DELFOROOZ DARIUS DORABJEE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(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 :

(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.