Privileged and Confidential

Queries
1. Whether Housing Societies can discriminate on acceptance of Tenants on the basis of their
religion/other grounds?
Research & Analysis
1.1
In the case of Zoroastrian Co-operative Housing Society Limited v. District Registrar Co-operative
Societies1, the Supreme Court allowed a housing society to rent and sell accommodation only to
members of a particular religious community (Parsees) citing the freedom of association under
Article 19(1)(c). The Court held that the co-operative society was not 'State' under Article 12 and
therefore was not bound by the duty not to discriminate on the ground of religion under Article 15.
In the instant case, the High Court ruled in the favour of the appellant that there was a restraint on
alienation of the property under the TPA, as the bye-laws of the society made it a pre-condition that,
the property could only be transferred to people from the Parsi Community. The Grounds on which
the Court has relied is that a co-operative society does not come within the definition of a state under
article.12 and thus, is not under a duty to not discriminate in its housing policy, also, under
article.29 the parsis who are a minority community have a right to preservation of their way of life.
On the ground of transfer of property, the courts have reasoned that the restraint on alienation was
not absolute. Most of all, under article 19(1)(c) the right of the Co-operative Society has been upheld.
1.2
In an earlier case of St. Anthonys Co-operative Society v its Secretary 2, the Bom HC had held the
Bye-law of the Society, restricting the Housing to only Catholics only as invalid. It has been held in
the case that A restriction in the By-laws of a Co-operative Society imposing a condition or
qualification restricting membership, to a particular religious group would violate the principle of
open membership. That principle of open membership is recognised by Section 23 of the
Maharashtra Co-operative Societies Act, 1960. Indeed, it must be recognised that it would not be
open to the State Legislature to permit a discrimination only on the ground of religion, race, caste,
sex, place of birth or any of them by virtue of the provisions of Article 15(1) of the Constitution.
1.3

1 AIR 2005 SC 2306

2 2001 (1) Bom CR 730

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In the most recent case of Delhi Dayalbagh Coop. House Building Society v The Registrar
Cooperative Societies & Ors3; on the question of Transfer of property to a non-member, the Del HC
has upheld the Transfer on the reasoning that the Co-oprative society cannot restrict the movement
of property to its members only. It has differentiated from the judgment in the Zoroastrian judgment
by the Apex Court on rationale that, in the said case, the Parsi rights under article 29 were
considered and thus, the protection accorded was justified, as the Parsi community is a shrinking
minority community.

1.4
The most common criticism met to the judgment of the SC in Zoroastrian Society case is that, the
Court failed to consider the aspects under Article 15(2) which is a Fundamental right and cannot be
done away with, under any circumstances.
Article 15 state that No citizen shall, on grounds only of religion, race, caste, sex, place of birth or
any of them, be subject to any disability, liability, restriction or condition with regard to access to
shops, public restaurants, hotels and palaces of public entertainment.
In the case of IMA vs Union of India, the purport of Article 15(2) has been explained as follows:
The purport of Article 15(2) can be gathered from the Constituent Assembly debates. Babasaheb
Ambedkar elucidated on the same saying that "To define the word `shop' in the most generic term
one can think of is to state that `shop' is a place where the owner is prepared to offer his service to
anybody who is prepared to go there seeking his service. ....Certainly it will include anybody who
offers his services. I am using it in a generic sense. I should like to point out therefore that the word
`shop' used here is not used in the limited sense of permitting entry. It is used in the larger sense of
requiring the services if the terms of service are agreed to.
Drawing from the same rationale, the Private discrimination in Housing services can thus be
challenged and there shall be a remedy from such discrimination.

3 2013 (133) DRJ 513