Our housing cooperative society is in Pune, Maharashtra, Registered No is PNA/PNA/(5)/HSG/(TC)17862/2017-2018
Provisional Committee wants to create post of vice chairman. Already in first meeting resolution passed by committee and chairman, secretary and treasurer have been elected. Can provisional committee do so? If yes what is the procedure?
I C Naik
This is a good question coming from a new housing society. It is a good practice to raise doubts and find correct answer. Where do we look for the answer? The Chairman, Secretary and Treasurer are appointed and it is believed that these three positions are correct in law but about Vice Chairman there is a doubt. If say “Yes” some members will disagree and same if I say “No.” Let us examine how these three positions are correct? That may have a clue to the answer we are looking forward to.
It Is assumed that your society’s bye-laws are registered exactly as per Model released by the Commissioner for Cooperation and Registrar of Cooperative Societies on 1 11 2013, vide Letter No. 966 /Housing/ D-3/Bye-Laws Printing/ Approval/2013 addressed to Mumbai District Housing Federation Communicating approval for Printing And Distributing.
Before we go further in search of answer to your question some bye-laws related important information. This is the latest Model drafted with an objective of aligning the bye-laws to the Maharashtra Cooperative Housing Law [as can be discerned from
(i) the Constitution (Ninety Seventh Amendment) Act 2011
(ii) the Maharashtra Cooperative Societies (Amendment ) Act 2013 (Notified Date 13 8 2013)
(iii) the Maharashtra Cooperative Societies (1st Amendment ) Rules 2014(Notified on 30 8 2014),
(iv) the Maharashtra Cooperative Societies (Election to Committee) Rules 2014 Notified on 11 9 2014]
www.indiancooperative.com carries numerous posts on this Model 2014 accessible on https://sahakarayukta.maharashtra.gov.in/SITE/PDF/Rules_Acts_Bylaws/Model_Bye_Laws_of_Coop_Housing_Society_New_Flatowner_Type_(2-9-14)%20(1).pdf
There are two posts having suggestions to amend the registered bye-laws as per this Model. This may be studied carefully. Initial efforts will help your society run on sound principles and with clarity.
Reverting to Vice Chairmanship, Bye-law No. 89(a)(iv) provides:
” The Provisional Committee shall have the same powers and functions as the Committee elected in accordance with the bye-laws.”
The most important first function of the New Committee is in bye-law No 125(a):
“Every Committee, at its first meeting, after its election shall elect a Chairman, Secretary and Treasure from amongst the Members of the Committee.”
Where does the Committee get powers from: The M C S Act 1960 esp. from Section 73(1) : (1) The management of every society shall vest in a committee, constituted in accordance with this Act, the rules and by-laws, which shall exercise such powers and perform such duties as may be conferred or imposed respectively by this Act, the rules and the by-laws.
So the answer is No. There cannot be more than three office bearers. If a housing society appoints a V-C despite above position, the person is not a V-C as per law. Responsibility and authority will remain vested in the three legitimate positions only.
If the Committee still wants a V-C the bye-law No. 125(1) has to be amended providing for V-C’s role like that of a Chairman as provided in bye-law No. 139. The Chairman of the Society shall have the power of overall superintendence, control and guidance in respect of management of the affairs of the Society within the frame-work of the MCS Act 1960. Rule 1961 and the Bye-laws of the Society. In case of any emergency, the chairman of the Society may be competent to exercise any of the powers of the committee. However, while doing so he shall record the reasons thereof in writing Any decision, so taken by the chairman of the Society shall be got ratified in the next meeting of the Committee.
Bye-law No. 131 about resignation of Chairman will also need to be suitably amended.
As you know amendment to bye-laws require 2/3 members’ votes in favour of the resolution moved at the Special General Body Meeting as provided under bye-law No 166. The Registering Authority will have to be convinced about the criticality of the role of the V-C as he has been empowered to approve amendments to bye-laws before registering vide Clause (iii) the making, alteration or abrogation is Approved and Registered by the Registering Authority.