Jairam Kadam
Mumbai
How a husband of a female member being a joint holder of shares (second name) in cooperative housing society can become a member/office bearer of the committee?
I C Naik
Associate members have been getting a raw deal all along the inception of the M. C. S. Act 1960.
“Associate member ” means a member who holds jointly a share of a society with others, but whose name does not stand first in the share certificate (Section 2(19)(b) of the M. C. S. Act 1960 and Bye Law No 3 (xxiv)(a))
An individual competent to enter in to contract under the Indian Contract Act, 1872 can be admitted as an Associate Member of the CHS in either of the two ways.
Person whose name appears as a joint owner in the agreement executed under section 4 of the Ownership Flats Act, and by making a joint application along with the original member in the prescribed form and paying entrance fee of Rs 100.[Bye Law No 19A and Appendix No 8]
Person whose name does not appear in the agreement referred to above, by making the application in a form prescribed for such a person to be admitted as Associate member and to make him a joint holder of shares. This application has to accompany a written recommendation of the first member, entrance fee of Rs 100 and the share certificate… [Bye Law No 19 (B) Form in Appendix 7]
As per Bye Law No 19(A) and (B) all applications of Individuals for admission as associate members are to be considered and decided upon by the managing committee.
As per Bye Law No 68 (a)(g) such applications are to be disposed off within three months and in case of failure the applicant automatically becomes an associate member.
Rights of associate members
Bye Law No 25 of Model Bye Laws 2001/2009/2013 (Under Approval *) and Bye Law No 27 of 1984 Model reads as under:
“No associate member shall have any rights or privileges of a member except as provided under Section 27(2) of the Act.”
In other words right of an Associate member as provided under Section 27(2) of the M. C. S. Act 1960 is of voting in the general body meeting in the absence of an original member. He can not become member of the Committee.
(*) http://sahakarayukta.maharashtra.gov.in/SITE/PDF/Rules_Acts_Bylaws/Maharashtra_Co-operative_Societies_Act_1960.pdf
One can see this Model in a Draft form on this website.
There is a strange gate way against Bye Law No 25.
Bye Law No 118 [of Model Bye Laws 2001/2009/2013 ] indirectly concedes the right to Associate to contest the election or to get co-opted to committee by way of laying down 5 conditions which disqualify associate to become a Committee member. This Bye Law reads as under:
“No person shall be eligible for being elected as a member of the Committee or co-opted on it, if :
(i)-(iv) being not relevant not reproduced.
(v) In case of an associate member, non-submission of the no-objection certificate and undertaking, as prescribed under these bye-laws, by the member”
Form of NOC and Undertaking of the original member referred to above is prescribed at Appendix 10A of the Bye Laws of both the Models.
By executing this form the original member surrenders all his voting rights in favour of the associate member enabling him/her to contest election to the managing committee, and to hold the office of the committee if elected by signing a declaration that he will not participate in any manner in the general body meetings of the society or in election matters till such time the Associate member continues to hold the office.
It is important to bear in mind that the older cooperative housing society incorporated prior to 2001 having registered the Bye Laws as per Model 1984, will not be able to accept an Associate’s request to contest election as the Bye Law No 117 of such society does not prescribe the negative condition quoted above. In order to concede such right to Associate members of such older societies it should adopt the latest Model bye laws.
RIDER
Note that this right is not available for the first two years of every new member, since voting on society affairs by a new member is prohibited under Sub-section 3A of the M. C. S. Act 1960.This restriction was imposed under the M. C. S. (Amendment) Act 2000.
Not many societies are aware that in exercise of power conferred upon the State Government under section 157 of the Maharashtra Co-operative Societies Act 1960, the government has excluded co-operative housing societies from the provision in section 27 (3) of the Maharashtra Co-operative Societies Act, 1960. This was announced in the Gazette of Government of Maharashtra, Co-operation, Marketing & Textile Department, Mantralaya, Mumbai, vide Notification No. VIPRAAA-2001/16593/PRA.KRA.163(A)/15-S The Maharashtra Co-operative Societies Act 1960 Dt. 29th October, 2003.
Strange ways of cooperative Department
It may be of interest to know that, though definition of member under Section 2 (19)(a) of the M. C. S. Act 1960 says “member” includes a nominal, associate or sympathizer member; no voting rights were conferred on either of the three categories under sub-section 8 of section 27 of the M. C. S. Act 1960. This restriction was partly lifted by deleting the word “associate” from this sub-section (8) under Maharashtra Cooperative Societies (amendment) Act 1969 which now reads as under:
(8) No nominal [associate] or sympathizer member shall have the right to vote and no such Member shall be eligible to be a member of a committee or for appointment as a representative of the society on any other society].
We can see that the Legislature of the State had cleared the deck for an Associate Member to occupy responsible position as a member of the Committee and to become an office bearer, way back in 1969, thereby he could take active part in the management of his society. But the Department did nothing for three decades till it woke up in 2001 when the Model Bye Laws as approved by the Commissioner of Cooperatives Societies conceded this right for the first time.
Ironically the confusion is carried forward even after taking a corrective step in an indirect manner, as afore said, Bye Law No 25 as per 1984 Model is carried through all along till the latest Model of 2013. The reason for repeated questions on this important aspect of cooperative housing societies lies in the casual approach of the Cooperative Department. When will the Department wake up and approve a coherent Model is a moot question.
Now that the Registrar and Commissioner of Cooperatives Societies is conferred wholly arbitrary right to specify Bye Laws which the Societies are compelled to adopt, it is all the more desirable that error free Bye Laws are specified. (See Second Proviso to Section 14 of the M. C. S. Act 1960 as amended) .
No wonder we have hardly any discipline in cooperative housing societies. There are incidents of older societies conceding this right to members although they continue to be governed by Model 1984 Bye Laws, thanks to members’ indifference towards assuming responsibility of management.