Delforooz Darius Dorabjee vs State Of Maharashtra And Ors. on 3 March, 2006

    Delforooz Darius Dorabjee vs State Of Maharashtra And Ors. on 3/3/2006

JUDGMENT

   F.I. Rebello, J.

   1. Rule. Heard forthwith.

   The petitioner herein had filed a petition for divorce against respondent No.
3 being Marriage Petition No. 6 of 2001 which is pending before the District
Court, Pune under the provisions of the Parsi Marriage and Divorce Act, 1936
hereinafter referred to as the Act. The respondent No. 2 is the Poona Parsi
Panchayat, a registered charitable Trust in the city of Pune. By the present
Petition, the petitioner has prayed for a writ or direction in the nature of
certiorari to quash and set aside the Government notification dated 10-2-2005.
By that notification, the State Government under the purported exercise of its
powers under Sections 24 and 25 of the Act, has appointed 11 persons as
delegates for the period of 10 years from the date of publication of the
notification, to aid in the adjudication of cases arising under the provisions
of the Act, in the Parsi Matrimonial Court, at Pune. The petitioner has further
prayed for quashing of the said notification and to direct respondent Nos. 1 and
2 to immediately re-start the process of election for appointing delegates in
the Court at Pune for complying with the mandatory proceedings as required under
Section 25 of the Parsi Marriage and Divorce Act, 1936. The further prayer is
for quashing and setting aside the order dated 13-7-2005 passed by the District
Court, Pune as Parsi Matrimonial Court, whereby objection raised by the
petitioners to the issuing of notice to delegates on the ground that petitioner
is going to challenge the appointment of delegates who have been appointed vide
Government notification dated 10-2-2005 was rejected. The petitioner has also
prayed that her application dated 20-4-2005 Exh. I to the Petition, be allowed
which was an application not to issue any notice to the delegates on the ground
that most of the delegates have availed the services of the respondent for
catering and some of the Delegates are even his relatives or relatives of the
Advocate of the respondent. It is petitioner's contention that except for
delegate at Sr. No. 3, all the other delegates are interested and as such the
petitioner apprehends bias on their part.

   2. Sections 24 and 25 of the Act reads as under:

     24. Appointment of delegates - (1) The State Government shall, in the
Presidency-towns arid districts subject to their respective Governments,
respectively appoint persons to be delegates to aid in the adjudication of
cases, arising under this Act, after giving the local Parsis an opportunity of
expressing their opinion in such manner as the respective Governments may think
fit.

     (2) The persons so appointed shall be Parsis, their names shall be
published in the Official Gazette and their number shall, within the local
limits of the Ordinary Original Civil Jurisdiction of a High Court, be not more
than thirty, and in districts beyond such limits, not more than twenty.

     25. Power to appoint new delegates - The appointment of a delegate shall be
for ten years, but he shall be eligible for reappointment for the like term or
terms. Whenever a delegate shall die, or have completed his term of office, or
be desirous of relinquishing his office, or refuse or become incapable or unfit
to act or cease to be a Parsi, or be convicted of an offence under the Indian
Penal Code (45 of 1860) or other law for the time being in force (involving
moral turpitude), or be adjudged insolvent, then and so often the State
Government may appoint any person being a Parsi to be a delegate in his stead;
and the name of the person so appointed shall be published in the Official
Gazette.

   The other relevant section is Section 27 which reads as under:

     27. Selection of delegates under Sections 19 and 20 to be from those
appointed under Section 24 - The delegates selected under Sections 19 and 20 to
aid in the adjudication of suits under this Act, shall be taken under the orders
of the presiding Judge of the Court in due rotation from the delegates appointed
by the State Government under Section 24. Provided that each party to the suit
may, without cause assigned, challenge any two of the delegates attending the
Court before such delegates are selected and no delegate so challenged shall be
selected.

   3. It is the case of the petitioner that the impugned notification nominating
the delegates has been done without following the procedure prescribed under
Sections 24 and 25 of the Act. This exercise ought to have been undertaken by
respondent No. 1 in terms of normal procedure which was to call upon the
Panchayat of the local area to issue advertisement in the newspaper and to call
upon them to recommend the names of the suitable Parsis to fill in the vacancies
of the delegates. The panchayat after the request is made by the Government has
to issue advertisement in a newspaper having wide publication and invite names
of persons desirous of standing for election to be held for the purpose of
making such appointments. The persons who are desirous to stand as candidates,
are required to send their proposal in a prescribed form along with the
signature of the proposer and seconder and also signed by the concerned
candidate. Those elections, it is set out, has to be held by the members of
respondent No. 2. After the requisitions are received, the Panchayat must hold a
meeting in which elections are to be held and persons securing higher number of
votes are to be recommended to the State Government for being nominated as
candidates. Before election, the Panchayat has to publish a list of the
contesting candidates by giving a public advertisement. The petitioner relies
upon the procedure followed by the Bombay Parsi Panchayat which is annexure D to
the Petition. At the outset, it may be pointed out that these are not rules
framed by the Government, but is the procedure which is being followed by the
Bombay Parsi Panchayat. It is also pointed out, that to the knowledge of the
petitioner while appointing delegates for Pune, no such procedure was followed.
One advertisement was issued by Advocate Dara K. Irani who was Chairman of
respondent No. 2 and currently vice Chairman. It was published in the newspaper
"Jam-e-Jamshed" dated 9-11-2003. No public notice was given to the local Parsis
calling for the objections nor any elections were held. The notice by respondent
No. 2 merely invited willing persons to act as delegates. Jam-e-Jamshed
newspaper has insufficient circulation in Pune City, being a Mumbai weekly
Gujarati newspaper. No election was held despite of the fact that 21 persons has
responded to the public notice as potential candidates. After the advertisement
was published, respondent No. 2 without following the procedure simply submitted
11 names to be appointed as delegates under the Act to the District Court, Pune.
The District Judge, Pune by his communication dated 3-3-2004 informed the
Secretary, Government of Maharashtra not to consider the name of one of the
delegates forwarded for appointment since the delegate has criminal record.

   4. A reply has been tendered on behalf of the State Government. It is set out
that the Government has a legal obligation to make appointment of delegates
under Section 25 of Parsi Marriage and Divorce Act, 1936 for rendering
assistance to the Court to adjudicate cases arising under the said Act. The
Petition filed by the petitioner is pending before the District & Sessions
Court, Pune. The Law and Judiciary Department had appointed 9 delegates under
Notification dated 15-1-1990 for a term of 10 years as prescribed under the Act.
The period expired on 15-1-2000. As the Government did not appoint the new
delegates, the cases under the Act could not be decided. The District Judge
requested the Government to appoint new delegates at the earliest. The District
and Sessions Judge, Pune contacted one Mr. Dara K. Irani, the President of Pune
Parsi Panchayat who had published a notice in Parsi Newspaper inviting
applications from willing Parsis to be appointed as delegates. About 21
applications of willing Parsis were received by the President of Parsi Panchayat
and except for one, remaining 20 applications were received by the Government
for appointment of the new delegates.

   The Government requested the District and Sessions Judge, Pune to furnish a
list of 9 to 10 applicants only. The District Judge, Pune vide letter dated
29-6-2004 sent the names of 11 persons along with list of 20 Parsis with their
applications and biodata etc. and recommended 12 names after consulting and
holding joint meeting with the local Parsis and applicants. Out of 13
applicants, 11 attended the meeting while one applicant remained absent. The 11
applicants who attended the meeting expressed their willingness to cooperate and
render their service to the Parsi Community. Their names were forwarded by the
District and Sessions Judge with recommendations to the Government. It was also
informed that if the 11 persons were falling short, additional delegates could
be selected from the list bearing in mind, the ratio of male and female
delegates which is required to be maintained. The revised proposal was accepted
by the Government and after scrutiny of the draft notification and obtaining
sanction of the Government, the impugned notification dated 2-2-2005 was
published in the Government Gazette It is therefore, set out that the contention
of the petitioner that no procedure was followed before making any appointment
to the post of delegates under the provisions of Sections 24 and 25 of the Parsi
Marriage and Divorce Act, 1936 is not correct.

   5. With this background, the question that emerges is whether the appointment
suffers from any procedural infirmity. No rules or instructions have been issued
under the Act, laying down the procedure for appointment of delegates. A power
to appoint under Section 24 is conferred on the State Government after giving
local Parsis an opportunity of expressing their opinion in such a manner as the
respondent Government may think fit. The Act is a Central Legislation. The power
under Section 24 is conferred on the State Government. The requirement
therefore, is that before the appointment, local Parsis are to be given an
opportunity of expressing their opinion. The section itself therefore, contains
the guidelines for appointment of delegates. The limited issue therefore, would
be as to whether the procedure followed for appointing delegates by notification
dated 2-2-2005 can be said to be in violation of the procedure prescribed under
Section 24.

   As we have noted earlier, the advertisement came to be issued by the then
President of the Pune Parsi Panchayat. Pursuant to the advertisement, 20
applications were received. The Government also received names of the willing
applicants and requested the District and Sessions Judge to furnish a list of 9
to 10 applicants, as earlier by notification dated 15-1-1990, 9 delegates were
appointed. Under the Act, the Judge has to be aided by 5 delegates considering
Section 19 of the Act, Under Section 27, each party to the suit may, without
cause assigned, challenge any two of the delegates attending the Court before
such delegates are selected and no delegate so challenged shall be selected. In
other words, for two challenges by each of the party, as provided, that will
leave 5 delegates. The District Judge sent 11 names by his letter dated
29-6-2004 along with list of 20 Parsis with their applications, biodata and
recommended names of 12 persons. This was done by the District Judge, after
consulting and holding joint meeting with the local Parsis and applicants. In
other words, the procedure of consulting Parsi community was exercised by the
State Government through District and Sessions Judge, Pune. The District Judge,
is a non-Parsi and a person having no interest in any of the delegates. The very
fact that the District Judge after consulting the Parsis recommended 11 names
and also independently had written that one delegate had a criminal record and
the name should be deleted would by itself indicate that the names were
forwarded having due regard to the character and antecedents of the candidates.
This also shows that the names were recommended after consulting the local Parsi
Panchayat. The State Government only thereafter issued notification appointing
delegates. In our opinion, there has been substantial compliance with the
requirement of giving the community an opportunity. The mere fact that notice
was published in Gujarati newspaper circulated from Mumbai, by itself would be
of no consequence considering that the community is small and there were 20
applications. In our opinion, the fact that respondent No. 2 had issued
advertisement, and pursuant to the advertisement, applicants were received and
the District Judge heard the views of the local Parsis and applicants, on behalf
of the State Government, would indicate that an opportunity contemplated under
Section 24 had been offered and or complied with. The challenge to the
notification on the ground that no opportunity was given, has no substance. The
mere fact that in Mumbai, a different procedure is followed, need not
necessarily mean that the same procedure has to be followed in other districts
also. The procedure set up in Mumbai is not pursuant to any provisions of the
Act and or any Rules or instructions issued by the Government. There was
therefore, no requirement that the Government should adopt or follow the
procedure as followed in Mumbai. The main contention must therefore, be
rejected.

   6. Considering the controversy involved, we asked the parties as to whether
they would agree to the matter being transferred to the Parsi Court exercising
jurisdiction in the city of Mumbai. The Counsel for the respondent informed the
Court that on account of the fact that the respondent has to reside and carry on
his business at Pune, he was not in a position to give his consent. Be that as
it may. It will be open to the petitioner to pursue the proceedings alleging
bias in respect of any delegate, before the Pune Court and if the Pune Court
accepts the said contention and in the event there are less than five delegates
who can assist the Court in trying the matrimonial petition filed by the
petitioner, the State Government can either notify more names or the petitioner
if the Government takes no steps to move the Court for transfer of the matter.

   With the above directions, rule discharged. There shall be no order as to
costs.