Aanurag Dhoot
It’s enlightening to read your prompt responses on Indian Co-operative forum and I take this opportunity to thank you for making valuable services and solving queries of people.
I’m also like other so many people bit confused about some of the key matters related to the rights of managing committee of our housing society which is in suburbs of Mumbai. The current committee is basically a caretaker committee with 6 co-opted members out of total 7 members. As per law, the entire committee is illegal and cannot take strategic and financial decisions. However, all the 6 members are still holding office and all decisions without consent of the society members.
They have taken charge of the Office sometime in March 2014 after the earlier committee had ceased to resign due to re-development controversies with these 6 members that has prevailed since sometime in our society.
For the re-development process, they have unilaterally decided and removed the PMC who was working on the project since last 3 years and did not charge any fees till the accomplishment of the project. The key reason cited was that since the PMC had adverse views on the shortlisted builder they have removed him without taking the society members into confidence.
As you know, Society elections were due in our society as per the recent decision of the Maharashtra State government, this caretaker committee has tactfully gone ahead and signed the Development agreement in October 2014 with the shortlisted developer who has apparently paid stamp duty to the tune of 87 lacs for registering the agreement.
There are in all 12 members out of 50 members who are opposing the mis happenings of the committee though we are in complete support of the redevelopment of the society, however, these members are not in favour of the builder since he has not executed a single project since 2008. All the members of the society had visited 4 of their re-development sites which they have claimed under them but all of the sites are entangled in some litigations and approval issues with authorities so yet to take-off. In view of such findings, we are very doubtful about the capabilities and financial health of the shortlisted developer.
Here, my question is that does such a caretaker committee have any right to continue to remain in office and also take important financial decisions and major decisions related to re-development?
We have submitted 6 written complaints since past 4 months to the Dy. Registrar of Societies and had several rounds to meetings at his Office for addressing our grievances, however, they are yet to call us for a hearing or verdict. The Inspector who was appointed by them to look into our complaints has also made 2 rounds of visit to our society and met with the committee to sort out our issues but still there is no respite for us.
As I write this mail to you, the committee has declared an election tomorrow i.e. Sun, 28 December without involving the Dy. Registrar Office and unilaterally declared probable candidates and also announced few of the members as defaulters so that they cannot cast their vote.
Some of the members like us are subject to repeated harassment with trivial show cause notices and harassment since we have been opposing their working on the affairs of the society.
Majority of the members are sad with the current situation and have given up any hope to fight with the corrupt committee, however, few of the members like us are keen to have a reasonable solution to re-solve the sensitive matter.
Sir, I request you to kindly guide us on the above for suitable action to save our ancestral property.
I C Naik
1.My first advice to member of cooperative housing societies having any question about your membership right and its management, is to exercise your legal right to peruse or get certified copy of Bye-Laws (Costing around Rupees 100) conferred under section 32 of the M C S Act 1960 reproduced below.
a.Section 32 – Rights of members to see books, etc.
b.(1) Every member of a society shall be entitled to inspect, free of cost, at the society’s office during office hours, or any time fixed for the purpose by the society, a copy of the Act, the rules and the by-laws, the last audited annual balance sheet, the profit and loss account, a list of the members of the committee a register of members, the minutes of general meeting, minutes of committee meetings and those portions of the books and records in which his transactions with the society have been recorded.
c.(2) A society shall furnish to a member, on request in writing and on payment of such fees as may be prescribed there for, a copy of any of the documents mentioned in the foregoing sub-section within one month from the date of payment of such fees.
d.If you have difficulty in interpretation please narrate your difficulty and you will be in a much better position to solve your questions.
2.Aanurag Dhoot has held that in his C H S “The current committee is basically a caretaker committee with 6 co-opted members out of total 7 members. As per law, the entire committee is illegal and cannot take strategic and financial decisions. However, all the 6 members are still holding office and all decisions without consent of the society members.”
3.In the absence of confirmed information, it can be assumed that this housing society is of less than 100 members and is having registered Bye-Laws based on 1984 Model. It is pretty old as is having a re-development process on its way.
4.Concept of care taker committee is alien to the M C S Act 1960. It’s a confused message spread by Cooperative Societies establishment in the State administration as political compulsions calculatedly avoided holding elections in many housing societies before tenure of their committees expired as mandated under the Constitution of India vide Article 243ZK. (1) QUOTE: 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 members of the outgoing board.
UNQUOTE
5.Committee having 6 members co-opted out of 7 members seems patently illegal on the face of it, unless the co-option falls squarely in to Proviso to Article 243ZJ(2) QUOTE: Provided that the board may fill a casual vacancy on the board by nomination out of the same class of members in respect of which the casual vacancy has arisen, if the term of office of the board is less than half of its original term. UNQUOTE At the time of co-option of the 1st of the six outgoing members the Committee must have at least 2 elected members on board to hold meeting to fill casual vacancy as provided in this Article.
6.Bye-laws 113 reads QUOTE: Subject to the direction given or regulation made by a meeting of the general body meeting of the Society, the Committee shall exercise all powers, expressly conferred on it and discharge all functions entrusted to it under the bye-law No. 137. UNQUOTE
7.If you buy bye-laws as advised and see bye law you should find function of Redevelopment missing in the list. If your housing society has not amended your Bye-Laws to incorporate in its objects the Redevelopment as a new object the Committee could not do whatever has been done on redevelopment – everything with no power to the Committee.
8.The committee holding election on. Sun, 28 December without involving the Dy. Registrar Office is void as all election responsibility is vested in State Cooperative Election Authority whose head is State Cooperative Election Commissioner Mr Madhukar Chaudhary. This election will be of no consequences to the Society. Get in touch with the Registrar once again as soon as the election are over.
My guess is now the Department should be seized of the situation and you should get an authorized officer to run the Society and to hold re-elections during 6 months.