Observing that it will “divide the society on community basis”, the Bombay High court has upheld orders denying a housing society in Malabar Hill to amend its bye-laws to cap membership of each community at 5 percent of the society's total membership.
Plea to amend by-laws rejected
Justice Rajesh Patil dismissed the petition filed by Blue Haven Co-op. Housing Society Ltd. challenging the orders of deputy registrar and Divisional Joint Registrar of co-operative societies rejecting its plea to amend the bye-laws. The society contended that capping the membership will ensure that there is no dominance by any single community in the society.
“In my opinion, If the proposed amendment is approved, it will divide the society on community basis. The building was not constructed on community basis, on inception there were no such Bye-laws of mathematical division of 5% per community,” observed justice Patil on March 20.
Unanimously resolved to amend by-laws in 2008
The society, comprising 66 members, was registered in 1963. It adopted Model Bye Laws in January 1989. The society, in its Annual General Meeting held on September 19, 2008, unanimously resolved to amend its bye-laws by putting a cap of 5% on membership of every community. According to this, membership of any community should not go beyond 5 percent of the total membership of the society. This, the society claimed, was to ensure that there is no dominance by any single community in the society.
However, the proposal for the same was rejected by the Deputy Registrar, Co-operative Societies “D” Ward on November 17, 2008. The same was upheld by the Divisional Joint Registrar, Co-operative Societies on April 30, 2011.
The society approached the HC against these orders
The HC noted that the proposed amendment was contrary to the provisions of the Maharashtra Co-operatives Societies Act which provides for open membership. “The society by proposed amendment to the Bye-laws wants to defeat the section itself, as it wants to insert a condition whereby even though a person who is otherwise qualified under section 22 (1) to be a member, cannot become a member if the proposed amendment to Bye-laws is allowed,” said justice Patil.
Besides, the judge noted that in case a member wishes to sell his flat, and the community to which he belongs already has 5 per cent membership out of 100 per cent in the society, then he will have to search for a buyer of his community only. “In such a situation, the sale is likely to be a distress sale. Therefore, the proposed amendment is not in the interest of the society,” averred the judge while dismissing the petition.
