretrievable injustice require the Court to grant relief."

The urgency was justified as the matter had been pending in the various courts for nearly three decades. In that period the Parsi population in Bharuch had further diminished and the Shirinbai and Khurshedji Hormusji Doongaji Daremeher in New Bombay was consecrated with a dadgah fire in May 2018. An earlier attempt to shift the Bharuch fire to the Bombay Parsi Punchayet (BPP) managed S. F. Jokhi Agiary at Godrej Baug in 1989 became ensnarled in litigation resulting in the fire from the Tavri adarian housed at the Sir Jamsetjee Jejeebhoy Agiary in Navsari being shifted instead in December 1999. An attempt to move the BPP managed Godavara Agiary fire in the Fort area to the Jokhi Agiary off Nepean Sea Road was similarly stymied by litigation. In both those cases the matter did not reach the SC.

At some point trustees tire of the time consuming and exorbitantly expensive legal processes. In the case of the proposed cosmopolitan hospital to be constructed on the grounds of The B. D. Petit Parsee General Hospital, the donors’ deadline passed while in the forlorn Parsi Lying-In Hospital matter, the developer lost interest when after winning in the lower courts, the opponents filed an appeal before the SC.

As for the proposal to develop a plot adjacent to the Seth Behramji Cowasji Batliwalla Agiary at Tardeo, after obtaining the Charity Commissioner’s approval and winning against detractors in the Bombay High Court, the move was struck down by the SC on the grounds that a public notice was not issued. In all three matters, new proposals have not been put forward so far. Everyone is either too discouraged or fatigued, or both, to once again take up the laborious and costly task of formulating new schemes that may or may not take off.

In the matter of Hilla Towers at Lalbaug, developer and chartered accountant Zarir Bhathena was dragged through various courts, civil and criminal, before emerging successful in the SC. Predicting how the various courts and judges will react to a proposal is impossible. One can only do one’s best. As regards the proposed sale of the Bandra Parsi Convalescent Home, a public notice inviting bidders was issued. The trustees will no doubt follow the legal procedures. But once the bids are opened and an offer approved, the sale in all likelihood will be challenged. How many years will elapse and how many crores of rupees will be spent on litigation is unknown. The trustees and their opponents have to be prepared for the long haul.

While the court’s reasoning varies from case to case, in the Bharuch matter, the Justices took into account the dwindling Parsi population and the presence of three other fire temples in the south Gujarat town. While vacating on July 24, 2019 the stay granted by the Fourth Additional District Judge at Bharuch three years earlier on July 15, 2016, the Justices observed, "According to the Bharuch Parsi Panchayat...only 85 people of the Zoroastrian faith are residing (45 of whom are over 75 years of age)… There are nearly 450 members of the Zoroastrian community who reside in the Navi Mumbai area. The (New Bombay Zoroastrian Association Charitable) Trust...has expressed its readiness and willingness to accept the sacred fire...The Parsi Panchayat at Bharuch and the (five) High Priests...have recommended the transfer."

For once, Dasturs (Dr) Firoze Kotwal, Cyrus Dastur, Khurshed Dastoor, (Dr) Jamasp JamaspAsa and Kaikhusru Ravji were in agreement on an issue. The Justices noted Kotwal’s affidavit cited "several instances involving the shifting of the sacred fire in the past from ancient times right until December 1999 (and) that the faith permits the shifting of the sacred fire."

The Justices further noted that in Dastoor’s affidavit there was reference to "the oldest and most revered...Iranshah (fire) being shifted eight times. (The) community would benefit by (the Bharuch fire) transfer as a much larger population of Parsis would have access to it. Further, the shifting of the holy fire is permissible when there is a danger of extinguishment...due to the dwindling Parsi population...The fire must have worshippers. We address him as Atash Padshah, meaning King. How can there be a King without subjects?... Hardly any worshippers visit the said Agiary in Bharuch...The current location...is also very difficult to access and is not approachable by car."

The Court specified conditions for the shifting of the fire: The five high priests are to supervise and direct the operation, petitioners Percy Hansotia and three others opposing the shift are permitted "to be associated with the process of shifting subject to the condition that they shall abide by the directions of the High Priests and shall not cause obstruction," an undertaking was given that the property of the Agiary in Bharuch would "not be alienated," and a request was to be made to former Chief Justice of the Punjab and Haryana High Court Shiavax Vazifdar "to oversee the process of the shifting." The Doongaji trust stated they would be "willing to bear the honorarium and charges for the work." Lone Bharuch Agiary trustee Cyrus Doongaji told Parsiana on August 1 that the dadgah fire would continue to burn at the Bharuch fire temple premises.

The landmark judgment makes it possible for trustees to shift their fires from areas where the Parsi population has diminished considerably to locations where more reside. Liberal turned traditionalist blogger and chartered accountant Jehangir Bisney had voiced his concern when the news of the SC judgment was written about in the national media. On August 2, he lamented, "Once the precedent is set, fires from different adarian sahebs will be shifted like pieces of furniture." Even a cursory reading of the judgment shows that shifting fires is an exacting, arduous and expensive exercise and that stringent norms have to be met.

 

 

 



 

Villoo Poonawalla