Salman
We are cooperative housing society in Andheri.Our 5 year term was in June-15.
The MC extended the term for 3 months citing that major maintenance work of lift is going.
They again extended the tenure by 3 months.
My queries are:
Is this legal to extend the period by calling Special AGM?
Who has authority to extend the period of society.
I C Naik
A lengthy response to this question has turned in to a story lambasting the State bureaucracy for flagrant violation of Constitutional mandate. Cooperatives were suffering from acute bureaucratic wickedness which is far from getting remedied. I wish our Vibrant PM takes it up as the largest drive to clean up the mess.
I want you to take a very balanced view in deciding to post it as it is.
The Constitution of India was amended vide 97th Constitutional Amendment effective 14 2 2013 directing the States to hold election to committees before expiry of the tenure which has been now fixed across the country to be of 5 years from the date of its election. Article 243ZK is a mandated to States which reads as under: “(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.”
Most State Governments are guilty of flagrant disobedience of this Constitutional mandate with impunity, the fall out of democratic tolerant State. The State enacted necessary amendment law in August 2013 replacing two ordinances hurridly promulgated earlier in the year. The amendments to the MCS Act 1960 are effective from 14 2 2013.
First the State Legislature making another amendment extended the date of election of all committees having completed 5 years prior to 31 3 2013 to 31st December 2013 and then till by two amendments legislature extended it till 30 6 2015. In the meanwhile for election of Committees completing 5 year tenure after 1 4 2013 was extended indefinitely till the new State Cooperative Election Authority (SCEA) conducted elections thereof. Read part of Section 166(4) which is there on the statute even to day. “(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”
The Bombay High court in on 3rd December 2014, passed an order for the State directing the appointment of head of SCEA before 17th December 2014. On August 30, 2014 the State Government amended the MCR 1961 to change procedures to align them to changes in the MCS Act 1960. The State also published common set of Election Rules for SCEA to hold elections in all cooperative societies in accordance therewith on 11 9 2014. Elections which were to be held before March 31, as Constitutional mandate given on 13 2 2012 has been taken up around June 2015. More than 3 years delay. This is in contempt of Constitution. If the Constitutional functionaries who are well paid for what they are supposed to do are themselves guilty of flagrant defiance of Constitutional Mandate, what to say to members of committees of housing societies who are voluntarily devoting time to community work: on top of it with such ambiguous regulations and horrendous interpretations by people in Authorities? Perhaps India is living under old maxim King can do no wrong”
But do not forget that Law is an Ass and its ignorance is not taken kindly. There is a statutory mandate to the voluntary service providers (the managing committees of cooperative societies) per Sub-Section 14 of new Section 73CB
(14) The committee of every co-operative society shall, –
(a) inform the State Co-operative Election Authority about the expiry of its term of office at-least six months before the date of expiry of such term;
As a statutory follow up action to committee’s failure to comply with this requirement U/S 73I exhaustive provisions are made as quoted below.
“73I. (1) As provided under sub-section (14) of section 73CB, it shall be the duty of the committee to intimate to the State Co-operative Election Authority, for holding of its election, before expiry of its term.
(2) Where there is a willful failure on the part of the committee or authorized Administrators to intimate to the State Co-operative Election Authority as required under sub-section (1) for holding of its election, and for any reason whatsoever, election of the members of the committee could not be held before the expiry of its term then the members thereof shall cease to hold their office and in such a situation the Registrar shall take action as contemplated under section 77A relevant portion of which is reproduced below.
(1) Where the Registrar is satisfied that,—
(d) a new committee has failed to enter upon office on the date on which the term of office of the existing committee expired;
the Registrar may, either suo-motu or on the application of any officer or member of the society by order appoint—
any member or members of the society or a committee, consisting of not more than three members of the society, or one or more authorised officers”, who need not be the members of the society,
to manage the affairs of the society till a new committee enters upon office:
(2) 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:
(3) 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 a new committee within the said period and for enabling the new committee to have been legally elected, to enter upon office
“Provided that, in no circumstances the term of office of the committee or authorised officer shall exceed six months from the date of their holding office.”;
(4) On taking such action under sub-section (2), the authorised officer so appointed shall intimate to the State Co-operative Election Authority for holding of the election with immediate effect and assist to make necessary arrangement for holding such election within the period specified.”.
It should be clear that the extension of its term beyond 5 years is unconstitutional and illegal. Legal position was after the last day of the 5 year term your CHS did not have a Committee to manage the affairs.
Even at this stage also the State has prescribed a duty of the Ward cooperative Election Officer under Rule 5 of the Maharashtra Co-operative Societies (Election to Committee) Rules, 2014 as under:
“5. Annual report of names of societies in which elections are to be held.—(1) The SCEA shall maintain a register in Form ‘E-1’ in its office showing the names of all societies due for election in the subsequent calendar year with details thereof.
(2) The committee of the society shall deliver a report in Form ‘E-2’ to the District Cooperative Election Officer or Taluka or Ward Co-operative Election Officer, as the case may be, six months before the expiry of the period of the Committee of the society:
Provided further that, if the committee of the society fails to report as per clause (a) of subsection 14 of section 73 CB, the District Co-operative Election Officer /Taluka or Ward Cooperative Election Officer shall proceed to enlist the name of such society or societies for the purpose of this rules on the basis of information available in the register and such enlisting the names shall be prima facie evidence that the election of the society is due to be held, unless proved to be contrary.
https://consumerresourcesin.files.wordpress.com/2014/10/election_rules_final.pdf
In case of your Society even the Election Authorities also failed to take action and ensure that violation of Constitutional Mandate under Article 243ZJ(2) did not take place. The reason is the Registrar did not take action as contemplated under section 77A.
Conclusion
It is absolutely clear that the Chairman and Secretary of your CHS are wholly ignorant of farreaching changes made in Cooperative Societies Law of the State post 97th Constitutional Amendment. They are in management in violation of Section 73 of the MCS Act 1960 and registered bye-laws of your society which provide that The Management of the affairs of the society shall vest in the Committee duly constituted in accordance with the provisions of the Act, the rules and the bye-laws of the Society.
Advice
They better file a report in E2 at the earliest. If you people are lucky enough you may escape the Registrars’ order of appointment of an Authorized person to manage your CHS. This is a post of erstwhile Administrator rechristened as Authorized officer for the former is banned in housing societies.