Query from Norbert Fernandes

Norbert Fernandes

I am from Andheri (West) Mumbai/Mahrashtra and at present our Society compromising of more than 200 memebers are having the elections. In this regard I would like to clarify the following:

1) Can the Society conduct the election as per the new Election rules (No. CSL-2013/C.R. no. 639/15C)      without adopting the Model bye law of 2013 as the above mentioned gazette is published.

By the publication of the above gazette, does it become mandatory to hold elections before 31-12-2014 without adopting the Model byelaw. Or is it that Society has to have elections by 31-12-2014 as many Societies are not holding elections every 5 years.

Need clarity??? Really confusing….

2)  Presently we have adopted the model bye law of 2009 in the AGM (whereby the Managing Committee strength is 9 members (8 general and 1 for women). Do we conduct the elections as per the       model bye law of 2009 and satisfy the requirement of holding the election by 3-12-2014 3) If the Society decides to hold elections without following the timelines as mentioned in the Election Rules.. Is this illegal 4) As per the new election rules the Returning Officer should be appointed by the SCEA.

The society has appointed a Returning Officer from the Members list. Is this illegal? To Summarise what is the correct procedure to follow for holding the elections. The Society has never defaulted of holding elections every five years though.

I C Naik

The Election to committees of housing societies in Maharashtra (Mumbai) are in M A H A-MESS unfortunately.

BACKGROUND

1.As for election to the Committees of cooperative societies Sub-Sections (1) and (15)  of Section 73CB and 166(4) of  the M C S Act 1960 are relevant:

a.Sub-Section 1 QUOTE: (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to a society  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 ( Under the M.C.S. Rules 1961)

b.Sub-Section 15 QUOTE: (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

c.Sub-Section QUOTE: (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.

2.As per Bye-Law No 116 (a) tenure of the managing committee of your C H S is 5 years.

a.If the tenure has expired before 31st March 2013, its tenure stood extended to 31-12-2014 under the Maharashtra Cooperative Societies (2nd Amendment) Act 2013 enacted by State Legislature in supersession of all Cooperative Society Election Rules including those in your bye laws attached as  Annexture III.

b.If the tenure has expired after 31st March 2013, its tenure stood extended indefinitely as per Section 166(4).

3.In the meanwhile

a.the Maharashtra Co-operative Societies Election to Committee Rules, 2014 were finalized and published in the gazette Dated 11th September 2014. (the S E R 2014)

b.the  Minister of Cooperation Chandrakant Patil reportedly announced   State Government’s resolve to complete election to committees in smaller housing societies by 31-12-2014 and rest of them by June 2015

c.the former Commissioner of cooperative societies and the Registrar of Cooperative societies Mr. Madhukar Chaudhary was moved in to the State Cooperative Commissioner’s Office as the head of the State Cooperative Election Authority reportedly issued a circular interalia providing for election by ballot in small housing societies also.

4.Housing societies having more than 200 members are to elect their committees by a secret ballot with an elaborate election process involving 14 mile stones spread over 35 days under 4 Sub-Rules of Rule No 75 of the S E R 2014 applicable to C types of cooperative societies as listed in Rule 4 of the S E R 2014. For A & B categories there are Rules Number 5 to Rule 73 providing for various steps to conduct elections in A & B categories. These steps as are relevant to C category societies are also to be followed.

5.The managing committee of the cooperative society, the 5 year tenure of which was nearing an end, had to inform about such expiry to  the S C E A six months prior to the date of the expiry of its term.(Sub-Section 14 of Section 73CB of the M C S Act 1960)  Rule 5 (2) of the S E R 2014 enjoins further responsibility on such committee i.e.  (2) The committee of the society shall deliver a report in Form ‘E-2’ to the District Co-operative 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:

6.Section 73AAA(1) read with Proviso thereto is relevant to know the strength of the Committee namely

(1) The Committee shall consist of such number of members as may be provided in the by-laws :

Provided that, the maximum number of members of the committee shall not exceed twenty-one :

7.For strength of the Committee, notwithstanding provision of the Bye-Laws following constitutional provisions shall apply.

a.Section 73 AAA(2) The Committee may co-opt “expert directors” relating to the objects and activities undertaken by the society:

Provided that, the number of expert directors shall not exceed two, in addition to the maximum twenty-one members of the committee

b.elevant part of Provison to Article 243ZJ(1) “ 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”

8.There is a surprising benevolent Proviso to Rule 5(2) above reading as under: Provided further that, if the committee of the society fails to report as per clause (a) of sub¬section 14 of section 73 CB, the District Co-operative Election Officer /Taluka or Ward Co¬operative 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.

RESPONSES TO 4 QUESTIONS

1)No cooperative society can conduct the election on its own as was the case so far.

2) Adopting the latest Model bye law is not compulsory.

3)Election to committee of your housing society got extended till June 2015 as per the Cooperation Minister’s reported announcement.

4) As your housing society  has adopted the model bye law of 2009 in the AGM strength of the Managing Committee is 8 members plus 2 reserved for women and 1 for Section/S C. Your Committee can co-opt two Experts as additional Members but none of the two can become office bearer nor they can vote in case of election of office bearers.

5)The Returning Officer appointed by the society from the Members’ list violates Section 73CB of the M C S Act 1960. Iy is a contempt of Constitutional mandate also as Artcle 243ZK(1) reading as under:

QUOTE: 243ZK. (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

Hope all questions are answered and will clarify all doubts.