Naiksaheb ,our society, situated near Nensey Colony,Borivali (east), had convened a Special General Body Meeting in the last month to enlighten the members about the pending court matter which has become an obstacle in redevelopment programme. The meeting was attended by PMC,Redeveloper and an Advocate.The meeting went through comfortably but we could not pass any resolution as one of the members objected to it on the grounds that the intention of passing any resolution was not mentioned in the Notice of the meeting sent to the members.Please advise me weather it is essential to mention the resolutions in the Notice itself. Otherwise the resolutions cannot be passed.We wanted to collect some funds for the court expenditure. What is the way out now?
I C Naik
This is a prize winning question.
“Society Bye laws are not even laws of land!” This is what I wrote on www.indiancooperative.com at https://www.indiancooperative.com/cooperative-coffee-shop/society-bye-laws-are-not-even-laws-of-land/
I narrated a few true stories and commented:”In all these true stories one common message was that including even the DR many seniors are blissfully ignorant of a true character of the bye-laws of cooperative society and the Models recommended by the Commissioner from time to time. Per Wikipedia,.“A by-law is a rule or law established by an organization or community to regulate itself, as allowed or provided for by some higher authority. The higher authority, generally a legislature or some other government body, establishes the degree of control that the by-laws may exercise”
The Supreme Court in Zoroastrian Co-Operative Housing Society Limited Rd-Sc 253 (15 April 2005) held.” “Membership in a co-operative society only brings about a contractual relationship among the members forming it subject of course to the Act and the Rules. One becomes a member in a co-operative society either at the time of its formation or acquires membership in it on possessing the requisite qualification under the bye-laws of the society and on being accepted as a member. The bye-laws of a cooperative society setting out the terms of membership to it, is a contract entered into by a person when he seeks to become a member of that society.”
Distinction between bye-laws and laws has been candidly brought by the S C in an earlier judgment in Co-Operative Central Bank Ltd. & … vs Additional Industrial Tribunal, … on 3 April, 1969 [1970 AIR 245, 1970 SCR (1) 206];in these words “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.” If the M C S Act 1960 gave powers to State Government or the Commissioner for Cooperatives and Registrar of Cooperative Societies (C C and R C S ) or any Authority, to specify any set of bye-laws as the bye-laws” for such type of societies or class of societies, as he may deem fit” then such bye-laws for part of the M C S Act 1960. The distinction which the Apex Court laid down for bye-laws being not laws/statutes will cease. What the Apex Curt said in above two judgments as regards bye-laws does not apply to such bye-laws as they are then “the laws of land” as announced by the Apex Court in 1969 judgment (supra).
The 97th Constitutional Amendment, inserted a new Article 43 B reading : “The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative
Societies.” This amendment was a result of more than 20 years of churning (starting Bhrahm Prakh Chaudhary Committte Repot in 1990) followed by National Cooperative Policy adopted by Government of India in 2002. The Policy inter alia says“the regulatory role of the Government will be mainly limited to the conduct of timely elections, audit of the cooperative societies, and measures to safeguard the interest of the members and other stake holders in the cooperatives. There shall, however, be no interference in the management and working of the cooperatives.” In blatant defiance to above, the pioneering State of Maharashtra’s Legislature under the direction of the then Congress/NCP led State government inserted a proviso to Section 14 (2) empowering the C C and R C S to specify a Model bye-law framed in his office as the mandatory bye-laws of a class of cooperative society: Proviso reads as : Provided further that, the Registrar may specify the Model bylaws, for such type of societies or class of societies, as he may deem fit.” So far this power has not been exercised but once it is done such bye-laws will become laws of the state reversing what all the Apex Court has said except the statement 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.” Cooperative Central Bank 1969 (Supra).
So presently “ bye-laws are only the rules which governs the internal management or administration of a society….. they do not have the force of a statute”Para 15 of S C Judgment 1969(Supra).