Can a co-operative Housing Society refuse to admit a person as a member belonging to other religion/caste/community?

By Bankimchandra Khona, solicitor.

1. There are few Co-operative societies wherein membership to the

Co-operative  Society is restricted to particular community or religion                       or caste. At the time of admitting the member, declarations and undertakings are taken from such intending member that the intending member belongs to particular religion cast or creed and that he will not permit or allow person of other religion, cast or creed to occupy or use the flat or premises.

1. Question arises whether such restrictions are valid. Can a Society refuse to admit a person from other religion or cast or creed to become a member of the said society? Can a Society retrained use of a flat by a member of other community or caste or religion?
2. Very interesting case arose in a case of Society whose membership and right to use and occupy the premises was restricted to only persons who are professing Zorastrian religion. As per Society’s Rules and Regulations and Bye-laws, only person who were permitted to stay therein required to be Zorastrian and they were required to file necessary declarations for the said purpose. One of the members married a women of non-Zorastrian faith. The said Society filed a suit against the member and also added after sometime the wife of the said member who was not following Zorastrian faith and took out motion for restraining non Zorastrian lady from residing or occupying the said flat. Question which arose before Hon’ble High Court of Bombay was that there was an Agreement for sale providing that flat will be used only for residence of Parsee/ Irani Zorastrian and not to be sold to person other than Parsee Zorastrian. The question before the Court was that in a case when Agreement for sale or Bye-laws and Rules a d Regulations of the Co-operative Society if such provision is made, are the members bound by them or are they valid against the persons who are claiming through such members. The Hon’ble Court rejected the Application for injunction prayed for by the society for restraining a non-Parsee/ non-Zorastrian lady using the flat. Such injunction was refused by the Hon’ble High Court of Bombay.
3. The Hon’ble Court considered the provisions of The Maharashtra Ownership Flats Act, 1963 and The Maharashtra Co-operative Societies Act, 1960. The Court stated that provisions of the said two Acts are binding on the Society concerned and any Bye-law or restriction to the contrary would be hit by those provisions. The Hon’ble Court stated that when an Agreement is contrary to the statutory provisions, its statutory provision which will prevail and one can not insist enforcement of the clauses of the Agreement which is contrary and violative of the statutory provisions. The Court did not grant any interim reliefs to the said society.
4. It was decided by Hon’ble Division Bench of Bombay High Court in a Notice of Motion No.3525 of 2000 in Suit No.4437 of 2000 (The Zorastrian Radih Society Vs. Mrs. Pervin Nariman Jogina & Anr. Reported in 2001(2) ALL MR 675.)