We are trying to run the affairs of our Cooperative Housing Society, as smoothly as possible. We are also trying to comply with the provisions of the society bye-laws and we have succeeded in complying with at least 60% of it.
Till now, we used to hold General Body Meeting once in every year. Once in every three years, a Managing Committee is elected. The Managing Committee so elected, hold office for three years, as stipulated in the Bye-laws adapted by the Society, when it was established 25 years ago.
However, recently some members have brought to the notice of the Managing Committee that as per revised bye-laws by the Government of Maharashtra , the tenure of Managing Committee is FIVE YEARS.
Some members are of the opinion that we should continue with the present practice of electing Managing committee Members, every three years, as per earlier bye-laws whereas some other members feel that we should follow the amended bye-laws and elect the Managing Committee for Five Years.
Some members are of the view that though the tenure is fixed as five years, the General Body can still limit the tenure to 3 years, as the five years tenure is the maximum. The bye-laws have not curtailed the authority of the General Body to decide the tenure as three years.
As there is a difference of opinion among members, we request you to kindly guide us on the following:
1.Is the General Body legally empowered to decide the tenure of the Managing Committee as three years, even though the amended bye-laws stipulate it as five years?
2.Is it mandatory to decide the tenure of the Managing Committee as five years?
3.Will it be legally valid if the General Body stipulates the tenure of the Managing Committee as three years?
4.Who is the competent authority to give us a formal guidance in this case?
5.If we get a written opinion from a practicing lawyer, will it be okay?
I C Naik
1. In the case of societies having fixed the tenure of the Committee (Say 3 years in this case) under the bye laws of the society which are registered and are in force, the General Body is not empowered to change the tenure of the Managing Committee.
2. The Bye Laws are defined as per Section 2(5) of the MCS Act as under. “by-laws” means by-laws registered under this Act and for the time being in force and includes registered amendments of such by-laws;
3. In view of this definition, provisions of New Model Bye Laws apply to the Society only after it has registered the New Model bye laws. This requires performing the procedure laid down to amend the bye laws pursuant to provisions of Section 13 of the MCS Act 1960, Rule 12 of the MCS Rules 1961 and (in the case of this Society) Bye law No 166 of the originally registered bye laws.
4. As a matter of clarification Model Bye Laws do not apply to any society till they are registered with the Registrar f Cooperative Societies as its Bye Laws.
5. There is no need to get any lawyers opinion as any one carefully reading this, with the references quoted herein above will get an answer free from any doubt.
6. Incidentally in view of the 97th Constitutional amendment Act 2011 tenure of the Committees in all societies after 14 2 2013 the tenure of the Committee shall stand revised to 5 years irrespective of what is provided in the bye laws.