One member, one Vote For Housing societies: Supreme Court

By SRELJ Bureau

Can   the   bye-laws  of  a   co-operative  housing          society           cur – tail the voting rights of different members of a holding separate flats in the building? No, says the  supreme  court:  it’s  one  flat, one  vote. The multi-flat family problem has cropped up in scores of housing societies throughout India where different wings of a family purchase independent flats in the same building. This allows them the privacy of a nuclear family and the support of a joint family. For the society, however, this agreeable set-up can have its own problems. Since the family owns a number of flats, a little cartel is formed and this influences voting patterns in the society. As a result, one housing society in Mumbai decided to restrict voting rights to one vote per family regardless of the number of flats owned by different members.

 

A dispute arose amongst the members of the Merry Niketan Co-operative Housing Society Ltd at the time of preparing the voter list. A provisional list of voters listed the names of 35 members. While preparing the final list of voters, the managing committee resolved that in accordance with the society’s bye-laws, a member holding more than one flat would be eligible for one vote only. When this was announced, there were objections from those whose family members held more than one flat.

 

When these members filed their nominations for elections, their nomination was rejected. They therefore appealed to the deputy registrar of cooperative societies only to have their appeals dismissed. The matter reached the Bombay HC, which ruled against the society. The matter then went right up to the supreme court.

 

On November 2, 2007, Justice S B Sinha and Justice Harjit Singh Bedi held that Sec- tion 27 of the Maharashtra Co-operative Societies Act 1960 Act clearly provides for one vote per member. The court observed that even though the objective behind “one family, one vote’’ may be laudable, it is necessary to see whether such a concept is provided for under the act. The court held that when the legislative act provided for it, no bye-law could create another concept to defeat the legislative intent. The appeal was dismissed.

Society’s Rights under Dispute amongst Legal Heirs of deceased member

By Legal Bureau

If there is a dispute amongst legal heirs of the deceased member then the Society should tell the claimants to produce a Succession Certificate/ Letter of administration from the Competent Court. Till the time the Succession Certificate/ Letter of Administration is not obtained the Society may not transfer the flat.
DISPUTE RESOLVING MACHINERY Co-operative movement was initially sponsored by the state. Apart from the public sector and the private sector, Co-operative sector has now come into existence. The Co-operative sector has the benefit of both the public sector as well as private sector. One of the principles distinguishing the Co-operative sector from the private sector is that the control of Co-operative enterprises is not in the hands of the capitalist who corner the share capital. The Co-operative sector is based on the principal of “one man one vote”. The beauty of the dispute resolving machinery is that even a single member who is aggrieved can approach the court/registrar for redressal of his grievances. With the passage of time a need was felt to provide a separate chapter on settlement of disputes and accordingly chapter nine consisting of Section 91 to Section 101 has been incorporated in the Maharashtra Co-operative Societies Act, 1960. Some type of dispute have to be referred to the registrar and some types of disputes have to be referred to the Co-operative Court. The Registrar of Co-operative society is a quasi-judicial authority. The Registrar of Co-operative society has the power as regards refusal of membership
by the society to a prospective member. (Section 22 and 23). If the party is aggrieved by the decision of the Registrar or its subordinate then a provision exists for revision application under section 145 of the Act before higher authority i.e. joint Registrar of Co-operative Societies and even before the State Government under the said Section, 154. Finally the remedy under Writ Petition under Article 226 or 227 of the Constitution of India is also available to the aggrieved person in extra ordinary circumstances. Even at the time of expulsion, if passed with ¾ majority under Section 35 of the Act has to be submitted to the registrar and only after his approval can the society take steps to expel the member. The Registrar has power under Section 77A to appoint a new committee or administrator when there is a failure to elect member to constitute committee. Under Section 78 the Registrar has power to remove the managing committee or the members of the managing committee. The Registrar under Section 79 has powers to enforce performance of obligation. Under Section 80 Registrar has power to seize records of the society. However, the Registrar or the person authorized by him must apply to the executive Magistrate within whose jurisdiction the society is functioning for seizing and taking possession of the records and property of the society. Under Section 81, the Registrar has powers to appoint an Authority to audit the accounts of the Society. Under Section 82, the Registrar has power to direct the society to rectify the defects in the accounts. The Registrar on receipt of complaint or on his own can initiate an enquiry under Section 83. The Registrar can also initiate action under Section 89 to summon and enforce an attendance of any person and examine him on oath or affirmation or by affidavit or to compel the production of any document in the same manner, as is provided in the case of Civil Court under the court of Civil procedure 1908. The Registrar has power to inspect the working of the society under Section 89A.
DISPUTES: WHOM TO APPROACH? It is observed that many times people approach a different authority for redressal of their complaint. For normal day to day complaints such as- (a) Charging of compound interest, not issuing of passbook to members, not admitting the Purchaser as member of the society, recovery of the dues etc., the members of the public should approach the Registrar of Co-operative Societies. The Registrar has power under Section 77A of the Maharashtra Co-operative Societies Act to appoint members of committee, new committee or administrator when there is failure to elect members to constitute or whether committee does not enter upon the office. Under Section 78 The Registrar has power of removal of committee or member thereof. Under Section 79 the Registrar of powers to enforce performance of obligations. The member can approach the Co-operative Court under Section 91 if there are disputes between a member and the outgoing/incoming member. More powers are vested in the Co-operative courts. It is normally observed that as Co-operative courts take a long time, there is a tendency amongst the members to approach the Registrar of Co-operative Societies even in matters in which the Registrar does not have the jurisdiction. Section 91 of the Co-operative Court relates to dispute between a member of the society and another member of society, or the dispute between the employees of the society and the society or its members are govern under Section 91 of the Co-operative Societies Act. The value of flats is in lakhs if not in crores of rupees. Thus the jurisdiction of Co-operative court is unlimited and is almost on par with those jurisdiction of High Court as far as pecuniary jurisdiction is concerned. If a member is not paying the dues then also the society can approach the Co-operative court for recovery of dues. Election dispute challenging the Managing Committee of any Co-operative society have also be referred to the Co-operative Court under Section of the Act. It is observed that though the Co-operative Courts have jurisdiction to try and entertain the disputes amongst members pertaining to property matters of lakhs of rupees then also the infrastructure Section 23 (with regards to transfer of flats) or Section 35 (expulsion of members) or Section 77A (appointment of members of committee, new committee or appointment of administrator), Section 78 (power of removal of committee or member thereof) or under Section 81 audit, Section 83 enquiry by Registrar then in such cases an appeal is provided under Section 152 of the Co-operative Act before the Divisional Joint Registrar in Charge of the appeals.

Reason for Expulsion of a member from housing society

By Vinod Sampat, Advocate

A member may be expelled from the membership of the Society if such a member.
i. Has persistently dialed to pay the charge to the society.
ii. Has will fully deceived the Society by giving false information.
iii. Has used his flat for immoral purposes or misused it for illegal purposes habitually.
iv. Has been in the habit of committing breaches of any of the provisions of the bye laws of the society which in the opinion of the committee are of serious nature.
v. Has furnished false information or omitted to furnish the material information to the registering authority at the time of registration of the society.

(a) The cases of expulsion form the membership of the society shall be dealt within the manner provided under section 35 of the act read with rules 28 and 29 of the rules.
(b) Expulsion form the membership may involve forfeiture of the shares held by the member where the committee decides that expulsion form membership should also involve forfeiture of the shares it shall make necessary reference to the proposed for forfeiture of the shares in the notice to be issued under ruels 29.

The member duly expelled from relationship of the Society shall cease to be a member of the Society with effect from the date on which the resolution of expulsion for the membership of the society is approved by the registered authority the forfeiture of the shares shall take effect after the meeting of the general body ahs so decided and the resolution of expulsion form the membership of the society has been approved by the registering authority.
The member who has been duly expelled from the membership of the Society shall not be entitled to continue in occupation of his flat and he shall arrange to handover peaceful and vacant possession of his flat to the Secretary of the Society within such period as the Committee may allow on his failure to do so the shall be liable to be evicted form his flat.
The shares if the meeting of the general body of the Society has decided not to forfeit and interest of the expelled member in the capital property of the society shall be acquired by the Society and the value thereof shall be paid to the expelled member within 3 months of his handing over possession of his flat or his eviction from it after following the procedure as laid down the bye-law no.68 in respect of payment of the value of the share and interest in the capital property of the Society acquired by the Society.
No member of the Society who has been expelled from its membership shall be eligible for readmission to membership in this Society until expiry of the period of one year from the date of this expulsion provided that on the recommendations of the meeting of the general body of this Society the expelled member may be readmitted to its membership as special case. Before the expiry of the period of one year with the prior permission of the registering authority.
C) CESSATION OF MEMBERSHIP
The person shall cease to be the member of the Society.
On his resignation form membership of the society having been accepted by the committee.
On transfer of all his shares and interest in the capital property of the Society.
On his death.
On his expulsion from the membership of the society.
On being adjudged as an insolvent or legally disabled form continuing as member.
The committee shall take further action in the matter as indicated in the bye-law no.62a.
The person shall cease to be the associate member of the Society when the original member cease to be the member of the Society or on the death of the associate member or on the acceptance of the registration of the associate member by the committee.
The committee shall take further action in the matter as indicated in the bye-law no.62a.
If there is a nominal member occupying the flat on behalf of the firm company or any other body corporate he shall cease to be as such member of the society.
on his death
on the acceptance of his resignation by the committee
on cessation of membership of the original member on whose behalf he occupies the flat in the Society.
on cessation of his nomination on account of expulsion of the original member
on intimation from the original member of termination of the occupants nomination.
The committee shall take further action in the matter as indicated in the bye law no.62a.
The nominal member who is the sub letter licensee or possessor in any other manner of the flare or the part thereof shall cease to be as such member of the Society.
on his death
on his resignation having been accepted by the committee.
On the cessation of the membership of the original member.
On the expiry of the period for which the flat or part thereof was permitted to be sub let given on leave and license or caretaker basis or occupied in any other manner.
The committee shall take further action in the matter as indicated in the bye law no 62a.
5 (A) the committee shall record the facts of cession of original members membership of the Society under the bye-law no.59 and of the associate and nominal member membership respectively under the bye laws nos.60,61 and 62 in the minutes of its meeting the Secretary of the Society shall end intimations of cessation of membership to the members the associate members or the nominal members within 7 days of the dates of the meetings of the committee in case in which.

The fact about cessation of membership were recorded in case of cessation of associate and nominal members membership similar intimations shall be sent to the original member also.
D) RESTRICTIONS ON HOLDIGN MORE THAN ONE FLAT.
a) No individual member of the Society shall be eligible to hold more than one flat in the area of operation of the Society in his same or in the name of any of the members of his family without the previous consent in writing of the committee of the Society.
b) The member who desire to hold additional flat in the area of operation of the Society in his name or in the name of any of the members of his family shall make an application to the secretary of the Society in the prescribed down giving full justification for holding the additional flat.
2. The procedure for disposal of applications for permission to hold more than one flat as laid down under the bye law no 67 shall be followed by the Secretary and the Committee of the Society.

Expulsion from membership of Housing Society

By Legal Bureau

Expulsion from membership
(MCS Act 1960/MCS Rules, 1961/Bye-laws of the year1984 and 2001
A member may be expelled from membership of the society, by the society, on the grounds mentioned in the Registered Bye-laws, of the concerned society. Section 35(1) of the Maharashtra Co-operative Societies Act, 1960, talks about expulsion of a member for acts, which are detrimental to the interest or proper working of the society. Expulsion of a member, from membership, of the society is a very drastic step/action because it inter alia results in striking off the name of the member, from the Register of members, and the concerned member has to restore possession to the society. It may also, involve forfeiture of shares held by the member. The provisions of Section 35 etc., of the Maharashtra Co-operative Societies Act, 1960, the provisions of Rule28 and 29 etc. of the Maharashtra Co-operative Societies Act, 1961, and certain relevant provisions of Model Bye-laws, of the Co-operative Societies, (Flat Owners Type/Open Plot Type/Plot Purchased Type), of the year1984 and 2001 have been discussed herein below:
a. How and when a member can be expelled [Section 35(1)]
As per Section 35(1) of the Maharashtra Co-operative Societies Act, 1960, a society may, by resolution passed by a majority of not less than three-fourths of the members entitled to vote who are present at a general meeting held for the purpose, expel a member for acts which are detrimental to the interest or roper working of the ‘society’.
Provided that, no resolution shall be valid, unless the member concerned is given an opportunity of representing his case to the general body and no resolution shall be effective unless it is approved by the Registrar.
b. Rights of an expelled member in respect of re-admission as a member [section 35(20]
As per Section 35(2) of the Maharashtra Co-operative Societies Act 1960, no member of a society who has been expelled under Section 35(1) shall be eligible for re-admission as a member of that society, or for admission as a member of any other society, for a period of one year from the date of such expulsion.
Provided that, the registrar may, on an application by the society and in special circumstances, sanction the re-admission, within the said period, of any such member as a member of the said society or of any other society, as the case may be.
c. Rights of society to acquire the shares or interest of an expelled member by paying value [section 29(3)]
As per Section 29(3) of the Maharashtra Co-operative Societies Act, 1960, notwithstanding anything contained in sub-sections (1) and (2) of Section 29, where a member is allowed to resign, or is expelled, or ceases to be a member on account of his being disqualified by the said Act, or by the rules made thereunder or by the bye-laws of the society, the society may acquire the share or interest of such member in the share capital by paying for its value determined in the manner prescribed.
d. Restrictions on the total payment of share capital in any financial year for such purposes [Section 29(3)]
As per Section 29 (3) of the Maharashtra Co-operative Societies Act, 1960, the total payment of share capital of a society in any financial year for such purposes should not exceed ten percent of the paid-up share capital of the society on the last day of the financial year immediately preceding.
e. The right to forfeit the shares or interest of any expelled member shall not be affected by the aforesaid, provisions [explanation I to Section 29(3)]
As per Explanation I to Section 29(3) of the Maharashtra Co-operative Societies Act, 1960, the right to forfeit the share or interest of any expelled member in the share capital by virtue of any bye-laws of the society, shall not be affected by the aforesaid provision.
f. Meaning of the expression “financial year” [Explanation II to Section 26(3)
As per Explanation II to Section 29(3) of the Maharashtra Co-operative Societies Act, 1960, in section 29, the expression “financial year” means the year ending on the 31st day of March or in the case of any society or class of societies the accounts of which are with the previous sanction of the Registrar balanced on any other day, the year ending on such day.
g. When and how a member can be expelled [Rule 28]
As per Rule 28 of the Maharashtra Co-operative Societies Act, 1961, any member who has been persistently defaulting payment of his dues or has been failing to comply with the provisions of the bye-laws regarding sales of his produce through the society or, other matters in connection with his dealings with the society or who, in the opinion of the committee, has brought disrepute to the society or has done other acts detrimental to the interest or proper working of the society may in accordance with the provisions of sub-section (1) of Section 35, be expelled from the society.
h. Expulsion can involve forfeiture of shares [Rule 28]
As per Rule 28 of the Maharashtra Co-operative Societies Act, 1961, expulsion from membership may involve forfeiture of shares held by the member.
i. Procedure for expulsion of member [Rule 29] [Rule 29(1)]
Asper Rule 29(1) of the Maharashtra Co-operative Societies Act, 1961, where any member of a society proposes to bring resolution for expulsion of any other member he shall give a written notice thereof, to the chairman of the society. On receipt of notice or when the committee itself decides to bring in such resolution, the consideration of such resolution shall be included in the agenda for the next general meeting and a notice thereof shall be given to the member against whom such resolution is proposed to be brought, calling upon him to be present at the general meeting to be held not earlier than a period of one month from the date of such notice and to show cause against expulsion to the general body of members. After hearing the member, if present, or after taking into consideration any written representation which he might have sent, the general body of members shall proceed to consider the resolution.
Powers of the Registrar to grant his approval to the Resolution of Expulsion [Rule 29(20]
As per Rule 29(2) body of of the Maharashtra Co-operative Societies Act, 1961, when a resolution is passed in accordance with sub-rule(1) is sent to the Registrar or otherwise, brought to his notice, the Registrar may consider the resolution and after making such inquires as he may deem fit, give his approval and communicate the same to the society and the member concerned. The resolution shall be effective from the date of such approval

Dispute amongst legal heirs in housing societies

By Legal Bureau

Ques: What should the office bearers do incase there is a dispute amongst the legal heirs of the decrease member?

Ans: If there is a dispute amongst legal heirs of the deceased member then the Society should tell the claimants to produce a Succession Certificate/Letter of administration from the Competent Court. Till the time the Succession Certificate/Letter of Administration is not obtained the Society may not transfer the flat.

DISPUTE RESOLVING MACHINERY

Ques: What is the dispute resolving machinery under the Maharashtra Co-operative Societies Act? Which type of dispute have to be referred to the registrar? Which type of dispute have to be referred to the Co-operative Courts?

Ans: Co-operative movement was initially sponsored by the state. Apart from the public sector and the private sector, Co-operative sector has now come into existence. The Co-operative sector has the benefit of both the public sector as well as private sector. One of the principles distinguishing the Co-operative sector from the private sector is that the control of Co-operative enterprises is not in the hands of the capitalist who corner the share capital. The Co-operative sector is based on the principal of “one man one vote”. The beauty of the dispute resolving machinery is that even a single member who is aggrieved can approach the court/registrar for redressal of his grievances. With the passage of time a need was felt to provide a separate chapter on settlement of disputes and accordingly chapter nine consisting of Section 91 to Section 101 has been incorporated in the Maharashtra Co-operative Societies Act, 1960. Some type of dispute have to be referred to the registrar and some types of disputes have to be referred to the Co-operative Court. The Registrar of Co-operative society is a quasi-judicial authority. The Registrar of Co-operative society has the power as regards refusal of membership by the society to a prospective member. (Section 22 and 23). If the party is aggrieved by the decision of the Registrar or its subordinate then a provision exists for revision application under section 145 of the Act before higher authority i.e. joint Registrar of Co-operative Societies and even before the State Government under the said Section, 154. Finally the remedy under Writ Petition under Article 226 or 227 of the Constitution of India is also available to the aggrieved person in extra ordinary circumstances. Even at the time of expulsion, if passed with ¾ majority under Section 35 of the Act has to be submitted to the registrar and only after his approval can the society take steps to expel the member. The Registrar has power under Section 77A to appoint a new committee or administrator when there is a failure to elect member to constitute committee. Under Section 78 the Registrar has power to remove the managing committee or the members of the managing committee. The Registrar under Section 79 has powers to enforce performance of obligation. Under Section 80 Registrar has power to seize records of the society. However, the Registrar or the person authorized by him must apply to the executive Magistrate within whose jurisdiction the society is functioning for seizing and taking possession of the records and property of the society. Under Section 81, the Registrar has powers to appoint an Authority to audit the accounts of the Society. Under Section 82, the Registrar has power to direct the society to rectify the defects in the accounts. The Registrar on receipt of complaint or on his own can initiate an enquiry under Section 83. The Registrar can also initiate action under Section 89 to summon and enforce an attendance of any person and examine him on oath or affirmation or by affidavit or to compel the production of any document in the same manner, as is provided in the case of Civil Court under the court of Civil procedure 1908. The Registrar has power to inspect the working of the society under Section 89A.
DISPUTES: WHOM TO APPROACH?
Ques: For which all items should the member approach the Registrar of Co-operative Society? For which type of complaints should the member approach the Co-operative Court?

Ans: It is observed that many times people approach a different authority for redressal of their complaint. For normal day to day complaints such as- (a) Charging of compound interest, not issuing of passbook to members, not admitting the Purchaser as member of the society, recovery of the dues etc., the members of the public should approach the Registrar of Co-operative Societies. The Registrar has power under Section 77A of the Maharashtra Co-operative Societies Act to appoint members of committee, new committee or administrator when there is failure to elect members to constitute or whether committee does not enter upon the office. Under Section 78 The Registrar has power of removal of committee or member thereof. Under Section 79 the Registrar of powers to enforce performance of obligations. The member can approach the Co-operative Court under Section 91 if there are disputes between a member and the outgoing/incoming member. More powers are vested in the Co-operative courts. It is normally observed that as Co-operative courts take a long time, there is a tendency amongst the members to approach the Registrar of Co-operative Societies even in matters in which the Registrar does not have the jurisdiction. Section 91 of the Co-operative Court relates to dispute between a member of the society and another member of society, or the dispute between the employees of the society and the society or its members are govern under Section 91 of the Co-operative Societies Act. The value of flats is in lakhs if not in crores of rupees. Thus the jurisdiction of Co-operative court is unlimited and is almost on par with those jurisdiction of High Court as far as pecuniary jurisdiction is concerned. If a member is not paying the dues then also the society can approach the Co-operative court for recovery of dues. Election dispute challenging the Managing Committee of any Co-operative society have also be referred to the Co-operative Court under Section of the Act. It is observed that though the Co-operative Courts have jurisdiction to try and entertain the disputes amongst members pertaining to property matters of lakhs of rupees then also the infrastructure Section 23 (with regards to transfer of flats) or Section 35 (expulsion of members) or Section 77A (appointment of members of committee, new committee or appointment of administrator), Section 78 (power of removal of committee or member thereof) or under Section 81 audit, Section 83 enquiry by Registrar then in such cases an appeal is provided under Section 152 of the Co-operative Act before the Divisional Joint Registrar in Charge of the appeals.

Powers and Duties of Associate Member in Housing Society

By Advocate Vinod Sampat

1. Of late, the Federation has been receiving a number of enquiries from co-operative housing societies, seeking clarification, whether an associate member enjoys any of the rights of a member of the Society and if so, what are they. Enquiries are also directed to the Federation to enlighten the Managing Committee or office-bearers of the co-operative housing societies on the question of eligibility of an associate member for contesting election to the Managing Committee of a co-operative housing society.

2. It is expected that the Managing Committee or the office bearers of the co-operative housing societies should acquaint themselves with the powers conferred on an associate member and the procedural details for allowing an associate member to contest election to the Managing Committee of the Society. The co-operative housing societies are fully aware that their members in general are almost ignorant about the matters mentioned above and consequently, they are not in a position to guide their members in this behalf. As a parent body, the Federation is attempting to issue guidelines in detail in respect of the matters referred to above.

3. We deal with the question of powers of an associate member. It may be made clear that no associate member has any property rights over flat held by the member to whom he is an associate member. It is the nominee of the First member who claims right over the shares and the interest in the flat on death of the original member (i.e. the member whose name stands first in the Share Certificate) and on admission of the nominee to membership of the society, it is further clarified that an associate member has no right over the shares and interest in the property of the society and when the original member dies his associate member automatically ceases to be an associate member. Till 1969, no associate member, nominal or sympathizer member was eligible to vote and/or contest election to the Managing Committee of a Co-operative Housing Society, including a Co-operative Housing Societies, in view of the provision of Sec. 27(8) of the MCS Act then in force. The said section 27(8) was amended in 1969, to delete the word “associate” member from the said section has the effect of removing bar on the voting power of an associate member. Simultaneously, Government amended Section 27(2) of the MCS Act to the effect that the person whose name stands second in the share certificate i.e. an associate member will have a right to vote provided that the original member i.e. person whose name stands first in the share certificate is absent at the Annual or Special General Meeting.

It will be clear that the person whose name stands second i.e. an associate member although has no other rights of membership he acquires a right of vote in the absence of the first member i.e. the member whose name stands first in the share certificate, as per amendment to Section 27 (2) of the MCS Act 1960.

4. Thus, it is a fact, duly supported by the legal provisions, that an associate member has a right of vote when the first member is absent in a general or special meeting. This gave rise to a subsequent issue about eligibility of an associate member to contest election, to the Managing Committee. The matter, whether or not an associate member has a right to contest election to the Managing Committee went before the Maharashtra State Co-operative Appellate Court. The Court held that since an associate member enjoys the rights of vote it goes without saying that he could contest election to the Managing Committee.

5. It was apprehended that the member, having his name first in the share certificate and his associate member might exercise voting even in the presence of the first member. The management of the society therefore may have to be vigilant to watch that at no time, the member and his associate member both exercise the right of vote. Some mechanism has to be evolved, whereby the possibility of both the members, the member having his name first in the share certificate and his associate member exercising the right of vote should be reduced to the minimum. After giving thoughtful consideration to the problem, it was decided that a member whose name stands first in the share certificate, should be required to surrender his voting right, so that there would be no possibility of the associate member and the member having his name first in the share certificate exercising their right of vote.

6. After having accepted the above procedure for the purpose of ensuring that both the member do not exercise right of vote on a proposition, the question arises as to when the first member should furnish a letter surrendering his voting right. It is important to note the point of time when the letter or surrender of voting right should reach the society. The society has to go steps by steps while carrying out election programme. A society has to prepare a provisional list of members. The provisional list of members would include the names of the associate members also, before a final list of members is published, the members whose name stands first in the share certificate have to take decision as to whether they themselves would vote or whether they would like to surrender their voting rights in favour of their associate member. On getting the letters, exercising the option in the matter of exercise of right of vote, the society will prepare a final list of members, deleting the names of the members, having their names first in the share certificates, who have exercised option to surrender their voting rights in favour of their associate member. It is important to note that this final list will contain the names of the members whose names stands first in the share certificate but who have not surrendered their voting right and of those associate members, whose names stands second in the share certificate in whose favour the first members have surrendered their voting rights. The names as stated above in the final list will only be eligible to vote at the election to the Managing Committee and also to contest election if desired.

7. After election of an associate member to the Managing Committee, in whose favour the first member had surrendered his voting rights, will for all practical purpose, exercise all the rights of the member, attend and vote at meetings of the General Meeting and Managing Committee.

8. When we suggest an associate member to be on the Managing Committee, if elected, material point should not be lost sight of, it is that an associate member, as a Managing committee member, will be able to represent the problems, of the society properly, only if he is residing in the premises of the society and is conversant with the problems of the society. It is, therefore suggested that while allowing an associate member to contest election to the committee, it should be seen that he stays in the society’s premises.

Condition for Corporate Bodies for Membership of a Society

By Legal Bureau

A Firm, Company or Other Body Corporate, registered any Law for the time being in force, and which is eligible for the membership of a society shall comply with the following conditions:-1.It has sent a agreement entered into by it with the Promoter Builder under section 4 of the Maharashtra Ownership Flats Act, 1963 ( This condition is applicable to flat owner society). 2.It has sent along with it’s application for membership another application in the prescribed form nominal membership of it’s employee who is going to occupy the flat on it’s behalf. The application should also accompany a certified true copy of the authority authorizing the employee to occupy the flat on it’s behalf. 3.It has paid alongwith the application an entrance fee of Rs.10. 4.It has subscribed to at least ten fully paid up share of the society (In case of flat owner society) (and at least five fully paid-up shares in case of open plot type of society). 5.The firm or the company has complied with the conditions mentioned in the Notifications issued by the State Government from time to time under the second proviso to section 22 of the Maharashtra Co-operative Societies Act, 1960. 6.The firm of the company has furnished the undertaking/declarations in the prescribed form required under any law for the time being in force alongwith the application for membership.

 

Form

The Form of Application for Membership of the Co-operative Housing Society by A Firm a Company or any other Body Corporate.

To

The Secretary/Chief Promoter

Sir,

We,/M/s. ………………………….. having address at ………………hereby make an application for membership of the …………………Co-operative Housing Society Ltd. (Proposed), having address at………………………..

We send herewith an amount of Rs.510 (Rupees Five hundred and ten only), being the value of 10 shares of Rs. 50 each and entrance fee of Rs. 10/-.

Shri / Shrimati……………………………… has been authorised by us to sign the application for membership of the society on our behalf and furnish such  information as is needed by you for the purpose of consideration of our application for admission to the membership of the society. A true copy of the authority is enclosed for your record.

We have purchased………………………….flats in the building/buildings known/numbered as ……………….. Constructed by the Promoter (Builder), for housing our following bonafide employees viz.—

  1. Shri/Smt. ………………………………
  2. Shri/Smt……………………………….
  3. Shri/Smt……………………………….
  4. Shri/Smt……………………………….
  5. Shri/Smt……………………………….

We will not allow any other employee to occupy any of the flats purchased by us without the previous permission of the society.

We undertake to use the said flat/flats for the purpose mentioned in the letter to be issued to us, under the bye-laws No.78(a) of the bye-laws of the society and further add that no change of users will be made without the previous consent in writing of the committee off the society. The undertaking to that effect in the prescribed form is enclosed herewith.

The undertaking and the declaration in the prescribed forms about registration of the proposed acquisition of right over the flat, under Section 269AB of the Income tax Act and about non-holding of immoveable property in excess of 500 sq. mtrs. under the Urban Land (Ceiling and Regulation) Act are also enclosed.

Our Head Office is situated in the area of operation of the society, where we are carrying on our business.

The aims and objects of our firm/company are not contrary to those of the society.

We have gone through the registered/ proposed bye-laws of the society and the notifications issued by the Government form time to time under section 22 of the Maharashtra Co-op. Societies Act, 1960, regulating membership of corporate bodies, and we undertake to abide by the same with any modifications that the Registering Authority/Government respectively may take in them.

 

FOR AND ON BEHALF OF THE

(Signature of the Applicant)

……………………………………..

 

Place  ………………………..

Date …………………………

 

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DRAFT SPECIMEN OF THE MANAGING COMMITTEE RESOLUTIONS.

1. Resolution of the Committee convening the annual general meeting.

Resolved that the annual general meeting of the Society be convened for the year……………on ………………..day of …………………..199………..at …………….p.m, at………………..and that the secretary be and is hereby authorised to issue notices in respect thereof.

2. Approval of the report of the Managing Committee and Annual Accounts. (a) Resolved that draft report of the Committee for the year ended 30th June 199 be approved, including the recommendation for the payment of a dividend on the shares of …………….. per cent and the same by place before the annual general meeting. (b) Resolved that the statements of  accounts for the year ended 30th June 199 together with the audited balance sheet and profit and loss account are hereby approved and the same be signed by ……………..on behalf of the Committee and that the report of the Committee be signed by the Chairman on behalf of the Committee. 3. Opening at Bank Account: Resolved that an Account be opened with the …………..Bank in their Branch at ……………in the name of the society, and that said bank be authorised to pay cheques, signed by any one of the following members of the Committee and countersigned by the Secretary whose specimen signatures have been furnished to the Bank in appropriate forms. 4. Admission of New Members: Resolved that the following persons be and are hereby admitted to the membership of the society subject to the provisions of the bye-laws of the society and that shares of the society have been allotted to them as shown against their names and that the Secretary is to inform them about admission to the membership as well as allotment of shares. 5.Appointment of a Sub-Committee: Resolved that the following members of the Committee be and hereby appointed to constitute a sub-committee to enquire into and review the working and general management of the society and recommend the mean for reducing the operating expenses and improving its working. 6. Appointment of a Manager: Resolved that Mr…………………………be and is hereby appointed manager for a period of …………..years from ……………..at a salary of Rs………….per month in the scale of Rs……………..plus usual allowances applicable subject to his signing an agreement/bond in respect of terms of his service. 7.Reference of dispute to arbitration:  Whereas the following members of the society have defaulted the payment of the dues of the society in respect of the loans advanced to them and that in spite of  several notices given fro the repayment of the principal as well as interest outstanding against them as per the books of the society for arbitration under section……………..of the co-operative societies act to the Registrar for the recovery of the entire claim together with interest till the date of recovery.

Resolution Passed in the General body whether challengeable?—Simply because of the General Body of a society passes resolution, itself can be said to be legal, proper, unchallengable even in a Court of Law is not true. Every action of an individual or a body corporate can be subject matter for challenge in Court of Law. Therefore, the action of the General Body has to be tested on the aspects of its validity, and reprehensibility against the person who challenged this (K.M. Abraham Vs. The Rupal Premises Co-operative Housing Society Ltd., Bombay, 1987 CTJ 757.

Rights, Restrictions, responsibilities and Liabilities of Member in housing society

By Harish G. Bhatia
Advocate & Professor of Law

Rights, Restrictions, responsibilities and Liabilities of Member

A Professional office can be allowed in a Purely Residential Zone, as per D.C. regulations for Gr Bombay, 1991

As per Regulation No. 51(iv) of the D.C. Regulations for Gr. Bombay, 1991, in case of Purely Residential Zone (R-1 Zone) apart from residential use, Professional offices and studies of a resident of the premises and incidental to such residential use, or medical and dental practitioners dispensaries or clinics of a resident of the building with only out patient treatment facilities without any indoor work, each not occupying a floor area exceeding 30 sq.m, is allowed.

A Medical or Dental Practitioner’s dispensaries etc, can be allowed in a Purely Residential Zone, as per D.C. regulations for Gr. Bombay, 1991
As per Regulation No. 51(ii) of the D.C. Regulations for Gr. Bombay, 1991, in case of Purely Residential Zone (R-1 Zone), apart from residential use, the medical and dental practitioners’ dispensaries or clinics, including pathological or diagnostic clinics with a restriction of one dispensary or clinic per building can be permitted on the ground floor, on the floor just above the stilts or on the first floor.
A Nursing Homes / Polyclinics Maternity Homes and Medical Practitioners / Consultants etc., can be allowed in Purely Residential Zone, as per D.C. Regulations for Gr. Bombay, 1991
As per Regulation No. 51(iii) of the D.C. Regulations for Gr. Bombay, 1991, in case of Purely Residential Zone (R-1 Zone), apart from residential use, nursing homes, polyclinics maternity homes and medical practitioners/consultants in different disciplines of medical sciences in independent buildings or independent parts of buildings one the ground floor, floor 1 and floor 2 with separate means of access / staircase from within the building or outside, but not within the prescribed marginal open spaces in any case, and with the special permission of the Commissioner, is allowed.
A Flour Mill can be allowed in a Purely Residential Zone, as per D.C. Regulations for Gr. Bombay, 1991
As per Regulation No. 51(xvi) of the D.C. Regulations for Gr. Bombay, 1991, in case of Purely Residential Zone (R-1 zone), apart from residential use, flour mills, with the special permission of the Commissioner, if (a) they are in a single storeyed detached or semi-detached structure, and (b) their power requirement does not exceed 7.5 K.W. each, is allowed.

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Case laws on Maharashtra Co-operative Societies Act, 1960

Case laws
Addition and / or Alteration
Registered Bye-laws of the Society – Society can prevent the member from carrying out the structural alterations without its consent
“But in the case, noticed that the regulations are described as Form ‘A’ annexed to Schedule 4 and the said Schedule 4, it can be seen, are manifestly part and parcel of the Bye-laws. By a simple process of logical ratiocination, it must followed that the Regulations form part and parcel of the Bye-laws. The Bye-laws are registered by the Registrar, they are signed by the requisite number of members of the Society. The regulation of the bye-laws by the Registrar and the adoption of the bye-laws by the Society must result in registration of the regulations and adoption of the regulations by the Registrar and the Society, respectively. This would be position ipso facto and I find scant justification for taking any other view.
The disputant member agrees that he will not bring about structural alterations in the flat allotted to him without the consent of the Society. The step taken by the Society to prevent the member from carrying out the structural alterations without its consent is therefore, a perfectly legitimate step.” [M/s. Sai Chhaya C.H.S. Ltd., vs. Municipal Corp. of Gr. Bombay., reported in 1996 C.T.J. 318 (Bom. H.C.)].