Jayant Shertty
Would like you to clarify the following:-
1. Is it necessary for the 2nd applicant to reside in the flat?
2. If not residing whether the 2nd applicant can become a member of the Managing Committee of the Society after he receives a NOC from the 1st applicant?
I C Naik
2nd Applicant need not stay in the Society Property. Whether he can join MC depends on the Bye Law provisions because Section 24(2) of MCS Act 1960 Provides that “an associate member, may, have such privileges and rights and be subject to such liabilities of a member, as may be specified in the by-laws of the society.
The MODEL bye Laws have one bye law provision reading as under:
“No associate member shall have any rights or privileges of a member except as provided under Section 27(2) of the Act”.
Section 27(2) allows second applicant to attend member’s meeting and vote if the 1st Member is not present in the meeting.
Post 2013 Amendment to MCS Act 1960 all Elections are to be conducted by State Level Cooperative Election Commission and for that Maharashtra State Government has framed Election Rules and its Rule 20 is important to consider the answer to this question. Its Sub-Rule 1 reads as under;20. Nomination of candidates.— (1) Any member whose name appears in the final list of voters may be nominated as the candidate for the election to fill a seat, if he is qualified to be chosen under the provision of the Act, rules and the bye-laws of concerned society:
Then there is a Second proviso which is relevant here. It reads:
Provided further that, in case of associate members of co-operative housing society and cooperative premises society, the member whose name stands first in the share certificate shall be eligible to be nominated as candidate for the election. In absence of such person whose name stands second as associate member and in the absence of both, the person whose name stands next and likewise in the absence of the preceding persons the person whose name is next on the share certificate, who is not a minor shall be eligible to be nominated as candidate for the election.
This provision has been widely misconstrued in the State and it is propagated that Associates can contest election. Such propaganda overlooks the primary condition in the Rule that Bye Laws must confer such right.
Last three Models do have an implied permission to second member becoming MC Member with NOC of the 1st Member but that gets overridden by express restriction as aforesaid and despite CHS do have Associates as Secretary and even Chairman. There was an instance on this Column that in one CHS a Nominal Member is Chairman for 5 years!!!
When a CHS flouts it bye Laws the Authorities rarely interfere unless there is a complaint from any member.So end of the day an enlightened membership is the only answer to manage a CHS well.