Thank you for the great support you provide co-operative societies. We are a Mumbai based CHS and I have a few queries for you:
1) What is the period before a resolution passed in an AGM/SGM can be modified in another AGM/SGM?
2) How can resolutions passed in an AGM be challenged?
3) Can a Management Committee Member be removed from his position through a resolution passed in an AGM/SGM?
4) In case the Model By Laws have not been adopted in an AGM and registered, then what By Laws will apply? Or will it just be MCS Act 1960?
5) In case the CHS in it AGM resolves to request all Members who have constructed box grills (which alter the vertical elevation of the building) to have these removed else face a penalty, then would this fall under Sec 46 or Sec 168a?
I C Naik
You have raised many good questions. In order to give them the best answers you inspired me to study a lot including the latest Judgment of the Constitution of India.So let me try.
I suggest you buy from the office of the Society copy of the registered bye laws certified by the Hon. Secretary that they are in force. It costs you about Rs 100/- But you will get many questions answered in that.
- Question No 1 is a bye-law provision. Bye Law No 110 (1984 Model) reads:
No resolution can be brought at a general body meeting of the society, canceling its previous resolution, unless 6 clear months have expired, after passing of the previous resolution.
- Challenging AGM resolution. It can be challenged as ultravires the powers of AGM or as not in consonance with any bye-law or Rule or Section of the MCS Act 1960. In subsequent Model bye-laws that is of 2001 Model and thereafter a new chapter has been added namely REDRESSAL OF COMPALINTS. There are a few steps to be taken by an aggrieved member. The last step is to make a complaint to the Cooperative Court under Section 91. Housing societies operating on 1984 Model Section 91 remedy is available though bye-laws are silent.
- This is the most important question. This is like a “Right to Recall” For MPs and or MLAs this provision does not exist. But reading of the latest judgment of the Constitution of India which tacitly upholds the constitutionality of the Constitution (97th Amendment ) Act 2011 (97CAA), {Guj HC having held the almost the whole 97CAA as unconstitutional) appears to answer your question in affirmative. But one needs to go through the full text of the SC order very carefully to be confident about this conclusion.
- Model bye-laws: Any change in registered bye laws in after due compliance of law and procedure, modifies the registered bye laws to the extent of changes. When the Model bye-law is adopted in whole, that becomes the registered bye laws. So absence of registered bye laws is not possible.
- Removal of Box Gril
If the general body meeting resolution is a request therecan not be penalty if a request is not complied. There is a bye-law on Penalty which reads as under:
“The meeting of the general body of the society may prescribe penalties for different breaches of the bye-laws of the society. The Secretary of the society, under instructions from the Committee, shall bring to the notice of the member concerned, the breach/breaches of the bye-law/bye-laws committed by him. If the member persists on continuing the breach/breaches, the Committee shall give the notice to the member to show cause as to why the penalty should not be inflicted on him for breach/breaches of the bye-law/bye-laws. The general body meeting, after considering the say of the member and after giving him hearing, may levy penalty at the rate fixed by the meeting of the general body of the society.”
It is clear that penalty has to be prescribed in advance and rates also approved.