Follow procedure to amend bye-laws with extreme care
Legally Speaking - Property and Housing Laws | By Solicitor Gajanan Khergamker
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Cooperation is the only preferred way to move ahead when faced with the seemingly sole, and quite avoidable, option of conflict in a cooperative housing society: strife is but a given accompaniment. Conflict in a cooperative housing society is often of twin-faced nature. On the one hand, it may seem to be a string of acts of irregularities and misdemeanours on the part of a handful or more members while on the other, it could be the misdoings of a corrupt managing committee. Either way, the legal process is undone.
As in any civil society, the inordinate delay, our legal process is notorious for, is the primary trigger for flagrant acts of misdemeanour. Like, by the time a society kickstarts the process of recovery of dues from a member who refuses to pay up his legal dues, there’s a lot of time lost, heartburn suffered and bad blood spilt. Hastening the process by law or amendment will not create much change at the grass-root level. Since nobody is ‘paid for the job’ nor harbours any ‘personal ill-will’ towards the offender, the process is further fraught with delay.
Also, with members of the managing committee having committed a series of torts during their tenure in the committee, they usually have little to offer by way of a clean slate. In the bargain, the offender manages to enjoy the amenities others pay for…and for years together, till he decides to pay up…little by little and sums of money he so chooses to.
Legally, there are provisions for relief and redress but, in the stark absence of clarity in law and an associated intention; the wrongs continue to thrive…till things go completely out of hand. So, in most cooperative housing societies, since the Secretary has ‘enclosed a balcony and made it into an extra room,’ and the Treasurer is ‘embroiled in a legal tangle with another member over a private property’ and continues to ‘wrongly’ hold his post in a direct conflict of interest, the managing committee stays silent when it should be addressing civic wrongs of others in the society.
Each member goes ahead and does his own bit in ‘creating’ FSI, ‘extending’ roofs, and changing the ‘usage’ provided by law while the committee members simply look the other way. Countering members committing wrongs will only fetch a waft of expletives on committee members. After all, they aren’t exactly in any position to point fingers, it’s argued. Two or more wrongs make it all right here.
And, it’s only a matter of time before any cooperative housing society with right-minded members turns into a convenient ‘I scratch your back, you scratch mine’ society where each and every member sits on a civic wrong and nobody risks pulling up another for fear of a legal rap for a personal wrong. It’s a mess in most societies and one that could easily be prevented but is, more often than not, overlooked for lack of will.
Now, in the face of the sea of wrongs, the way out is only…ahead. To stay within legal parameters and cooperate seems like a conflict of sorts but not impossible.
If only we stick to a legal sense of cooperation, there should be no issues. Sadly, cooperation itself has been converted into a hush-hush affair where wrongdoers cooperate with each other to keep the authorities at bay.
The law on cooperative housing societies, and a fine one at that, is well in place…a place most cooperative housing society members stay away from. There are the cooperative housing society model bye-laws which are guidelines for members to follow.
Bye-laws are a matter of personal domestic concern and are applicable to the society in question only. They do not affect the rights and liabilities of the society with the outside world. The bye-laws of a cooperative society framed in pursuance of the provisions of the Act cannot be held to be ‘law’ or said to have the force of law. The bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society.
They are in the nature of Articles of Associations of a company incorporated under the Companies Act. The bye-laws may be binding between the persons affected by them but do not have the force of statute. Each and every cooperative housing society needs to, almost as a rule, amend the bye-laws to their niche needs. There are provisions by the law to do so.
A resolution 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.
The Registrar 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, may suggest a modification to the society. The approval of the amendment of a bye-law depends on the Registrar’s discretion.
Stopping a civic mess begins with correcting smaller offences at the onset which go on to grow gangrenous hurling a situation completely out of control. An amendment to the bye-law could include a fine 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 the common passage with a copy for reference to the local civic authority and so on and forth.
Cooperative housing society’s managing committee members are notorious for playing law-enforcers with selective members while, concurrently, committing every civic offence in the book and beyond without heed in the world. 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 and further the due process.
Small changes go a long way in curbing wrongs at the stage of inception itself. Amend the model bye-laws smartly even use the services of a lawyer to do so, in order to stop the rot…now!
This weekly legal column has been generated for The Draft News, Without Prejudice and In Good Faith. To book a Legal Consultation, Call 8080441593.
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