Clarification on 97th Co-operative amendment

Prakash Gupta

Dear Sir,

By way of introduction I am an office bearer of a Managing Committee (MC) of one of the co-operating housing society in Mumbai. The society has more than 600 resident members.

This MC was constituted in Feb 2013 after following the process of election. The election officer has followed the bye-laws prevailing on the day of declaring the election and conducted the same for 11 members. Out of which 2 and 1 seat was reserved for ladies and reserved cast respectively.

Unfortunately no one from reserved category filed the nomination for reserved seat; hence the election officer has declared the result for 10 positions and kept the result of one seat in abeyance. Pursuant to which he placed a notice on the notice board seeking the new application for reserved seat from eligible resident members and mentioned in the notice that if no application is received he’ll declare the name of the contestant as 11th members who has received next lowest votes in Feb 2013 election.

On account of not receiving any new nomination/ application the election officer has declared the name of a general category contestant as 11th member. My query to you- does this act of the election officer is valid under the provisions of law/ byelaws?

Further, later after the constitution of the MC somewhere in the month of April 2013 an AGM was called where the model byelaws as provided by the govt with 97th amendment has been approved and adopted by the society. The same was then provided to the Registrar. A revised adopted bye-laws has a clause wherein the no of members in the MC should be more than 11.

My understanding is the said clause will not be applicable for the existing MC body as the same was not applicable on the day of its constitution and there is no statutory compulsion for the existing MC to have the election for remaining (enhanced) strength. Further I understand post 97th amendment that the responsibility of election is with election commissioner not with the MC, hence if at all the election should take place, it should be initiated by the Election commissioner (which I believe is yet to be appointed by the govt).

Furthermore I understand that the revised byelaws are still under discussion in relevant department of the government hence doesn’t have any sanctity. In view of the above I seek your guidance as to- Is it the obligation of existing MC to increased the no of its members?

I C Naik

Certain facts are very relevant to reaching correct conclusions and these are missing.

1.    Very crucial is the date on which the previous committee completed its term. Which Model Bye Laws were originally registered?

2.    In which year the concerned COOPERATIVE HOUSING SOCIETY was registered and which Model Bye Laws are registered?

It appears that the Society was registered after 2001 with the 2001 Model Bye Laws and the outgoing committee completed its 5 year term after 14h February 2013.

Sub-Section 15 of newly inserted Section 73 CB of the M. C. S. Act 1960 by the Maharashtra Cooperative Societies (Amendment) Act 2013 (replacing Maharashtra Ordinance which was in force on 14 2 2013) covers the case of this society.

Section 73CB(15) “Notwithstanding anything contained in this Act, the rules or the by-laws of any co-operative society, the election to the committee and consequent election of the office-bearers which is due on the date of commencement of the Maharashtra Co-operative Societies (Amendment) Mah. Act, 2013, or may become due after such date, until 31st March 2013 shall be held before the 31st December 2013.”.

There was a conflicting report in one newspaper early March this year reading as  “The state government is in the process of setting an independent authority to hold free and fair polls before December 31. The cooperation department has issued a directive following the passing of a new cooperation law that governs and regulates the sector. The directive said old committees should continue to look after the daily administration of societies, but must avoid taking any policy decisions. Violations will be dealt with in the form of legal action, the department said.The directive will not apply to the societies that elected new committees before March 31.”

As regards new Bye Laws also there was a directive Admin/Outward No/97thCAA/2013/102 from the Commissioner and Registrar of Cooperative Societies  dated on 22 2 2013 to all Divisional Joint Registrars-Cooperative Societies and to all  District Deputy Registrars-Cooperative Societies  issued referring to State Government’s letter dated 15 2 2013.

An Ordinance has been promulgated for making amendments in the M. C. S. Act 1960 pursuant to the Constitution 97th Amendment) Act 2011.

“In that connection it has become necessary to start the procedure to align the provisions in the bye laws of different classes of the Cooperative Societies in the State. For that purpose following step wise schedule has been fixed up.

v  Compile Model Bye Laws                                                                           16-02-2013

v  Convening of meeting of the managing committee ;

recommend adoption of Bye Laws by the general body meeting                           5-03-2013

v  Hold the special general body meeting for adopting Bye Laws                15-04-2013

v  Submit application to the concerned registering authority

to approve proposed adoption of new Bye Laws                                      20-04-2013

v  Concerned Registering Authority to accord approval to new Bye Laws   30-04-2013

You are hereby requested to issue instructions to all concerned to ensure that the steps as set forth herein above are accomplished accordingly.”

Reportedly certain Housing societies did take steps as aforesaid.

The fact is that New Model of the Bye Laws is still under approval.

Cooperative housing societies in Mumbai have no clue as to what is going on. ANNUAL GENERAL MEETINGs are held as per past practice without taking note of the fact that the Maharashtra Cooperative Societies (Amendment) Act 2013 is in force from 14 2 2013 which has made many changes and especially reporting to members in the annual general meeting.

The confusion stems from the fact that no State Government viewed the Constitution (97th Amendment) Act 2011 as seriously as it deserved. Most of them have woken up quite late to take necessary steps which arose out of the Constitutional amendment.

As regards reservations the requirement as per 2001 model is 11 members including 2 from women members. No other reservation is provided in this Model.

Your Society is also like several ones facing the confusion.

Another news report in May quoting the state cooperation minister Harshwardhan Patil said “ Members of housing societies across Maharashtra can heave a sigh of relief as the state government has decided, for now, not to insist on strict implementation of the controversial and confusing amendments to the Maharashtra Cooperative Societies (MCS) Act, 1960, which the societies have been directed to adopt by May 30.