Tushar Deherkar
I got your email address from indiancooperative.com. I had a query and hope you could reply.
We have a common complex which has 3 societies. During Ganeshotsav festival, it was agreed to build a temporary shed to cover the pandal. Members from all the societies met and it was agreed to contribute together and build a temporary shed. I am on advisory committee for building no. 1.
Now, some members of bldg. no 3 unilaterally decided to concretize the base of the iron pillars and converted it into a permanent shed structure. I have sent 3 letters to the managing committee to initiate discussion with bldg. no. 3 to alter the shed such that it can be dismantled properly for future reuse. However the managing committee has instead sent out a letter stating their wish to retain the structure to all flats and are asking for members views on this illegal structure!!
1) Can the managing committee solicit views of members for an illegal structure?
2) In case the municipality fines the society, will I also be liable as advisory committee member? If I register a dissent vote, will I be safe from any future liability that the society will incur as a result of this illegal activity?
3) What recourse do I have to prevent the managing committee from supporting an illegal structure?
4) Can a majority decision be allowed if the activity itself is illegal?
5) We have recently done a survey and the illegal shed falls in the layout area of building no. 1. I assume the action taken by municipality will impact bldg. no. 1 and not bldg. no. 3 even though it was bldg. no. 3 members who make the structure permanant?
I C Naik
1. Cooperative Society is a “juristic person ” bound by all laws of land. Its Committee has powers in terms of Section 73 of the MCS Act (I assume Tushar Deherkar’s Society is in Maharashtra) reading as under.
Management of every society shall vest in a committee constituted in accordance with this Act, the rules and the bye-laws which shall exercise such powers and perform such duties as may be conferred or imposed respectively in this Act the rules and the bye-laws.
As per Section 72 which reads as under, opinion of members outside the meeting even on legal matters does not bind the members. Section 72 “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”
2. As for liability to bear the penalty inflicted on Society for an illegal act as per Section 73 1AB members of the Committee elected co-opted in accordance with Bye Laws and not getting his disapproval recorded in the minutes are all liable jointly.
3. As Advisory Committee member you should get your disapproval recorded in the minutes of the AC meeting and if no minutes are kept inform the Secretary in writing and take acknowledgment of its receipt by the Secretary.
4. A majority decision in breach of law is void ab initio and is not binding on dissenting members. Unfortunately the consequences thereof fall on dissenting members also.
5. As three buildings belong to three Societies the action will impact only the concerned society.