Rajendra Kakade
I have a flat at Maitri Daffodil Co-operative Housing society, Thane and have rented the flat to Multiple Bachelor girls from last three years.
In Year 2007 the Society has passed the resolution in Annual General Meeting for not to give the flat to multiple bachelor girls, we objected the resolution but since majority of the members agreed for it and it was passed unanimously.
We took the objection to it then the Secretary of the Society said It will be implemented only when it will approved from Registrar of Society.
Now since last six month new office bearer has taken the charge and taken objection to my rented flat to bachelor girls and they passed another resolution in extra general meeting to charge the penalty of Rs. 4000/- every month for first three months and Rs. 10,000/- for next month till I vacate the flat.
Sir I asked Society to provide me the resolution copy and approval of registrar so that I can go to Co-operative Court, for which they refused and asking me to make the payment of Penalty then only they will provide me the papers.
Sir I seek your advice on the above.
I C Naik
RESPONSE
The issue here is about powers of members in the general body meeting. Section 72 of the M C S Act 1960 provides
“Subject to the provisions in this Act and the rules, the final authority of every society shall vest in the general body of members in general meeting, summoned in such a manner as may be specified in the by-laws.”
No provisions in this Act and the rules, touches upon sub-letting of flats in a cooperative housing society. So we have to look up in the Bye Laws as regards validity of the ban imposed in annual general meeting on the members to sub-let the flat to “multiple bachelor girls”
On sub-letting of flats of cooperative housing society, the draft Model 2013 of the Bye Laws (Under approval of the Maharashtra State authorities), has proposed to do away with the members seeking permission of the Society for sub-letting a flat. Read the Bye-Law No 43 on the following website.
http://sahakarayukta.maharashtra.gov.in/SITE/PDF/Rules_Acts_Bylaws/Model_ByeLaws_of_Housing_Cooperative_societies.pdf
But this freedom is not available today.
1. This Model 2013 has to be cleared by the Commissioner and Registrar of Cooperative Societies.
2. Your society has to pass a resolution to adopt them, voting 2/3 members (Present in the meeting and voting) in favour of such adoption.
3. The Registering Authority has to register the new Model as your society’s the Bye Laws.
So what is the law to day?
As per current Bye-Laws (All Models ) “the previous permission in writing of the Committee” is required to be obtained by the member to sub-let his flat.
The Committee has powers under Bye-Law No 113 reading as:
“Subject to the direction given or regulation made by a meeting of the general body meeting of the Society, the Committee shall exercise all powers, expressly conferred on it and discharge all functions entrusted to it under the bye-law No. 138”
It is under this Bye Law that the committee has a direction of the general body meeting not to allow the members to sub-let flats to “multiple bachelor girls.”
The exercise of this power namely “imposing a ban on the members to sub-let flats to multiple bachelor girls” does not require any approval of the Registrar.
In the year 2007 the general body meeting imposed the aforesaid ban which was not given effect to under a mistaken belief that it required approval of the Registrar. The Committee continued giving approval to sub-letting of the flats to multiple bachelor girls. So going by the conduct of the Committee no one can say that there was a breach of Bye Law concerning seeking prior approval of the Committee to sub-let the flats.
The Committee presumably proposed a resolution in the general body meeting to impose penalty for an action (of sub-letting the flat) which did not amount to breach of any Bye Laws (See Bye-Law No 166). The general body meeting cannot levy penalty without first fixing the rates thereof and a member committing a breach subsequent to such breach.
The penalty imposed by the Committee is without its authority to do so.
You need not pay this penalty. But the next renewal of Sub-letting may not be possible. So be careful.
Maximum Penalty