By I C NAIK
Constituting Management Committee as also maintaining its full strength in most Cooperative Housing Societies registered in Maharashtra have been facing turbulence post 97CAA (the Constitution 97th Amendment) Act 2011.
Taking a call of constitutional mandate the Maharashtra legislature enacted a very comprehensive Amendment Act to the MCS Act (Maharashtra Cooperative Societies Act 1960) which came into effect on 14 2 2013.
Constituting the Management Committees in housing societies continued to face turbulent time even thereafter. Maybe more now as the Cooperative Department apparently failed to live up to the challenge of organizing free and fair elections, the responsibility of which has been entrusted to the State Level Election Authority constituted by the State Legislature. The Department also did not leave any stone unturned in creating troubles in the management of housing societies.
Recently the MAHARASHTRA ACT No. XXIII OF 2019 was accorded the assent of the Governor and published the Act in the “Maharashtra Government Gazette” on 23rd of Jul. Under this enactment with a view to strengthening the regulatory regime of housing societies in the interest of the stakeholders the State Legislature inserted an exclusive chapter XIII Cooperative Housing Societies (vide its Section 8)in MCS Act which came into effect on 9th March 2019.
This new chapter has one very important Section namely Section 154B having two Sub-sections 1 & 2. Provisions of these two sections in a way provide a frame work of a law on cooperative housing societies, inside the MCS Act.
The CHS Chapter in MCS Act has radically redefined the membership of Cooperative Housing Societies and along with a few more changes providing an ease of constituting the Management Committees is quite apparent. Going forward we find out how far it is true?
Post 97CAA (which gave a constitutional status to the cooperative societies, See Para 5 of The Supreme Court Order in Vipul Chaudhary Vs Amul Dairy: delivered on March 19, 2015 [(2015) 42 SCD 494], the MCS Act had redefined the Cooperative Society;
Section 2 (27) “society” means a co-operative society registered, or deemed to be registered, under this Act which is an autonomous association of persons, united voluntarily to meet their common needs and aspirations through a jointly owned and democratically controlled enterprise and adhering to the co-operative principles and values.
It is quite pertinent to note that the Apex Court in its 19th March order (supra) has made explicit reference to the co-operative principles and values while exhorting Indian judiciary and law makers that” When the Constitution is eloquent, the laws made there cannot be silent. If the statute is silent or imprecise on the requirements under the Constitution, it is for the court to read the constitutional mandate into the provisions concerned and declare it accordingly.
Central ideas on cooperative management are extremely very well engraved in just one cooperative principle namely “Co-operatives are democratic organizations controlled by their members, who actively participate in setting their policies and making decisions. Men and women serving as elected representatives are accountable to the membership.” Very satisfactory practice of this principle in cooperative society and more particularly in Housing Society is the main challenge of membership. It demands maximum coordination inter se the membership which may beneficially extended to all the residents of Housing Society. The ease of constituting the Management Committee is the most essential prerequisite of success of every Housing Society.
Membership has now been made broad based by liberalizing the rules of Associate membership of Housing Society. It includes husband, wife, father, mother, brother, sister, son, daughter, son-in-law, daughter-in-law, nephew, niece. The list does not end here but it also extends to a person unrelated to a member. He/she should be duly admitted to Membership on a written recommendation of a Member to exercise his rights and duties with his written prior consent. The most convenient liberalization is that the Associate member need not hold and share the society as his /her name is not required in the share certificate. The other ease lies in the fact that these relatives are Associates of any member of a CHS with no formalities to be completed except that Rule 19 of the MCR 1961 extracted below needs to be adhered to:
“No person shall be admitted as a member of a society unless—
(i) he has applied in writing in the form laid down by the society or in the form specified by the Registrar, if any, for membership;
(ii) his application is approved by the committee of the society in pursuance of the powers conferred on it in that behalf and subject to such resolution as the general body of members may in pursuance of the powers conferred on it in that behalf from time to time pass and in the case of nominal, or associate member, by an officer of the society authorized in that behalf by the Committee.”[S.154B-8(18)]
The Associate Member shall have right to contest the election to the Committee with prior written consent of a Member [ Section 154B-10(6)]
The question of admitting a member(s) to the Management Committee can arise under two circumstances namely through periodic general election to reconstitute a committee upon expiry of the tenure. The other is filling up a casual vacancy. The CHS Act 2019 permits the smaller housing societies (less than 250 members) an in-house election process at general body meetings vide Section 2. It has inserted the following proviso to Section 73CB (11) of MCS Act which required cooperative societies to inform SCEA to organize elections to Committees including filling up of casual vacancies.
The Management Committee was permitted to fill up casual vacancy by co-option in case the remaining tenure of the Management Committee was less than half. In other cases the societies had to inform SCEA requesting for supervision of election for the required number of seats. Proviso for in house elections in smaller housing societies reads as under:
“Provided further that, in case of housing society having less than or up to 250 Members, the elections of the Committee shall be conducted by the said housing society in the manner as may be prescribed.”.
This proviso should mean elections to fill up casual vacancy after half the tenure of the Management Committee has expired can be conducted in special general body meetings.
As of now till the State Government takes action required under the following section of amended MCS Act the Housing Society management may be confused about the strength.
Section 154B-19 “(1) Committee shall consist of such number of Members as may be decided by the State Government by notification or special order, from time to time.”
Perhaps housing societies may advisedly maintain a status quo in case of the strength of the Management Committee.