Ramchandra K
In the year 1995 , our society came into existence which was conglomeration of seven buildings constructed by MHADA with total of 192 Members. At that time one person who is the husband of a Member (sole property owner) became an Associate Member.
Owing to the dispute between the buildings it was decided that each of the seven buildings will now operate as separate entity and accordingly our bldg.no.4, was registered as independent society in the month of February,2001 (.i.e. Six years after the common society was formed which now stands dissolved.)
Now this person who was the Associate Member of earlier Society is claiming that he is now Associate Member of our current Society ( Bldg no.4 with 24 Members) although he has not completed the formalities of becoming the Associate Member. He is claiming that he has automatically become an Associate Member owing to his wife who is the bona fide Member of our society.
He is refusing to complete the formalities of an Associate Member although we explained to him that earlier society stands dissolved & so does his Associate Membership. But he refuses to budge.
Not only that he writes letters to the Managing Committee, Dy. Registrar, Police Stations etc. & has gone and filed a false criminal case of cheating, misappropriation of society’s funds etc against the office bearers, claiming that one of the office bearer i.e. me is not a Member although I am is registered as a single nominee. The case has now come up for hearing in the Metropolitan Magistrate’s Court.
My stand is that (1) He is not an Associate Member in the first place & hence no locus standi to approach any authority viz. M.C., Police Station, Dy. Registrar, Courts etc. Am I correct?
(2)He has not submitted any letter & proof that he has been permitted by his wife to act on her behalf. He is not the joint owner nor has he become office bearer of our society since it came into existence in 2001. He contested election in the year 2005 which he lost. Since then he is creating trouble by approaching Dy. Registrar demanding that an Administrator be appointed to run the society. He has succeeded once in 2005/2006 in appointing administrator (who siphoned off lot of money) as he has influence with the registrar.
(3) It is pertinent to note that if there is misappropriation of funds then only bona fide Member (Not an Asso. Member) has the right to approach the Dy. Registrar to investigate the matter. However to do so you require backing & sanction of at least 1/3rd Members( Eight in our case) which he doesn’t have & despite, knowing this ,he approached Metropolitan Court & has succeeded in registering false criminal case. I find it shocking that M.M.allowed the case to be registered although he has falsely claimed to be Associate Member.
I am very much surprised that M.M. is not aware that, as per the Bye Laws an Associate Member has no rights whatsoever except to attend the general body meetings that too , after getting permission from original Member, so the Court should not have entertained him in the first place. In my opinion the case falls under Co-Op Court & the M.M. has blundered& has no jurisdiction to try these matters.
I would be very much obliged if you give me your valuable advice. Waiting anxiously for your opinion.
I C Naik
Mr. Ramchandra K a member of the Committee of a 24 member cooperative housing society which came in to existence in 2001 after a division of a cooperative housing society registered in 1995 in Mumbai has raised two critical questions as under:
1. Does an Associate Member of a C H S continue as an Associate member after the cooperative housing society has been split?
2. Can any person or an Associate member file a criminal complaint against Office bearers of the cooperative housing society and which is the competent authority to entertain such complaint (1) Dy Registrar, (2) Police, (3) Metropolitan Magistrate ?
1. A person whose name appears in the Share Certificate second and who has been admitted as Associate Member by the managing committee, pursuant to his application in prescribed form paying prescribed fees under Bye Law No 21 and whose name is appearing in the Register of Members continues to be an Associate member in the divided cooperative housing society also.
2. Under the M. C. S. Act 1960 consciously dispute / grievance settlement has been simplified. Any dispute touching the constitution, elections of the committee or its officers, conduct of general meetings, management or business of a society shall be referred to the co-operative Court.
3. Subsection 3 debars jurisdiction of any Court to handle disputes as listed above. These are civil disputes and not of criminal nature.
4. The M. C. S. Act 1960 has a provision in Section 148 reproduced below (to go through the Dy Registrar as a pre-condition to instituting any prosecution:
148. Cognizance Of Offences: (1) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class, shall try and offence under this Act. (2) Deleted (3) No prosecution under this Act shall be lodged, except with the previous sanction of the Registrar.
5. No Metropolitan Magistrate can proceed with any complaint unless evidence of a previous sanction has been presented by the Complainant. Even if he proceeded an argument of a lawyer on behalf of the Society about absence of such sanction will stop the Magistrate from proceeding further.
6. Section 83 of the M. C. S. Act 1960 is also relevant: ”The Registrar may of his own motion, and shall on the application of one-third of the members of a society, himself or by a person duly authorized by him in writing in this behalf, hold an inquiry into the constitution, working and financial conditions of a society.”
7. Registrar could be persuaded by any person “to hold and inquiry into the constitution, working and financial conditions of a society” on his own motion and is not obliged to disclose the source of inspiration. It is not official so it matters very little if a person was an Associate member or not.
8. Use of financial power is very well connected with cooperative housing society management but no all cases are similar. Such instances are exception. Now the appointment of administrator has been barred the honest management has not to fear any such nuisance.
