Tushar Vora
Dear Mr Naik
Your article was very articulate in summarising the conflicting stand taken by Maharashtra Government and the chaos this has created among housing societies.
It was very clear that one should continue with the same committee till some sanity prevails about the fresh elections.
However, our Managing Committee was elected prior to 6th September 2012 and had not signed the M-20 bond and as per the circular issued by GOM dt 26 Nov 2013 all committee members finally stand disqualified.
Under the circumstances, do we have any other option except to resign by calling the SGM and reporting the matter to the Dy Registrar? Pl advise as the matter has become very critical because of this circular.
I C Naik
BACKGROUND
All the members of the Managing Committee elected prior to 6th September 2012 having failed to not sign the M-20 bond had automatically ceased to be so after 30 days of the first committee meeting. The circular issued by GOM dt 26 Nov 2013 merely confirms the legal position. [A line from Section 731AB] “The member who fails to execute such bond with in the specified period shall be deemed to have vacated his office as a member of the committee.” The member who fails to execute such bond with in the specified period shall be deemed to have vacated his office as a member of the committee.” Question of resignation does not arise as you are no longer a member of the Committee. The SGM has no role to play now.
Most cooperative housing societies in Mumbai are being managed with awful confusion with in their committees, a situation diametrically opposed to avowed objective of 97th Constitutional Amendment Act : “The Parliament, with a view to enhance public faith in the co-operative institutions and to insulate them to avoidable political or bureaucratic interference”[Supreme Court COURT Per Justice K.S. Radhakrishnan Thalappalam Ser. Co op.Bank Ltd.& … vs State Of Kerala & Ors. on 7 October, 2013 CIVIL APPEAL NO. 9017 OF 2013].
So what should be done?
Let us understand the legal position in the wake of reported decision of the State Cabinet to postponed the cooperative elections till 31 12 2014 as General Elections to Loksabha were on the way.
1 Constitutional mandates as per Article 243ZK effective 14-02-2013:
i.Sub-Art. (1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the term of the office of members of the outgoing board.
ii.Sub-Art. (2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law:
2. Maharashtra State legislature inserted inter alia Section 73CB in MCS Act 1960 with effect from 14 02 2013 to align it with amended Constitution:
i.Constituting State Cooperative Election Authority and prescribing Election Procedure:
Sub-Section(1) : The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Election shall vest in the authority called as the State Co-operative Election Authority’, as may be constituted by the State Government in that behalf. Every general election of the members of the committee and election of the office-bearers of a society including any casual vacancy, to the extent applicable, shall be held as per the procedure prescribed.
ii.Committees completing term before 31 3 2013:
Sub-Section (15) : ‘Notwithstanding anything contained in this Act, the rules or the by-laws of any co-operative society, the election to the committee and consequent election of the office-bearers which is due on the date of commencement of the Maharashtra Co-operative Societies (Amendment) Mah. Act, 2013, or may become due after such date, until 31st March 2013 shall be held before the 31st December 2013.”
iii.Committees completing term after 31 3 2013
Section 166(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.
3. Effective 14 02 2013 Administrator in Section 77A of MCS Act was replaced by “the Authorized Person”:
i. Where the Registrar is satisfied that,–
“(b-1) there is a stalemate in the constitution or committee has ceased to function and vacuum is created in the management;” the Registrar may, either suo-motu or on the application of any officer or member of the society by order appoint a committee, consisting of not more than three members of the society; or one or more authorized officers who need not be members of the society, to manage the affairs of the society till a new committee enters upon office:
“Provided also that, if no member or members of the society are willing to work on such committee, it shall be lawful for the Registrar, to appoint one or more authorized officers, not being a member of the society, as he may deem fit, to look after affairs of the society. “;
ii. The committee or authorized officer so appointed shall, subject to the control of the Registrar and to such instructions as he may, from time to time, give, have power to discharge all or any of the functions of the committee or of any officer of the society and take all such action as may be required to be taken in the interests of the society.
iii. The Committee or authorized officer so appointed shall hold office for a period of six months from the date of assuming the management of the society and shall make necessary arrangements for constituting anew committee within the said period and for enabling the new committee to enter upon office.
“Provided that, in no circumstances the term of office of the committee or authorized officer shall exceed six months from the date of their holding office.”;
4. SUMMING UP
i. TUSHAR VORA‘s cooperative housing society does not have a valid Committee since later half of 2012, as the failure of all Committee members to execute M20 Bond unseated them all.
ii. Constitution (Art. 243ZK) mandates that effective 14 2 2013 all Elections in Cooperative Societies must be conducted under supervision and control of S C E A to be appointed by the State Government well before the expiry of the term of the current Committees.
iii. MCS Act 1960 (section 73CB) was amended in violation of the new Article 243ZK of the Constitution since Article 245(1) says “Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State”. As such Section 73CB(15) and Section 166(4) are unconstitutional.
WHERE DOES TUSHAR VORA’S SOCIETY’s COMMITTEE STAND?
In the midst of an unprecedented chaos in cooperative management matters in one of the most leading States in Indian Cooperative Movement