I am a senior citizen and request you to respond to my under mentioned queries and oblige.
1] What are the rights of a caretaker committee? can it continue to hold office indefinitely? can it take important decisions of heavy repairs?
2] This is about a regular elected Managing Committee, I am the Hon. Chairman; can Secretary of the Managing Committee issue endorsed Share Certificate to the new member? can he also issue allotment letter to the flat? or he has to wait till the next AGM for this? Our AGM was held in September 2016 and the flat has been transferred in October 2016.
Requesting an early response and thanking you in anticipation,
I C Naik
RESPONSE
“Care Taker Committee” is a terminology invented by some misguided people in the regime of the Registrar of Cooperatives. It could also be that they are trying to hide the State Government’s indifference towards encouraging a healthy growth of co-operative movement as we shall soon find out.
Sub-section 4 of Section 166 of the MCS Act 1960 inserted by the Maharashtra Cooperative Societies (Amendment) Act 2013 w.e.f. 14 2 2013 is ultra vires the Constitution because it violates Article 243ZK (1)&(2) of the Constitution of India recently inserted by the Constitution (97th Amendment ) Act 2011 effective 14 2 2013. Inspite of it being unconstitutional, this provision is extensively resorted to in the State of Maharashtra to cover up the gross negligence of the Government of the Day in its response to its duty under 97CAA.
The answer is it is legal for the management committee to assume same powers. Perform same functions and duties during the unconstitutionally extended period also which are laid down in bye-laws for Committee’s legal tenure.
It is like a saying namely thief is a thief if caught, no law is unconstitutional till it is so held by the Supreme Court of India.
Endorsing the Share Certificate:
Can Secretary of the Managing Committee issue endorsed Share Certificate to the new member? Can he also issue allotment letter to the flat? or he has to wait till the next AGM for this?
I guess these questions have arisen as an existing member has given Notice for the Transfer of Shares and Interest in the Capital/Property of the Society. The procedure is laid down in the registered bye laws of the Society and could differ from Model to Model of the bye-laws registered by the Society. It may not be wrong to assume that your housing society was registered prior to 2001 but not before 1984 Model bye-laws were released by the Commissioner for Co-operation and Registrar of Cooperative Societies. The relevant Bye Law No is 40 in that case. Admission of a person to the Primary Membership of the Society is governed by conditions specified in the Bye Law No 19 relevant part of which is extracted below:
- An individual who is eligible to be a member and who has applied for membership of the society in the prescribed form, may be admitted as member by the Committee on complying with the following conditions:-
The AGM has no role here which is the case with a person namely A firm, company or any other body corporate, registered under any law for which Bye Law No 20 requires approval of their application for members by the members in general body meeting.
Secretary’s function in this matter is specified in clause (d) of Bye Law No 40: If the Committee is satisfied that the member is prima-facie eligible to transfer his shares and interest in the Capital/Property of the society, the Committee shall direct the Secretary of the society to inform the member within 3 days of the decision of the Committee to make the compliance as under.
An answer to a question whether a Secretary can issue an endorsed share certificate can be discerned reading Bye Law No 10: “Every such share certificate shall bear the seal of the society and be signed by the Chairman, the Secretary and one member of the Committee, duly authorized by the Committee in that behalf. The same shall be issued by the Secretary of the society. “
In any case all administrative activities are performed by the Hon Secretary or any assistant appointed to support him.
Allotment Letter is to be issued in the prescribed form which is to be found in Appendix 12. It is to be signed jointly by the Hon. Secretary and the Chairman.