Once again a basic issue in cooperative housing societies has cropped up after it was laid to rest by the Supreme Court in the case of Zoroastrian Co-Operative Housing Society Limited And Another V. District Registrar Co-Operative Societies (Urban) & Ors [2005]Rd-Sc 253 (15 April 2005) Bench JJ B .N. Agrawal & P.K. Balasubramanyan.
Reportedly the mighty builder lobby is up in arms to BMC’s general body resolution, seeking to stall construction permissions if any builder sells flats on grounds of caste, religion or food preferences. Privately they have lambasted the resolution and said it cannot be implemented.
Reportedly across the city many housing societies take only vegetarian members. Some builders sell flats only to members of certain communities. It is said that virtually the entire upmarket Walkeshwar area in south Mumbai has been turned into a vegetarian zone with even non-vegetarian restaurants being forced to shut in the past.
According to society law experts the resolution is just political posturing. It has no legal relevance and the decision need not be implemented by the municipal commissioner. BMC’s task is only to sanction building plans, According to a suburban developer a large number of like minded people request a builder what they want. Mumbai has several traditional community enclaves, especially for Parsis, Catholics, Jains, Sindhis, Saraswat Gouds and Bohras. To these ethnic ranks has been added a new criterion: Being vegetarian
In a posh western suburb in Kandivli, only Dawoodi Bohras live in Hooseini co-operative housing society. Dadar has a Parsi Colony. In Bandra, the sprawling St Sebastian and Salsette complexes are only for Roman Catholics, and Hindu Bunts have sole rights to their place in Palekam Wa di.
There are exclusive Muslim enclaves in the city as well. The biggest of them is Millat Nagar in Andheri (West).Comprising around 1,400 flats and a beautiful mosque, Millat Nagar was founded by Maulana Ziauddin Bukhari, a cleric. There are a number of examples.
Housing experts oppose BMC move saying that each community has its own unique religious and social needs, which are best met if large numbers of the community live together. Also, these cooperative societies were formed for the benefit of the middle-class and economically deprived sections. If membership (as in Parsi Colony) is thrown open to all, there is a possibility that those from higher income brackets in other communities will acquire these properties and create an imbalance in the social milieu a report apprehends.
Over the past decade, several community-specific residential buildings have also cropped up in Mumbai and its suburbs. In Thakur Village in Kandivli, the Flower Valley complex has two buildings where flats have been reportedly sold only to Jains. Likewise it is said that Sudha Park in Ghatkopar is also exclusively for the Jains, as is the 30-storey Sumer Tower in Mazagaon. India’s tallest residential tower, Shreepati Arcade at Nana Chowk, is an all-veggie zone, with the builder making it a point to sell flats only to vegetarian families from the Gujarati, Sindhi or Marwari communities.
How did the Supreme Court uphold right of Zoroastrian Co-Operators in Gujarat to have membership open only to Parsees/ May be it is worth recalling. In response to Mr Shankar Nair’s question about “Registering a co-op housing society for the Nairs” this matter has been discussed at length at
Tags: Cooperative Query, Nairs, Registering co-op housing society
Registering a co-op housing society for the Nairs
Posted on 11 February 2014
In fact the Apex Court had upheld the sanctity of fundamental right of choosing a kind of people of their choice to form and continue to live in a cooperative housing society without any State interference.
At para 10 of the judgment the Supreme Court observes:” In the suggestions for the promotion of a housing society the first essential is said to be that there should be a bond of common habits and common usage among the members which should strengthen their neighbourly feelings, their loyal adherence to the will of the society expressed by the committee’s orders and their unselfish and harmonious working together. In India, this bond was most frequently found in a community or caste or groups like cultivators of a village.”
At Para 12 of the judgment some pertinent observations are made: “Nor do we find anything in the Act which precludes a society from prescribing a qualification for membership based on a belief, a persuasion or a religion for that matter.”
Para 17 of the judgment is really a candid admission of the status. “It appears to us that unless appropriate amendments are brought to the various Cooperative Societies Acts incorporating a policy that no society shall be formed or if formed, membership in no society shall be confined to persons of a particular persuasion, religion, belief or region, it could not be said that a society would be disentitled to refuse membership to a person who is not duly qualified to be one in terms of its bye-laws.”
It is needless to add that such a law would be challenged as violating fundamental right of forming a cooperative society especially when 97CAA has been enacted after the Supreme Court wrote para 17 above,
Undoubtedly, everybody is misreading the constitutional imperative on secularism especially in Article 15 of the Constitution of India quoted below.
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
This is a mandate to the “State” i.e. the Public Authority and not to the Private Persons which includes unaided cooperatives. Access to public places cannot be denied on the basis of religion etc but why private persons have to follow that? Cooperative society not owned, aided or controlled by the state is a private entity as held by the Supreme Court in Thalappalam Ser.Coop.Bank Ltd.& … vs State Of Kerala & Ors. on 7 October, 2013 CIVIL APPEAL NO. 9017 OF 2013.Article 15 quoted above is not binding on private entities.
In other words they have the fundamental right to form associations or cooperatives of people of their liking. State or Law cannot force (a vegetarian) them to put up with people they do not like ( non- vegetarian).
There is nothing that the State does for them that in turn it gets the right to impose condition. Yes by registration a cooperative society gets a status of a judicial person but that is a system and it does not allow the state to strangulate individuals to the way of their social life.
Let us hope that new (vegetarian) government will take bold step to recognize this right which creates unnecessary controversies in the name of “no discrimination on the ground of cast religion etc.,”