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Salient features of the new bye laws of the co-operative housing societies

Subject : Other Laws
Month-Year : Apr 2002
Author/s : K. K. Ramani
Advocate
Topic : Salient features of the new bye laws of the co-operative housing societies
Article Details :

1.

Bye-law No. 3(v) :

Definition of flat :

The new definition of the term ‘flat’ has been widened to include coaching classes, palnaghar, beauty parlour in addition to premises used or intended to be used for residence, or office, or showroom, or shop, or godown, or garage, or dispensary, or consulting room, or clinic, or flour mill as per old bye-laws.

2. Bye-law No. 3(xxv) :

Definition of the term ‘family’ has been widened to include, father, mother, sister, brother, son, daughter, son-in-law, brother-in-law, sister-in-law, daughter-in-law, grand son/daughter. As per old bye-laws only husband, wife sons having no independent source of income, unmarried daughters and person/persons dependent on the member were included in the definition of family.

3. Bye-law No. 3(xxviii) :

The term ‘working capital’ has been introduced in the new bye-laws which is defined as the fund at the disposal of the society inclusive of paid up capital, share capital, funds created out of profits, and money raised by borrowing or by any other means.

4.

Bye-law No. 7(e) :

Raising of funds by the society - Prohibition on voluntary donation on transfer :

As per sub rule No. (f) of Bye-law No. 7, the funds of the society may be raised by voluntary donations, but not from transferor and transferee of any flat.

5.
Bye-law No. 5 :
One uniform set of bye-laws applicable for open plot societies as well as flat owners societies.
6. Bye-law No. 13(a) :
.

New concept for calculating repairs and maintenance funds for meeting expenses for normal/recurring repairs is introduced which is related to the cost of construction of each flat, It shall be minimum of 0.75% per annum of cost of construction of each flat as compared to minimum of 0.75% per annum of value of each flat as per old bye-laws. The amendment is aimed at reducing areas of disputes.

7. Bye-law No. 13(b) :
Major repair fund :

A new term ‘Major Repair Fund’ is introduced. Society can create this fund as and when required and decided by the General Body at the rate fixed on area basis.

8. Bye-law No. 13(c) :

Sinking fund is now required to be related to the cost of construc-tion of each flat at the rate decided at the meeting of general body subject to minimum of 0.25% per annum of the con-struction cost of each flat excluding the proportionate cost of the land.

9.
Bye-law No. 14(e) :

Major repair fund amount can be used by the society with the prior permission of the general body.

10.
Bye-law No. 17(a) :
Eligibility for membership :

As per old bye-laws, an individual member could become member of the society provided he resides or intends to settle down and reside in the area of the operation of the society and who does not own a house, a plot or a flat in his name or names of any of the members of his family, in the area of operation of the society. These provisions have been done away with in new Bye-law No. 17(a).

11.
Bye-law No. 19(a)(vi) :
Conditions for membership :

A person intending to become a member of the society has to tender along with the application for membership of the society, a certified copy of agreement which is duly stamped in case of agreement with the builder/promoter and in case of resale, a copy of duly stamped agreement which is entered into with the transferor. As per old bye-laws, this provision about submission of stamped agreement was absent.

12.
Bye-law No. 24(b) :

Rights of associate/joint member recognised. As per new provision, the associate/nominal members have a right to occupy the flat with the consent of the member and permission of the society, subject to the conditions set out by the society.

13. Bye-law No. 32 :
Nomination by member :

Secretary of society has to give acknowledgement of the nomina-tion and such acknowledgement shall be deemed to be acceptance of the nomination by the secretary. The acknowledgement of the variation in nomination/sub-sequent nomination by the secretary shall be deemed to be the cancel-lation of the earlier nomination. Every fresh nomination shall be charged a fee of Rs.50/-.

14. Bye-law No. 34 :

In the event of death of the member, nominee/nominees have to apply for membership of the society within six months from the date of the death of the member.

15. Bye-law No. 38(d) :
Transfer of shares :

Bye-law 38(d), expressly states that ‘No objection certificate’ of the society is not required to transfer the shares. However if the transferor or the transferee requires such certificate, they shall apply to the society and the committee will consider such application on merit within one month. The bye-laws are silent on the course of action to be taken if no objection is declined or not granted within the specified period of one month.

16. Bye-law No. 38(e)(vi) :
Transfer of shares :

As per new provision, on transfer of shares, the transferor has to give the undertaking to discharge the liabilities of the society. This provision may not be effective since transferor may not be traceable later on and undertaking given by him for discharging all the liabilities of the society may not be enforce-able.

17.
Bye-law No. 38(e)(vii) :
Transfer fee by the transferor has been raised from Rs.50/- to Rs.500/-.
18.
Bye-law No. 38(e)(viii) :
Entrance fee by the transferee has been raised from Rs.10/- to Rs.100/-.
19.
Bye-law No. 38(e)(ix) :

Premium for the transfer of flats to be fixed by the general body meeting but it should be within ceiling prescribed by govt. from time to time. It is specifically mentioned in Bye-law No. 38(e)(ix) that no additional amount towards donation or contribution to any other fund or under any other pretext shall be recovered from transferor or transferee.

20
Bye-law No. 38(e) :
Exchange of flats :

It is specifically mentioned in a note to Bye-law No. 38(e) that condition about charging of premium on transfer of shares is not applicable in case of mutual exchange of flats among the members that is no premium is payable on exchange of premises by the members in the society.

21.
Bye-law No. 43(2)(iii)(d) :
Non-occupancy charges not to be levied if the incoming member occupies the flat.
22
Bye-law No. 43(2)(iii)(c) : Subletting :
.

Non-occupancy charges shall be charged by society in accordance with circular to be issued by the Government of Maharashtra Commissioner of Co-operation from time to time. Vide Govt. of Maharashtra Notification No. SYG-1094/15165/P.No.317/14-C dated 1st August 2001, the society should not collect the non-occupancy charges at a rate exceeding 10% of the service charges (excluding municipal corporation/Nagarpalika taxes. This Notification also provides that non-occupancy charges shall not be levied if the flat is given by the member to nearby relation such as father, mother, sister, brother, son, daughter, son-in-law, brother-in-law, daughter-in-law, grand son, grand daughter or such other relative as might have been permitted by the society.

23.
Bye-laws Nos. 53 and 54 :

Under new bye-laws, the for-feiture of shares takes effect simultaneously with the expulsion from membership of the society duly approved by the Registering Authority.

24.
Bye-law No. 57(vi) :

A person shall cease to be member of the society, if whereabouts of such member are not known for continuous period of seven years and if his share and interest in the property/capital of the society is not claimed by any-body else.

25.
Bye-law No. 57(vii) :

A person shall cease to be member of the society on the cessation of right/title and interest as a member in the property of the society by way of legal attachment or sale.

26.
Bye-law No. 61 :
Cessation of memberships - Information to member :

The committee to inform the concerned member in writing within 7 days of date of decision of the committee about cessation of member’s membership. In old bye-laws this provision was absent.

27.
Bye-law No. 62 :
Restriction on holding more than one flat for individuals :

As per new bye-law No. 62, individual member of the society may hold more than one flat in his own name or in the name of any of the members of his family subject to conditions as laid down in Section no. 6 of the Maharashtra Societies Act, 1960. Member of the family u/s.6 of the MCS 1960 means a wife, husband, father, mother, son or unmarried daughter. Minimum number of persons for a society is 10, each of such persons being a member of a different family, who are qualified to be members of the society and who reside in the area of operation of the society.

Thus even as per new bye-law, if there are 10 flats in a society and two flats are for sale, a member cannot purchase both the flats in his own name as that would bring down the total membership to less than 10, being number required to constitute a society.

As per old bye-laws previous consent in writing of the committee of the society was necessary for holding more than one flat in own name or in the name of any of the members of one’s family.

28.
Bye-law No. 65 :
Acknowledgement of applications to the society :

The secretary of the society to compulsorily acknowledge every application received by him from the members of the society even if it is incomplete.

29.
Bye-law No. 66 :

Valuation of interest of expelled member of society in the capital/property to be valued by the government approved valuer to safeguard the interest of the expelled member.

30.
Bye-law No. 69(a)(ii) : Water charges :

Society is to charge water charges on the basis of total number and size of inlets provided in each flat. In old bye-laws there was no reference to the size of inlets.

31.
Bye-law No. 69(a)(iii) :
Expenses on repairs and main-tenance of building/buildings of the society :

It will be related to cost of construction of each flat for meeting expenses of normal repairs or recurring repairs. It shall be minimum of 0.75% per annum of construction cost of each flat. As per old bye-laws it was related to value of each flat. This aims at reduction in the areas of disputes.

32.
Bye-law No. 69(a)(iv) :
Expenses on repair and main-tenance of lift including charges for running the lift :

It has been clarified in new bye-law that the cost shall be borne equally by all the members of the building in which lift is provided irrespective of the fact whether they use it or not. As per old Bye-laws it was to be borne by all the members.

33.
Bye-law No. 77 :
Structural audit of buildings :

Structural audit of building to be conducted by architects on the panel of municipal corpora-tion for societies situated in municipal limits. In other cases structural audit to be carried out by government approved architects. Structural audit to be done as under :
(a) For building ageing between 15 and 30 years
Once in 5 years

(b) For building ageing above 30 years
Once in 3 years

34.
Bye-law No. 78(a) :
Car parking :

As per new provision, a member may hold parking space/stilt if he has purchased the same, and he shall have a right to sell the same to transferee or other eligible member of the same society. Thus the new provision recognises the sale of car parking space by the builder.

35.
Bye-law No. 96(iv) :

In the annual general body meeting results of the election to the committee shall be declared if election to the committee has taken place prior to annual general body meeting of the society. As per old bye-law, the results of election to the com-mittee were to be declared if the election took place during the year in which annual general body meeting was held.

36.
Bye-law No. 96(v) :

Auditor to be appointed for the statutory audit, from the panel of auditors maintained by the Registrar. As per old bye-laws, the society was to appoint an internal auditor, if considered necessary.

37.
Bye-law No. 100 :

In case of holding of special general body meeting, an intimation to the federation and to the registration authority along with agenda is also to be given. This provision did not exist in old bye-laws.

38.
Bye-law No. 114 :

Bank account can be operated upon by the secretary jointly with the chairman or treasurer. As per old by laws treasurer could not sign the cheques.

39.
Bye-law No. 115 :

Provision regarding strength of committee. There is a provision for reservation of seats for women members in the committee. There will be at least one woman member in the committee for number of members upto 300 and at least two women committee members if number of members is 301 and above.

40.
Bye-law No. 118 :
Associate member given power to become member of committee :
.

An associate member is eligible for being elected as member of committee on submission of the no objection certificate from the member and undertaking as may be prescribed.

41.
Bye-law No. 119 :

New provision for constitution of committee has been inserted. This provision stipulates sending of the names and addresses of elected members on the committee to the Registrar.

42..
Bye-law No. 122 :
Period of office of the elected committee is increased from 3 years to 5 years.
43.
Bye-law No. 123(a) :

The first meeting of the newly elected committee jointly with the outgoing committee shall be held within 30 days from the date of constitution of the new committee as per Bye-law No. 119. As per old bye-laws such meeting was to be held within 30 days from date of the general body meeting of the society at which results of its election were declared.

44.
Bye-law No. 126(a) :
The post of treasurer has been included as an office bearer of the society. Old bye-laws did not recognise the post of treasurer.
45.
Bye-law No. 126(b) :

The Chairman, Secretary and Treasurer of the Society shall hold office for a period of 5 years from the date on which they are elected to be the Chairman or Secretary or Treasurer. They can be removed by passing of no confidence motion in the special meeting of the Committee. If no confidence motion is moved against Chair-man, Secretary or Treasurer, then such special meeting shall be presided over by the Registrar or such officer not below the rank of Asstt. Registrar. This provision did not exist in old model bye-laws.

46.
Bye-law No. 132(e) :
Resignation of entire committee :

Such resignation of committee to be placed before the general body and such resignation to be effective from the date of ac-ceptance of such resignation by the general body. The committee to continue in office till alter-native arrangement is made for management of society. There was no provision in old bye-laws for handling such a situation.

.
47.
Bye-law No. 133 :
Notice of meeting of committee :

If chairman and the secretary fail to issue a notice and the agenda of any meeting of the committee, the concerned Hous-ing Federation to which society is affiliated, may call such a meeting. As per old bye-laws the registration authority was authorised to call such a meet-ing in similar situation.

48.
Bye-law No. 142(xx) :
Structural audit register to be maintained wherever applicable.
49.
Bye-law No. 146 :

Limit for making payments by account payee cheques increased as under :
Up to 20 members Rs.1,500/-
21 to 50 members Rs.3,000/-
Above 50 members Rs.4,500/-

50.
Bye-law No. 158(a) :

Committee is competent to incur expenditure on repairs if one time expenditure does not exceed as under :
Up to 25 members Rs.25,000/-
26 to 50 members Rs.50,000/-
51 and above members Upto Rs.1,00,000/-
For expenditure in excess of above limits, prior sanction of general body is necessary.

.
51.
Bye-law No. 160 :

The responsibility for Internal leakage would now be on the concerned member. As per old bye-laws the responsibility of all leakages, internal as well as ex-ternal leakage was on the society.

52.
Bye-law No. 160(a) :

Member residing on top floor of building of society can insist upon the society to repair at the cost of society the damaged ceiling and plaster thereon of the top floor flat on account of leakage of the rain water.

53.
Bye-law No. 173 :

Insurance of the building of society against risk of fire and earthquake made compulsory.

54.
Bye-law No. 173 :

An attempt has been made to guide the members as to which authority they should approach for their complaints.

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