Fw: [Its My Right] [6198] 97th Amendment - Gujarat High Court Judgment Order

[JBPatel . Jeby]

"We, therefore, allow this Public Interest Litigation by

declaring that the Constitution [97th amendment] Act,

2011 inserting part IXB containing Articles 243ZH

to

243ZT is ultra vires the Constitution of India for not

taking recourse to Article 368(2) of the

Constitutionproviding for ratification by the majority of

the State Legislatures."

CONSTITUTIONALAMENDMENTS

243 ZH - Definitions – S. 2

Theterm `Board’ is used for governing body which is called
by variousnames like Managing Committee or Executive Committee etc. as per thenature of the cooperative.

243 ZI - Incorporation of cooperative societies

ThisArticle concerns making provisions in the State Act with

respect tothe incorporation, regulation and winding up of

cooperative societiesbased on the voluntary formation,

democratic members, control membereconomic participation

and autonomous functioning: The termsdemocratic member

control and member economic participation, will benew to

the State Act.

243 ZJ – S. 73AAA/73C - Number and term of members of

board of directors and its office bearers

(i)If a cooperative society is having among its members belonging toSchedule Castes or Schedule Tribes or Women then one seat each shallbe reserved for the SC / ST andtwo seats for the women.

(ii)The term of elected member office bearers shall be of five

years.

(iii)Co-option of expert members

(iv)Twoseats shall be reserved for women on the committee of each societyconsisting of individuals as members and having members from suchclass or category of persons, to represent the women members.

(v) The maximum number of directors of a cooperative society shall notexceed twenty-one.

TheState Act is required to provide for co-option of expert members notexceeding two, having experience in the field of banking, management,finance or any other specializations relevant to the aims andobjectives of the society. They shall have no right to vote in theelection to the board orcategory of persons, to represent the women members.

243 ZK – S. 73CB - Election of members of board

(1)Notwithstanding anything contained in any law made by a StateLegislature, the election of a cooperative society shall be conductedby the State Co-operation Election Authority before the expiry of theterm of the Board of such a society to ensure that the newly electedboard assumes office on expiry of the term of the outgoing board.

(2)The superintendence, direction and control of the preparation of theelectoral rolls for, and the conduct of all elections to thecooperative societies shall vest in the Board of a cooperativesociety. However, a State Legislature shall provide for the procedureand guidelines for conduct of elections.

243ZL – S. 77/78 - Supersession of board of directors

(1) Thisarticle provides that the boardcan be superseded or kept

under suspension for a period not exceedingsix months if there is –

(i)Persistent default.

(ii)Negligence is observed in the performance of its duties.

(iii)If the board has committed any act prejudicial to the interests

ofthe cooperative society or its members; or

(iv)If there is a stalemate in the constitution or functions of the

board, or

(v)The Election Authority (as under Article 243 ZK) has failed to

conduct elections in accordance with the provisions of the Act.

(2) Incase of supersession of a board, an administrator is to be appointed.TheState Act will provide for the conditions of this appointment –providedthat the Board/Committee shallnotbe supersededor kept under suspension wherethere is no Government shareholding, loan, or financial assistancefrom the State.

243 ZM – S. 75/81 - Audit of accounts of cooperative societies

Underthe provisions of the State Act, the General Body of every societyshall appoint an auditor or auditing firm from a panel approved bythe State Government for each financial year for auditing theaccounts of the society provided that, the same auditor shall not beappointed for more than three consecutive years. Audit shall becarried out within six months of the end of the financial year

243 ZN– S. 75 -Convening of the General Body meetings

Generalbody meeting of a society will be held within a period of six monthsafter the close of the financial year

243ZO - Right of a member to get information
TheArticle provides for the State Legislature to make a provision in theState Act to the effect that every member of a cooperative societycan have access to the books, information and accounts of thecooperative society which are maintained in regular transaction.

243 ZP – S. 79 - Returns

ThisArticle makes it mandatory for every co-operative society to file thefollowing reports within six months of the close of every financialyear, to the authority designated by the Government:
(a) annualReport of its activities,
(b) its audited statement ofaccounts,
(c) plans for surplus disposal, as approved by thegeneral body of the co-operative societies.
(d) list of amendmentsto be bye-laws of the co-operative society, if any,
(e)declaration regarding date of holding of its general body meeting andconduct of elections when due; and
(f) any other informationrequired by the Register in pursuance of any of the provisions of theState Act.

11. 243ZQ - Offences and penalties

ThisArticle has added five new acts of commission or omission for whichnew provisions are necessary made by the State Legislature under thesections of offences / penalties. These are –

(a)a co-operative society or an officer or member thereof willfullymakes a false return or furnishes false information, or any personwillfully not furnishes any information required of him by a personauthorized in this behalf under the provisions of the State Act.

(b)any person willfully or withoutany reasonable excusedisobeys any summons, requisition or lawful written order issuedunder the provisions of the State Act.

(d)any employer who,without sufficient cause,fails to pay to a co-operative society amount deducted by him fromits employee within a period of fourteen days from the date on whichsuch deduction is made.;

(e)any officer or custodian who willfully fails to handover custody ofbooks, accounts, documents, records, cash, security and otherproperty belonging to a co-operative society of which he is anofficer or custodian, to an authorized person; and

(f)Whoever, before, during or after the election of members of the boardor office bearers, adopts any corrupt practices.

In this section of the principal act u/s 81 “Audit”, inter alia,

i) Where the auditor is convinced of any person guilty of an

offence, the auditor files a specific report to the Registrar in 15

days. After having sought permission in writing from the Registrar

for filing a First Information Report of such offence;

ii) The Auditor who fails to file such FIR shall be liable for disqualification

and de-panelment and liable for action as the Registrar deems fit.

iii) If the Auditor has failed to initiate action as above vide a

special report, the Registrar shall cause an FIR to be filed by a

person authorized by him in that behalf.

Additions vide State Ordinance to Principal CHS Act - 1960

U/s89ABGrievances Settlement and Redressal Committee is to be

established ineach society that shall be constituted in the Annual

General Bodymeeting of the society: It shall consist of three active

members ofthe society who shall not be members of the committee

of the society.

U/s 94 in case of a dispute before the Cooperative Court, if the disputant is present and the opponent is absent, the Court may decide the dispute ex-parte and pass an award. However, the Court may set aside the ex-parte award if the opponent makes an application within thirty days of the award. This is subject to the Court being satisfied that there was sufficient cause for the opponent's failure to appear and subject to the costs or otherwise as the Court thinks fit. Similarly, if the disputant is absent and the opponent is present, the Court may dismiss the dispute for default. Similarly, the Court may restore the dispute if an application is made to it within thirty days.

243 ZT – S. 166 - Continuance of existing law

Itis provided that the committees of which elections become due after31st March, 2013, shall continue till the elections are held underthe provisions of the amended Act or till the expiration of the termof the committee, whichever is earlier.

=====================

J.B.Patel (Jeby)
Housing Societies' Activist!
Mobile:9820538570

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