State: Maharashtra
REGN. No. TNA(TNA)/HSG/TC/1885/1987-88)
What is the difference between a resolution and an amendment to the bye-law?
If a society passes a resolution which is essentially an amendment to the bye-laws of the society, can it be enforced without approval from the Registrar under Section 13 of the Act? If a society invents a new charge called “Development charges” to new members by passing a resolution, it is basically an amendment to the Bye-laws. What if the society doesn’t call it an amendment to the bye-laws and merely a resolution? Can the issue be raised before the Dy. Registrar or do we have to approach the co-operative court?
I C Naik
Aniket has two questions about bye laws of his Housing Society having a registered Number (TNA)/HSG/TC/1885/1987-88) registered under the MCS Act 1960 having bye-laws as per Model 1984.
Main difference between Resolution and Amendment to bye-laws is the later includes the former but vice versa is not true as can be seen in the Bye-law No 166 extracted below:
“166. No bye-law shall be made, altered or abrogated unless (i) a proposal to do so has been communicated to all members, 14 days before the meeting of the general body of the society, at which it is proposed to be considered (ii) the resolution is passed by not less than 2/3rds majority of the members present and voting at the meeting of the general body of the society and (iii) the making, alteration or abrogation is approved and registered by the Registering Authority.”
The other question is about a new head of collection of members’ contribution to the Housing Society expenses under the caption Development Charges in these words:
- If a society invents a new charge called “Development charges” to new members by passing a resolution,
- it is basically an amendment to the Bye-laws. What if the society doesn’t call it an amendment to the bye-laws and merely a resolution?
iii. Can the issue be raised before the Dy. Registrar or do we have to approach the co-operative court?
Society Charges are covered under Separate Chapter in bye-laws namely VIII. LEVY OF CHARGES OF THE SOCIETY.
There are mainly three Bye-laws No 69,70 and 71 relevant for this question.
Bye-law No 69 lists out different types of society charges which includes contribution to funds like Sinking Fund, Repair fund and property taxes being the liabilities of every member to BMC. In each of the aforesaid three bye-laws the last item is as under and it enables the general body meeting to pass appropriate resolution to each one of them.
Any other charges.
Any other charges approved by the general body at its meeting.
Any other charges: As may be decided by the general body of the society at its meeting.
As such “Development charges” to new members by passing a resolution, appears to have been added, as it is not confirmed if it was stated in the minutes. The contentious issue is whether these three bye-laws (last items of each) allows general body meeting to invent a new charge applicable to only a section of members that is new members possibly joining the Housing Society after the date of the Resolution. The answer is clear NO without any need of giving reason. But there is a reason.
The Supreme Court has held that:
“15. Membership in a co-operative society only brings about a contractual relationship among the members forming it subject of course to the Act and the Rules. One becomes a member in a co-operative society either at the time of its formation or acquires membership in it on possessing the requisite qualification under the bye-laws of the society and on being accepted as a member. Zoroastrian Co-Operative Housing Society Limited Rd-Sc 253 (15 April 2005)”
Bye-laws are contracts inter se all members and a contract can be amended only with the consent of the parties thereto as per the Regulatory regime of cooperative societies .