In part 1 we saw that formation of housing societies exclusively for members having common a belief or faith, or a persuasion or a religion or eating habits, etc., has been cleared by the Hon. Supreme Court of India in Zoroastrian Housing Society case [Rd-Sc 253]. Membership to Parsees was reserved under the registered bye laws of Zoroastrian Society. At Para 12 of the SC Orde, in one sentence we find the essence of the order namely “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.” But in Happy Jiwan housing society (Vasai-Mumbai) the bye-laws did not reserve membership like what it is in Zoroastrian. As per experts Happy Jiwan C H S could not take advantage of the order in Zoroastrian.
The Cooperative Movement in India got an undeniable boost with the Parliament enacting the Constitution (97th Amendment ) Act 2011 (in short 97CAA). The Hon. Supreme Court of India hailed it as giving a constitutional frame to the National Policy on Cooperatives adopted in March, 2002 by the Government of India.
[http://www.scdecision.in/volume/42/494 the Supreme Court of India by the Bench of (ANIL R. DAVE) AND (KURIAN JOSEPH) JJ. dated March 19, 2015 [(2015) 42 SCD 494]. The Court eloquently affirmed that this National Policy on Cooperatives itself was based on the internationally accepted definition, values and principles of Cooperative Societies. The Hon. Apex Court was answering a short question which we saw in Part 1. The Apex Court has elaborated on judiciary’s roll to bridge the gap between the State enactment and the Constitutional imperatives post 97CAA.
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In conclusion the Apex Court reminds the Judiciary of its duty at Para 53. “The cooperative society registered under the Central or the State Act is bound to function as a democratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or Bye-laws both on the principle and procedure. If not, it is for the court to read the democratic principles into the Act or Rules or Bye-laws.
At Happy Jiwan when 11 of 16 members (more than 2/3 strength which is prescribed to amend the registered bye laws of a Cooperative Society) expressed their wish in a democratic manner that the first floor member should abstain from selling her flat to a Muslim family (the non-veg eaters). Was this not a democratic process of reaching an important decision on who should be the occupant of flar in the neighborhood of majority members? If the Act, Rules or te bye laws of the Society – none of them conferred a power to the board to move no confidence motion against the Chairman Vipul Chaudhary, the S C saw that power as an inherent power of a democratic institution as conferred by the Constitution and upheld the majority decision.