Managing Committees Can't Create, Break Law In COVID Times

Gajanan Khergamker | Mumbai

Cooperative Housing Societies across India are bound by the law of the state in which they are located. In particular, the Cooperative Laws of the state, the rules and the bye-laws. Housing societies, by law, are permitted to make bye-laws or amend the model bye-laws but only to further the existing law and within the parameters of the common law of the land. Which is why, any law ‘amended’ by a managing committee must be done so, for example, first through an Annual General Body Meeting and, concurrently, by ratification of the minutes detailing the same, by the pertinent Registrar.

A police personnel on duty during the lockdown at Mumbai's Marine Drive
Any rules or laws that are arbitrary, discretionary or in violation of the larger law in question – such as the Maharashtra Cooperative Societies Act/Rules or Bye-Laws of say Maharashtra – could be struck down for being discretionary, ultra vires even malafide in common law or be acted upon by the police should it be a cognisable offence as per the Indian Penal Code. For example: A managing committee’s act of defaming a member through notices, paperwork or publication could be treated as a civil or a criminal offence apart from being a society law irregularity.

That said, in the time of COVID-19 and the lockdown, cooperative housing societies have been making rules that often seem excessive and violate the common law itself. These rules – like the ones permitting use of common spaces like the terrace by members during lockdown - can be struck down easily by complaining to the local authorities such as police, local civic authority, Registrar or a pertinent Court of Law as the case may warrant. The police can, in such cases, summon the ‘law-making’ managing committee and penalise them for such acts in contravention of Disaster Management Act and Lockdown rules of social distancing, even arrest them for the same.

Managing Committee members are bound by the law of the land and cannot be allowed to make their own laws without being questioned. Members must be on the vigil for such excesses and counter them legally as and when the need arises. Yet, managing committees creating rules well within legal framework and for public good must not be countered mischievously as a rule. The greater good must be taken into consideration, at all times while never compromising on basic human rights.

(Cooperative Housing Society members victimised by arbitrary rules and laws created by errant committees or Managing Committee members wishing to address issues created by offending members may send in their legal queries to Solicitor Gajanan Khergamker. For details, click here)