Somshekar R. Bellare
Until 2013 an Associate Member whose name stood second on the share certificate had the right to vote and stand for elections to the managing committee of a CHS in Mumbai (Maharashtra), subject to the Original Member giving up his/her rights to vote or contest elections by an NOC.
The new 2014 Bye laws (xxiv (b) the definition of an ‘Associate Member’ has been amended —- means a member who holds the right, title and interest in the property individually or jointly with other, whose name does not stand first in share certificate.
My father was an Original Member of our CHS in Mumbai incorporated in 1955 as a Co-partnership Coop. Housing Society. Upon his death in 2008 the flat was transferred in my mother’s name being the sole nominee.
Being his son, my name is second on the share certificate as ‘Associate Member’ Where do I stand now in terms of the new definition of ‘Associate Member’; per new Bye-Laws 2014 (co-partnership housing society)
There are several contradictions viz the new Bye-Laws 2014 Vs the clarifications via Circular of 29 Nov 2014 by the First Commissioner of SCEA.
Appreciate if you could please provide me with the legal status into the position of my current status that of ‘Associate Member’ who does not hold any right, title or interest in the property, (the property which was purchased and occupied from 1955/1956.)
Also,
(1)Can I continue as ‘Associate Member’ with my name being second on the share certificate?
(2)Can I continue to vote and stand for the forthcoming elections to the Managing Committee?
My Mother whose name stands first on the share certificate, is clinically blind and unable to actively participate in the management or affairs of the CHS.
As her son (permanent resident in the same property since 1955/1956), how can I continue to protect her cooperative interests and welfare in the CHS per the new Bye-Laws 2014.
I C Naik
1.It is a wrong view that until 2013 an Associate Member had the right to stand for elections to the managing committee of a CHS in Mumbai (Maharashtra), subject to the Original Member giving up his/her rights to vote or contest elections by an NOC.
i.This is because Section 24(2) of the M C S Act 1960 allows members of cooperative society to confer rights/privileges of original members to the Associate members through express provision in the bye laws.
ii.The Bye-Laws (No 27 of Model 1984 and 25 of Models 2001 and 2009) restricted Associate’s right to voting on behalf of original member in his absence. .
iii.The new definition as per Bye-Law No 2(xxiv) (b) of 2014 Bye laws does not automatically replace definition of Associate as per earlier Models viz: “Associate Member’ means a member who holds jointly a share of the Society with others, but whose name does not stand first in the share certificate.” This definition continues to be relevant till such time Model 2014 is not registered as Bye-laws of the Society replacing the one registered earlier. It is not mandatory to adopt the latest Model Bye-laws.
iv.As per clause (19a) of the M C S Act 1960 member includes Associate member and as per Sub-Clause (b) “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; This definition is unchanged till today.
v.Even if your C H S adopts New Model 2014 your status as an Associate Member remains unchanged in view of (d) above for the M C S Act 1960 is superior to Bye-Laws. In fact a Bye-law repugnant to provisions of the Act is null and void.
2.You never had a right to stand for the elections to the Managing Committee and do not have even now and after 2014 Model is adopted and despite Rule 20 of the Maharashtra Co-operative Societies Election to Committee Rules, 2014 providing the same,
a.This is because as permissible under Section 24(2) of the M C S Act 1960 Model 2014 has not changed the rights of Associate member beyond voting in original member’s absence as specified under Bye-Law No 25 of Part (D) Restrictions on Rights of Associate and Nominal Members of Chapter II RIGHTS AND DUTIES OF MEMBERS QUOTE: “ No Associate Member shall have any rights or privileges of an active Member except as provided under Section 27(2) of the Act and he fulfills the conditions of bye-law 22(a)” UNQUOTE.
ii.Section 27(2) reads as under: QUOTE: Where a share of a society is held jointly by more than one person, the person whose name stands first in the share certificate, if present, shall have the right to vote. But in his absence the person whose name stands second, 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 present and who is not a minor, shall have the right to vote. UNQUOTE
3.You seem to be misled by Bye-Law No 118 (Models 2001 & 2009) QUOTE: “No person shall be eligible for being elected as a member of the Committee or co-opted on it, if :
(i)Not relevant
(ii)Not relevant
(iii)Not relevant
(iv) Not relevant
(v)In case of an associate member, non-submission of the no-objection certificate and undertaking, as prescribed under these bye-laws, by the member”. UNQUOTE This clause leads us to believe that Associate can cotest election as a right
Comments
(i)The word “person” is misleading because as per General Clauses Act person includes a body corporate whether registered or not and as a member of the managing committee of housing societies only individual members can join the managing committee. The correct phrase is “member of the Society ” in place “No person”
(ii) Again going by Section 24(2) of the Act right to join the managing committee must be specified in Bye-Laws then in that case only (v) comes in to play. In the absence of this right and in view of restriction under Part (D) Restrictions on Rights of Associate and Nominal Members of Chapter II RIGHTS AND DUTIES OF MEMBERS Bye-Law No 25 Associate has just one right to vote in the absence of original member.
4.You might be tempted to point out that Rule is superior to Bye-Laws and Rule 20 of the Maharashtra Co-operative Societies Election to Committee Rules, 2014 through a proviso reading as under must be respected by S C E A: QUOTE: 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. UNQUOTE
Comments:
With due respect to the Rule making authorities I beg to disagree that Rules in all cases are superior. Here it’s a test of superiority of provision under Section 24(2) of the Act over that of Rule 20 quoted above. Where Bye-Laws specify that Associate member have a right to join the managing committee in accordance with other provisions of Bye-laws Rule 20 can come in to play and not where Bye-Laws restrict the right of Associate to voting only. Proviso second to Rule 20(1) is derogatory to Section 24(2( of the Act
Sorry Shekar your assumed right to contest election does not exist, But your Associate Membership is intact.