Membership of minority groups in CHS

By I C Naik

The Venetian term Ghettoization keeps visiting Mumbai more frequently than before. It shows up with a report of refusal of membership to minority groups like the non-veg-eaters by a majority of vegetarians. A few days ago reportedly one such incident TOI covered for 4 days in a row (17 to 20. 09. 2016) got finally buried with bitter taste; but not before the flat holder (Kantaben Patel a Gujarati Member ) reportedly complained to Mumbai Police that the housing society (Happy Jiwan C H S at Vasai- Mumbai) was refusing to let her  sell her flat to the highest bidder, one Mr. Khan ( a Muslim Glass Showroom owner in Vasai itself).

The housing society management finally succumbed to the arrests of the opposing members (11 of the total membership of 16) for an alleged criminal act being an offence u/s 295A of IPC. “Making a written request not to sell her a flat to a Muslim” was conceded by Mumbai Police as one of the “Deliberate and malicious acts, intended to outrage reli­gious feelings by insulting religion or reli­gious beliefs” liable to 3 year in Jail. Opinions of certain cooperative experts and public outrage both contributed to the Committee agreeing to issue NOC to Patels. Little did anybody realize that an opportunity to bring out in day light a truth about “Ghettoisation” under a judicial scrutiny, was lost.

A lone voice reportedly of the activist Feroze Mithiborwala failed to garner any support worth mentioning, to what he candidly said; “There are certain sections across all communities who find it more culturally comfortable to live among their own so you can’t deny those people that right. And all communities do it not just Hindus. There are Muslim colonies, Parsi colonies, Dawoodi Bohra colonies and Christian colonies.“ Against this look at this statement “If you are a society registered under a law, the body has a public law character and has to comply with the mandate of cooperative act,“ said senior counsel Milind Sathe. The arrested members were released on bail. Whether they will be tried for a crime of “insulting religion or reli­gious beliefs” may be now of academic importance as a crisis has reportedly blown over.

Though Mumbai Police did not differentiate a Cooperative Society being a legal entity and a juristic person which can be sued in its name for defaults or its office bearers for criminal acts, as such it is totally different from its members, academicians and institutions like cannot shy away from analyzing it  dispassionately. Action of a Cooperative Society is not the action of those voting in favour. It is a society’s decision. Here what actually happened was some members with all humility expressed their feeling as to what they felt about a Muslim family having a home on the floor where other families are non-Muslim. They appealed to their fellow cooperator with whom they lived in the same building for over two decades. It was not addressed to  Mr Khan whose feelings were allegedly hurt as per the TOI Report.

There was one report (TOI 18 September 2016) quite pertinent to the controversy, containing views of certain cooperative experts. Relevant parts are extracted below.

“A decision by 11 members of a housing society in Vasai to keep Muslims out, despite two existing members belonging to the minority community , may not meet with a happy ending if challenged in court. This would be in view of the fact that the inception of the society was not for members belonging to a particular religion, nor had it adopted restrictive by-laws.

“If the bye-laws do not provide for such reservation and if the society rejects a sale on grounds of religion, it would amount to discrimination and be rendered illegal,“ said senior counsel Joquim Reis. The Supreme Court had in its landmark judgment in 2005 upheld reservation for membership based on religion in the Zoroastrian cooperative housing society , but it had done so on the basis of existing bye-laws of the society which had been formed for members following a particular faith. “The ruling in the SC case to let a Zoroastrian housing society restrict its membership based on its bye-law to persons of the same faith, would not apply to the Vasai case,“ said Reis.

After Zoroastrian’s [2005] by the year 2013 Cooperative Movement underwent a major makeover under the Constitution (97th Amendment ) Act 2011. The Supreme Court of India literally revisited several of its earlier orders and laid down a law a fresh. [  the Supreme Court of India on March 19, 2015 [(2015) 42 SCD 494] delivered a land mark judgment on cooperative movement.

The Apex Court was confronting a short question: Para 2 of the judgment” Whether in the absence of a specific provision on removal by no confidence in the Act, Rules or even Bye-laws of a Cooperative Society, the Chairperson/elected office bearer can be removed by a motion of no confidence, is the short but complex question.” The Apex Court answered it in affirmative. The Bench went to an extent of saying at Para 48 that “If the Act or the Rules or the Bye-laws do not say what they should say in terms of the Constitution, it is the duty of the court to read the constitutional spirit and concept into the Acts”

One earlier judgment pertinent to the cooperative movement  [ is of Thalappalam Ser.Coop.Bank Ltd.& … vs State Of Kerala. 7 October, 2013 : C A 9017 OF 2013]  The Supreme Court considered if the Cooperative housing societies were “Public Authorities obliged to answer RTI questions to members of Public. It was answered in the negative.

The relevance of these judgments which are law in to themselves, to Ghettoizm of minorities in Cooperatives will be analyzed in detail in Part 2 for cooperators to draw their own informed conclusions as to what would the Supreme Court  have thought should the case of Happy Jiwan Cooperative Housing Society, Vasai Mumbai were to land in the Apex Court.

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