Breach Candy Club, Mumbai
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European control
Only Europeans can govern the Club: HC
The Times of India, Nov 01 2015
Swati Deshpande
Only Europeans can govern Breach Candy Club, says HC
Finds Managing Committee with Indians illegal, disbands it
In a finding it described as “inescapable“, the Bombay high court held that the nearly 150-year-old Breach Candy club in south Mumbai with a veritable who's who of Mumbai as its members can be governed only by Europeans, still. The HC held that the present managing committee with Indians appointed at the helm “prima facie appears to be illegal“ and disbanded it. In an interim order, the HC removed from the managing committee the club's present chairperson Dipesh Mehta and other managing committee members, including Vikram Malik, Lalit Agrawal, Jaenette Anand, Marion Panjwani and Benno Lueke. It directed four Europeans -Alon Mooleman, Giovanni Autunno, Gerry Shirley and Anya Lehra -to take charge. The order, passed on October 29 by Justice S C Gupte, was uploaded on Saturday on the court website and is considered a landmark by club members. It was passed on an application filed by Mooleman and the three others in 2014. The plea was to enforce an October 21, 2013 resolution passed by the club trustees at an extraordinary general meeting removing nine managing committee members headed by Mehta and appoint ing four Europeans instead.The HC held that the resolution was valid and legal.
The club has been in a controversy since late 2013 following that EGM. The present committee had four days later held another EGM and suspended Mooleman and eight other trust members who participated in the previous meeting. The HC had stayed the suspension.
The appointment of Mehta and others was in violation of the club's constitution of 1867 that permits only Europeans, who can be trustees, to be managing committee members, said Mooleman's lawyers Shiraz Rustomjee and Archit Jayakar. The court agreed and after perusing the club's constitution and records held that “one inescapable conclusion which flows from a collective reading of these provisions is that unless you are a European inhabitant of Bombay admit ted as a trust member, you cannot be an Ordinary Trustee or in the management of the Trust. That is beyond a pale of doubt.“ In 1967, the constitution was approved by the Mumbai city civil court, and up to 2010 it was being strictly followed, said Jayakar.
During the hearing, Mehta's counsel J P Cama argued that even under the original constitution, there was no bar to Indians being appointed as trustees and he relied on an “amended constitution“, which he said made it clearer that such appointments are legally valid. Cama also argued that since the charity commissioner is the authority to consider the legality of the appointment of a trustee of a public interest and since the issue is already pending there, the HC has no jurisdiction to decide at this stage.
2022
Sunil Baghel, Oct 18, 2022: The Times of India
‘Dogs and Indians are not allowed’ may seem like a signboard from the British Raj era. But something similar is still in play at Mumbai's Breach Candy Club where only Europeans can become trustees
A posh club in one of the most upmarket locations of India’s financial capital, established almost 150 years ago, will continue to be controlled by European inhabitants of the city, as per a recent Bombay high court judgment.
The Breach Candy Swimming and Bath Trust — popularly known as the Breach Candy Club — has quite a few unique things about it. Despite being a club, it is governed by a trust and even registered as one under the Societies Registration Act, 1960, and therefore falls under the charity commissioner’s statutory authority.
The club, set up in 1876, also has its own constitution that governs different levels and kinds of memberships. It also has a clause in its constitution that makes a distinction between Europeans, people from other foreign countries and other inhabitants of Mumbai.
A unique feature is the clause that allows only “any European inhabitant of Bombay” (the official name of the city till 1996) to become an “ordinary trustee” and part of the committee of ordinary trustees. It is this body that has all the powers and rights (including voting rights) to manage the trust and its assets.
While a foreign citizen can become a “foreign member of the trust” and "any other inhabitant of Bombay" (read Indian citizen) can become an "ordinary member", subject to the committee’s approval and payment of requisite fees, both of these class of members could not be a part of the committee or become a trust member.
Exclusive rights
The constitution further provides that even “foreign members of the trust”, an “ordinary member” or a “visiting member” would not be entitled to attend or vote at any annual or extraordinary general meeting of the trust or serve on the committee or any sub-committee. Even the right to bring any non-member guest to the club is available exclusively to the Europeans.
The concept of allowing “ordinary members” to secure club membership was introduced only over a decade after Independence, in 1965.
The sum and substance of the clauses mentioned above is that till the committee of “ordinary trustees” (read Europeans) does not decide to amend the constitution to allow an “ordinary member” to become a part of the committee or the trust, the management of the club/trust will continue to remain with the Europeans.
One thing that needs to be clarified here, in the interest of fairness to the judicial proceedings and orders, is that the courts are not dealing with the correctness of various clauses of the trust’s constitution, and there hasn’t been any legal challenge to the validity of the trust's constitution or its alleged “discriminatory” clauses.
The issue before the courts is whether a few people claiming to have become members of the club as well as the trust were legally authorised to the membership or not. Though these set of people did cite a different constitution of the club, they agreed to not rely on it very early in the legal battle, and therefore, agreed to go by the constitution mentioned in the earlier part of this report.
Prolonged dispute
The dispute started in 2013 after a group of Europeans allegedly discovered that the group of Indians claiming to be a part of the committee were not authorised to do so. The Indian group led by advocate Dipesh Mehta — who was then chairman of the trust — included Lalit Agarwal, Vikram Malik, Jeannette Anand, Marion Panjwani and Sandeep Mehta.
Challengers to the Indian group involved a group of four Europeans — Gerard Shirley, Alan Mooleman, Giovanni Autunno and Anya Lehra.
After getting the support of more than 50 trust members, the European group called for an extraordinary general meeting in 2013 and ousted the Mehta-led committee. The Indian group refused to accept the resolution and responded by suspending the European group and a few others from the club.
Both sides then approached the Bombay high court against the orders passed by the other side.
Two single judges, in three different orders in 2014 and 2015, granted interim relief in favour of the European group, based on the trust’s constitution and primary evidence presented before the courts at that point in time.
The arguments made by the Indian group, which were rejected by the courts, were that the HC did not have the jurisdiction to hear the case and the issue should first be decided by the charity commissioner. They also argued that there was no reason to challenge their trust membership.
The HC, however, said that the court did have the powers to hear the case as the issues raised by the European group involved their civil rights. The court also ruled that the Indian group could not show how they were authorised to become trust members when they were admittedly not European inhabitants.
What the judges said
A division bench of Justices Gautam Patel and Gauri Godse, in a 90-page judgment earlier this month, upheld the interim orders passed by the two single judges in 2014 and 2015. It also took the issue a step further by setting aside that part of a single judge’s order which said that the final trial could not be conducted before the charity commissioner decided the issue. The division bench said that there was nothing for the charity commissioner to decide because of which the trial in the case could not go ahead.
The effect of the division bench judgment is that it allows the European group to take over the management of the club from the Indian group. Mehta had resigned from the chairmanship and the committee in April 2015 itself.
The court, before getting into the legalities pertaining to the clauses of the constitution based on which the entire case was being argued, clarified that the jurisprudence regarding court interventions in the affairs and management of self-governing private clubs was well settled — basically to mean that courts had very limited powers to interfere.
Referring to the criticism of the club’s constitution favouring European inhabitants even after so many years of independence, the bench said, “Some anguish has been expressed elsewhere about this form — and has received some condemnation — but we make it plain that this is of no concern to us. We are not here dealing with a public law issue or any larger principle. This is in the realm of private law, and no aspect of public law arises before us.”
The bench then referred to a “judicial sanction” that the trust’s constitution had received from a civil court way back in the year 1967 in a case back then. “We must accept it as it stands. It is the constitution that will remain until those who are authorised to effect a change succeed in doing so — if they are so minded.”
The court, agreeing with all the observations and findings of the single judges, held that there was a serious doubt about even the membership of the Indian group claiming to be part of the committee, therefore the balance of convenience rested in favour of the European group.
