Amend The Bye-Laws To Fine, Penalise Member

Amend The Bye-Laws To Fine, Penalise Member
By Gajanan Khergamker

In the absence of clarity of the law and a misplaced sense of authority, there’s a lot of misuse and misinterpretation of the law in cooperative housing societies all over. Across India, different states have their own Cooperative Societies Acts and Rules and, sometimes, their own Model Byelaws. The one thing that stands common among them all is the fact that they are all driven by one basic goal…cooperation.

It must be understood that bye-laws may be binding between the persons affected by them but do not have the force of statute. And, in order to customize niche needs, each and every cooperative housing society should amend their own bye-laws in strict accordance with provisions laid down by the law.

For instance, if a cooperative housing society wants to pass a bye-law that demands every member embarking on structural repairs to his/her flat to obtain prior permission of the society or deposit a said amount of money to be refunded at the completion of the work or fine someone an X amount for construction material placed in common passage, it will have to create bye-law for the same. Anything arbitrary could be extra-legal.

There is a resolution that must be passed by 2/3rd of the members present at the meeting before being submitted to the office of the registrar within two months from the date of the meeting at which it was passed. The resolution must be submitted with a copy of the relevant bye laws in force along with the amendment/s proposed to be made in pursuance of the resolution together with reasons justifying the amendment; four copies of the text of the bye laws as it will stand after amendment/s that should be signed by the office bearers duly authorised by the managing committee of the society and a copy of the notice given to the members of the society for the proposal to amend the bye laws.

There is a good enough reason for the procedure to be in place. The Managing Committee even a General Body is not authorized to pass laws. The onus of passing laws rests upon elected representatives.

Any change in the existing Model Bye-laws to further the purpose of the society can be suggested through an amendment which will have to be cleared by the Registrar who normally acquiesces to the application within two months from the date of receipt of the application or, if of the opinion that the proposed amendment may be accepted subject to any modification, suggest a modification to the society.

The approval of the amendment of a bye law depends on the Registrar’s discretion. It’s important for all cooperative housing societies to stop a civic mess by correcting smaller offences at the very onset to prevent them from snowballing into situation that go completely out of control.

A lot of cooperative housing societies create rules that include fines of Rs.1,000 upwards for each day of construction waste matter accumulated ‘outside’ or in common space and a copy forwarded ‘for reference’ to the local civic authority; any civil changes ‘even those made within’ a member’s premises to be preceded by a structural audit from a BMC-approved civil engineer only; all non-members ‘residents’ to provide a police clearance certificate; fines of Rs.1,000 upwards for each day of garbage or litter thrown in common passage with a copy for reference to the local civic authority and so on and forth.

The ‘rules’ or ‘bye-laws’ created need to be cleared by law and added as amendments to the Model Bye laws, failing which they possess little or no validity. After all, a procedure to amend the Model Bye laws has been put into place to ensure that nobody commits an excess in the process of running a cooperative housing society; the work of a society isn’t converted into a business for profit and the law isn’t subverted for personal gains or prejudices.

Cooperative housing society’s managing committee members are often charged with playing law-enforcers with selective members while concurrently, themselves committing every civic offence in the book and beyond without a heed in the world. Concurrently, rogue members tend to make life miserable for right-thinking managing committee members thereby defeating the purpose of cooperation.

However, either which way, any move to amend the model bye-law to enhance accountability and stop the rot as well as effect fining processes should be endorsed by the Registrar to further the due process. Anything beyond this is an excess of the law itself.