Mohan Rao
We have been hearing about the new/amended bye-laws 2013 for several months, but copies of the bye-laws have not been released yet. Kindly advise on the latest position.
Our AGM is scheduled for Sep 07. If the new bye-laws are released before March 2015, is our Society expected to hold a SGM to adopt them before March 2015?
I C Naik
A lot has been posted on bye-laws of cooperative housing societies (under the M C S Act 1960 ) on www.indiancooperative.com I wish you had seen them. Any way please keep looking at them, they will come in handy to you as Chairman.
Since you are a Chairman of c h s giving voluntary service I will very briefly reiterate what I wrote earlier.
2013 MODEL is still in the draft form, as posted on 22 2 2013 anybody can track it on;
Model Bye-laws are not mandatory for adoption so far.
Under the Maharashtra Cooperative Societies (Amendment) Act 2013 the Registrar of cooperative societies has been empowered by a proviso inserted in Section 14 of the M C S Act 1960 as under:
Provided further that, the Registrar may specify the Model bylaws, for such type of societies or class of societies, as he may deem fit
Since 1984 the Registrar has issued three Models 1984,2001 and 2009 as a service to cooperative societies and not as a statutory power which he has now been conferred with. Though the Registrar’s office used to persuade / (coerce) cooperative housing societies to replace registered Bye-Laws by the latest Model, he had no power to compel existing housing societies to register new bye laws. This has been upheld by the Supreme Court also.
Any bye-law becoming repugnant to any of the amended Sections of the M C S Act 1960 or Rules of the M.C.S. Rules 1961 after its registration, that bye-law gets superseded and is inoperative, despite the fact that it continues to be a part of registered Bye-Laws. So as such, it matters very little that new Bye-Laws are not adopted.
If the Registrar issues an order that Model 2013 is specified as bye laws of Housing Societies in exercise of a power conferred on the Registrar under aforesaid proviso, it will be your societies’ Bye Laws.
It is interesting to look at what is meant by ‘ bye laws’ as per the M C S Act 1960. The definition reads as under:
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;
If Model 2013 is specified as bye-laws of Housing Society as a class but, unless they are registered by a housing society after approval in the general body meeting by members, by undergoing the procedure of amendment of bye-laws, they cannot become the Bye-Laws of that housing society. It will be governed by registered Bye-Laws.
Now there is nothing in the M C S Act 1960 which empowers the Registrar to issue orders to cooperative society to register his Model Bye-Laws. Registrar has power to ask any society or class of society to amend the bye laws to the extent If it appears to the Registrar that an amendment of the bye-laws of a society is necessary or desirable in the interest of such society, or any by-laws of the society are inconsistent with the provisions of this Act or rules and that amendment is necessary in such by-laws. It may not be surprising if this limited power is abused to substituting the entire set of registered Bye-Laws and create a huge controversy for the Supreme Court to resolve once more. Worldwide bye-laws are meant to be drafted by those who voluntarily agree to abide by them. If they are imposed by authorities, they are laws and not bye-laws as held by SC in Co-Operative Central Bank Ltd. & … vs Additional Industrial Tribunal, … on 3 April, 1969 [1970 AIR 245, 1970 SCR (1) 206 by the Division Bench of J. Bhargava Vishishtha, J Shelat, And J.M.Vaidyialingam, C.A. QUOTE : It has no doubt been held that, if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute.).
It is also true that if registered Bye-Laws are substituted by new Model Bye-Laws it becomes convenient to comply with provisions of the M C S Act 1960 and the M.C.S. Rules 1961. Though it can happen that some older ones not repugnant to Cooperative Society Law and beneficial to housing society may also get axed and replaced by arbitrary bye-laws drafted bureaucratically as opposed to democratically. At the same time if old Bye-Laws are continued for any reason, it will be necessary to study the changes in Cooperative Society Law brought about by the State Legislature and in Rules by the State Government, and approved as The General Body Regulations in the general body meeting, which the managing committee of the Society has to adhere to in terms of the Bye-Law No 113 of Model 1984 which reads as under:
Subject to the direction given or regulation made by a meeting of the general body meeting of the Society, the Committee shall exercise all powers, expressly conferred on it and discharge all functions entrusted to it under the bye-law No. 139.(Model 2009).
