Our society comprises of 70 members and is a 30 year old Housing society. In a resolution passed by an AGM several years ago as per the then By Laws parking was allocated to members on a First come First serve basis. Our socieity has adopted the 97th Amendment of the Maharashtra Co-op society.
We have 30 parking spaces however the number of eligible members having cars and wishing to use the parking facility is 50. The 30 people who have parking have been using this facility since 30 years passing on the parking space from one generation to the next and have not been sharing the parking with other members. The managing committee proposed to bring forth in the AGM By Law 80 which states – “In case the number of eligible members for parking slots is in excess of available parking , then the managing committee shall allot parking slots on annual basis by fair and transparent process, in concurrence with general body resolution.
The Managing committee drafted a new policy based on an initial lottery and annual rotation thereafter between all eligible members. However the members who have had parking all these years derailed the process with the following arguments
1: By Laws are mere guidelines and AGM is supreme. The AGM can alter By Laws and can vote not to adopt By Law 80… (number of people having parking have slight majority)
2: By Laws cannot override old laws. By this they mean that the By Law of First come first server (77b) cannot be superceded by By Law 80
3: Managing committee is not authorized to draft the policy and must form a committee to draft the new parking policy.
I C Naik
Since yours is a 30 year old housing society it has probably registered bye-laws as per Model released by the Commissioner for Co-operation and Registrar of Cooperative Societies in 1984. According to you your society has adopted the 97th Amendment of the Maharashtra Co-op society of the Constitution of India. Meaning your housing society has replaced its old bye-laws registered 30 years ago. By a 2/3 majority resolution in general body meeting the Society adopted New Model bye-laws 2014 and registered them with the Registrar of Cooperative
Further you believe that a large majority of members of your soc1ciety seems to harbor very serious/dangerous misgivings as under:
- By Laws are mere guidelines.
- AGM is supreme.
- The AGM can alter By Laws and can drop By Law 80
- New By- Laws cannot override the old bye laws meaning the By-Law of “First come first server” (Bye Law No 77b) cannot be overridden by By Law 80
- Managing committee is not authorized to draft the policy and must form a committee to draft the new parking policy.
- No wonder the Constitution of India (Article 243Z-O(3) states “The Legislature of a State may, by law, provide for co-operative education and training for its members” Accordingly the State Government has farmed an education Policy and notified certain organizations as eligible to impart training in cooperative management. [Sections 24C and Rule 30C Minimum 2 days for Officers and 1-3 days for the management committee members]
When any opinion is formed on any legal matter it is supported by a rationale of law as also a judicial pronouncement. Let us look at that.
- Bye-laws are guidelines and AGM can pass any resolution contrary to bye-laws
Read Bye Law No 110 reading as Subject to the provisions of the Act, the Rules and the Bye-laws of the Society, the final authority of the Society shall vest in its General Body Meeting, summoned in such manner as is specified in these Bye-laws.
The registered bye laws of your housing society also says that general body is supreme but it has to work Subject to the provisions of the Act, the Rules and the Bye-laws of the Society, Will your majority members have any basis to say that this bye-law is also a mere-guideline then how general body is supreme? If this bye-law is accepted then all bye-laws must be accepted with no discretion to members.
- The AGM can alter By Laws and can drop By Law 80. Read Bye Law No 167; 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, and, (ii) the resolution is passed by not less than 2/3rd 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.
- “New By- Laws cannot override the old bye laws” Look at the definition of “bye-laws “ Means old bye-laws are supreme. Section 2(5) “by-laws” means by-laws registered under this Act and for the time being in force and includes registered amendments of such by-laws; Bye Law No 3(ii) “Bye-laws” means by-laws consistent with Act and registered under this Act for the time being in force and includes registered amendments of such bye-laws;;
- Managing committee is not authorized to draft the policy and must form a committee to draft the new parking policy
Yes, it is correct but it is a half truth. Read this bye-law 78(a) . The Society shall in the General Body meeting frame and adopt Parking Rules to regulate the Parking slots, in accordance with the Act and Rules there under
Does it not look like your society’s majority has not seen the registered bye laws of your housing society?
Can you get a copy of the Resolution of the Society which has accepted the Constitution (97th Amendment ) Act 2011?
It is only after the majority of the Society membership read , understand and show readiness you can take further steps.
The legal remedy is to file a dispute in cooperative Court for which you need to retain an advocate. But if you file a complaint to District Consumer Protection Forum under Consumer Protection Court you can stand and argue yourself that the Society is deficient is serving its members with equality to all members by refusing to comply with bye-laws relevant to Parking.
