I am a bona fide member of Kanishka CHSL located at Andheri West (K-Ward) Mumbai, Maharashtra. Registration number of our Society is BOM/HSG K-W/2294/1983.
I would like to know what procedure a Society has to follow to declare a member “Non-Active”
Since the Amended MCS Act has come into force in 2013 Non-Active member can be declared only from the year 2018 onwards. Is this statement true?
I C Naik
“ACTIVE MEMBER” is defined under clause 19(a1) of Section 2 of the M C S Act 1960 as under.
“(a-1) “active member” means one who participates in the affairs of the society and utilises the minimum level of services or products of that society as may be specified in the by-laws;”;
The M C S Act 1960 has many deficiencies and perhaps the maximum are in membership area, unfortunately and housing societies suffer the most.
In this definition it says ANY ONE (i) who participates and (ii) utilize minimum level of services” ONE here is a main member other than “Associate” and “nominal”
In co-operative housing society every resident utilize “maximum level of service” as a matter of necessity and not out of “choice” the first gaffe. Where is the need for bye-laws to specify “minimum level of service”
Clause 19(a) of Section 2 (19) (a) “member” means a person joining in an application for the registration of a cooperative society which is subsequently registered, or a person duly admitted to membership of a society after registration and includes a nominal, or associate member;
Member includes Associate and has a right to participate in all meetings of the members, except that he cannot vote if the member No 1 on the Share Certifcate is also present. [Mandatory direction issued under an Order as per powers to State under Section 79A of the M C S Act 1960 Resolution No: SAHGRUYO-2006/PRA. KRA. 1/ 14-S,Camp Office, Nagpur, Dated: 05 November 2006. The order in clause 3 provides “On any confusion arising in the General body meeting on which there is a difference in opinions of the Main Member from the Associate Member, the views of the Main Member will receive authorization.”
Reverting to your main question what is law and the procedure to declare a member Non-active.
Section 26(2) lays down two duties of every member. These are extracted below:
(2) It shall be the duty of every member of a society,—
(a) to attend at least one general body meeting within a consecutive period of five years :
Provided that, nothing in this clause shall apply to the member whose absence has been condoned by the general body of the society;
(b) toutilise minimum level of services at least once in a period of five consecutive years as specified in the by-laws of the society:
Note: Proviso to clause (a) above is a mockery of the duty as specified under(a)
Also carefully note the 1st Proviso to this sub-section as extracted below.
“Provided that, a member who does not attend at least one meeting of the general body as above and does not utilise minimum level of services at least once in a period of five consecutive years, as specified in the by-laws of such society shall be classified as non-active member”
Have you noted conflict between two Provisos to (a) and (b)?
No wonder you thought it fit to ask this question.
Comments : Utilizing minimum service does not make sense? Housing society services are not optional.
Consecutive period of 5 years is an issue.
Section 2 (10-aiii) “co-operative year” means a year ending on the 31st day of March or on such other day in regard to a particular society or class of societies as may have been fixed by the Registrar, from time to time, for balancing its or their accounts;
The Maharashtra cooperative societies (Amendment) Act 2013 came in to effect from 14 2 2013. So it was in force in the cooperative year 2012-13 being the first year. After that 4 years are 2013-14, 2014-15, 2015-16 and 2016-17. So if a member has not attended any General Body Meeting before March 2017 he is to be declared Non-active member.
The strange things are not yet over.
One more Proviso to Section 26(2) is extracted below:
Provided also that, a non-active member who does not attend at least one meeting of the general body and does not utilise minimum level of services as specified in the by-laws, in next five years from the date of classification as a non-active member, shall be liable for expulsion under section 35 :
In Section 27 (1) sub-section inserted w.e.f. 14 2 2013 is extracted below:
“(1A) Notwithstanding anything contained in sub-section (1), an active member who subsequently fails to participate in the affairs of the society and to use the services up to the minimum level as specified, from time to time, in the by-laws, shall cease to be an active member and shall not be entitled to vote.”;
The phrase “fails to participate in the affairs of the society” means not attending at least single General Body Meeting in consecutive 5 year . As per sub-section (1A) above an active member who is classified as Non-active shall not be entitled to vote.”; BUT HE MUST GO TO General Body Meeting and speak argue what ever but no voting.