1999 Supreme(Guj) 349

Gujarat High Court
Judgename :K.G.Balakrishnan, SHARAD D.DAVE
ZOROASTRIAN CO OPERATIVE HOUSING SOCIETY LIMITED - Appellant
Versus
DISTRICT REGISTRAR CO OPERATIVE SOCIETIES (URBAN) - Respondent
L.P.A. 129 of 1997
Decided On : 07/23/1999

Headnote:Letters Patent Appeal — Sec. 15 — Appeal against the dismissal on special civil application filed by appellant society against proceedings pending before the District Registrar of Cooperative Society & to quash the order passed by the Co-operative Tribunal to delete the condition prohibiting the transfer of property to non-Parsis — Scope of — In view of provisions under Secs. 22, 23 & 24 of Bombay Co-operative Societies Act, 1954 read with Rule 12 of rules framed under the act and as laid down by Apex Court in number of decision a housing society registered under the Co-operative Societies Act could not restrict the membership of the society exclusively to the members of one community — It is immaterial that the society was originally founded exclusively by members of that society — Appellant society has failed to support its contention that the Parsi community being a minority community is entitled to have a co-operative society of their choice — On the contrary law is that co-operative society could function only under the statutory restrictions imposed under the statute with a view to protect public interest — As the property owned by a member of the housing society is inheritable & alienable there rights can not be restricted except under an express provision of law — The bye-laws of the society expressly prohibiting a non-Parsi being a member of the housing society can not be held reasonable as denial is solely based on his membership of a particular community — As a result Court held that byelaw providing exclusion of non-Parsi as members of the appellant society is rightly directed to be amended — Appeal dismissed as having no merit.

       From the judicial pronouncements concerning Cooperative Societies, certain principles are clear. The cooperative societies are organized for certain purposes and objectives, such as economic interest and general welfare of its members. Though they are not statutory creatures, it is fully guided and controlled by statutory provisions. This control and guidance are intended to protect the interest of the public. The property owned and possessed as a member of cooperative society is held to be heritable and alienable. Such rights could be sold in execution by a Court sale. A bona fide purchaser for valid consideration of such rights would get an unimpeachable title and the purchaser can seek membership of the society and his prayed for membership cannot be denied on flismy and unreasonable grounds. The members of the governing body of a cooperative society could be nominated by State Government to serve the public purpose. If two cooperative societies could be merged and amalgamated by State intervention, there cannot be any challenge against the same on the ground tht the same would abridge or take away the rights conferred by Art. 14 or Art. 19 of the Constitution. Therefore, it is clear that there is all pervading control by the statute over the function and composition of the cooperative societies and Courts have consistently held that such interference does not violate the freedom of association guaranteed under Art. 19(1)(c) of the Constitution. As the property owned by a member of the housing society is inheritable and alienable, these rights cannot be restricted except under an express provision of law. The byelaws of the society expressly prohibited a non-Parsi being a member of the housing society and the same cannot be said to be reasonable as the denial is solely based on his membership of a particular community.

       [Para 16]

       Though the fundamental right to acquire, hold and dispose of property guaranteed under Art. 19(1)(f) is no longer available as fundamental right, it nevertheless is an incidence of property and continues as basic right available to a citizen and the observation made by the Honourable Supreme Court in Bhau Ram vs. Baij Nath Singh & Ors. , AIR 1962 SC 1476 has great persuasive effect when considering similar question.

       [Para 17]

       Having considered all relevant aspects, Court do not think that the appellant-Society can insist that their byelaw providing exclusion of non-Parsis as members is not liable to be amended.

       [Para 18]