By I C Naik
Post 97th Constitutional Amendment, the MCS Act 1960 confers power of fixing the strength of the Committee of cooperative societies by specifying the number in their registered Bye-Laws, within a ceiling of 21 and including 2 seats to represent women members and 3 seats to represent members of certain casts balance being general category [Sections 73AAA/73B and 73C].
I came in to possession of a recent Notice issued by one Election officer concerning a Special General body meeting to conduct elections in D type (Membership below 200) housing society. Certain instructions in this Notice are really prone to controversy and dissatisfaction among voters and contestants. Within two months of declaration of the election results spate of election petitions landing up in the Co-operative Courts appears almost certain. Rule 78 of the Maharashtra Co-operative Societies (Election to Committee) Rules, 2014 provides No election shall be called in question, except by an election petition presented to the Co-operative Court as laid down in section 91.
Very pertinent to note is that Clause (5) of Section 2 of the MCS Act 1960 defines the term “Bye-Laws”: “by-laws” means by-laws registered under this Act and for the time being in force and includes registered amendments of such by-laws. It is important to bear this definition in mind because Committee strength of different housing societies are specified in the registered by them See Para 1 above). There are at least 5 models currently in use namely (i) Pre-1984, (ii) 1984, (iii) 2001,(iv) 2009 and (v) 2014.
It appears the internal instructions to Election Officers [EOs] are reckon the definition of Bye-Laws of housing society as : “by-laws” means the latest Model by-laws as approved by the Commissioner for Cooperation and the Registrar of Cooperative Societies Maharashtra State, Pune, and sent to the Mumbai District Federation of Housing Societies for printing and supplying to member societies for adaptation as their new Bye-Laws, and shall be deemed to be the registered bye-laws of the concerned society whether adopted or not”
Lets take one example to simplify the issue. Bye-Law No 114 of the latest Model 2014, has a model table for deciding the strength of the Committees by housing societies having varying membership strength. This table has to be adapted to fix the Committee Strength as per actual membership strength. As the Bye-Laws must not be in conflict with the Act, Rules of the MCR 1961 and Constitutional Provisions, Reserved seats have to be reckoned as part of total strength. As an example, in case of a housing society having membership strength between 51-100, under its Bye-Law No 115 of the registered bye-laws [as per Model 2001], has the total strength of 7 members comprising 6 seats in Unreserved General Constituency and 1 to represent women. By virtue of the 97th Constitutional Amendment [whether Bye-Laws are amended or not] this strength stands modified as under: Gen. 4+Women 2+ Cast based 1 =7.
The EOs have notified Seats to be filled in as per Bye-Law No 114 of 2014 Model e.g. for 51-100 membership society, the total strength is 11 (as against legal correct legal strength of 7 as per registered bye-laws) with constituencies comprised of Gen. 6+ W 2 + 3=11. After the election results are announced there can be petitions for declaring election as null and void as having been held in breach of its registered bye-law No 115.
Controversial Instructions:
- One instruction reads : Joint Member means a member, who holds the right. title and interest. in the property individually or jointly with other, but whose name does not stand first in Share Certificate, can attend the meeting.
v This is in conflict with definition as per Clause 19(b) reading as “associate” member” means a member who holds jointly a share of a society with others, but whose name does not stand first in the share certificate;
The terminology Joint Member is not used in the MCS Act 1960.
- EO has announced that in the event of zero nomination in Reserved Seats, the strength will be reduced.
v This instruction is in conflict with existing provision in Bye-Law No 115 of the registered bye-laws of the housing society. namely * Explanation:-In case woman members are not available or not willing to represent on the Committee, the seats reserved for them may be filled from other eligible members.
- EO has laid down that where a Joint Member desires to propose / second any nomination or wants to cast his vote, he must submit form 10A duly completed as provided under Bye-Laws.
v Under form 10A the original member agrees to stay away from taking part in the affairs of the society as long as his Associate is a member of the Committee. This has no connection to supporting/seconding nomination or voting in absence of the main member.
- In another instruction it is declared that if a member is defaulter according to provisions of Section 73CA he will not be allowed to cast his vote.
v This is a patent miss-interpretation of the Section as under this Section disqualification is to contest election and not to casting a vote in election.
All the above instructions have no legal support. These are arbitrary administrative instructions.
- EO deprives a contestant seeking remedy for wrongful rejection of nomination during scrutiny.