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Expert Speak

Friday, March 03, 2017

Ramesh S. Prabhu
Email your queries on property related issues, and on legal matters pertaining to it on feedback@afternoondc.in and get them answered by our expert

Q.In AGM, our society passed a resolution by majority. However, after some time many members felt that the resolution passed should be revoked. Can we call for a special general body meeting to revoke that resolution and can the original resolution be revoked by a simple majority in the meeting. How many members are required to call this meeting? Is the quorum required for the meeting different from that of AGM?  
Jayant Desai, Dadar
A.
Any resolution passed in the general body meeting can be revoked or reviewed after the expiry of six months from the date of passing such a resolution. In case members want to cancel the resolution, a special general body meeting may be called after 6 months from the date of passing the resolution. The general body may be called by the managing committee or by the chairman of the society. In case, the members want such special general body meeting to cancel or review the original resolution, at least 20 % of the members of the society may make an application to the society to call a special general body meeting to discuss and decide on the specific agenda.

The managing committee, as per section 76 of the Maharashtra Co-operative Societies Act, 1960 is duty bound to call the SGM within one month of the application made. In case, the society does not call such SGM even after submitting of the request by more than 20% of the members, the aggrieved members may approach the registrar, who shall appoint his own officer to convene and conduct the SGM to decide on the agenda. After conducting the hearing, if the registrar comes to the conclusion that without genuine reasons, the office bearers have failed and neglected to perform their statutory duty of calling the SGM within one month, such office bearers have committed an offence as provided under section 146 of the MCS Act, 1960 and will be liable for punishment as per section 147 of the MCS Act, 1960, which includes fine of Rs.5,000/- and are also liable for dismissal from the committee immediately. They will also be disqualification from contesting the election for the next one term of five years.

In all the general body meeting, the quorum is 20 members or 1/3rd of the members of the society whichever less is.  However, if the quorum is not present within the prescribed time, by mentioning in the notice, such general body meeting can be adjourned for half an hour at the same place and the members present in such adjourned meeting shall discuss and decide the agenda whether there is a quorum or not. In case of the special general body meeting called by the requisition of 20% or more members, if the quorum is not present at the scheduled time, the meeting gets dissolved.

Any resolution of cancellation or revocation or review can be done in the meeting called after six months of the original resolution by simple majority of the votes.
 
Q.The amount of sinking fund of co-operative housing society is calculated on the cost of construction of the building. My query is whether it should be based on the cost of construction at the time constructing the building or it is to be calculated at the prevailing cost of construction in a particular year or period thereafter.
Sachin Ithape, Dahisar
A.
The general body of the society can review any contribution to be collected from members under any head. As per the bye-laws the sinking fund has to be collected at 0.25% of the cost of the construction. Naturally, when the decision regarding the collection towards sinking fund has be taken, the society is required to ascertain the cost of construction per square feet of the flat. Thereafter, a resolution has be passed. It means that the society ascertains the cost of construction on the date of collection of sinking fund. However, we find that once the sinking fund contribution is started, the same amount is being charged month after month without any revision till the building goes for redevelopment. It is always recommended that once in five years, the society needs to ascertain the prevailing construction cost and then revise the sinking fund contribution.    

The amount collected towards sinking fund needs to be kept separately in a separate fixed deposit account and interest earned on such investment also need to be reinvested in the sinking fund account only. The sinking fund can be used only for major repairs or for reconstruction of the building after completing the required formalities of carrying out the structural audit, approval of the expenses by the architect and passing the same in the general body meeting. As per the old bye-laws, the registrar’s permission is required to use the sinking fund, but as per the new model bye-laws 2014, the registrar’s permission to use the sinking fund is not required but the approval from the general body is a must.

(Ramesh S. Prabhu is Chairman, Maharashtra Societies Welfare Association)

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