By I C Naik
As per the Maharashtra Cooperative Societies Act 1960 [the Act] a member of a society, includes Associate Member, (whether a joint owner of the flat or not). The Associate member is differentiated from a member under 2 legal provisions namely:
- The Share certificate issued by the society, evidencing the membership of the society, states name(s) of the Associate member(s) after the name of the member i.e. at a position other than No.1. [Section 2(19)(b) of the Act.
- The rights of Associate member are restricted to those specified in registered bye-laws of the society.
Attending a General Body Meeting in the absence of a main member is the only right of the Associate member provided under Section 27(2) of the Act.
At www.indiancooperatives.com we had discussed Associate membership on numerous occasions. Two prolonged ongoing unfortunate disputes concerning the Associate Members in housing societies registered in Maharashtra, referred to us for guidance has prompted this advisory. It is intended to point out as to how simple it was to prevent such unpleasant situations.
The facts as received by us are narrated very briefly, without onus of accuracy thereof. In both the cases the sufferers are Doctors by Profession who appear to have requested to their respective housing societies to confer the Associate membership to their younger brothers. That is also the Scheme of cooperative society law and registered bye-laws of the every housing society. In one case, there is a dispute about occupancy of the property claimed to be exclusively belonging to the Doctor member. The Associate member who is an Advocate by profession was allowed to occupancy it as the Doctor Member was serving outstation employer. After a few years now the Doctor is woefully trying to get the property vacated as his age is fast approaching the retirement. It looks like his efforts are yielding no results. The professions of each one of them appears to be an “Advantage Associate Member” in the protracted legal fight.
In another case the Associate member is reportedly engaged in a vicious legal battle of nerves with his main member (Doctor brother) allegedly through the society’s Management Committee, as the later is a member of the Committee. The society has expelled the Associate Member twice but he has reportedly managed to stick to his position. On the contrary he has reportedly drawn the entire Committee to Court in a defamation suit.
The quarrel became public once on 31 3 2014 in Time of India https://timesofindia.indiatimes.com/city/mumbai/Housing-society-expels-member-for-RTI-harassment/articleshow/32986401.cms and very recently on 30-03-2018 in Mumbai Mirror. Mirrorhttps://mumbaimirror.indiatimes.com/mumbai/other/residents-managing-famous-bandra-colony-to-face-trial /articleshow/ 63539195.cms Both the matters are hanging fire unlikely to get extinguished in a foreseeable future.
The Cooperative Department of the State and Cooperative Societies regime headed by Commissioner for Cooperation and Registrar of Cooperative Societies (the Co-operative Commissioner) both have contributed to the avoidable chaos concerning the Associate Membership in housing societies:[may undertake a comprehensive look in future as “Associate in Chaos. v2” if so desired].
The Maharashtra State Legislature has rightly left to the members of the cooperative societies to determine the membership rights/liabilities of an Associate member under Section 24(2) of the Act in these words…. “an associate member, may, … have such privileges and rights and be subject to such liabilities, of a member, as may be specified in the bylaws of the society.”
Unfortunately, the Office of the Co-operative Commissioner appears to have chose to hide the legal view that within the regulatory frame work provided by the Legislature under the Act, the bye-laws of a cooperative society are to be drafted by the proposed members of the society and can also be amended from time to time by them as best suited to meet the dynamic requirements of members as a homogeneous group.
Even the Apex Court has ruled that “In our view, what is in the interest of the society is primarily for the society alone to decide and it is not for an outside agency to say. Where, however, the Government or the Registrar exercises statutory power of issuing directions to amend the bye-laws, such directions should satisfy the requirement of the interest of the Society.” [JT 2000 (8) SC 68 in Karvanagar Sahakari Griha’s Case]
The model Bye-Laws drafted in the office of the Co-operative Commissioner and cleared by the State Department, does not allow Associate member more than just one right as conferred under Section 27(2) of the Act. Post 97th Constitutional Amendment the state amended the M C S Act 1960 and the Co-operative Commissioner released a new Model of the Bye-Laws in November 2013 to align the provisions to the changed law.
As per this Model an Associate member is a person who holds the flat jointly with the main member [Bye-law No. 2 (xxiv)(b)]. Section 19(b) however provides: “associate member” means a member who holds jointly a share of a society with others, but whose name does not stand first in the share certificate; meaning notwithstanding what is stated in Section 2(19)(b) of the Act, as per Bye-Laws the Associate member must be a joint holder of title to the concerned flat. Getting Associate Membership paying Rs 100/- is not available any more. In one premises society, in recognition of bye-law No. 2(XIV)(b) of the afore said Model released for housing societies as aforesaid, the Hon. Secretary and some members of the Management Committee were dismissed by the Ward Dy. Registrar read more…
https://www.indiancooperative.com/from-states/how-a-dy-registrar-misguides-people-in-mumbai/
All Model Bye-Laws provide for conditions which will enable a person to join as member of the society. The conditions which can cause cessation of a membership are also laid down in registered bye-laws. Membership to cooperative society cannot be given except against a written application [per Rue 19 of the M C R 1961]. Bye-law No. 19(b) states:
“An Individual, a Firm, a Company or a Body Corporate, registered under any Law for the time being in force, who/ which is eligible to be an Associate Member and who/which shall apply through Member in the prescribed form for such Membership, along with the entrance fee of Rs. 100/-, may be admitted as Associate Member by the Committee.”
The form of application prescribed as aforesaid is provided at Appendix-5 to the Model Bye-Laws. This form requires several declarations to be made by the applicant: one of them is about purchasing / owning a property jointly with the First Member, being flat no………in the Society. A member who is not qualified to make this declaration has an option to make the following declaration, namely: “I state that do not jointly own or have joint title to the property with the above mentioned First Member” He can also admitted.
One more declaration by the applicant in this form is as under ‘The Associate member shall have no rights or privilege of a member, except attending general body meeting of the society and voting at them, provided that the member whose name stands first in the share certificate is absent at such meeting”
Despite such unambiguous written declaration by the Advocate in Pune (Associate member of Doctor Brother) is in occupation of the flat, against the desire of the main member. And a Catholic member confers to himself a right of dragging the Committee to court for defamation of the Associate Member.
There is a miss-match in the Bye-Law conditions for admitting a person to Associate Membership and for removing the Associate member.
Continuation of Associate membership is expressly linked to the continuation of the membership of the Main member, as provided in bye-law No. 56 reproduced below;
‘56. The person shall cease to be the Associate Member of the Society, when the Member, whose name stands first, ceases to be the Member of the Society or on the death of the Associate Member or on the acceptance of the resignation of the Associate Member by the Committee’
The miss-match is this. A person is admitted to Associate Membership at the desire of the main member (the flat owner) but there is no mandate to the Committee to terminate the Associate membership when so desired by the same member. Just as the rights can be specified the responsibilities are also to be specified which includes relinquishing the membership at the desire of the main member. Perhaps it’s time that all housing societies amend the Bye-Laws to provide one more condition to the circumstances of cessation of Associate membership namely “at the request of the main member submitted to the Committee in the prescribed form”