By I C Naik
Courtesy Shraddha B-and-C-CHS (Mumbai) (a querist CHS society 14th March 2016), I received an old Internal circular reference J.C. SCEA/dept-10/Section 73 AAA (5)/vacancy/2015/7952. Dated 19/9/2015 translated by its member in English which was issued originally in Marathi language.
This Circular clarifies the provisions (i) casual vacancies and (ii) vacancies up to 1/3 strength arising before elected committee assumes office and strangely a direction for filling up (i) category of casual vacancies “to keep on hold” has been given to concerned internal functionaries. The reason is also quite strange namely “ on account of ambiguities in the Act and the Rules.” The ambiguities are best known to SCEA, as not spelt out. When the hold on filling up casual vacancies is on and a Secretary leaves the CHS. No other member is willing to take up Secretary’s responsibility. Can the society carry on without a Secretary?
The maiden SCEA is constituted by the State in terms of provisions of new Section 73CB in the MCS Act 1960 when it came upon the State Legislature under 97th Constitutional Amendment to do so. Interestingly Article 243ZJ(2) has a simplified constitutional freedom about filling up a Casual Vacancy in one particular situation namely :
Provided that the board may fill a casual vacancy on the board by nomination out of the same class of members in respect of which the casual vacancy has arisen, if the term of office of the board is less than half of its original term.
At a cost of repetition it is being reminded that the Constitutional provision supersedes any conflicting provision in any law of the land including Bye-Laws. As several housing societies in Mumbai have Managing Committees in office after 5 years’ tenure has expired (thanks to Section 166(4) gate way and delayed installation of the SCEA), almost every casual vacancy in these Committees is governed directly by the Constitution of India as aforesaid.
On11th September 2014 the State Government issued the Maharashtra Co-operative Societies (Election to Committee) Rules, 2014. Rules 3 and 72 are worth noting for topic under discussion and relevant parts of both are extracted belw:
Rule 3. Powers of State Co-operative Election Authority (SCEA).—In order to conduct the elections of the co-operative societies, the SCEA shall have the power among others :—
(v) to issue such special or general orders or directions for fair and free elections, which shall not be inconsistent with the provisions of the Act and the Rules.
Rule 74. Casual vacancies how to be filled in.— In the event of vacancy occurring on account of death, resignation, disqualification or removal of the member of a society or through such a member becoming incapable of acting prior to the expiry of his term of office or otherwise, the Chief Executive officer of the Society shall forthwith communicate the occurrence of such vacancies to the SCEA and the vacancy shall be filled as soon as conveniently, according to the provisions of the Act..
The Circular under discussions seems to have been issued in view of the absence of clarity as also no time limit on filling up a casual vacancy is laid down in the Rule.
A question mark is also there on exercise of SCEA’s Power as per Rule (3)(v) “which shall not be inconsistent with the provisions of the Act and the Rules” but if it is inconsistent with the provisions of the Constitution of India?
I am often asked for my opinion, without hesitation I have been saying to go ahead and make use of the proviso if your vacancy falls in that Proviso. It is in the domain of the Managing Committee as granted by the Constitution of India. I also add that be prepared to fight out and do not accept meekly if a notice is received from SCEA office on the grounds that the Rule 3(v) does not mention the Constitution of India but restricts it to provisions of the Act and the Rules.