New Delhi, April 19: The Supreme Court has upheld the right of a cooperative housing society to restrict membership to a particular community, religious or linguistic group and ruled that it has the right to impose its own by-laws for membership.

Last Friday, the court upheld the right of the Zoroastrian Cooperative Housing Society Ltd, Bombay, to have members of the Zoroastrian religion only (Parsis).

“We uphold the right of the society to insist that the property has to be dealt only in terms of the by-laws of the society and assigned either wholly or in part only to persons qualified to be members of the society in terms of its by-laws.”

The court said in a secular country like India it was somewhat retrograde to conceive of cooperative societies confined to followers of a particular religion, mode of life or persuasion. But that was different from saying there could not be such a cooperative society.

The judges observed it was for legislatures to amend the law so that no cooperative society could be confined to a group, a sex, a religion, a particular persuasion or a way of life. Till such amendment was made in the Cooperative Societies Act, the society had the powers to restrict its membership.

The court said legislatures could easily state in their respective cooperative societies act that no society confined to a particular group could be formed. But in the name of open membership, a direction could not be given to ignore existing by-laws to admit a person not qualified to be a member.

For example, there could be a Calcutta Malayali Association or a Delhi Tamil Sangam, whose basic membership qualification was a person must belong to those linguistic groups only. If such a body sets up a cooperative housing scheme and gets land allotted by the government, a non-Malayali or non-Tamilian cannot say the restriction on membership is “unreasonable” and challenge it in court.

The Zoroastrian Cooperative Housing Society had challenged a Gujarat High Court verdict that the Parsis-only restriction on membership in its by-laws was unfair.

Appearing for the society, former attorney-general Soli Sorabjee contended that under Article 19 (1)(c), Parsis had the fundamental right to form an association and there was nothing illegal in restricting membership or to exclude the general public at its discretion.

The problem arose when a person wanted to sell his flat to another not belonging to that community.

The court said when a person became a member of a cooperative society, he automatically submitted himself to its by-laws. That also restricted his right to transfer the property as it was stipulated that “the same would be transferred back to the society or with prior consent of the society to a person qualified to be a member of the society to a person”.

The court said it was “open” to the Parsis to try to preserve their culture and way of life and, in that process, work for the advancement of their people by enabling them to acquire membership in a society and allotment of lands or buildings.

“It is also open to the members of the Parsi community, who came together to form the cooperative society, to prescribe that members of the community for whose benefit the society was formed, alone could aspire to be the member of the society.”