Gujarat HC has recently held that 97th amendment to India’s Constitution of 2012 is unconstitutional. Post this order we have discussed the implication of the order on MCS (Amendment) Ordinance, 2013.
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.
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 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 member, is gone (due to article no. 243-ZO)
e) Election that was mandatorily 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 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, Harassment’s of ordinary members and so on…., which is evident from the consistent scores of litigation before the Registrar’s office and in the Coop. Courts.
b) Apathy, Ignorance, Arrogance, Ego are the bane of Cooperative Society’s.
Hemant Agarwal (Legal Consultants)