Preventing breach of bye laws in Maha CHS elections

By I C Naik

I came in to possession a copy of the letter addressed to a Cooperative  Election Officer (CEO in short) authorized by the Ward Cooperative Election Officer / Deputy Registrar (R South Ward) to conduct election for the new managing committee of one D type Cooperative housing society. The incumbent Committee’s 5 year tenure expired on 19th March this year. CEO called for some information from the Society including certified true copy of the registered bye laws of the Society vide his letter dated 22 8 2016.  The Hon. Secretary (Secretary for short) appears to have browsed through following post on www.indiancooperative.com. The Hon. Secretary pointed out certain issues for consideration by the Election / Authorized Officer while submitting required information.

http://www.indiancooperative.com/cooperative-coffee-shop/maha-chs-tsunami-of-election-disputes-imminent/

The submissions by the Hon. Secretary appear to have put the Election Authorities in serious thinking. This is presumed on account of abnormal delay in convening Special general body meeting to elect the new Committee. The fear of breach of bye-laws is based on the actual cases of elections held in the same category of housing societies in R South Ward (Kandivali East) in Mumbai (Western Sub urban District).

The submissions of Secretary are worth looking at, as it is an exceptional concrete step by an enlightened society towards upholding the sanctity of its registered bye-laws. So I decided to briefly summarize them so that other housing societies may get inspired to resist any violations of bye-laws by the Authorities.

Secretary clarified that the society’s bye laws as originally registered have not undergone any amendments so far. He has acknowledged that certain bye-laws are superseded by the Constitution (97th Amendment ) Act 2011 and the Maharashtra Cooperative Societies (Amendment) Act 2013. So bye-laws have to be read down accordingly in line thereto.

Secretary has elaborated his fears in three areas: (i) Rejection of Nominations, (ii) Associate member contesting election and (iii) the strength of the Committee including cast based reservations.

1.If a member’s nomination is rejected Rule 75 (4)(a) of the MCS  (Election to Committee) Rules, 2014 (New Election Rules)  provides that “ the candidate may prefer an appeal to Registrar within a period of three days from the date of rejection of nomination. Registrar shall dispose of such appeal within ten days of the date of receipt of such appeal.” How will rejections in Special general body meeting will be handled may be clarified. Secretary is concerned because a defaulting member disqualified to contest election as per Section 73CA has also denied voting in election under wrong interpretation.

2.Right of Associate Member to join the Committee:

a.Section 24(2) of the MCS Act 1960 has a provision about rights of Primary members which can be exercised by Associate and Nominal Members to if they are so specified in the registered bye laws of the Society.

b.Our  Registered bye laws however allows just one right of attending general body meeting in the absence of the Primary Member [Bye Law No 27 and Section 27(2) of the MCS Act 1960]. No forms are prescribed for giving consent of Primary Member in our socity’s registered bye laws.

c.Certain members of our society are under the false impression that in our society also Associates Members can join the Committee just as all  the  bye-laws of housing societies registered after 2001 allow.

d.Since most of the Primary members have enrolled Associates also having a conditional voting right it is obvious that right to attending meeting includes proposing or seconding nomination of a Primary Member as election is the Agenda of the meeting. Kindly clarify this right of Associate. This request is because the Election Instructions in one of the societies here elections were held no Associate member was allowed to propose any candidature.

3.Strength of the management committee of our Society:  The Maharashtra Cooperative Societies (Amendment) Act 2013 inserted new Section 73AAA. Sub-section (1) thereof requires every society to specify the strength of the Committee in its bye-laws. As per our Bye Law No 114 the strength of our Committee  continues to be 9 as specified for housing society having membership range of 101-300. (Our Society’s strength is 153 members (S C/ S T -0 Female – 42 Male – 111). As such post Constitution (97th Amendment ) Act 2011 the strength of  management committee in our housing society is 9 out of which 2 seats are to be reserved for female members. As S C/ ST members are -0- representing these cast members in managing committee does not arise. It is understood that in such cases these seats are kept vacant.

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Comments ( 2 )

  1. Pingback: Housing Society Rules And Regulations | Best Lawyer Guidance

  2. R C BAHRDWAJ

    FIRSTLY:
    Nowdays, elections are conducted on the last day and the nominations are also received on the last day… coz Returning Officers are made to understand that there will not any election contesting. THIS IS BASED ON THE CATEGORY TYPE.

    SECONDLY:
    FOR YEARS TOGETHER, persons have become associate members even though their name is not in the property documents and also become cheque signatories…. a blatant misuse of associate membership… an associate member can only vote and nothing beyond.

    THIRDLY:
    BYE-LAWS ARE NOT STATUTES… HENCE THERE SHOULD NOT BE ANY CONTRAVENTIONS TO THE MCS ACT AND RULES FRAMED UNDER IT.. IF THE BYE LAWS ARE NOT AMENDED, TO ME IT DOES NOT MAKE ANY DIFFERENCE SO LONG AS THE STATUTORY RULES AND REGULATIONS ARE FOLLOWED

    R C BHARDWAJ
    HOUSING SOCIETY CONSULTANT

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