A S Chawla
Our Society is located in Mumbai. As per new norms we were asked to file our documents at the Dy Registrar of Society Office for holding Elections. Now we have been assigned an Election Officer but he is acting very high & mighty. He says that election has to be held only on a particular date. We are having problem with that since we are only 12 members Society out of which 3-4 members are NRI/Non-effective members. He also tells us that we have to have 6 member Managing Committee with 2 lady members.
What is the relief for us under the rules so that we do not have to suffer from the diktat of the Election Officer?
Your guidance will be highly appreciated.
I C Naik
It appears the avowed objective of 97th Constitutional amendments is under serious threat on account of acts/omissions in the offices of the Commissioner for Cooperation and the Registrar of Cooperative Societies (CC&RC) across the State of Maharashtra. The lack of briefing and imparting the skill to interpret new regulations to the staff in the CC&RC is indeed poised to ridicule the well meaning reforms initiated by the Country’s highest law making body the Parliament to power pack the growth in co-operative movement. For example in one posh housing society in Andheri(w) in Mumbai Western Suburban District, a serious election issue arose wherein holding of elections was thrust upon before the expiry of the Committee’s tenure of 5 years. The Election officer did not see merits in the committee’s pleadings that by amending the Constitution of India now the Parliament has fixed uniform tenure of 5 years across all classes of cooperative societies for committees elected in office before or after the enactment of the 97th Constitutional Amendment. The MCS Act 1960 has also recognised it in new Section 73AAA(3) effective from 14 2 2013. It reads “3. The term of the office of the elected members of the committee and its office bearers shall be five years from the date of election and the term of the office bearers shall be co-terminus with the term of the committee “ This Constitutional Mandate is laid down vide Article 243ZJ(2). Who is going to bring home the sanctity of the Constitutional Mandate to this officer’s knowledge and the consequences of the contempt of the Constitution of India ? The Officer shortened the tenure of those members who did not get re-elected and they have a good reason to initiate contempt proceedings,
The Parliament unanimously mandated all the State legislatures to constitute independent single State Level Election Body to take charge of all cooperative elections (Committee, Casual Vacancies and Office bearers) across the State. What the State of Maharashtra did, was to shift the then incumbent to the office of the C C & R C to be the head of the Authority with powers to draw people from the Cooperation Department itself. Think of the fate of Parliament’s diktat for an independent State Authority for elections!!! Havoc in waiting!!! I apprehend a Cooperators’ outrage knocking the door in near future!!!
The 97th Constitutional Amendment became effective on 15 2 2012. Thereafter the MCS Act 1960 and the MCR 1961 were substantially amended and Consolidated Election rules were published : all by September 30, 2014. The CC&RC issued new Model Bye-Laws of almost all classes aligning to the changed law in the meanwhile. Elections which were due during this period were postponed indefinitely. Now slowly the election work is picking up. The departmental indifference to grasping the drastic changes effected after 6 decades is bound to take time in shredding itself pervading at all levels of the departmental hierarchy within the CC&RC regime.
Reverting to the issues of Chawla’s society election, I would not worry if NRI members are not there for electing new Committee as they are not useful any way. As for the strength of the Committee the Election Officer (EO) seems to be toeing the line of the learned Deputy Registrar Mr J D Patil (K West Ward) followed in a recent case of another tiny Estate Premises Society. The Model Bye-Laws recommended for Tenant Partnership type housing societies ASSOCIATE membership is not open to persons applying for paying Rs 100 as entrance fees. They must be joint flat holders. The learned DR Mr Patil took this new Model of housing society Bye-Laws as the law applicable to Estate Premises cooperative society, ignoring the fact that the society was governed by its own registered bye-laws. Its elected Secretary and two members of the committee (all Associate Members admitted collecting Rs 100) were ordered to be removed from the managing committee by the DR. They were held to be un-qualified to become Associate Members as they were not Joint flat owners. Read more: https://www.indiancooperative.com/from-states/how-a-dy-registrar-misguides-people-in-mumbai/ A N D https://www.indiancooperative.com/cooperative-coffee-shop/society-bye-laws-are-not-even-laws-of-land/
The E O in Chawla’s housing society’s case is also taking Model Bye-Laws as the law and applies Bye-Law No 114 to the impeding election. The new Model bye-laws 2014 having a table specifying a varying strength of the managing committees of housing societies with varying strength of voters. Minimum strength is 6+2 women (Reserved Constituency) for housing society having voters’ strength of 100 or less. The registered bye-laws of Chawla’s housing society presumably provides for the Committee’s strength of 4+1 woman (Reserved Constituency).
The fight is which number is right 6+2=8 or 4+1= 5? How do we find out the correct strength?. In that lies a test of the skill of correctly reading the Constitution of India Part IXB, the MCS Act 1960, the MCR 1961, New Election Rules 2014 and after all the registered bye-laws of the concerned society.
Sincere Advice to your members: Yours is a tiny society. Easiest option is let the EO do whatever he thinks right, as it may be futile to argue with such people who have not been correctly briefed. If the NRI were to support financially, the society should fight legally after the election is over, as a contribution to growth of Indian co-operative movement, if that appeals to them. If you do not go with him at this stage, the Dy. Registrar will hand over your society to an Authorized Officer for six months and in breach of section 77A with impunity, may be for longer duration. For example, in case of one posh complex Splendour Reality’s CHS project in Andheri (K West Ward: DR Mr. J D Patil ) completed in 2013 reportedly (Mumbai Mirror 2-11-2015) the Authorized Officer appointed in September 2013 handed over the society to elected managing committee after 2 years in October 2015. The maximum duration under the Act is 6 months. The 500 odd members have applied to Divisional Joint Registrar to deregister the society. Your Society can make out a very good case against such handing over to the Authorized officer.
Now lets us look at the correct law on the strength of the managing committee of Chawla’s society.
The strength of the managing committee is to be fixed under registered bye-laws of each housing society as provided by the MCS Act 1960 U/S 73AAA. Following is the relevant extract:
“73AAA. (1) The Committee shall consist of such number of members as may be provided in the by-laws:
Provided that, the maximum number of members of the committee shall not exceed twenty one:
So strength as per your Bye-Laws is the correct strength i.e 5 presumably.
Lastly, for one thing the EO is correctly briefed. As so required under the Constitution of India Proviso to Article 243ZJ, the MCS Act 1960 U/S 73C cast an obligation that every cooperative society must reserve 2 seats for women members of the society. So out of 5 members two seats are reserved for women members of your society. Bye-Laws are superseded for reservation.