Nitin Jain
I am a resident of MHADA society in Mumbai. We have 54 flats in our society so we need 11 members in the committee as per new bye-laws. I wanted to check in case two female members are not ready to come in committee, then can we fill those positions by general candidates? We have just one female member so can we fill the remaining one position by a male member? Also, other reserved category, in case the person is not there, can it be filled by general members?
I C Naik
1.On reserved seats there are views on either side to an extent that 4 seats may have to be left vacant in a Society if it does not have any member belonging to the reserved categories.
2. There could be a 6 member committee with a compulsion for all of them to attend all meetings, as the quorum is also 6 members.
3. Bye Law No 115 of Model 2001 / 2009 has clarification about reserved seat for women members thus:
“Explanation:- In case woman members are not available or not willing to represent on the Committee, the seats reserved for them may be filled from other eligible members”
4. Societies having registered their Bye Laws as per Model 2001 or 2009 can resort to this explanation till such time they are replaced by Model 2013.
5. This explanation is not inserted in Draft of the Model Bye Laws 2013 and that compels us to see if the M. C. S. Act 1960 has different provision for the reserved seats.
6. The latest law on constituting a managing committee/ governing board of cooperative housing society is to be found in the following:
i. Constitutional Mandate: New Part IXB The cooperative societies now inserted by 97thCAA.
ii. The M. C. S. Act 1960 as amended by the MCSA2013 . the M.C.S. Rules 1961 are not changed)
iii. Registered Bye Laws (Draft Model 2013 to become mandatory eventually)
Analysis
1. Strength of the managing committee of cooperative society is to be fixed by a provision in (ii) above subject to the mandates in ( i) above.
2. Provisions in (ii) above require the Bye Laws to fix numbers within limits set out in under 73AAA,73B and 73C.
1. Out of 21 seats Two seats for “Women members” shall be reserved.
2. In 2013 Model (Draft) Bye Laws total strength is linked to number of members with reserve seats being constant for all housing societies.
3. Quorum of the meeting of the managing committee is linked to total strength i.e. 1 member more than 50 per cent of the Strength and hence total number of seats should be filled up for smooth working.
4. If there are women members two seats are to be contested by women members on a priority basis. Jain’s society has one willing woman member so the second reserved seat belong to general category.
5. If women members are unwilling then also the male members can contest on the reservation confers a privilege and not intended to operate as restriction on the total strength of the managing committee.
6. As for reservations second Proviso to Article 243ZJ in Part IXB of the Constitution reads as under:
Provided further that the Legislature of a State shall, by law, provide for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on board of every co-operative society consisting of individuals as members and having members from such class or category of persons.
7. Thus for SC/ST,OBC, State “shall reserve one seat” The Maharashtra Cooperative Societies (Amendment) Act 2013 has in Section 73B provided for reservation of 3 seats (also included in the Bye Law No 115 of Model the Bye Laws 2013) but the sub section 1 of Section 73B gives a power to the State Government to pick and chose societies which shall reserve such seats. So this is clearly a case of contempt of Constitutional mandate.
8. In any case by a circular issued in 1971 certain societies were required to make the reservation of three seats as aforesaid which does not included cooperative housing societies. So this reservation as provided in Bye Law No 115 is redundant and avoidable confusion for several housing societies.
Conclusions
1. The strength of the managing committee in Nitin Jain’s society is 11 including 2 seats reserved for women which can be contested by men also if women are not contesting thus all 11 are in general category.
2. That society’s committee may nominate 2 experts on the Committee (who need not be members of the Committee) with a right to vote on all matters except in any election and not to contest for any office. This can raise the strength to 13.
3. That society’s committee may nominate 1 functional member on the Committee in whole time employment on the Committee (who need not be a member of the Society, ideally a Manager so that he works more sincerely) with a right to vote on all matters except in any election but he can occupy any place of office bearers say Secretary.
4. Thus that society can have 14 male members with quorum of 6.