G.A.R.Rao
Ours is a Society in Maharashtra.
Recently there was an SGM of our Society wherein the Election Officer deputed by the Dy. Registrar’s office conducted elections. Six (6) members from general category got nominated/elected unanimously. There was a woman candidate at the meeting. She also got elected. One woman seat remained vacant. There are a few women members who were not present. There was an OBC member. He and his wife are joint owners of the property. His wife’s name figures second on the Share Certificate. The male member is not willing to be a member of the Committee due to his pre-occupations. The Election Officer said that the second named person cannot contest elections.
In this connection, please clarify the following:
1.Woman Vacancy: If the other women who were not present at the SGM are interested, how the second vacancy of women can be filled. Is it by co-option at the next meeting by the Managing Committee after obtaining the willingness of the woman member?
2.OBC vacancy: Whether the OBC vacancy can be filled by the wife of a member, whose name stands second on the Share Certificate and is the joint owner of the property. In that case, whether the member named first should fill Form No.7 and Appendix 10A to make the second named wife as Associate Member and the Managing Committee first accepts her as Associate Member and then co-opts her as a Committee Member.
3.Whether the vacancies of SC/ST and VJ/NT can be considered as de-reserved after say a few months and filled with general category members if there are no members belonging to this category; or whether these positions will have to be left vacant permanently?
4.What is the quorum of the present Committee which comprises 7 members – 6 general and 1 woman.
We shall be grateful to have your reply by email. If you think the queries can be of general interest to other societies, you may publish the query and reply without mentioning the names.
I C Naik
Post 97th Constitutional Amendment (w.e.f.14 2 2012) several housing society management are under stress as they fail to understand how the people in the offices of the Registrar of cooperative societies interpret amended MCS Act 1960 (w.e.f.14 2 2013). Even the cooperative staff seem to be confused including the Dy. Registrars and the Election Authority too. See following posts for understanding the examples of confusion.
- https://www.indiancooperative.com/cooperative-coffee-shop/hon-scea-please-guide-chs-do-not-confuse/
- https://www.indiancooperative.com/from-states/how-a-dy-registrar-misguides-people-in-mumbai/
- https://www.indiancooperative.com/lawslegislations/failure-to-take-cognizance-of-violations-of-law/
The Secretary of Angel Land CHS Ltd. (Angel CHS) is different from others in that he is eager to have clarity on critical process of constituting the managing committee and process of election which is now centralized under the new State Cooperative Election Authority (SCEA).He is facing pertinent questions about (i) de-reserving the vacant reserved seats. (ii) Associate member joining the Committee, (iii)Quorum, and (iv)Polling in phases.
It assumed that the Angel CHS is operating on its original bye-laws (per Model 2001)(not adopting 2014 Model) and has a membership between 51 and 100.
As for the strength of the Committee the Constitution of India has now fixed 21 members as the maximum strength across India. New Section (73AAA)(1) of the MCS Act 1960 requires every society to fix this strength with maximum of 21, by specifying it in the registered bye-laws. The strength of its committee as per Bye-Law No 115 is of 7 members inclusive of 1 seat reserved for women members This strength is to be modified as per Section 73B and 73C of the Act.
U/S 73B and 73C every society’s Committee has 5 seats (1 – S C/S T, 1- OBC, 1 DNT and 2 women) reserved out of its total strength to allow representation of the respective constituencies of the membership. If the reserved constituencies do not have any member to join the Committee, the question of reservation should not arise. The reservation of seats is carved out of the maximum strength fixed under Bye-Laws. It is compulsory to have a full strength committee because Bye-Law No 112 provides 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.” If the 5 reserved seats in managing committee of Angel CHS are allowed to go vacant for any valid reason, it will mean its Committee so elected has no power to manage it’s affairs. Moreover who so ever is responsible for electing the Committee of strength lower than fixed per Bye-Laws, shall be guilty of contempt of Article 243ZJ (1) of the Constitution of India. The Constitution in Proviso 2 to Article 243ZJ mandates every State to provide for reservation of seats on the managing committee of every cooperative society 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.”
Section 73B of the MCS Act 1960 providing for 3 cast based reservations violates the above constitutional Provision and is overridden by Article 243ZT. It is not binding on any cooperative society.
Second issue is Associate member contesting election is not permissible as rightly ruled by the EO. This is because U/S 24 the Bye-Laws must specify what rights of members can be allowed to be enjoyed by the Associate member. Bye-Law No 25 of Angel CHS provides “No associate member shall have any rights or privileges of a member except as provided under Section 27(2) of the Act.” Section 27(2) permit Associate to attend general body meeting and vote in the absence of the main member.
Quorum for meeting of the Committee is specified in Bye-Law No 115 as 4 members.
The last issue is election in phases to accommodate women representative who was absent when election was held in SGBM. New Section 73AAA has a Sub-Section 5 which provides for contingency of this nature. (a)If, at any general election of members of the committee, the committee could not be constituted after declaration of results, then notwithstanding anything contained in this Act or the rules or the bylaws of the society, the returning officer or any other officer or authority conducting such election shall, within seven days of the declaration of two-thirds or more number of members, forward their names together with their permanent addresses to the Registrar, who shall, within fifteen days from the date of receipt thereof by him, publish or cause to be published such names and addresses by affixing a notice on the Notice Board or at any prominent place in his office; and upon such publication the committee of the society shall be deemed to be duly constituted. In determining two-thirds of the number of members, fraction shall be ignored:
Provided that, such publication shall not be deemed, to preclude the completion of elections of the remaining members and the publication of their names and the permanent addresses of the elected members likewise as and when they are available; or to affect the term of the office of members of the committee under the Act;
(b) the names of the remaining members after they are elected (together with their permanent addresses), may also thereafter be likewise published by the Registrar.”.
The Cooperative Authorities will not accept most of the logic put forth by me for sure, because they all think the Model 2014 governs every cooperative society. Every CHS will have to go by what the Authorities directs. They do not understand that Bye-Laws of the cooperative society is not the law of the land read more…
After elections are over raise a dispute in cooperative Court U/S 91 on any matter adversely affecting interest of members or the society in any manner. You can write to us for guidance at that time.
