Manasi Vora
Our Society was formed in 2011. The committee members of society do not want to adopt the new bye laws. Please advise as to whether our society needs to adopt the new by laws? If we do need to adopt what is the procedure? If we do not need to adopt the new bye laws then what are the provisions that have changed and are applicable to co-operative housing societies as per the 97th Constitutional Amendment.
I C Naik
Manasi’s questions are very precise. Good thinking.
- Bye Laws are contracts entered in to by and between the members and they bind the Society and its members. The law is that “bye-laws must not be inconsistent with any provision of any Law including Maharashtra Co-operative Societies Act 1961 and Rules as also no Bye-law should be repugnant to the State Policy as so declared under Section 4 of the Act. Every new Model of the Bye-laws reflects renewed wisdom of C&RC and changes made to the Act after approval of the Previous Model. It facilitates the management off housing society if the registered Bye-Laws are aligned to the latest changes to the Act and Rules.
This is done by undertaking a democratic process of amending the registered Bye-Laws. It is not a statutory requirement that Model Bye-Laws are adopted by every housing society. A housing society can selectively amend its registered Bye-Laws to make it readable by common men for members of the managing committees are not expected to be experts.
- Any provision in the registered Bye-Laws has become contradictory to any provision of the Act or Rule amended after the registration of Bye-laws at the time of registration of the Society is inoperative in any case and management will be bound to follow the changed law whether the concerned Bye-law has been amended or not.
- If any housing society is averse to changing registered Bye-Laws for they are wel versed with them on a day to day basis they have an easier option to ensure that the managing committee does not falter on compliance to changed law. There is a provision in every housing society’s Bye-law that “Subject to the direction given or regulation made by a Meeting of The General Body of the Society, the Committee shall exercise all powers, expressly conferred on it and discharge all functions entrusted to it under the bye-laws” Such society should pick up changes in law which its management is bound to comply, and list them out under a resolution of the special general body meeting or annual general meeting as General Body Regulations of the Society subject to which the managing committee shall function.
- However such regulations will not take 100% care of amendments required to the Bye-laws on account of certain provisions of the Maharashtra Cooperative Societies (Amendment) Act 2013. For example a new provision under Section 73 AAA (1) read with its Proviso as reproduced below.
QUOTE: 73AAA. (1) The Committee shall consist of such number of members as may be provided in the by-laws:
Provided that, the maximum number of members of the committee shall not exceed twenty one QUOTE:
If a concerned Bye-Law is not amended, specifying the increased strength the strength as per registered Bye-Laws will prevail.
- There is one new classification of “member” is introduced for the first time as contemplated under the Constitution ( 97th Amendment ) Act 2011 viz Active member. Sub-Clause (a1) of Clause 19 of Section 2 of the M C S Act 1960 says “(a-1) “active member” means one who participates in the affairs of the society and utilizes the minimum level of services or products of that society as may be specified in the by-laws;”; This literally compels housing societies to specify criterion for a member to be active.
- There are many changes made by the Maharashtra Cooperative Societies (Amendment) Act 2013, the Maharashtra Co-operative Societies Election to Committee Rules, 2014 and the Maharashtra Co-operative Societies (1st Amendment) Rules, 2014. It is not possible to list them out here on account of space constraint.