I have following queries which may pl be answered:
1) Is it mandatory by law to adopt model bye laws 2013 as per 97th Amendment
2) If not then can we continue with the old bye laws and with no SEC intervention for committee elections etc ?
3) What is our loss or risk if we continue with the old bye laws ?
4)There is confusion Model Byelaws 2013 or 2014, both wording exists on the sahakar ayukta website. Which one to submit for registration ?
5) Ours is Cooperative Housing society is of 71 freehold plots registered under type ” Others “. Hence our case for deemed conveyance was rejected by DDR on the grounds that it is falling under category “Others “. Is it valid ? If yes then what happens to the Common Roads, Gardens and other open property , who will have the ownership for that ? Can we build amenity like club house etc ? but without conveyance in favour society how can we approach PCMC for builing permission etc.
We have represented up to Chief Minister level but no response
What is the way out ?
I am writing this querry as a committee member on behalf of Managing Committee.
I C Naik
GOOD QUESTIONS DESCRIBED QUITE WELL.
1.It is not mandatory to adopt the latest Model Bye laws.
2.Bye-Laws concerning election to committees and office fearers are superseded by Section 73CB of the M C S Act 1960. Its Sub-Sections (1) and (14) are relevant;
a.Sub-Section 1 provides that the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to a society are vested in State Cooperative Election Authority and applicable Rules have been published last September. You can find them on following URL.
b.Subsection (14) cast certain obligations on the committee of every co-operative society:
1.inform the S C E A about the expiry of its term of office at-least six months before the date of expiry of such term;
2.inform any casual vacancy occurred in the committee or its office bearers, within fifteen days;
3.provide all necessary help, assistance and co-operation for the smooth preparation of electoral rolls for the conduct of elections.
3.If members of a housing society decides to continue with your old Bye-Laws
a.the managing committee will have to identify every change in law which supersedes your Bye-Laws and comply with those changes as if they are in your bye laws and disregard the old one but
b.where any provision of the Act requires the Society to follow what is provided in the registered Bye-Laws of the Society that Bye-Law No shall be operative ; For example Section 73AA(1) provides
“The Committee shall consist of such number of members as may be provided in the by-laws: Provided that, the maximum number of members of the committee shall not exceed twenty one:”
In this case strength as per Bye-Law No 114 of Model Bye-Laws 2014 will not be available and the existing strength will apply but subject to modification that the reservation of 2+ 1 seats within the existing strength will be mandatory as proviso to Article 243ZJ of the Constitution of India mandates that “ the Legislature of a State shall, by law, provide for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on board of every co-operative society consisting of individuals as members and having members from such class or category of persons.”
4.The Model Bye-Laws on the site have many errors. Better get a copy of that from Mumbai District cooperative housing societies Federation Fort. On www.indiancooperative.com has 7 posts about Model Bye-Laws 2014 which is highly recommended to take benefit of.
5.As regards Deemed Conveyance it looks like that the Society has to knock to door of Bombay High Court with a request to issue writ of mandamus under Article 226 of the Constitution of India to direct appropriate legal authority to consider all your requests. This is subject to advice of advise of the High Court Lawyer.