Prashant Mirajkar
I have following queries
1) In our tenants society there are 101 members, however the election held in May 2012 for 7 members only. The MC got elected unopposed. Majority of MC members stopped attending the meetings. Today the chairman and treasurer are the only MC members behaving in autocratic manner. We have submitted compliant letter to registrar sitting various issues faced. Was the election valid?
Since only two MC members exist who do not have trust of general body can we demand reelection? Is it possible to call for SGM and pass resolution to remove MC and hold reelection?
There was no AGM conducted last year. One was held in May in which the chairman left in two minutes declaring all agenda approved and meeting over. We members conducted meeting electing a chairperson amongst us. Submitted the minutes of which registrar has refused to take cognizance. In short what is our remedy?
2) Since we have three wings, we were managing affairs separately. I understand from one of the responses to a query from you that we can split the society in three distinct ones even though there are some common assets and facilities. How do we go about it?
I C Naik
1) The situation is rooted in to one phenomenon viz:- the “indifferent membership – unwilling to learn lessons” .
2) With that Splitting one cooperative housing society in three seems to be a far-fetched solution as there are only two active members for three societies to day.
3) Calling SGM also looks impossible as you need 21 members working to gather which seems next to impossible. In any case Elected Committees cannot be dismissed by members. Registrar can do under certain situations and this is a fit case we shall see later.
4) If sufficient numbers from each wing ( 5 minimum) are willing to take responsibilities , splitting can be explored with success. In three sets of 5 members there should be one each willing to take up Chairperson’s responsibility, one that of Secretary and one should be a woman if there is at least one woman having flat in her name.
CURRENT LEGAL SCENARIO
1) The State Government has reportedly banned all elections due, till State Cooperative Election Commissioner is appointed as this is a new Authority the Constitution requires every State to have appointed one after 14-02-2012. The State hopes to appoint one and conduct elections foe societies where they have become due.
2) In Dhavalgiri cooperative housing society Pune, also the elections as per past practice cannot be conducted any more as per new law. The office bearers or vacancies in the committee also cannot be filled up as these functions are now vested in State Cooperative Election Commission.
3) The Registrar’s office is in utter confusion and nobody can hope to get any response during the phase of highest confusion post 97th CAA. A well-meaning Constitutional Amendment has been reduced to a fiasco thanks to Federal Structural indiscipline having no constitutional remedy.
PROGNOSIS : (Does this mean this case is hope less?)
4) No, provided the membership genuinely wake up to understand in all sincerity the implications of new Article 43B of Indian Constitution and the cooperative Principles. It is hard undoubtedly but not impossible as otherwise it would not have found place in the Supreme Legal Document of this great nation as also in the enactment of Parliament viz the Multi-State Cooperative Societies Act, 2002
Article 43B
“The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.”
5) The State Political Authorities were passively resisting the reforms, and hence it took more than 20 years for 97th CAA to see the light of the day. Its implementation is more pathetic though.
6) Now Look at Just 2 of the 7 cooperative principles incorporated in to the Multi-State Cooperative Societies Act, 2002 (The First Schedule).
No 2. Democratic Member Control
Cooperatives are democratic organizations controlled by their members, who actively participate in setting their policies and decision making. Elected representatives of these cooperatives are responsible and accountable to their members.
5. Education, Training and Information Cooperative provide education and training to their members, elected representatives and employees so that they can contribute effectively to the development of their cooperatives.
Unfortunately the Commissioner of Cooperatives and Registrar of Cooperatives Societies in Maharashtra does not seem to believe in elected representatives are responsible and accountable to the membership. This is because the cooperative principle “ No 2. Democratic Member Control” as posted on his website does not contain the sentence “Elected representatives of these cooperatives are responsible and accountable to their members.”
7) It is not at all difficult for sincere cooperator, to grasp the sense of Article 43B as well of the two Cooperative Principles, though it may be quite a task to bring to gather 21 members to take up the challenge in their own interest.
SERIOUS SUGGESTION:
8) The State Cooperation Department will take time to steer clear out of confusion. The confusion is compounded by spate of PILs in the Bombay High Court, in the wake of the Gujarat High Court holding Part IXB: Co-operative Societies Inserted in the Constitution (prescribing certain minimum legal mandates to all the States across India) as unconstitutional for having been inserted without asking the state’s permission.
So the 98 members of Dhavalgiri have to wake up, if they are unable to put up with autocratic functioning of the two of their members (they are also compelled to perform).
If at least 21 members make a firm resolve, they can do it.
IMMINENT THREAT of Government officer managing the Society
1. Any day, your Society must remain prepared to welcome aboard an authorized Officer from the Registrar which he has duty to appoint as provided under Section 77A. Provisions explained in brief:
2. Where the Registrar is satisfied that, the term of the committee of any society or of any of its members has expired or for any other reason election is held and there is a failure to elect all or any of the members required to fill the vacancies; the Registrar may, either suo-motu or on the application of any officer or member of the society by order appoint—
(i) any member or members of the society to be the member or members of the committee to fill the vacancies:
ii) a committee, consisting of not more than three members of the society; one or more authorised officers who need not be members of the society, to manage the affairs of the society till a new committee enters upon office:
Provided that, before making such order, the Registrar shall publish a notice on the notice board at the head office of the society, inviting objections and suggestions with respect to the proposed order within a period specified in the notice and consider all objections and suggestions received by him with in that period:
Provided further that, it shall not be necessary to publish such notice in any case where Registrar is satisfied that immediate action is required to be taken or that it is not reasonable practical to publish such notice.
“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. “;
3. 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.
4. The Committee or Administrator 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 including any new committee referred to in clause (f)of sub-section (1), which is determined by the Court to have been legally elected, 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.”;
5. The Registrar shall have the power to change the committee or any or all members thereof or any or all the authorized officers appointed under sub-sections (1) at his discretion even before the expiry of the period specified in the order made under sub-section (1).
IF THE MEMBERSHIP IS INCORRIGIBLE
If it is felt that even after 6 months of officer’s rule over Dhavalgiri no Committee will be formed then well ahead before end of six months, start exploring the possibility of merging the society with one in the vicinity which is being well managed and the society’s Committee is agreeable to manage Dhavalgiri also. This can be pursued by Prashant Mirajkar singlehandedly also, though later on members’ resolution will be required. But that will be the test of members.
