Hundreds of cooperative housing societies in Maharashtra are anxious to see replacement of the office bearers holding onto the managements for almost two years under politically motivated procrastination in the Cooperation Ministry of the State Government.
Volley of questions received post 97CAA at www.indiancooperative.com reflects an extremely poor exposure to amended Maharashtra-cooperative society law (Especially Housing societies). .
The final printed version of the approved Model Bye-Laws 2014, is out supposedly aligned to
1.The 97CAA “Part IXB: The Cooperative Societies” of the Constitution of India.
2.Maharashtra Cooperative Societies (Amendment) Act 2013, [ Amending Act in short] [Effective 15 2 2013].
3.Maharashtra Co-operative Societies (1st Amendment) Rules, 2014 and [Amendment Rules 2014 in short] [Effective 30 8 2014]
4.Maharashtra Co-operative Societies Election to Committee Rules, 2014. [the Societies Election Rules 2014 in short] [Effective 11 9 2014]
In the absence of any authoritative advisory to housing societies to adopt the latest Model, in replacement of their registered Bye-Laws, no news of hasty adoption meetings are heard. The very much delayed elections are to be held as per the Societies Election Rules 2014 but still within the frame work of the earlier Model Bye-Laws (not aligned to 97CAA and the amended M C S Act 1960).
The new Cooperation Minister Chandrakant Patil has reportedly announced December 31, 2014 as an election deadline for smaller housing societies (Less than 200 Members) and June 30, 2015 for the rests.
The procedure for installing new managing committees (in smaller housing societies of less than 200 members) in place of those which have completed 5 year tenure in office is laid down in Rule 76 of the Societies Election Rules 2014.
Election hierarchy in S C E A
The S C E A headed by the State Cooperative Election Commissioner (SCEC) has presumably laid out an election hierarchy as under and is intensely engaged in election duty hopefully.
1.The District Cooperative Election Officers (DCEO),
2.The Taluka / Ward Cooperative Election Officer (WCEO),
3.The Returning Officer (RO)
4. The Presiding Officer (PO)
5.The Polling Officer (PLO)
Homework by S C E A as per the Societies Election Rules 2014
1.As contemplated under Second proviso to Rule 5(2) of the Societies Election Rules 2014, either the District Co-operative Election Officer or Taluka / Ward Cooperative Election Officers would have enlisted the name of every such society where the election of the Committee is due already.
2.Although election to smaller housing societies are to be held as per Rule 76, as per the same Rule and as per news paper reports, they can also go for ballot if contestants are more than the strength (as per their registered Bye-Laws as provided under new Section 73AAA(1) of the M C S Act 1960 ).( Think of committee strengths having no reservations built in the registered Bye-Laws and what will happen to the strengths of such housing societies).
3.The WCEO of the concerned Ward has (hopefully) received the list of voters of every housing society where elections are due, as the Committee was so required per rule 76(1) of the Societies Election Rules 2014.
4.As per Sub-Rule 2 of Rule 76 the Election of these societies are to be conducted in the special general body meeting to be called at 15 days’ notice exclusively for election purpose by the Presiding officer and is to be presided over by the person appointed, by the SCEA for this purpose.
5.The Ward Co-operative Election Officers of several wards seem to have received requisition ( As per Resolution of the general body meetings) to hold the election as prescribed in rule 75, (i.e. by secret ballot) a lengthy process for the election must be on.
6.Elections where they were due, are hopefully over by 31 12 2014, though seem unlikely.
Electing office bearers is the key to change over
1.Rule 77 prescribes the procedure for election of the new office bearers of smaller housing societies;
QUOTE: “As soon as the members of the committee are elected, the election of office bearers of any such society shall be held within the period of fifteen days from the declaration of the result as provided in its bye-laws. The meeting of the committee for this purpose shall be presided over by officer authorized by the SCEA.”
Although the rule is short and simple, the first issue that the Presiding Officer has to per force confront is to find out the intricacies’ of provisions of the registered Bye-Laws as regards electing office bearers. (Think of implications of a mismatch between Bye-Laws which in almost all housing societies are not aligned to amendments to M C S Act 1960.and the Societies Election Rules 2014 in supersession of all elections rules of cooperative societies in the State).
2.Looking forward to byelaw provisions of convening the first meeting of the newly elected committee, the Presiding Officer is bound to be startled finding two Bye-Laws, referring to first meeting of the new Committee namely Bye-Law No 123(a) and Bye-Law No 126(a) quoted below for easy reference.
a.Bye-Law No 123(a) QUOTE: “The first meeting of the newly elected and outgoing Committee shall be held within 30 days from the date of the constitution of the new committee as per bye-law No 119” UNQUOTE
b.Bye-Law No 126(a) QUOTE: “Every Committee, at its first meeting, after its election shall elect a Chairman, Secretary and Treasure from amongst the Members of the Committee.
3.The Presiding Officer finds that provision in (a) above is not the same as what Rule 77 requires. Thus the presiding officer of this meeting having an implied mandate to elect office bearers within 15 days from the date of declaration of election results, bye-law 123(a) gives outgoing Secretary a time of 30 days to convene first meeting of new committee (along with out-going committee members). He has to compel the outgoing Secretary to abide by the Rule 77 as Rules are superior in hierarchy. In that he is superseding the directions laid down in that very Rule.
4.Though of academic importance, the Bye-Law No 122 (a) of 2014 Model [corresponding to 123(a) of earlier Models] has while continuing exactly the similar provision, reduced the time frame of 30 days to 15 days for such joint meeting of the duly constituted committee under Bye-Law No 118 which is corresponding to 1119(a) of earlier Models.
5.This provision in the bye-law 123(a) compels the Presiding Officer to look at the procedure of constitution of the new managing committee under Bye-Law No 119. Keeping in mind the mandate of installing new office bearers in office, within 15 days after the election results are declared he gets perplexed finding something quite different in that Bye-law. The Bye-Law No 119 reads QUOTE: In a general election of a committee of a society, on the election of two-thirds or more number of members, the returning officer or any other officer or authority conducting such election shall within seven days after the declaration of results of election of such members, or where such election is held before the date of the commencement of the Maharashtra Co-operative Societies (Second Amendment) Act 1986(Mah xxxvii of 1986),and such number of members have been elected but the committee has, for whatever reason, not been so far constituted, forward their names together with their permanent address to the Registrar , who shall, within 15 days from the receipt thereof by him, publish or cause to be published such names and addresses by affixing on a Notice Board or at any prominent place in his office, and upon such publication, the committee of the society shall be deemed to be duly constituted. In determining two thirds of the number of members,a fraction shall be ignored. UNQUOTE
6.Few things are intriguing:
a.What if the members elected are less than 2/3 of the strength fixed under Bye-Law No 115 (a) (2009 and 2001)? No Clue really. Though it may prove controversial but the (smaller) Society may escape the embarrassment by invoking provisions of Bye-Law No 116(b) which are still in force, arguably: QUOTE: (b) In the event of receipt of inadequate valid nominations, required to constitute the full Committee, the general body at its meeting shall fill in the vacancies by election. On the failure of the general body meeting to elect the required number of members to constitute the Committee, the elected members of the committee shall be competent to fill in the same by co-option, whether they form the quorum or not, notwithstanding the provisions of the bye-law No. 127 regarding the Quorum. UNQUOTE Whether the Presiding Officer of the special general body meeting just called for the election of office bearers will approve of this route to forming a full strength committee is not free from doubt, as he will have to consult the S C E A undoubtedly in whom responsibility to form the managing committee of every cooperative society is vested.
b.What is meant by the starting phrase “In a general election of a committee of a society”? Definition of “general election’ is not found in Bye-laws. Election to committees under earlier Model Bye-Laws were society specific and approved Elections Rules are attached to Bye-Laws at annexure iii. So what is this general election? Is this Bye-law provision has really an application to the elections monitored by S C E A?
c.Yet another ambiguity is what is the idea of the phrase “but the committee has, for whatever reason, not been so far constituted” appearing in the middle of Bye-Law No 119. The Election Rules at Annexure III ( though these are superseded by the Societies Election Rules 2014) in Rule 30 provided that ” the Committee shall be constituted as enumerated under Section 73(3) of the M C S Act 1960.” Names of elected members are to be declared in the general body meeting called for such declaration, but with that it does not provide that the Committee has been constituted. That is provided I Rule 30 as aforesaid.
7.So as a matter of curiosity, he looks for Section 73(3) of the M C S Act 1960 only to find that it has been deleted vide Clause 26(b) of the Maharashtra Cooperative Societies (Amendment) Act 2013. But he was startled to find this Sub-Section reproduced at Bye-Law No 119 verbatim, and thus it is very much in force indirectly and he can ill-afford to bypass its requirements, though quite confusing.
8.If the Presiding Officer is extremely smart he should persist to find what General Election meant for a cooperative housing society?
a.The M C S Act 1960 has used the term General Election in Section 73G(2), for the election to the managing committees of certain societies as specified in Sub-Section (1) which were being held as per provisions of chapter XI-A. As cooperative housing societies were not among the cooperative societies specified in section 73 (G) (1), reference to general election in the Bye-Laws was uncalled for at that time.
b.The Presiding Officer will find himself in square 1 as election Rule 30 of the Election Rules of housing societies has given recognition to the Registrar deciding date of the constitution of the Committee after the elections are sent to him. And Elections Rules though superseded Bye-Law No 119 is binding.
9.The Presiding Officer has to use his clout on the Registrar to publish the names as required under Bye-Law No 119 immediately after declaration of results, and not to wait for all 30 days at his disposal.
10.For convening a joint meeting the presiding officer will have to use his clout here also and force the outgoing chairman/secretary to convene joint meeting forthwith giving just three clear days’ notice as soon as the Registrar has published the names, without exhausting 30 days time limit prescribed for this meeting.
11.Strangely joint meeting has not to do any business as per that or other Bye-laws and it seems to be a courtesy meeting. May be nothing is lost if not held. The Bye-Law 123(a) excuses secretary and chairman both if they shy away from joint meeting fo whatever reason and provide that the Registrar may convene this meeting (no compulsion).
12.Reverting to “constituting the new committee” it is quite perplexing that C&RC has continued to burden the Registrar’ with a duty under Bye-Law No 119 to formally announce constitution of the Committee after declaration of results. And this has been continued for future elections also.
13.The easiest thing would have been a provision in the Rule itself, (as all election processes are now centralized under the S C E A ) that notwithstanding anything in the Act Rules or bye-laws, the Presiding officer should convene the meeting of the new Committee to elect the office bearers within hours of declaration of the election result. There is no need to hold meeting of outgoing committee at all.
These are the ways of bureaucracy in Maharashtra Cooperation Department’s functioning. Possibly the only face saving for the State in the Maharashtra housing society elections is that the last Commissioner and Registrar of Cooperative Societies Mr. Madhukar Chaudhri has taken over as the first coveted post of the chief commissioner of State Cooperative Election Authority. He will overcome all hurdles setting a precedent for housing societies to find shortcuts to tricky situations.