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Gujarat High Court
Judgename :M.S.Parikh
ZOROASTRIAN CO OPERATIVE HOUSING SOCIETY LIMITED - Appellant
Versus
DISTRICT REGISTRAR,co OPERATIVE SOCIETIES - Respondent
S.C.A. 6226 of 1996
Decided On : 01/16/1997
That the concept of membership as envisaged in Sec. 24 of the Act read with Rule 12. Rule 12(2) in particular, of the Rules takes within its sweep right of a person of being a member of a society to be considered fairly and without artificial restriction, or without any social, politicial, racial or religious discrimination. A restriction in a bye-law to the effect that the membership would be limited to Parsis only would clearly be hit as an unfair restriction which could be validly and legitimately dealt with by the appropriate authorities under Sec. 24 of the Act read with Rule 12(2) of the Rules. It is, therefore, clear that the Tribunal is right in not upholding such a restriction in the bye-law in question on a prima facie, consideration of the matter.
[Para 17]
(b) Gujarat Co-operative Societies Act, 1961 - Sec. 42(9) - Transfer of Property Act, 1882 - Sec. 10 - Constitution of India, 1950 - Art. 19 & 300A - Transfer of membership of society coupled with his right to alienate his interest in immovable property - Rejection in view of provision in bye law based on religion, race, caste - Not valid - A bye law being not law can not restrict the right of citizens - If there can be a restriction on such a right the same could be only by an appropriate legislation.
Section 10 of Transfer Property Act provides that where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property the condition is void. Therefore, such a condition imposed by a bye- law on its member that he cannot alienate the property to a non- Parsi person would be prima facie, illegal. Moreover, every citizen has a right under Art. 300A of the Constitution of India, to property, and such a right to property is not to be deprived except in accordance with law. Even under Art. 19 of the Constitution of India the citizen has a fundamental right to reside and settle down in any part of the Indian territory. If there can be a restriction on such a right, the same could be only by an appropriate legislation. If there is a law made by the appropriate legislature, the same could be examined from the standpoint of whether it is reasonable restriction or otherwise. A bye-law being not law cannot restrict the rights of citizens.
[Para 18]
( 1 ) THE petitioner No. 1, a co-operative housing society registered under the Bombay Co-operative Societies Act, 1955, and petitioner No. 2 a member and the President of the petitioner No. 1 society have invoked extraordinary jurisdiction of this Court under Art. 226 as also under Art. 227 of the Constitution of India seeking following reliefs :-" (A ). . . . . be pleased to issue a writ of Mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing the directions of the 1st respondent vide letters dated 2-5-1995 at Annexure-N hereto and 16-8- 1995 at Annexure-O hereto. (B ). . . . . be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate order or direction quashing and setting aside the orders dated 28-5-1996 of the learned Nominee at Annexure-K hereto and that of the tribunal dated 8-8-1996 at Annexure-L hereto and be pleased to further restrain the respondent Nos. 2 and 3 and/or their agents for putting up any construction on plot No. 7 of the petitioner-society without permission of the petitioner-society. (C ). . . . . . be pleased to issue a writ of Prohibition or a writ in the nature of prohibition or any other appropriate writ, order or direction restraining the respondent no. 1 from proceeding further with the appeal filed by the 2nd respondent under sec. 24 of the Gujarat Co-operative Societies Act against rejection of transfer of membership vide application dated 18-6-1996. (D ). . . . . be pleased to issue a writ of Mandamus or a writ in the nature of mandamus or any other writ, order or direction declaring the transfer of plot No. 7 by respondent No. 2 to the respondent No. 3 as contended by respondent No. 2 as being illegal, void, non-est and not binding on the petitioner-society. "
( 2 ) BROAD facts on which the petitioners have sought the indulgence of this court may be stated from the synopsis of dates and events : the petitioner-society was registered under the Bombay Co-operative Societies act with the object of constructing houses and it is the say of the petitioners that bye- laws were framed restricting membership to Parsis. It is the further say of the petitioners that the objects of the petitioner-society also included construction of houses meant for the purpose of residence. On or around 26-9-1985 the respondent no. 2, a member of the petitioner No. 1 society gave application to construct residential-cum-commercial building on plot No. 7 occupied by him as the member, after demolishing his existing residential building. On or around 4-8-1986 such permission came to be rejected by the society on the ground that the commercial use was prohibited under the bye-laws. It is the say of the petitioners that such a stand was accepted by the respondent No. 2. On or around 10-3-1988 second application for development was made for construction of ground floor plus nine floors (56 blocks) by the respondent No. 2 for constructing residential accommodation. It is the case of the petitioners that on 17-5-1988 conditional permission for development was granted inter-alia saying that the flats would be allotted for residential accommodation of Parsis, that the respondent No. 2 would be continued to be member of the society in respect of plot No. 7 and that additional taxes, if any, would not be borne by the petitioner No. 1 society.
( 3 ) IT is asserted by the petitioners that nothing was done by the respondent No. 2 pursuant to the aforesaid permission till may 1995, i. e. , for a period of 7 years. However, apprehending transfer of plot No. 7 by the respondent No. 2 and construction of residential-cum-commercial complex, the petitioner No. 1 society filed a suit before the Board of Nominees bearing Lavad Case No. (Arbitration Suit no.) 570 of 1995. The learned Board of Nominee, granted order of status-quo in the said suit. He, however, after hearing the learned Advocates for the parties to the suit vacated th
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