CHS committee comes to power by a foul play

Complaint from Shankar Nair

This is an SOS mail from an erstwhile member of the managing committee of HAPPY GO LUCKY COOPERATIVE HOUSING SOCIETY registered in the year 1997 in Bhayander Meera Road, Thane Maharashtra.

New Bye Laws have not been adopted so far.

The present Committee came to power by a foul play of extending date of filing nomination for 24 hours as there were only 3 valid nominations received in time and outgoing committee kept away from election. But previous Committee returned to power and I and some well meaning friends failed to get elected.

The Committee has not fared well during its three year tenure expiring on 30^th April 2013. Returning officer has issued a Notice and Election Program inviting nominations for 9 seats. Our Society has 172 flats and 44 members have two flats each. 35 flats are in the names of wives of real owners. As per Members’ list displayed there are 172 recognized voters for this Election like last election held in March 2011.

Nominations are to be filed by 15^th March the latest. I and a few of my sincere friends who were members in the past, want to contest once again but going by the last election experience, I have some doubts if this Committee was doing things in lawful manner?

I hope my doubts will be cleared immediately and latest by 14^th March so that I can take an appropriate decision in accordance with the latest law.

I C Naik

Dear Mr Shankar Nair,

It is an extremely unfortunate situation, I find you in. Even in more than 15 years elderly cooperative housing society, you do not have the benefit of experienced managing committee. In any case, I am glad there is a conscious member like you that you care for law and chose to refer it to me. I must thank you for giving me a real life case for my study and improvised my thoughts.

The situation before you is quite complex, as I find in you a very sincere cooperator.

I am amused that three years back when the current Committee was elected a foul play was suspected. In most cooperative housing societies members are reluctant to take up management responsibility. But your managing committee members appear to be funny. They did have a craving to be in management. Though on one hand they refrained from filing nominations in time, perhaps hoping that there will be no nominations and the then current Committee will continue as an obliging gesture for the rest of the membership but when they found a few members have filed nominations at the last minute they manipulated the Returning officer, filed nominations and got elected too.

At the same time it is more horrifying to find that your Committee members are totally ignorant of happenings in the State and in the country in the cooperative movement.

They are really the most HAPPY GO LUCKY COMMITTEE MEMBERS OF COOPERATIVE HOUSING SOCIETY in city like MUMBAI.

On a serious note:

Let us look at the changed scenario in the context of the situation you and HAPPY GO LUCKY COMMITTEE MEMBERS are in and may be several other well meaning cooperators like you in State of Maharashtra and elsewhere in the country, I have no doubt about it.

You seem to be aware, but your committee does not, that the Constitution (97^th Amendment) Act 2011 (97CAA) vide Art 243ZJ(2) [reproduced below] has increased the term of the managing committee of every cooperative society to 5 years. A few were already having 5 years. QUOTE “The term of office of elected members of the board and its office bearers shall be five years from the date of election and the term of office bearers shall be coterminous with the term of the board: UNQUOTE. So the tenure of the managing committee of the HAPPY GO LUCKY COOPERATIVE HOUSING SOCIETY’ will now expire on 30^th April 2016 and not on 30^th April 2014 as thought by your Committee.
Let me hasten to add that the Maharashtra Cooperative Societies (Amendment) Act 2013 (the Amending Act) has inserted new Section 73AAA in the M C S Act 1960 and its Sub-Section 3 reads as under: QUOTE “(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” UNQUOTE. The Amending Act has come in to force from 14-02-2013.
The managing committee and Returning Officer of HAPPY GO LUCKY COOPERATIVE HOUSING SOCIETY all seem to be obsessed with the Bye Law No 115 under which the Election Rules guide election of new committee to be held every three years. But with this perhaps they may have a re-think.

As I can see there is a strong likely hood that the managing committee of the HAPPY GO LUCKY COOPERATIVE HOUSING SOCIETY may still not get convinced and refusing to correct their faulty thinking insists that their term is 3 years and also insists on going ahead with the election program as announced.

Then the following should help them coming to terms with reality.

The Maharashtra Cooperative Societies (Amendment) Act 2013 has come in to force with effect from 14-02-2013 and even if the bye laws are not amended to fall in line with the latest cooperative laws, such contradictory Bye Laws get overruled by the latest law. Supreme Court has repeatedly said that. QUOTE “We are unable to accept the submission that the bye-laws of a co-operative society framed in pursuance of the provisions of the Act can be held to be law or to have the force of law.” UNQUOTE. [The Apex Court in Co-Operative Central Bank Ltd. & … vs Additional Industrial Tribunal, way back on 3 April, 1969 [1970 AIR 245, 1970 SCR (1) 206 – Division Bench of J. Bhargava Vishishtha, J Shelat, And J.M.Vaidyialingam, C.A. – QUOTE The bye-laws of a cooperative society framed in pursuance of the provision of the relevant Act cannot be held to be law or to have the force of law. They are neither statutory in character nor they have statutory flavour so as to be raised to the status of law. If there is any conflict between a statute and the subordinate legislation, the statute prevails over subordinate legislation and the bye- law if not in conformity with the statute in order to give effect to the statutory provision the rule or bye-law has to be ignored. The statutory provision has precedence and must be complied with. [780 B-C]” UNQUOTE In 1983 the Supreme Court in Babaji Kondaji Garad Etc vs The Nasik Merchants Co-Operative … on 31 October, 1983 [1984 AIR 192, 1984 SCR (1) 767]

The Election Rules referred to in the Bye Law No 115 are also superseded with effect from 20-08-2013. Read this extract from the Gazette of the State of Maharashtra:

“No. CSL-2013/C.R. No. 639/15 C.— In exercise of the powers conferred by sub-section (2) of section 165 of the Maharashtra Co-operative Societies Act, 1960 (Mah. XXIV of 1961), and of all other powers enabling it in that behalf, and supersession of all existing rules related to elections, the Government of Maharashtra, after considering the objections and suggestions, pursuant to the Government Notification, Co-operation, Marketing and Textiles Department, No.CSL-2013/C.R. No. 639/15 C, dated 19th August 2013, published in the Maharashtra Government Gazette, Extraordinary, Part IV-B, dated 20th August 2013, hereby makes the following rules to regulate the conduct of elections to the Co-operative Societies, which rules may be called The Maharashtra Co-operative Societies Election to Committee Rules, 2013.”

These are the new “Consolidated Election Rules” for all Elections of all cooperative societies in the State.

HAPPY GO LUCKY COOPERATIVE HOUSING SOCIETY falls in Category C of the four categories classified under Rule 4 of the Consolidated Election Rules. A simplified procedure is prescribed for cooperative societies having membership of more than 99 members. This Rule is No 75.

As per Sub-Rule 2 (B) “The Taluka or Ward Co-operative Election Officer shall appoint a returning officer from office of the Co-operative department or a panel approved by the SCEA and the returning officer shall prepare a election programme with the approval of Taluka or Ward Co-operative Election Officer at the earliest.”

The appointment of Returning Officer of and the Election program announced by him is not in consonance with the latest law on election in cooperative societies and are not valid in law.

The cooperative society election story is not complete. The Amending Act has inserted Sub-Section 4 in Section 166 of the M C S Act 1960 which reads as under:

“(4) Notwithstanding anything contained in this Act, as amended by the Maharashtra Co-operative Societies (Amendment) Act, 2013, but subject to the provisions of sub-section (15) of section 73CB, the committees of which the elections become due after the 31st March 2013, shall continue till the elections to such societies are held under the provisions of this Act as amended by the said Act.

So the process of election started in HAPPY GO LUCKY COOPERATIVE HOUSING SOCIETY has to be suspended forthwith even on a mistaken belief that it’s committee will reach end of its tenure on 30-04-2014.

SOMETHING MORE INCIDENTALLY

There are a few misgivings I have observed in the minds of the present managing committee and since you are a well meaning cooperator I would like to offer some hints for your society to take benefit of, as now onwards there will be State Cooperative Election Authority going to closely observe election.

The Bye Laws

On “New Bye Laws have not been adopted so far” I suggest to down load Model Bye Laws 2013 (proposed) from the following website and discuss thread bare with in the Committee.

http://sahakarayukta.maharashtra.gov.in/SITE/PDF/Rules_Acts_Bylaws/Model_ByeLaws_of_Housing_Cooperative_societies.pdf

It will be step of wisdom to adopt the latest Model Bye Laws as soon as they are finalized and became available by Mumbai District Housing Federation. They are getting aligned to 97CAA and the M C S Act 1960 as amended.

Seat Reservations for women

Section 73C of the M C S Act 1960 has increased the reservation of women to two seats. HAPPY GO LUCKY COOPERATIVE HOUSING SOCIETY does not seem to believe in reservation for woman which was for one seat under old Section 73BBB. And two seats under new Section 73C.

In Babaji Kondaji Garad Etc vs The Nasik Merchants Co-Operative [SUPRA] the election was challenged by a member of the society belonging to Scheduled Tribe on the ground that the whole of the election program was vitiated on account of its non compliance with the mandatory statutory provision enacted in sec. 73B which prescribed reservation of seats. The election program did not announce the fact of reservation of seats. The Supreme court accepted the plea and declared election as illegal.

Voters’ list :-

Sometime later the managing committee of HAPPY GO LUCKY COOPERATIVE HOUSING SOCIETY will have to send a Voter’s list to Registrar pursuant to Rule 75(2)(A) of Consolidated Election Rules. Present voters’ strength 172 that is one voter for every flat. 44 members’ names appear twice as each one has two flats and they must be voting twice in the past. As per Section 27(1) “no member of any society shall have more than one vote in its affairs “ So your committee had been in violation of this cardinal principle of cooperative society. The concerned members can still be declared disqualified to contest elections for 6 years in future. So better prepare an accurate list of votrs.

Strength of members of the managing committee
1. In Part IXB: The Cooperative Societies of the Constitution Art. 243ZJ (1) reads ‘The board shall consist of such number of directors as may be provided by the Legislature of a State, by law: Provided that the maximum number of directors of a co-operative society shall not exceed twenty-one”
2. Section 73AA of the M C S Act 1960 as amended has left it to the Bye Laws to fix the strength subject to following:

i. Maximum of 21 members with in which 3 cast based reservations (If Government so notifies for a specific classes) and 2 women if there are more than 2 women members in the Society
ii. Plus 2 Expert Members by Cooption
iii. Plus 2 Functional Members by Cooption – (only 1 in case of HAPPY GO LUCKY COOPERATIVE HOUSING SOCIETY )

As Bye Laws are not aligned to the amended law, the registered Bye Laws are to be followed unless any provision has been superseded by mandatory provision in law or in Part IXB: The Cooperative Societies.
In case of reservation of seats for women the Proviso 2 to Art. 243ZJ(1) of the Constitution mandates the States to make a law providing for this reservation and that is a final law. The Societies having men and women as their members must have two women as members of the managing committee elected on reserved seats or co-opted.
Amended the M C S Act 1960 vide Section 73C (1) overrules the provisions of Bye Laws as far as reservation of women is concerned: QUOTE “Notwithstanding anything contained in this Act, or in the rules made there under, or in the by-laws of any society, there shall be two seats reserved for women on the committee of each society consisting of individuals as members and having members from such class or category of persons, to represent the women members” UNQUOTE .
The proviso to Art.243ZJ (2) provides that QUOTE “the board may fill a casual vacancy on the board by nomination out of the same class of members in respect of which the casual vacancy has arisen, if the term of office of the board is less than half of its original term. UNQUOTE
As the balance tenure of the managing committee of HAPPY GO LUCKY COOPERATIVE HOUSING SOCIETY is less than half of its full tenure of 5 years, the casual vacancy of two women member which has arisen on account of the Constitutional mandate as aforesaid may be filled up by co-option of two women members. As there are 35 women voters in 150 it is only fair that such co-option is made forthwith.
As the managing committee of HAPPY GO LUCKY COOPERATIVE HOUSING SOCIETY seems to be quite poor in several areas it may take an opportunity to immediately co-opt 3 members i.e. 2 experts and 1 functional so as to professionalize the management without loss of any more time. This is also permissible where the managing committee is desirous off or in need of such experts’ services. HAPPY GO LUCKY COOPERATIVE HOUSING SOCIETY is perhaps the best candidate to grab the opportunity.

Dear Mr Nair, I hope this will help you make your committee listen to you and thereby you will have a satisfaction of done something for your society. Please keep referring to me practical difficulties as they are to opportunities for me to serve the cooperative movement.