Sir, can you please let me know whether the managing committee who had defaulted in informing the Election authority six months prior to their expiry of tenure, as per the amended MCS Act, can contest election?
I C Naik
Dear Padma
Cooperative Societies Law is a mere regulatory law conceding substantial freedom to members of cooperative societies to run their enterprise with autonomy and democratic decision making. It is not supporting penal measures for every irregularity.
Post 97th Constitutional Amendment the amendments made to the MCS Act 1960, the MCR 1961 and making of the Maharashtra Co-operative Societies (Election to Committeea) Rules, 2014 have put the State Cooperative Administration on roller castor and all including the Registrar of Cooperative Societies, the State cooperative Election Authority, Joint / District Deputy Registrar and Dy Registrars of Wards are running in circles. Your question helps me prove my observations.
Informing the date of last day in office of Managing Committee is a formality and is not a substantial legal requirement. This is borne out of the what Rule 5 of the Maharashtra Co-operative Societies (Election to Committee) Rules, 2014. Provides:
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. Sub-Rule 2 provides “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:
This discipline is diluted by the following proviso to this Rule. 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.
So everybody wonders what is the consequences for outgoing committee which failed to communicate the last date of expiry of its term before six months thereof?
Section 73I has a Sub-Section 2 reading as under: (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.
Section 77A mandates the Registrar to depute an authrised person to manage the society and organize elections through State Cooperative Election Authority and he has a maximum time of six months for that.
The Committee which you have in mind is in office after the term has expired and you are wondering what is happening?
For the Committee which you have in mind is running beyond its tenure. How is this possible? Why the Registrar did not senf Authrised officer to your housing society ?
The Legislature has given an open license to carry on by inserting Sub-Section 4 to Section 166 with effect from 14 2 2013 under the Maharashtra cooperative societies (Amendment) Act 2013: “(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.
So is it proved that all concerned are running in circles?
Where do we find a provision to disqualify such xommittee to be in management once again? And lastly Elections are not fought by the Committee. Individual members fight election and then the Committee is formed.