Query from Navneet Madressa

We have a society in Mira Road with 274 Flat and 15 CM(Registration number (TNA/MHADB HSG/(TC) 13150/YR-2015-2016). However, due to wrong doing of Chairman and Secratory. We 8 member including treasurer has resigned from committee (i.e. more than half).

We want to dissolve the committee and request for fresh election, what is the process for the same.

OR Alternatively can more than half member vote against them to take their resignation.

Ideally we would prefer to dissolve the committee because half of the member are inactive..

I C Naik

Your society is registered post 97th Constitutional Amendment. The  Constitutional frame work provided by this amendment Act has been clarified by no less than the Constitution of India [(2015) 42 SCD 494 dated March 19, 2015] in a judgment delivered by the bench of (ANIL R. DAVE) AND (KURIAN JOSEPH) JJ. The bench was analyzing democratic trait of cooperative society which 97th Constitutional Amendment has reminded the Governments and Courts alike to find in evey enactment and functioning of cooperatives.  See the extracts from the judgment.

  “53. The cooperative society registered under the Central or the State Act is bound to function as a democratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or Bye-laws both on the principle and procedure. If not, it is for the court to read the democratic principles into the Act or Rules or Bye-laws. If a procedure is prescribed in any Act or Rule or Bye-law regarding election of an office bearer by the Board, as defined under Article 243ZH(b) of the Constitution of India, and for removal thereof, by way of a motion of no confidence, the same procedure has to be followed. In case there is no express provision under the Act or Rules or Bye-laws for removal of an office bearer, such office bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office.

  1. Now that this Court has declared the law regarding the democratic set up of a cooperative society and that it is permissible to remove an elected office bearer through motion of no confidence, and since in many States, the relevant statutes have not carried out the required statutory changes in terms of the constitutional mandate, we feel it just and necessary to lay down certain guidelines. However, we make it clear that these guidelines are open to be appropriately modified and given statutory shape by the competent legislature/authority. Having gone through the provisions regarding motion of no confidence in local self-governments, we find that there is no uniformity with regard to the procedure and process regarding motion of no confidence. Some States provide for a protection of two years, some for one year and a few for six months, to the office bearers in office before moving a motion of no confidence.

Having noted as above the court gave following direction: we direct that in the case of cooperative societies registered under any Central or State law, a motion of no confidence against an office bearer shall be moved only after two years of his assumption of office. In case the motion of no confidence is once defeated, a fresh motion shall not be introduced within another one year. A motion of no confidence shall be moved only in case there is a request from one-third of the elected members of the Board of Governors/Managing Committee of the cooperative society concerned. The motion of no confidence shall be carried in case the motion is supported by more than fifty per cent of the elected members present in the meeting.

As the Management Committee is elected by members going by the above direction the society can by a special majority resolution (3/4t Members in favour), dismiss the Committee, but after 2 years in office.

As per law the tenure is 5 years and there is no provision in law to remove a Management Committee. But that was the situation in case of Amul Dairy’s case where the above bench upheld the no confidence motion against the chairman. There is no provision  in law for removal of chairman.        

Facebook

Twitter