This is in regards to kandivli kanakia park 1 chs ltd thakur complex kandivli east mumbai 400101.
The secretary of our housing society locks his flat b 203 and is residing at pune where he works in union bank.
He hardly visits our chsl only at the time of agm. The other committee members do support him and in agm upon objection the mc replies tat v have passed an internal resolution and given his power to one mr devdiga treasurer.
Kindly suggest the legal remedies which can b initiated against the mc.
I C Naik
Two questions can be framed.
- Whether a member of Committee or an office bearer should be residing in a society premises?
- Whether each and every function and duties of the Secretary can be delegated to any other member of Committee?
Answer to first question is in the negative.
List of eligibility criterion of a member to contest election to the management committee and continue in office is to specified in the bye-laws. Assuming kanakia park 1 chs ltd was registered prior to 2001 Model bye-laws were released by by the Commissioner for Co-operation and Registrar of Cooperative Societies, relevant bye-laws are Bye Law No 117 / 118 in which following are worth exploring.
Disability criterion :
Bye Law No 117 : the member has
(b) failed to attend any three consecutive meetings of the Committee, without the leave or absence or,
( c) defaulted payment of any amount, mentioned in the bye-law No. 117(ii) for more then 60 days from the date on which it was due for payment.
(2) if a member of the Committee attracts any of the disqualifications under the bye-law No. 118 (1), the Committee shall record the fact in the minutes of its meeting and the Secretary of the society shall inform the member accordingly
The information about (b) above can be ascertained by filing a request in writing to provide you certified copies of the minutes of the meetings since the secretary was elected to the Committee. In every meeting his leave of absence has to be recorded. If it is not found in three consecutive meetings that means he is hit by (b) above and has ceased to be a member of the Society. And his sticking to Secretray ship was ultra vires the provisions of bye-laws. You will have to cough up copying costs so you may ask for last 6 minutes in first installment.
For ordinary member there is no easy way to get ouster of a secretary as compared to the above.
Unfortunately no provision exists any where to disclose dues outstanding from members of Committee. This information is not available at costs also.
Authorising Treasurer to perform Functions / Duties of a Secretary
As regards functions/duties which can not be delegated to any other member of Committee say joint Secretary there is no such post under bye-laws is recognized and Secretary continues to be responsible for whatever Secretarial function he carries out. There is a specific recognition to such transfer by a formal decision of Committee under Bye Law No 145 (a) uses a phrase namely “the Secretary of the society or any other person, authorized by the Committee in that behalf,” which denotes that the responsibility assumed by Treasurer as provided herein is absolutely legal’
In bye-laws 109 similar transfer of Secretary’s duty is provided in these words” cause them to be recorded in the minutes book, by the Secretary of the society or any other person authorized in that behalf.”
Similarly when certain functions which secretary is unable to perform the bye-laws expressly provide that the Chairman will perform, for example in Bye Law No 99 “The notice convening the general body meeting shall be issued by the Secretary of the society of the Society accordingly. On his failure to issue the notice, the Chairman shall issue it” So if Notice of general body meeting or Annual general meeting is convened by a notice issued by treasurer it is not a valid notice. The Minutes will also stand invalidated.
Similarly Bye Law No 123 requires that When the new Committee is elected, the
Secretary of the outgoing Committee shall prepare the lit of papers and property of the society in is custody and hand over the charge thereof to the outgoing Chairman. This function of a secretary can not be undertaken by any authorized member as this can not be shifted to any person.
So if any one is seriously objecting to a secretary kanakia 1 C H S has got he has to study the minutes minutely and list out functions of a secretary which Treasure else has performed under a wrong impression that the the Treasurer was duly authorized. A complint should be lodged with the Deputy Registrar against Committee for breach of all those bye-laws and demand ouster of a Secretary.
One important hint. If this arrangement is not adversely affecting the management of the Society then its not worth taking trouble to be after an individual.
After all Committee is responsible/accountable to the Society for any wrong done by Committee.