ZOROASTRIAN CO-OPERATIVE HOUSING SOCIETY LTD. AND ANR. versus DISTRICT REGISTRAR CO-OPERATIVE SOCIETIES (URBAN) AND ORS.

Citation: [2005] 3 S.C.R. 592 · Decided: 15-04-2005 · Supreme Court of India · Bench: B.N. AGRAWAL · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A ZOROASTRIAN CO-OPERATIVE HOUSING SOCIETY LTD. AND ANR. 
B 
v. 
DISTRICT REGISTRAR CO-OPERATIVE SOCIETIES (URBAN) 
AND ORS. 
APRIL 15, 2005 
[B.N. AGRA WAL AND P.K. BALASUBRAMANY AN, JJ.] 
Cooperative Societies : 
C 
Gujarat Cooperative Societies, 1961-Sections 4, 24 and 30--Gujarat 
Cooperative Societies Rules, 1965-Rule 12(2)-Constitution of India, 1950--
Articles 19(/)(c) and 300A-Transfer of Property Act, 1882-Section 10-
Cooperative Housing Society-Admission of Member-Transfer of 
Membership-Bye laws of Society confining membership to persons belonging 
D to Parsi community-Validity of-Held: Bye laws ;·estricting membership to 
Parsi community do not violate Act or Rules-Nothing precludes Society from 
restricting membership to particular religion, bf!/ief or tenet-Restriction being 
in interest of Society and consistent with its object, not opposed to public 
policy-Right to become member of Co-operative Society governed by its own 
bye laws is not a fundamental right-Further, when person becomes member 
E of Society, he enters into a contract submitting to its bye laws which cannot 
be curtailed relying on fundamental right-Bye laws are not absolute restraint 
on alienation to attract section l 0 of l 882 Act but only a partial restraint 
which is valid in law-Also does not violate Article 300A-Bye laws being 
valid, Society cannot be directed to amend bye-laws relating to qualification 
F for membership-Property is to be dealt by member and assigned only to 
persons qualified to be member of Society, in terms of its bye-laws. 
Several persons formed appellant-society for purpose of erecting 
housing 1"or residential use of its members. After coming into force of 
Gujarat Act, society was regulated by Gujarat Cooperative Societies Act, 
G 1961. Society acquired land and allotted plots of land to its members. Bye 
law 7 of the Housing Society confined its membership to those of Parsi 
community and as per bye law 21 members could sell their share with 
previous sanction of the Commiittee of society only to person belonging 
to Parsi Community. Father of respondent No. 2 purchased flat from a 
H 
592 
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ZOROASTRIAN CO-OP. HOUSING SOCIE. LTD." DIST. REG. CO-OP. SOCIE 
593 
member being qualified under the bye laws. Respondent No. 2 became A 
member of society on death of his father. On Respondent No. 2's application 
Society granted permission to demolish the bungalow and construct residential 
flats to be sold to Parsis. Thereafter, in terms of the order of Board of 
nominees respondent No. 2 sought permission to transfer his share to 
respondent No. 3-a builder Association, non-parsi. Society rejected the B 
permission. Tribunal held that the bye laws restricting membership to Parsi 
was a restriction on the right to property and right to alienate property and 
thus invalid in terms of Article 300-A of the Constitution. High Court 
dismissed both Writ Petition and Writ Appeal. Hence the present appeal 
Allowing the appeal, the Court 
HELD : 1. The right of the appellant society to insist that the property 
has to be dealt by respondent No. 2 only in terms of the bye-laws of the Society 
and assigned either wholly or in parts only to persons qualified to be members 
c 
of the Society in terms of its bye-laws is upheld. Respondent No. 3 is restrained 
from entering the property or putting up any construction therein on the basis D 
of any transfer by respondent No. 2 in disregard of the bye-laws of the Society 
·and without the prior consent of the Society. (629-E-FJ 
2.1. The action of the Society in refusing membership ~o a person has 
to be tested in the anvil of the provisions of the Act, the Rules and its bye-
laws. The Act, the Rules and the bye-laws are not to be given the go-by, merely E 
because the particular bye-law or action of the Society may not accord with 
the concept of fairness or propriety in terms of the rights available to an 
ordinary citizen. A legislative provision in the Act can be introduced for the 
purpose of eliminating a qualification for membership based on sex, religion 
or a persuasion or mode of life. But so long as there is no legislative F 
intervention of that nature, it is not open to the court to coin a theory that a 
particular bye-law is not consistent with the scheme or a provision of the 
Constitution in Part Ill or IV thereof, and be declare it to be opposed to public 
policy by the court. (613-F-G; 616-G-H; 617-A) 
Damyanti Naranga v. Union of India

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