The Constitution (97th Amendment) Act 2011 (97CAA) gave a long overdue call upon states to amend State Cooperative Laws, with a prime objective to insulate cooperative society to avoidable bureaucratic and political interference inserting in the cooperative society several new Articles in a new “Part IXB: The Cooperative Societies” In the latest judgment delivered on 7th October, 2013 Supreme Court observed at Para 19: QUOTE: Rights of the citizens to form co-operative societies voluntarily, is now raised to the level of a fundamental right and State shall endeavour to promote their autonomous functioning.
The Parliament, with a view to enhance public faith in the co-operative institutions and to insulate them to avoidable political or bureaucratic interference brought in Constitutional (97th Amendment) Act, 2011, which received the assent of the President on 12.01.2012, notified in the Gazette of India on 13.01.2012 and came into force on 15.02.2012.” UNQUOTE Thalappalam Ser.Coop.Bank Ltd.& … vs State Of Kerala & Ors. CIVIL APPEAL NO. 9017 OF 2013.
Laws inconsistent to any of the constitutional provisions keep playing mischief till the competent Court declares such law to be ultra-virus the Constitution of India in terms of requirements laid down for any law under Article 245(1) of the Constitution of India; QUOTE: Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. UNQUOTE Courts have power to declare a law unconstitutional if judicial review of a law so concludes. Article 32 and 226 confer this power to Supreme Court of India and High Courts of the States respectively,
As an exception to the rule that law is good as long as not held ultra-vires, any provision of a State cooperative society law which is inconsistent to any provisions of “Part IXB: The Cooperative Societies” of the Constitution of India that stands superseded after 12 months of breathing time by the corresponding constitutional provision as declared vide Article 243ZT. The D day was 14-02-2013 to which almost every State gave a mindless miss. Cooperative appears to be the last priority in Indian politics that even after nearly two years a pioneering State Maharashtra is barely ready to fully align cooperative law to 97CAA.
The last incumbent to C&RC office now occupies the office of the State Cooperative Election Commissioner (SCEC). Before moving Madhukar Chaudhri, the SCEC gave approval to the latest Model Bye-Laws supposedly aligning to
1.the 97CAA “Part IXB: The Cooperative Societies” of the Constitution of India
2.the Maharashtra Cooperative Societies (Amendment) Act 2013, [ Amending Act in short] [Effective 15 2 2013]
3.the Maharashtra Co-operative Societies (1st Amendment) Rules, 2014 and [Amendment Rules 2014 in short] [Effective 30 8 2014]
4.the Maharashtra Co-operative Societies Election to Committee Rules, 2014. [Societies Election Rules 2014 in short] [Effective 11 9 2014]
Mumbai District Cooperative Housing Federation Limited Fort Mumbai has started distribution of this Model Bye-Laws at Rupees 80 per set along with an optional (Priced Rupees 20 for 7 pages) CIRCULAR printed on its letter head. The CIRCULAR has an Appendix A, form of letter from the cooperative housing society to be sent by the Chairmen (of existing cooperative housing societies) affixing Rupees 25 stamp to the Registering Authority of the concerned Ward in Mumbai The Appendix is to accompany 5 enclosures I to V. This is an application to register amendment to Bye-Laws by replacing the registered Bye-laws being in force. The adoption is voluntary.
For those Looking forward to a soft copy of Model 2014 there is a site
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 ( Marked as 2014 on the cover page)
Every new Model of the Bye-laws reflects renewed wisdom of C&RC and changes made to the Act after approval of the Previous Model. It is advisable to align the registered Bye-Laws to the Act which needs undertaking a democratic process of amending the registered Bye-Laws. The Registrar has also been empowered to direct cooperative societies to amend Bye-laws to align to the State Law and 97CAA, since a contradictory Bye-law provision is inoperative any way.
As per the basic philosophy of cooperatives at least ten independent family members come to gather and decide to form a cooperative society to meet their common needs. The Law lists out matters that a new cooperative society must incorporate in the bye laws and make sure that in the Bye-Laws nothing is provided which may result in to cooperative society or its members violating any law including the M C S Act 1960 and the M.C.S. Rules 1961.
The Model Bye-Laws are so drafted that a new cooperative society can register them as its Bye-Laws by inserting just the Area of operation and the name as reserved by the Registrar. For promoters of a new cooperative housing society, it can be well imagined that promoters cannot draft bye laws so the State Cooperation Department lends a support. This speeds up the process of registration of new society and that is a good procedure especially in housing societies. But housing societies operating for several years and having members quite familiar to the working of the Bye-laws; it is only proper that the members themselves deliberate and modify the Bye-Laws as are must, instead of blindfold adoption of the whole set.
That is the way of educating the members. Two years have any way gone sby without new Bye-Laws, so may be some more time, if given, the education will be of a high order undoubtedly. A thrust on education justifies that new C&RC issues an advisory circular to that effect urging members to discuss the changes understand them well and incorporate in their registered Bye-Laws. In that context the following anlaysis of the Model should help housing societies to understand them and amend as they deem fit, but within the framework of the State cooperative law and 97CAA.
[Analysis of the latest Model for the benefit of existing Tenant Co?Partnership Housing Societies having registered Bye-Laws as per Model 1984]
1.Certain clauses have no application strike off the printed book if used for adoption)
- Bye-Law No 3 Interpretation Clauses
- (iii) Chief Promoter,
- (xiii) Promoter Builder,
- (xxix) Authorized Person,
- (xxiv)(a)(i) Flat Purchaser to be an Active Member
- (xxx). “State Co-operative Election Authority” means an Authority constituted or nominated by the State Government for the purposes of superintendence, direction, and control of the preparation of the Electoral Roll for and conduct of the Elections of Committee of a Society or such class of Societies as may be notified.”
ii.Note to Bye-Law No 19 after clause (a)(viii) and clause (c)(iv) concerning Promoter builder.
iii.Note to Bye-Law No 34 as it is illegal being repugnant to provision of Section 30
iv.Bye-Law No 60 and Appendix 27 i.e. Holding more than one flat requires no permissible.
- Bye-Law No 77 handing over flat to allottee is a redundant provision
vi.Bye-Law No 84 to 89 in Part (A) First General Meeting in Chapter XI
vii.Bye-Law No 67 Following Sub-Clauses
- (vi) Repayment of the installment of the loan and interest : The amount of each – installment with interest fixed by the financing agency
b.(vi) Repayment of the installment of the loan and interest : The amount of each – installment with interest fixed by the financing agency.
- (ix) Lease Rent : The built up area of each flat / unit.
viii.Bye-Law No 115(d) QUOTE: In respect of Housing Society having contribution of the Government towards its share capital, then the members of the committee shall include additional two officers of the Government nominated by the state Government, as provided in section 73AAA of the Act. UNQUOTE This is like a Rule and not a bye Law. the Society taking up adoption is aware if it has got any State help.
ix.Bye-Law No 115(e) QUOTE: The election of the Society shall be conducted by the State Cooperative Election Authority under section 73CB UNQUOTE This sounds like an order by housing society to the State Cooperative Election Authority, which is not the function of Bye-Laws.
Be in the lookout for Part 2 to appear shortly