By I C Naik
A freedom from the State Cooperative Election Authority to 100 (or less) Member CHS in Maharashtra is in the offing. Reportedly (Mumbai Mirror 14 7 2018) “the State Cabinet exempts those with fewer than 100 members from the ‘tedious’ process of approaching election authority”.
The Maharashtra Cooperative Societies (Amendment) Act 2013 [Societies Amendment Act in short] inserted a new Section 73CB providing inter alia that “The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to a society shall vest in the authority called as the State Co-operative Election Authority’” [Sub-section (1) of S 73CB].
Further it is also emphasized in that Sub-section (1) that “Every general election of the members of the committee and election of the office-bearers of a society including any casual vacancy, to the extent applicable, shall be held as per the procedure prescribed .”
In the context of the Cabinet Decision it is pertinent to note that the Societies Amendment Act has cut down the State Government’s power to grant exemptions inserting a new Proviso to Section 157 which provides for such exemptions, namely “Provided further that, the State Government shall not exempt any society or class of societies from the provisions made under sections 26, 73A, 73AAA, 73B, 73C, 73CA, 73CB, 73E, 75, 76, 78, 78A and 81.”
Reportedly “Sitaram Rane, president of Maharashtra State Co-op Housing Society Federation, said the cabinet’s approval will have to be enforced via an amendment to the Maharashtra Cooperative Societies Act or an ordinance. “ This could be because of aforesaid cut in the Government’s powers of granting arbitrary exemption to cooperative societies.
It may be worth apprising members of the background of new cooperative election regime in cooperative societies almost on the line of election to Legislative Assembly, independent of polity and bureaucracy. While moving the Bill in the Parliament for effecting substantial reforms to cooperative regulations, many weaknesses were pointed out to the Parliament including an important one in these words;
“There have been instances where elections have been postponed indefinitely and nominated office bearers or administrators remaining in-charge of these institutions for a long time. This reduces the accountability of the management of co-operative societies to their members”
I the historic amendment to the Constitution of India i.e. 97th Constitutional Amendment, the centralization of all elections in cooperative societies at the State level is mandated. So far elections were conducted internally by the existing committees themselves. This autonomy has now been withdrawn. New Article 243ZK (2) inserted in the Constitution of India in new “PART 9B COOPERATIVE SOCIETIES” reads as:
“(2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law:”
Proviso is appended to above Sub-Article 2 clarifying that the State Legislature may pass a law for prescribing “the procedure and guidelines for the conduct of such elections”.
While going through provisions in an exclusive Section 73CB on the State Cooperative Election Authority, one comes across almost everything that relates to the constitution and regulations on working of the S E C A. Only two Sub-sections (11 & 12) touch upon some procedure and guidelines for the conduct of such elections, where in both authorizes the State Bureaucracy to make Rules on several critical matters like;
- The procedure, guidelines and use Of the latest technology.
- Classification of societies on various considerations.
Sub-section (14) directs the committee of every co-operative society inter alia:
(a) To inform the S C E A about the expiry of its term of office at-least six months before the date of expiry of such term;
(b) To inform any casual vacancy occurred in the committee or its office bearers, within fifteen days of the occurrence of such vacancy;
The Society Election Rules classifies all societies in 4 categories including housing societies having membership strength below 200 in Category D prescribing election in General Body Meetings chaired by the representative of S C E A.
A moot question to be answered is: Whether cabinet exemption to small housing societies when built in to the M C S Act 1960 by suitable amendment thereto vide Ordinance or by an enactment of the State Legislature, will not be held contrary to the Constitutional provision(Article 243ZK (2)]. If the answer is yes, then such enactment of the State Legislature shall stand superseded in terms of provisions of Article 243ZT of Part IX B COOPERATIVE SOCIETIES of the Constitution of India.