Query of S V Anand

We are Shree Shashwat CHS in Mira road, Thane, Maharashtra consisting of 220 flats.

Total MC -14 and two directors out of which our chairman has already resigned and is on the verge of being inducted in the forth coming MC meeting

Our MC in our meeting day after tomorrow will be discussing this case of our chairman as he resigned due to him selling his old flat and acquiring another flat in our same society complex. However some discrepancy arose due to some malafide intentions of him in our society.

Hence majority of the mc will be going against and to withhold the decision of getting reelected in the said post.

Option1-if he resigns what is the course of action?

Option 2-can he still be in the mc but not as a chairman?

Is it necessary to fill this vacant post if he resigns?

Our current MC is valid till 2021 for next elections.

Would be grateful for a solution as soon as possible as our meeting is on 30/DEC/2016

I C Naik

As you say

1. our chairman has already resigned and is on the verge of being inducted in the forth coming MC meeting,
2. he resigned due to him selling his old flat and acquiring another flat in our same society complex.
3. Option1-if he resigns what is the course of action?
4. My understanding is as under:

1. The Chairman transferred  his Shares and interest in the Capital/Property of the Society as provided under Bye Law No 38 (registered bye laws of your  housing society is as per Model 2014).
2. As per sub-clause iii of clause (e) he submitted resignation in the prescribed form as Member. As provided under Bye Law No 55 (a) and (b) as reproduced below he has ceased to be the member of the Society,
3. On his resignation from Membership of the Society having been accepted by the committee.
4. On transfer of all his shares and interest in the capital/property of the Society.
5. As only a member of the Society can only hold any post in the Committee as soon as his application for transfer of  all his shares and interest in the capital/property of the Society is accepted he ceases to be the chairman also whether he resigns or not.
6. The status of your managing committee’s c composition is it has one casual vacancy .
7. No member of the Committee seems aware of the following provision of the MCS Act 1960  and Rule No 74 under Maharashtra Co-operative Societies (Election to Committee) Rules, 2014 (in force from 11 09 204),  text of which is extracted below.
8. 73AAA Reads “(4) Any casual vacancy in the committee may be filled in from amongst the members belonging to the same category of persons in respect of which a casual vacancy has arisen.”
9. U/s 73CB “the managing committee shall inform any casual vacancy occurred in the committee or its office bearers, within fifteen days of the occurrence of such vacancy”
10. Casual vacancies how to be filled in.— In the event of vacancy occurring on account of death, resignation, disqualification or removal of the member of a society or through such a member becoming incapable of acting prior to the expiry of his term of office or otherwise, the Chief Executive officer of the Society shall forthwith communicate the occurrence of such vacancies to the SCEA and the vacancy shall be filled as soon as conveniently, according to the provisions of the Act. The person so elected or co-opted or, as the case may be, nominated shall hold office so long only as the member of the committee in whose place he is elected, is co-opted or, as the case may be, nominated would have held it, if the vacancy had not occurred.       

[Copy paste the following in to your browser to browse the Act   and the Rules]

http://bombayhighcourt.nic.in/libweb/acts/1961.24.pdf

http://bombayhighcourt.nic.in/libweb/rules/MahCoOpSocyElectiontoCommitteeRules2014.pdf

6. Your attention is drawn to a circular (No  J.C. SCEA/dept-10/Section 73 AAA (5)/vacancy/2015/7952. Date: 19/9/2015)issued bythe Office of State Cooperative Election Authority, Maharashtra State, Pune, Old Central Building, Ground Floor, Pune – 411001. (original in Marathi). Under this Circular the State Cooperative Election Authority has  informed all the District/Taluka/Ward election officers (relevant Extract only).

“Your attention is drawn, that according to The Maharashtra Co-operative Societies Act, 1960, under section 73 CB (14), in every society’s Committee or office bearers if any vacancy occurs casually, state election authority has to be informed about such positions and vacancies occurring, within 15 days and that this is binding. Within Maharashtra Co-operative Societies (Election to Committee) Rules 2015, under Rule 74 it is specified as to which vacancies are Casual Vacancies. Accordingly

Vacancy occurred due to death,

 Vacancy occurred due to resignation,

 Vacancy occurred due to disqualification or removal of the member of a society or

 Vacancy occurring through such a member becoming incapable of acting

For the above four types of reasons only, the occurring vacancy are called as casual vacancy and for filling such vacancies, there is an ambiguity in the Act and the Rules. Therefore, in the circumstances, process of filling of such vacancies is suspended.

7. The State Government has issued Draft of Amendment to Rule 74 providing for the manner in which casual vacancies are to be filled up.  This is copied here, and we have to wait for final amendment when issued by the State.