Radhakrishnan Subramanian
Ours is a housing society of 16 members, registered in the year 1979, situated at Ghatkopar East. Ours is a smooth running society without any grievances from any of the members. The recent amendments to the MCS Act 1960, revised bye-laws has become a onerous one on a society of our nature wherein 6 flats out of the total 16 are in the name of lady members who prefer to be silent committee members.
The members have come to the conclusion to convert our Society into Apartment type or a Association type to come out of the onerous MCS Act provision, rules and regulations. Any intelligent person would agree that the act has been passed without giving any thinking. We do appreciate that such onerous provisions or still more would be necessary for the Banking sector in the Co-operative field.
In place like Mumbai, where people find little time to spend with their families, to adhere to the rules and regulation under the MCS Act is very difficult and no member would come forward to be in the Managing Committee. Will you please advice as to the formalities required to be complied with for converting our Housing Society to a Apartment type to come out of the clutches of the MCS Act, 1960,
I C Naik
In a 16 member cooperative housing society 5 members are needed to constitute a management committee. Only three members constitute the quorum for a meeting. Minimum one committee meeting and one the general body meeting of the members is required. In the adjourned general body meeting for want of quorum two members can constitute quorum. The accounts have to be audited passed in the general body meeting and filed with the Registrar. Six months’ time is more than adequate for this purpose.
It is surprising that a -majority members want to come out of the clutches of the MCS Act, 1960. The 97th C A A was passed with an intention to take Cooperative Society out of the clutches of the politicians and State control in general. And let them run with members’ democratic Control.
The Condominium under the Maharashtra Apartment Act does not cast lesser obligations than those narrated above. Besides unlike a cooperative society it is not a body corporate having no advantages conferred on an incorporated body to operate as a judicial person.
Basic feature of the Maharashtra Apartment Act is that the members are absolute owners of a property with a predefined share based on the amount paid for each divisible portion plus a prorate share in indivisible parts of property prorata.
It comes in to being, with an affidavit of each property owner submitting their property to the discipline under the Act in presence of a magistrate.
In case of cooperative housing society after conveyance, the property is owned by the Society and as owner it is one party in the submission process to the Apartment Act. This is to be done under an agreement with all the members of the cooperative housing society apportioning the entire property including each member’s share in the common areas to each member documenting in the agreement. Each agreement has to be executed before the magistrate. The authorized members of the society will sign the agreement on behalf of the Society.
This requires an enabling provision in the M. C. S. Act 1960 for a voluntary winding up of the cooperative housing society so as to distribute its property among the members under an agreement as mentioned earlier.
There is a provision in the M. C. S. Act 1960 in section 102 to that effect in Sub-Section (1)b. viz If the Registrar–(b) on receipt of an application made upon a resolution carried by three-fourths of the members of a society present at a special general meeting called for the purpose, is of the opinion that a society ought to be wound up, he may issue an interim order directing it to be wound up.
However Section 64 of the M. C. S. Act 1960 comes in the way. It is reproduced below.
Funds not to be divided.
No part of the funds, other than the dividend equalization or bonus equalization funds as may be prescribed or the net profits of a society, shall be paid by way of bonus or dividend, or otherwise distributed among its members.
Distributing property amongst members with a view to wind up the society, would lead to distribution of funds also. These cannot be transferred to Condominium either.
An option to distribute the property of the cooperative housing society, with the objective that the members are not ready to comply with the provisions of the M. C. S. Act 1960, does not seem logical and is opposed to cooperative movement. This will not be entertained by Authorities.
The discussion above leads to most plausible answer: Drop this idea and explore possibility of merging the Society with any other whose members are willing to take your members in their fold. Their members may be more than willing to manage your society. The prospects here are quite high. The Registrar is also likely to come forward to help.
