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Housing society in Mumbai’s Sion suspends managing committee members with more than two kids – Is this constitutional?

Recently Hindustan Times (31st August’2018) reported that three Managing Committee members of Rahat Plaza, Sion were suspended for having more than two children in accordance with the section 73 CA of Maharashtra Cooperative Societies Act, 1960.

Wondering why such “Dis-qualification” is not there to become the Member of Parliament? Why there is no amendment in Article 84 of Constitution of India to encourage family planning which perhaps was the intention of our legislator while amending the MCS Act 1960 in 2001? Why such inequality between two elected body? Is this constitutional?

In Dec 2017, the Supreme Court vacation bench of Justice Adarsh Kumar Goel and Justice UU Lalit contemplated on the constitutional validity of section 73CA (1) (vii) of the Maharashtra Co-operative Societies Act of 1960 in so far as the provision mandates that a person having more than 2 children shall be ineligible for being elected, nominated, appointed, or co-opted, or for being a member of a committee of a society registered under the Act of 1960.

The write petitioner was the Board of Directors of the Bassein Catholic Co-Operative Bank Ltd. who was ceased to be a director w.e.f. March 9 under Section 73CA of the Act of 1960. This cessation of directorship was on the ground that the petitioner had become a father of third child on March 20, 2016, i.e., during the tenure of his office.

In the matter of Javed v. State of Haryana [AIR 2003 SC 3057], the judgement was challenged in Supreme Court under Articles 14, 21 and 25 of the Constitution to section 175(1)(q) of the Haryana Panchayati Raj Act of 1994 which stipulated that “no person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who… has more than two living children”. The apex court had observed that since one of the objectives of the legislation of 1994 was to encourage family planning, the classification based on the number of children was reasonable for the purpose of Article 14 therefore rejected the appeal.

It was argued by the senior counsel Arvind Datar that the said provision under section 73 CA of MCS Act 1960 has no bearing or rational connection with the qualification of a person for being member of the Board of Director of Cooperative Bank.

The apex court felt that the disqualification of a person from being a member of a committee of the society on the ground of having more than 2 children has no reasonable nexus with the objective of the Act, while being a defaulter of the society, competing with society’s business, indiscipline in the society, financial impropriety etc. were rational grounds for disqualification.

Its time now our legislators should take this unreasonable clause of Maharashtra Cooperative Society Act from Society to Parliament rather comparing the Rafale deal with housing society and amend the said provision 73 CA which is unconstitutional.

Reference Links: (Mumbai Mirror) (Link of Case)

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