Pretti Jaiin
I am a member of a cooperative housing society in Mumbai. The tenure ended in November 2013.
The Deputy Registrar wrote to the Managing Committee that they are a care-taker committee and cannot take important policy decisions. Yet, in the agenda for the AGM on 28th September 2014 in which 29 out of 56 members were present, redevelopment was discussed. 70 percent members were not present as per govt rule regarding redevelopment.
Further, they called an SGM on 2nd Nov 2014 and then passed a resolution to go ahead further with redevelopment and to apply for 79 A procedure to the Deputy Registrar. My question is: can they call an SGM for redevelopment and whether the resolution passed in such an SGM is legally binding when the deputy registrar had already issued instructions that they are no longer having powers to take important policy decisions?
I C Naik
The tenure of the Committee of C H S in Mumbai having ended in November 2013, the Deputy Registrar wrote to the Managing Committee that they are a care-taker committee and cannot take important policy decisions. The Dy Registrar has issued instructions giving a status of a “Care Taker Committee” This is akin to Government resigning or its tenure coming to an end and new cabinet has not been sworn in, the Governor asks the present incumbent to the government to hold on to office till an alternate government is installed. The Dy Registrar is not Governor. Section 3 of the M C S Act 1960 is relevant here. Extract:
“The State Government may appoint a person to be the Registrar of Co-operative Societies for the State; and may appoint one or more persons to assist such Registrar with such designations, and in such local areas or throughout the State, as it may specify in that behalf, and may, by general or special order, confer on any such person or persons all or any of the powers of the Registrar under this Act.” There is nothing like a care taker Committee in the M C S Act 1960. If it was that should have been stated in Subsection 4 of Section 166 of the Act whereby the tenure of the Committee was extended indefinitely. This is like a provision in Section 73(1A) wherein clause © expressly provides that (c) pending the first constitution of the committee of a society, the provisional committee of the society shall exercise the powers and perform the duties of the committee of such society as provided in this Act, the rules and bye-lawsand make necessary arrangements for holding election of the committee, before the expiry of its term.
Relevant part of Subsection 4 of Section 166 reproduced here under:
”the committees of which the elections become due after the 31st March 2013,shall continue till the elections to such societies are held under the provisions of this Act.”
More critical issue to examine is whether your Society has an object of Redevelopment in its by law Number 5. Without a power by way of object clause no society can take up that activity which is not listed in the Object clause.
In none of the Model Bye Laws so far approved an object to redevelop the buildings is included and the housing societies undertaking redevelopment are doing it in breach of the bye laws and without having an authority to do so.
Circular issued by the State Government under Section 79A in 2009 prescribes the procedure but it does not empower the CHS to undertake redevelopment.
Until the bye laws are amended to include a power to the Society to take up redevelopment even the Registrar cannot give green signal. In Model 2013 under approval of the Registrar has a following clause and if 2013 Model Bye-laws are adopted
Your C H S will have a power of redevelopment as per clause reading” To initiate Redevelopment of the building as per the norms of the authority”
“So your care taker Committee” may be well advised to examine this aspect.