Tarak Upadhyay
Please reply me the following questions and guide me with your wide experience and latest knowledge about subject :
1) The Housing society without financial assistance from bank, local authority, financial institution, govt-has still NOT adopted latest model by laws which was supposed to be adopted before 30/4/2013 and registered before 31/5/2013 the question is:
a) what is the latest position of effectiveness of New model by laws and ordinance ratification in both the houses of state legislature in Maharashtra and 97th constitutional amendment , where as Gujarat High Court has not upheld the amendment
b) The said housing society has still not adopted new by laws and had appointed auditor u/s 81 (1) (b) who is practicing C.A. holding Certificate of Practice and holding Certificate of co-operation issued by WIRC , Mumbai to audit for Society’s accounts for the years 2011=2012 and 2012=2013 in the month of may 2013 who is at NOT on panel, but has wide experience of soc. audit of over 15 to 18 years and 3 to 4 years back who was on panel but registration lapsed at the time on fresh empanelement list preparation.
Whether the society’s such appointment of auditor and audit report are valid as of today. If not then how to ratify such appointment and action needed
C )If the society has still not adopted new by laws then what is the last date of AGM. 14 Aug2013 OR 30 Sept 2013
Please give your expert views
I C Naik
Tarak Upadhyay has raised very important questions about an unaided cooperative housing society registered under the M. C. S. Act 1960.
1. Compulsory adoption of New Bye Laws by an unaided cooperative housing society registered under the M. C. S. Act 1960.
2. Whether a chartered accountant appointed as auditor u/s 81 of the M. C. S. Act 1960 who has ceased to be listed on a panel maintained by the Registrar is valid especially because new bye laws are not adopted.
3. An incidental question is whether it can hold AGM 30th September or has to abide by existing Bye Laws and last date for AGM is 14 8 2013?
4. He also wants to know the latest position about amendment to the M. C. S. Act 1960. \
1. The Maharashtra Cooperative Societies (Amendment) Act 2013 was published in the “Maharashtra Government Gazette”, on the 13th August 2013and is in force with effect from 14 3 2013. It has replaced the Maharashtra Co-operative Societies (Amendment and Continuance) Ordinance, 2013 promulgated on the 25th April, 2013
2. Bye Laws Model 2013.
a. On or around 22nd February 2013 the Commissioner and Registrar of Cooperatives Societies State Of Maharashtra posted new set of By AS PER 97th CONSTITUTIONAL AMENDMENT and MAHARASHTRA CO-OP. SOCIETIES (AMENDMENT) ORDINANCE 2013 popularly known as Bye Laws Model 2013.
b. The Commissioner and Registrar of Cooperative Societies (the Registrar) issued an advisory on 22-02-2013 to all the Divisional and District Deputy Registrars of Cooperative Societies in Maharashtra. The advisory appears to have been issued as per Government’s communication dated 15-02-2013 referred to therein by the Commissioner Shri Madhukar Chaudhari (IAS).
c. The Registrar has now been empowered to direct Cooperative Societies to amend Bye Laws under the amended Section 14 of the M. C. S. Act 1960.
d. This advisory is not a direction under section 14. It is an internal instruction to bring pressure on all cooperative societies through the respective Ward Authorities, to adopt the new Bye Laws.
e. At least one instance has been reported on one website that all cooperative housing societies in K- West Ward Mumbai have been instructed by Dy. Registrar, Co-operative Societies, K- West Ward, Mumbai, to adopt the New Bye Laws and register the same latest by 31 5 2013.
f. As the Instructions proceeded further, the Revised Bye Laws as approved by the Registrar, Co-operative Societies, were requited to be adopted in place of existing Bye Laws on or before 30.04.2013 for which every society were required to call a Special General Body Meeting.
g. The Agenda for such a Special General Body Meeting as given in the circular was
1. To adopt the Model Bye Laws.
2. To appoint an Auditor for the Audit of the books of the Society for the year 2012-2013 and fix his remuneration.
3. It is essential that the Auditor should be one among the Panel maintained by the Government Department.
4. One Auditor can not audit the Accounts of the same Society continuously for more than three years. Also, no Auditor can conduct the Audit of more than 20 Societies in a year. However, in counting the number of societies for this purpose, societies with less than Rs 1 lac paid up share capital shall not be included.
5. It is necessary to file the proposal for adoption of Model Bye_Laws on or before 31.05.2013.
h. Certain societies are said to have resolved to have adopted these Model the Bye Laws 2013 without looking at them. They wondered as to what was the necessity of adopting if these were now mandatory. They are no different from laws of land.
The fact remains that:
These Bye Laws as posted on the following website are not complete as there are nearly 30 Appendices and a few Schedules which have neither been aligned to New Model nor they are posted there.
Moreover as per past practice relating to Model 1984, 2001 and 2009 no instructions are issued to Mumbai District Housing Federation who has the sole right to print and supply to member societies at costs.
So none of the cooperative housing societies in Mumbai can claim to have adopted New Model Bye Laws in reality. Their managements have to follow the Bye Laws as registered except where any provision of Bye Laws stands revised in view of any provision of amended the M. C. S. Act 1960 . For example the last date fr holding AGM stands extended to 39=0th September as Section 75 has been amended to that effect.
Audit
As per the M C S Act the Auditor has to be one whose name appears on the Panel.This is not governed by Bye Laws.
The Panel of Auditors has been updated and all information can be accessed from Commissioner’s website using the following link.
http://sahakarayukta.maharashtra.gov.in/SITE/Information/auditorEmpanelment.aspx
Following is an extract from The Maharashtra Cooperative Societies (Amendment) Act 2013
“(2A) Every society shall, appoint an auditor or auditing firm from a panel approved by the State Government in this behalf in its annual general body meeting having such minimum qualifications and experience as laid down in section 81, for the current financial year and shall also file in the form of return to the Registrar, the name of the auditor appointed and his written consent for auditing the accounts of the society within a period of thirty days from the date of the annual general body meeting : Provided that, the same auditor shall not be appointed for more than three consecutive years by the annual general body meeting of the same society.”