Pradip Bochia
I am staying in one big society having around 170 members, at Vasai Road West. Following is the detail of my some quarries:
1. Election of Managing Committee
In the month of April-2013, we have Election of Managing Committee which was conducted by officer came from Deputy Registrar – Vasai. Out of 11 members of new committee, there is one lady who has been elected by Society members and has been appointed as Treasurer of Society.
Referred lady is not the registered member of Society since her name is not there in the agreement of Sale. (agreement contains only one single name of her husband). As per some ones instruction she have paid Rs. 100/- towards membership fees and fill-up the form for election of MC.
My query is whether as per bye laws of Maharashtra Co-operative Housing Society is the above process is legal or not ?
2. If any member give their flat on Leave & License bases, what type of charges the original member has to bear and what type of charges to be paid by person who has taken the flat on rental base.
3. In our Society, each member is suppose to pay monthy charges to Society for
(01) General Maintenance Charges,
(02) Municipal Water Charges,
(03) Tanker water Charges,
(04) Lift Charges,
(05) Sinking Fund,
(06) Repair Fund,
(07) Special Repair Fund (Colour & Repairs)
(08) Accounts & Auditing Charges
(09) Cultural Function Contribution
(10) Vehicle Parking Charges
(11) Misc Charges
Request you to provide me your valuable guidance for the above.
I C Naik
1. The woman has been enrolled as “Associate Member” in terms of Bye Law No 19(B) [Model 2001] on payment of admission fee of ` 100 and application form as per Appendix 7 or 8 as my be applicable.
2. Her nomination for elections to the managing committee was filed along with form 10A being a No objection and undertaking for Associate to join the managing committee in terms of Bye Law No 118(V).
3. Since member includes Associate member [Interpretation Bye Law No 3 (XXIV)] read with Bye Law No 125 reproduced below, she was appointed the Treasurer.
125 (a) Every Committee, at its first meeting, after its election, shall elect a Chairman, a Secretary and Treasure from amongst the members of the Committee.
4. The Officer who came from Vasai office of the Dy. Registrar was supposedly acting in the interest of the society but not without bending the Society Law substantially.
The contradiction
1. Pursuant to a Constitutional mandate as per Part IXB: The Cooperative Societies, the Government of the State of Maharashtra promulgated ordinance to align the provisions of the M. C. S. Act 1960 to Constitutional Provisions effective 14 2 2103. The ordinance was later replaced by the Maharashtra Cooperative Societies (Amendment) Act 2013. So the M. C. S. Act 1960 stood substantially amended. One significant change is insertion of Section 73CB and sub-section (1) thereof says “The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Election shall vest in the authority called as the State Co-operative Election Authority’, as may be constituted by the State Government in that behalf. 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
2. Sub Section (15) of Section 73CB says “Notwithstanding anything contained in this Act, the rules or the by-laws of any co-operative society, the election to the committee and consequent election of the office-bearers which is due on the date of commencement of the Maharashtra Co-operative Societies (Amendment) Mah. Act, 2013, or may become due after such date, until 31st March 2013 shall be held before the 31st December 2013.”.[ in accordance with the Election Rules as may be prescribed as aforesaid in Sub-section 1 of course]
3. As required under this sub-section (1) the State Government has issued the Election Rules called the Maharashtra Co-operative Societies Election to Committee Rules, 2013 (in short the Election Rules) as published in the Extraordinary Gazette on 20 8 2013 No C.S.R. No. 639/15 C dated 19 8 2013.
4. In the Election Rules contain Rule 75 making special provisions In respect of election of the Committee of cooperative housing societies having more than 100 members. As per this Rule, the Election Authority for all practical purposes for cooperative housing societies is the Ward Co-operative Election Officer (in short WCEO) working under the supervision of the District Co-Operative Election Officer and the State Cooperative Election Authority (in short the SCEA). Certain steps are prescribed under this Rule.
5. Since the SCEA has not been appointed so far and since the Election Rules were published on 20-08-2013 it remains to be a matter of fact finding as to what rules were applied by Dy Registrar Vasai in getting the committee elections conducted in Pradipkumar’s Society in April 2013. Legality of this election itself will depend on how the Dy Registrar explains this answer.
6. In a recent case the Circular dated 6th March, 2013 issued by the Commissioner and Registrar of Cooperative Societies Pune has been quashed by Bombay High Court. The said circular lays down the procedure of preparation of a panel of Auditors and Auditing firms in accordance with the third proviso to sub-section (1) (a) of Section 81 of the Maharashtra Cooperative Societies Act, 1960 as amended by Maharashtra Ordinance No. II of 2013. The reason for quashing the circular was that the Act required State to frame Rules for constituting Auditing Panel which was not done before the circular was issued [WRIT PETITION NO.7071 OF 2013]
7. The elections held in Pradip Bochia’s Society in April 2013 were held before the election rules were framed so legality of this election is questionable in view of the Bombay High Court view in a similar mater described above.
Question mark on the Associate member joining the Committee and becoming Treasurer
1. As per Bye Law No 25 of this cooperative housing society “No Associate member shall have any rights or privileges of an Active member except as provided under Section 27(2) of the Act.” That right is a sole right of voting in the general body meeting in the absence of the original member.
2. This position is also supported elsewhere in Society Law. There is a proviso to Rule 20 of the Maharashtra Co-operative Societies Election to Committee Rules, 2013 (Published in the Maharashtra Gazette on 20-8-2013) reading as under:
“Provided that, in case of joint or associate members, only the member whose name stands first in the share certificate shall be eligible to be nominated as candidate for the election. (to the managing committee) “
3. Yet another support to this disability of the Associate member is to be found on page 16 of the Housing annual posted on the web-site of the Cooperative Commissioner Pune in these words “A person, who became an Associate member by paying only admission fee, shall not get any rights in voting or election on behalf the original member. It is necessary for the Associate member that his share/name is included in the ownership of property for holding share jointly.”
4. It can be said that the woman member was elected to the Committee in violation of Election Rules which were framed after the date of election but were very much applicable to all elections held after 14 2 2013 in terms provisions of Part IXB: The Cooperative Societies of the Indian Constitution.
Society Charges
1. Where a member sub-lets his flat on Leave & License basis, the original member has to bear all Society Charges plus what is called Non Occupancy Charges as he is not occupying the flat himself. The general body meeting has to decide the rate of NOC. But as per Bye Law No 43(2)c Non-occupancy charges shall be charged in accordance with the circular issued by the Department of Co-operation Government of Maharashtra from time to time.
2. As per circular in force, Non-Occupancy charges shall not exceed 10% of service charges. (excluding Municipal Corporation/ Municipal Taxes).
3. The person taking flat on rent does not pay anything to the society except one time entrance fee of ` 100 to become a Nominal Member by filling up a prescribed form.