Thursday 25 April 2013

Constitutional (97th Amendment) Act: Declared Ultra Vires by Gujarat HC


Gujarat HC order vs MCS (Amendment) Ordinance, 2013

01. Constitutional (97th Amendment) Act 2011, incorporated definition articles namely 243-ZH to 243-ZT, on 12-01-2012. The Parliament gave the States one full year to make appropriate amendments to its Cooperative Acts.

02. MCS (Amendment) Ordinance, 2013, was promulgated on 14-02-2013, and is BASED on the Constitutional (97th Amendment) articles namely 243-ZH to  243-ZT. The Maharashtra State Govt., could not amend the MCS Act of 1960 within this one full year, hence the Maharashtra Governor had to issue the aforesaid ordinance, keeping in line with the directions of the Parliament.

03. The MCS (Amendment) Ordinance, 2013, amended certain sections of the MCS Act, based and in-line with the definition-article namely 243-ZH to 243-ZT (as per the Constitutional - 97th Amendment)

THE BUMPER SPOILER:

04. Gujarat High Court, in Writ Petition (PIL) no. 166 of 2012, vide its order dated 22-04-2013, has declared the Constitution [97th amendment] Act, 2011 as ultra vires of the Constitution of India. SPECIFICALLY & SPECIALLY DECLARING THAT "Articles 243ZH to 243ZT is ultra vires".

a) Ultra-Vires means a “law-debilitating-virus” that declares something as "Null & Void"

b) Ultra-Vires, in context also means that the MCS (Amendment) Ordinance, 2013, of 15-02-2013 is also "Null & Void", since the Maharashtra ordinance was based on Constitution [97th amendment] Act, 2011 (more specifically on definition-articles namely 243-ZH to 243-ZT)

c) The Hon. Judges have REFUSED to grant "STAY on the OPERATION of the its Judgment", which means that the judgment is effective with immediate effect and would continue to be effective TILL the Supreme Court decides otherwise.

d) EFFECTIVELY, the above means that the Gujarat High Court judgment, is effective for entire India (all States), unless & until the Supreme Court decides otherwise.

CONSOLATION-in-CHIEF:

AFTER-EFFECTS (i.e. Spiking a spanner in the wheel)

a) The BAN of Govt. Administrator, in Housing / General Societies is not applicable any more, hence power of Registrar u/s 78 stands restored by default and An administrator can be now appointed. (Due to article no. 243-ZL,now declared as Null & void)

b) AGM has to be held on 14th Aug (or by 14 Nov), instead of 30th September (due to article no. 243-ZN, now declared as null & void)

c) Reservations for SC / ST / other categories, is gone (article no. 243-ZJ)

d) Concept of Active / Passive members, is gone (due to article now. 243-ZO)

e) An election that was mandatory to be held by State Co-operative Election Authority, is null & Void (due to article no. 243-ZK)

f) Auditors special & specific powers, is gone (article no. 243-ZM)

g) Co-operative education & training for members, is gone (article no. 243-ZN)

h) Concept of Expert and Functional Directors, is gone (article no. 243-ZJ)

i) Much hyped new Bye-Laws, as formulated by the Coop. Registrars, need not be adopted since such new bye-laws were based on MCS (Amendment) Ordinance, 2013, which in turn was based on definition-articles namely 243-ZH to 243-ZT (Constitution [97th amendment] Act, 2011), which is now declared as "Ultra Vires". Therefore any adopted bye-law based on the said Constitution [97th amendment] Act, 2011, is also "Null & Void".

IF you pay various taxes, THEN INTROSPECT on this:

a) WHEN the Maharashtra Govt., takes more than one year to make simple amendments in the MCS Act as per the Constitutional (97th Amendment) Act 2011, THEN how the Govt. expects the scores of Society Mg. Committee's to function with vigour and as per the MCS Act, leave aside the reluctances in the signing of the erstwhile M-20 Bonds .OR. holding AGM on time .OR.conducting Accounts & Audit on time .OR. resisting from Misappropriation of members funds, besides scores of burning issues like Dictatorial Functioning,Harassments of ordinary members and so on...., which is evident from the consistent scores of litigations before the Registrar's office and in the Coop.Courts.

b) Apathy, Ignorance, Arrogance, Ego is the bane of Cooperative Society’s.

Saturday 20 April 2013

SERVANT PASS APPLICATION.



 Date:-                                                                                                                            photo of                                                                                                                                       
To,                                                                                                                                  servant
The Secretary
                                                                                                                                        
                                             Application to issue/renewal of servant pass
Sir,
I/We _________________________________ Owner/tenant Of Flat No. ________ Building _________ wish to employ Mr./Mrs./Ms _______________________________ as Full/Part time house Maids/driver/car cleaner with effect from______________ is  working on my/our flat from ________.
Particulars are as follows:
        (a)     Name:_________________________________ (b) Age ______ (c) Sex- M/F    
        (d) Married   Yes/No
(e) Religion_______________ (f) Height____________ (g) Built ____________
(h) Contact No. ______

Native Place Address (Mandatory):
....................................................................................................................................................................................................................................................................................................................
Local Address/ Known Relatives: ……………………………………………………………………………………………………………..…

I/We request to you to please issue/renew the Security/Entry pass for the period of __________ months.

I/We undertake to do the police Verification of my/our house maids/driver/car cleaner with the local police station and submit the photo copy of the police verification to the Society Office. I/We Undertake the responsibility of registration of my/our Servant/s with Department of Labor Government of Maharashtra as safe camphor is my/our OR ours Servant/s.

I/We hereby indemnify and keep indemnified the said society and its office-bearers against any claim demand, suit or other legal proceeding between us and said servant/s and also indemnify and keep Indemnified the said society and its officer-bearers against any damage/ losses done by my/our servant/s to any member or to Society in any manner. I/We undertake to bear all expenses, cost, and charges in respect of damage/losses, claim, demand, suit and/or legal proceedings which may be filed by society member / my servant/s or Society.   

I/We also know that as per the Juvenile Workers Act, 1986, it is prohibited to employ child labor in household work and other works and as per the provisions of the said Act.


Signed by
(Owner/Tenant)
Mr./Mrs. _______________
Flat No.

Note: Issuing pass for the tenant’s servants will be done by submitting the valid tenancy Records only.
Pass Will be issued on producing the following documents
1.       Application from owner/tenant
2.       Police versification obtained from the resident
                        3.     Address & ID proof of servant

Friday 12 April 2013

Fire Audit of Housing Society

As per Maharashtra Fire Prevention and Life Safety Mcasures  Act 2006  every society who has more than G+4 floor and install the fire fighting equipment in the society  has to conduct Fire Audit in every Six months as per Sec 3 [1]. It is the responsibility  of Managing Committee to conduct the fire Audit of society  from Licensed Agency approve under Sec 12 of this Act.

As per Maharashtra Fire Prevention and Life Safety Mcasures  Rule 2009 4 [02] the society has to  submit the Certificate to the concern Municipal Cooperation / Municipal council / Concern Authority.  The format of the certificate is as follows


Tuesday 9 April 2013

Common Seal of Housing Society.


Incidentally, most of the societies with whom i have interacted are not aware of this "Common Seal " and use their round rubber stamp as a "Common Seal" on the Share Certificate , Conveyance Deed  & other important document. So I think to give you an idea about this with "Common Seal" image and its use. 

As per Old Model Bye-Laws [2009] Bye-Laws No. 73,74  &  New Model Bye-Laws [2013] Bye-laws No 73,74  "Common Seal" use and their custodian is Secretary of the society. 

The Image of Common Seal stamp and its print/effect on Share Certificate or on another paper. 




  • The "Common Seal" is the one made of brass metal disk, which leaves a raised depression imprint of the society name & registration number. There is no ink involved in it. 
  • It is hardly used, except for imprinting on the original or duplicate Share Certificate , Sinking Fund Certificate and Conveyance Deed. 
  • Without "Common Seal", the Share Certificate , Sinking Fund Certificate has no Legal standing.
  • The preparing cost of "Common Seal" is approx. Rs. 500/- and is classified as an Asset of the Housing Society.
  • Authority letter on the Society letter head with round stamp is required to prepared "Common Seal". Else one can be held for forgery and fraud.
  • The "Common Seal" imprint specimen is to be registered with the area Deputy Registrar's Office. Registering the "Common Seal" of the Society means, typing a covering letter to the registrar informing him about the "Common Seal" as per the specimen of the seal imprint on the society letter head itself, and taking his/her acknowledgement for the society's record purpose. 
  • This has to do before the Share Certificate are issued.
  •  There is no specific form or fees to be paid for this.
  • It is a criminal offense to use the "Common Seal " of a society by unauthorized persons, i.e. Other then Secretary of Society. 
  • "Common Seal" is to be surrendered to the Deputy Registrar's Office when the CHS is dissolved or de-registered for any reason. The Deputy Registrar may also seize the "Common Seal" of the Society signifying that the society is now under the control of the Government. 
  • If the "Common Seal"is lost or damaged, appropriate police complaint has to be registered. A secretary has to file an Indemnity Bond on Rs. 200/- stamp paper with the society pass appropriate MC resolution ratify the same in GB Meeting with proper notice & agenda and publish a newspaper notice in 2 newspapers. And prepare the new "Common Seal" and follow the above step to register the "Common Seal" in Dupety Registrar's Office.