Dear Mr Deshmukh Can a Cooperative Housing Society amend its bye-laws to restrict membership to a particular community or class of people only ? Will it not amount to discrimination ? Are the CHS in Maharashtra not supposed to adapt model byelaws, as per law? -- A prospective buyer of a flat in a CHS in Navi Mumbai
Reply:
In the landmark judgment in the Appeal case of Zoroastrian Co-operative Housing Society Limited and Another v/s District Registrar Co-operative Societies (Urban)
and Others the Supreme Court of India has ruled in 2005 that a cooperative housing
society may restrict its membership to a particular class of people. The special Bench,
comprising Justice B N Agarwal and Justice P K Balasubramanian, delivered the
judgment, declaring:
"We... uphold the right of the society to insist that the property has to be dealt only in
terms of the bye–laws of the society and assigned either wholly or in parts only to
persons qualified to be members of the society in terms of its bye–laws."
The Parsi community had challenged the Gujarat High Court verdict that the restrictions on bye-laws of the society would be an unfair restriction. Former Attorney Gen of India Soli J Sorabjee, appearing for the Society, contended that under Article 19 (1)(c) of the Constitution, that Parsis had a fundamental right of forming an association and there was nothing illegal in agreeing in the bye-laws to restrict the membership which may exclude the general public in becoming members of a
particular CHS.
Thus the Supreme Court gave the society vast powers in restricting the membership
under its bye-laws, and as per Supreme Court unless the law itself imposes such
prohibition, such a restriction would not violate the Constitution.
Ibrahim Deshmukh
Legal Consultant
[email protected]
www.law-india.com