Read for an exclusive and comprehensive step-by-step breakdown of how it works from one of the top legal experts – Advocate Vinod Sampat

Housing society elections: A step-by-step guide on rules, rights of members & all other important things explained by Advocate Vinod Sampat |

How much does the commonman really know about the election process? Formany laymen, it is done and dusted after the last vote is counted. But is it really so? You will be surprised to know that the process is steeped in tradition, administrative and legal formalities. Find out what goes on between the word go and till the end of the process, the important role of the Returning officer, etc. and the nuts and bolts that go into its making. Read on for an exclusive and comprehensive step-by-step breakdown of how it works from one of the top legal experts – Advocate Vinod Sampat brought to you, our FPJ readers.

ACCEPTANCE OF NOMINATION FORM BY REPRESENTATIVE OF RETURNING OFFICER.

Q. Whether a substitute can accept nomination forms on behalf of the Returning Officer?

Ans: As far as possible the returning officer has to remain present for five days continuously at the given time to accept nominations. But, in case of emergency, he may by written order authorize any other person as a substitute to accept nomination, but the responsibility shall vest on the returning officer only.

 ADDRESS OF MEMBERS WHERE PROVISIONAL LIST OF MEMBERS HAVE TO BE DELIVERED

Q. Which address of the members is to be considered for delivery of the Provisional List of Voters?

Ans: Address mentioned in the society`s record and if not residing in society than the last known address given in the registered agreement for sale/purchase of flat available with the society or the last known address available in the records of the society.

ALPHABETS FOR ELECTION FORMS.

Q. What alphabet is given for election forms?

Ans: In coop societies there are various types of forms starting from A to Z. For Elections alphabet `E` is used meaning and hinting elections.

 APPEAL AGAINST APPOINTMENT OF RETURNING OFFICER BY MEMBER OF SOCIETY

Q. Whether members can appeal against the decision of the Managing Committee to appoint returning officer?

Ans: No. There is no such provision in the Rules. However, caution is to be taken to ensure that no employee or auditor or a member of the existing committee whose tenure has expired, or a member who desires to contest the election is appointed.

 APPEAL OF CANDIDATE UPHELD. CAN HE CONTEST ELECTIONS.

Q. Whether candidate can contest the election if his appeal against rejection of nomination is upheld and accepted by the ward/taluka level Election officer?

Ans: Yes, as his name will be published and displayed on the final list of candidates.

APPOINTMENT OF RETURNING OFFICER BY AUTHORISED OFFICER OR BOARD OF ADMINISTRATOR

Q. Whether an Authorised officer or Board of Administrators appointed by the Registrar, where the Committee is suspended, is or are eligible to be appointed as returning officer.

Ans: No.

 APPROVAL OF GENERAL BODY FOR APPOINTMENT OF RETURNING OFFICER

Q. Whether approval of the General Body is required to appoint returning officer?

Ans: There is no such provision for any class of societies. The Returning Officer has to be appointed by the Managing Committee for E class societies, while the SCEA appoints the Returning Officer for other class of societies.

 AREA OF OPERATION AND CLASSIFICATION OF CHS.

Q. What are the area of operation and classification of coop societies?

Ans: Classification and area of operation are as under:

i)                   `A` Class: Coop Societies having area of operation in the entire state of Maharashtra are classified as A class.

ii)                `B` Class: Coop societies having area of operation throughout a district are classified as B class.

iii)                `C` Class: Coop Societies having   membership above 251 members and above having area of operation at Taluka/Ward level.  

iv)              `D` Class: Coop Societies are not in existence post amendment in election rules.

v)                `E` Class: Coop Societies having strength upto 250 members with area of operation at the taluka/ward level.

ATTENDING GENERAL BODY MEETING.

Q. Who can attend SGBM?

Ans: Only those members whose names are displayed in the final list of voters can attend SGBM. The members who have transferred their voting rights are not supposed to be present in the SGBM.

 CAN MEMBER OF A SOCIETY ACT AS A RETURNING OFFICER

Q. Can a member of the society act as Returning Officer?

Ans: Yes by all means subject to the conditions that he does not desire to contest the election. The returning officer can be a member, Joint Member, Associate member or a Provisional Member who has undergone training for conducting elections from a Notified institute, notified by the state government and whose name is SCEA as well as in the list maintained by the Divisional Joint Registrar of Coop Societies.

CAN MEMBER PROPROSE MORE THAN ONE CANDIDATE.

Q.Is a Member permitted to be a Proposer or Seconder for more than one candidate?

Ans: Yes, a Member can propose or second a candidate`s name for Maximum no of times depending upon the General Constituency. However, if he himself is a candidate then he can propose or second one name less than what is stated in the bye laws for the General Constituency as he is himself cannot propose his own name.

 CASTE RESERVATIONS.

Q. Can Caste reservations of states other than Maharashtra be valid for Contesting elections of a coop society?

Ans: No, Caste reservations only from the state of Maharashtra are eligible   for aspiring candidate to contest elections of a coop society.

 CASTE VALIDITY CERTIFICATE.

Q.Wheher caste validity Certificate is to be submitted by a candidate?

Ans: No caste validity certificate is not required to be submitted.

 CATEGORY OF MEMBERS INCLUDED IN PROVISIONAL LIST

Q. Which categories of Members are included in the Provisional List of Voters?

Ans: Members and Provisional members whose names are included and entered in the `I` and `J` Register shall appear in the Provisional list of Voters.

CLAIMS AND OBJECTIONS CAN BE SUBMITTED BY WHOM

Q. Who can submit claims and objections and corrections?

Ans: Any member be it Associate member, Joint member or Provisional Member who has interest in any flat of the society can raise claims/objections and corrections in the provisional List of Voters.

CLAIMS AND OBJECTIONS TO BE RAISED BEFORE WHOM.

Q. To whom the claims and objections can be raised?

Ans: Claims and objections can be raised before the Returning Officer.

CLASSIFICATION OF CHS.

Q. How are Coop Societies classified?

Ans: Registered Coop Societies are classified based on their strength in terms   of membership of the society and also on the area of operation.

 CLASSIFICATION.

Q.  In which category taluka/ward level federation fall under?

Ans:   Though taluka/ward level federations having members below 250 are also classified and considered as district level societies and therefore they are classified under B category for election purposes.

CONDUCTING ELECTIONS OF A, B, & C TYPE CHS.

Q. Who conducts the elections of A, B and C type Coop societies?

Ans:  Elections for A, B and C type coop societies are conducted by the SCEA as    a Returning Officer is appointed by SCEA.

 CONDUCTING ELECTIONS OF E CLASS CO-OP. SOCIETIES.

Q. Who conducts elections of E class coop societies?

Ans: Returning Officer appointed by the Managing Committee of a coop society Who has undergone training from a notified institute and whose name is Registered in the records maintained by Divisional Joint registrar of Coop Societies.

 CONTENTS OF PROVISIONAL LIST OF MEMBERS

Q. What are the contents in the provisional list of voters?

Ans: The Provisional list of voters is published in E-3 format which includes the name, region details and address of the society, date and place of publication of Provisional list of voters the names of members in Alphabetical order with surname first, membership no, gender, age, flat no, remarks.

CONTESTING ELECTION IF A MEMBER HAS SUBLETTED THE FLAT.

Q. Whether any member who has sublet his flat and residing outside the jurisdiction of the society can he file the Nomination for elections?

Ans: Yes, if the member has obtained permission from the Managing Committee to sublet his flat, then such member is eligible to contest elections. However, section 154 B-23 (1) (ii) of Maharashtra Cooperative Societies   Act states that a member carries on business of letting/subletting and selling of flats in a housing society where he is a member than he shall not be eligible to be appointed, nominated, co-opted or elected for the post of the Managing Committee. 

CONTESTING ELECTION IN GENERAL / LADIES SEAT BY LADIES.

Q. Can ladies contest election from general/women and reserved constituencies?

Ans: Yes, off course. But the vice versa men contesting election from women constituency is not permitted.

 COST OF NOMINATION FORM.

Q.What is the cost of the Nomination form?

Ans: The Nomination form is free of cost.

 DEFAULTER.

Q. What is the definition of a defaulter and dues as per section 154B of the Maharashtra Cooperative Societies   Act, 1960.

Ans: As per section 154 B-1 (11 & 12), `Defaulter` means a member or a flat owner or an occupier who fails to pay dues of the society within three months from the date of service of bill or notice or due date of payment, whichever is later.

Further, `Dues` means the amount payable by a member or flat owner to the society and demanded by the society by issuing bill or notice in writing and such demand is based on the provisions of this Act, rules and bye laws of the society.

 DEFAULTERS NAME MUST BE MENTIONED IN PROVISIONAL LIST

Q. Whether the names of the members who are defaulters shall be added in the provisional list of Voters?

Ans: Yes, the names of defaulters can be added in the Provisional list of voters but u/s.  154 B -23 (1) (ii)of the Maharashtra Cooperative Societies   Act, no member shall be eligible to be appointed, nominated, elected or co-opted for being a member of the committee if he is a defaulter of the dues of the society.

DELIVERING COPY OF PROVISIONAL LIST TO MEMBERS IS IT MANDATORY

Q. Is it mandatory to deliver the copy of the provisional List of voters to all the members as well as to the Registrar? State the Mode of delivery?

Ans: Yes, it is necessary to provide a copy of the provisional List of voters to the Registrar for information and to all members, so that claims and objections and corrections in the name and address can be sorted out and a prospective candidate is not derived of his rightful claim to contest election as a candidate or to vote in the election. The mode of delivery of Provisional list of voters can be by Hand delivery, by Regd Post or by Electronic Mode.

DEPOSIT OF AMOUNT BY CANDIDATES

Q. What is the amount of deposit to be deposited by candidates?

Ans: Deposit amount for General/Women Constituencies are Rs.500/, while for SC/ST, OBC, SBC or NT is Rs.200/-.

DUTIES & RESPONSIBILITIES OF RETURNING OFFICER

Q.. What are the duties and responsibilities of a Returning officer for any Coop Society?

Ans: The returning officer appointed either by a Committee for E class societies or by SCEA for A, B C & D type Coop Societies has to exercise his authority with the in-depth knowledge of the Act, Rules and Bye laws of the society. The returning officer must be fair and transparent while performing his duties. And his duties and responsibilities include as under:

a)     To decide the claims and objections regarding the provisional list of voters published and displayed by the Secretary of the society on the notice board and for which additional time frame of 10 days in addition to what is published in the provisional list of voters is given to the returning Officer to decide and resolve the issue.

b)    Based on the above to declare and publish the Final List of voters accordingly.

c)     To declare and publish the election programme along with the Notice of the Special General Body meeting.

d)    To distribute, accept and scrutinize the Nomination forms (E-5).

e)     To accept deposit fees and caste certificate as per the Constituency of the candidate.

f)      To prepare and publish the first and second list of contesting candidates eligible to contest election both pre and post scrutiny of Nomination forms of the candidates.

g)     To distribute and accept the Withdrawal forms of the candidates desiring to withdraw their candidature.

h)    To be present for the hearing u/s.  152A before the Ward/Taluka Election officer and to present his submissions in support and in defense for rejection of a candidate’s candidature.

i)       Publishing and displaying the Third and final List of contesting candidates eligible to contest elections.

j)       To allot symbols to the contesting candidates.

k)    To get the ballot papers printed as per requirement.

l)       To arrange for additional staff for polling purposes.

m)  To preside over the Special General Body Meeting called for declaration of uncontested election or for conducting the Poll.

n)    To supervise the poll and count the votes and thereafter to declare the result of the elections.

o)    Thereafter after a gap of 07 to 15 days maximum arrange for the meeting of the newly constituted committee to elect office bearer for a term of 5 years.

p)    To ensure that the elections are held in transparent and fair manner without being partial to any of the candidate. I.e. as per the provisions of the Act, Rules and bye laws.

q)    To educate the members about the importance of elections process and the consequences and repercussions if and when the elections are not held.

Note: A written order from the Registrar is essential for the Returning Officer to preside over the meeting of the newly constituted committee for electing office bearers.

E-1 & E-2 FORMS.

Q. What are forms E-1 and E-2?

Ans: Forms E-1 and E-2 are forms which highlights the name of the society, registration of the society, address of the society and the various constituencies and the tenure and date of the expiry of the present committee.

E-3 (1) FORM.

Q. What is the E-3 (1) forms?

Ans: E-3 (1) forms are forms prepared, published and displayed on the notice board of the society by the Returning Officer. It is also called as the Final List of voters/members.

E-3 FORM.

Q. What is E-3 form?

Ans: E-3 forms are forms which are called as provisional list of voters/members. It is prepared and published and displayed on the notice board of the society by the secretary of the society.

ELECTION FORM CONTENTS ASPIRING TO CONTEST ELECTIONS

Q. What are the contents in the 1^st, 2^nd and final list of candidates aspiring to contest elections?

Ans: The said lists shall contain serial nos, constituencies, name in alphabetical order with surname first, address and the symbols allotted.

FINAL LIST OF VOTERS.

Q. Why is it that the final list of voters is termed as final List?

Ans: The List of voters published by the Returning Officer is considered to be final because hereafter no changes or amendments can be made in the list.

FORM IN WHICH CANDIDATE HAS TO SUBMIT HIS NOMINATION.

Q. In which form a candidate has to submit his Nomination form of his candidature?

Ans: Nomination of a candidate in Form E-5 duly filled and with enclosures like Aadhar card, Photo & caste certificate as applicable along with deposit fees either Rs. 500/- or Rs 200/- as applicable has to be presented to the Returning Officer.

FORM NO. FOR WITHDRAWL OF NOMINATION

Q. Which form a candidate has to submit for withdrawal of nomination as a candidate?

Ans: The candidate has to submit to the Reporting Officer form E-6 duly signed by him for withdrawal of his candidature.

FORMALITIES AS REGARDS PREPARING FINAL LIST OF VOTERS BY RETURNING OFFICER

Q. State the procedure to be adopted by the Reporting Officer for preparing the final and third list of candidates?

Ans: 1) The Reporting Officer shall refer to the valid list of nominations

          2) He shall exclude the names of candidates who have withdrawn.

          3) He shall include the names of candidates whose appeal has been accepted by the ward/taluka election officer.

           4) The Reporting Officer shall consider the request of candidates for allotment of common symbol if 30% candidates come together and form a group.

HOW DECISIONS ARE TAKEN BY RETURNING OFFICER AS REGARDS CLAIMS AND OBJECTION.

Q.How does the returning officer take decision on claims and objections?

Ans: The returning Officer shall make enquiries and decide on the claims or objections by inspecting the records of the society such as `I & J` registers respectively.

INCLUSION OF JOINT MEMBER AND ASSOCIATE MEMBER IN PROVISIONAL LIST AND FINAL LIST OF MEMBERS

Q. what is the criteria for the Joint Member and Associate Members name to be included in the Provisional or final List of voters?

Ans: Cooperative movement works on the principle of one member one vote only. Hence on the prior written recommendation and in the absence of the original member, the Joint Member as well as the Associate members name can be included either in the Provisional list of voters or in the Final list of Voters.

INTIMATING SCEA BY CHS ABOUT ELECTIONS.

Q. When are the Coop Societies supposed to inform SCEA about the elections   that are due

Ans: As per section 73 CB (14) of the Maharashtra Cooperative Societies   Act, 1960 a coop society is supposed   to inform six months in advance before the expiry of the tenure of the committee.

 INTIMATION BY RETURNING OFFICER TO BE GIVEN TO WHOM.

Q. To whom the decision of the Returning Officer be given to the claims and objections?

Ans: The Returning Officer shall give his decision to the member raising such claim or objection. A copy of his order will also be sent by returning officer to the Dy. / Asstt. Registrar.

ISSUES ON THE BASIS OF WHICH CLAIMS AND OBJECTIONS CAN BE RAISED.

Q.What are the issues on which the claims and objections can be raised?

Ans: The claims and objections can be raised for any omissions and errors in respect of names, address and any particulars in the Provisional List of Voters.

JOINT/ASSOCIATE MEMBERS CAN CONTEST THE ELECTIONS.

Q. State whether names of Joint/Associate member be incorporated in the Provisional or final list of voters?

Ans: Yes, by all means. However, consent of the main member is required for the same

LIST OF OWNERS AND LIST OF MEMBERS

Q. What is the difference between List of Owners and List of Members/Voters?

Ans: Property rights and Membership rights are distinct and different. Though both are linked, inter connected and interdependent on each other, yet Maharashtra Cooperative Societies   Act, 1960 vide section 154 B-1 (18)(a) stipulates that Associate Member may be one amongst the twelve names given in the Act who do not possess the property rights and yet can become members of the society by virtue of prior written recommendation of the original member to exercise his rights in the absence of the original member. Hence the list is always called as the provisional List of Voters and not owners.

LIST OF SYMBOLS APPROVED BY SCEA.

Q. Is there any list of symbols, specified by SCEA?

Ans: Yes, SCEA has specified symbols.

MANDATORY TO ALLOT SYMBOLS

Q. Whether allocation of symbols is mandatory?

Ans: It is optional.

NEED TO CONDUCT ELECTIONS AS PER Maharashtra Cooperative Societies   ACT.

Q. Why do we need to conduct elections as per Maharashtra Cooperative Societies   Act in the state of Maharashtra?

Ans: Cooperatives is a state subject and therefore the area of operation of Maharashtra Cooperative Societies Act is the entire geographical area of Maharashtra for coop societies.

NEED TO CONTEST ELECTION IN CHS.

Q. Why do Coop Societies have to conduct elections?

Ans:  We, in India are governed by the provisions given in the Indian Constitution    which forms the basis of democratic set up and therefore the Maharashtra Cooperative Societies   Act and the registered bye laws of a coop society mandates that election to the Managing Committee of a Coop Society has to be held at least once in five Years in a democratic manner.

NUMBER OF TIMES A MEMBER CAN CONTEST MANAGING COMMITTEE ELECTIONS.

Q. State the no of times in terms of tenure a Managing Committee member can officiate?

Ans: There is no such restrictions and a Managing Committee member can contest elections and officiate as many times as he desires.

OBJECTION BY WHOM.

Q. State whether a non -candidate or a person who is not a proposer, can he take objections to a candidate at the time of scrutiny?

Ans: No. At the time of scrutiny only candidates or proposers of candidates are allowed to participate and therefore no other person has any right to take objection.

PERSONS INELIGIBLE TO BE MEMBERS OF MANAGING COMMITTEE.

Q. Who are all disqualified by provisions of the Act, rules and bye laws to become member of Managing Committee despite his name appears in the Final list of voters?

Ans: Following members are not eligible to contest elections:

a)     Defaulter of dues of the cooperative society. However just because dues are outstanding does not make a person a defaulter. A notice to this effect has to be given by the society demanding the dues and intimating the member that he is a defaulter.

b)    A person who is not duly admitted to membership of the society after its registration.

c)     A member who is convicted of the offence involving moral turpitude, unless the period of six years has lapsed since his conviction.

d)    If the member without the previous written permission of the society has sublet his flat or parted thereof or given it on leave and license basis or has parted with its possession in any other manner without the permission of the society or has sold his shares and interest in the society.

e)     A member who has been held responsible u/s.  79, 88, 154B-8(2) 0r 154B-27 or for payment of cost of enquiry u/s.  85 of the Act.

f)      If a member carries on business of letting, subletting and selling of flats in the housing society of which he is a member.

g)     If the member is held guilty for any offence u/s.  146 and convicted u/s.  147, is convicted with the imprisonment of not less than one year for an offence under provisions of any law for the time being in force.

PREPARATION OF ELECTION PROGRAMME

Q. Who prepares the election programme?

Ans: The Returning Officer prepares, publishes and displays on the notice board of the society the election programme.

PREPARATION OF PROVISIONAL LIST OF MEMBERS

Q. For any class of societies when is the Provisional list of voters to be prepared?

Ans: The Secretary or the Authorized Officer or the Board of Administrators shall prepare and publish the provisional list of Voters at least 60 days before the expiry of the tenure /term of the Managing Committee.

PRESIDING OVER OF SGBM FOR DECLARATION OF RESULTS OF ELECTIONS.

Q. Who shall preside over the SGBM?

Ans: The Reporting Officer presides over the SGBM

PROCEDURE FOR ACCEPTANCE OF NOMINATION FORM TO BE FOLLOWED BY THE RETURNING OFFICER.

Q. What is the procedure to be followed by the returning Officer for acceptance of Nomination forms from candidates desiring to contest elections?

Ans: The Returning Officer shall:

a)     Make sufficient copies of Form E-5 and affix stamp of society and his signature at one corner and also provide Sr. Nos on each form.

b)    Provide, free of cost the nomination forms to the aspiring candidates whose name appears as a voter/member in the final list of voters and then to enter the candidates name in the register for receipt of nomination form.

c)      Accept election deposit either in cash or any other suitable mode and give receipt to candidates in duplicate.

d)    Provide specimen copy of available election symbols thereby the candidate can easily select the symbols of their choice.

e)     Before acceptance of the Nomination forms to confirm the names of the proposer, seconder and the candidates name appear in the final list of voters. Further to confirm that the candidates have affixed the signature on all declarations and whether the form is enclosed with self attested copy of caste certificate issued by the competent authority of Maharashtra for reserved category seats.

f)      After receipt of the form, make entries in the nomination register and thereby inform the candidate to affix his signature in the register.

g)     Thereafter provide acknowledgement by mentioning the time, date and place of scrutiny. 

PROCEDURE FOR ALLOCATION OF SYMBOLS TO BE FOLLOWED B RETURNING OFFICER.

Q. What is the procedure to be followed by the Returning Officer in allocation of symbols?

Ans: The Returning Officer has to follow the following procedure:

a)     The Returning Officer should make available a list of symbols specified by the SCEA to the candidates and display the symbols on the notice board.

b)    The symbols of recognized political parties shall not be permitted.

c)     If a candidate submits multiple nomination forms then the symbol given in the first nomination form shall be considered as symbol of choice of that candidate.

d)    If more than 30% of candidates of total contesting seats come together and form a group and demand a common symbol by common written application and consent signed by all the candidates, in such a scenario the Ro may allot the group a common symbol.

PROCEDURE FOR FILING APPEAL u/s. 152A of MAHARASHTRA CO OPERATIVE SOCIETIES ACT

Q. What is the procedure of filing an appeal under section 152A and where is the appeal to be filed?

Ans: Any candidate aggrieved by the rejection of nomination of his candidature, may appeal to the Ward/Taluka Election Officer, who is invariably The Registrar of Coop Societies at the ward/taluka level. This appeal has to be filed by the aggrieved candidate whose nomination is rejected within 3 days from the date of rejection of them nomination. The ward/taluka Election Officer has 10-day time period at his disposal to dispose of the appeal by taking an appropriate decision after hearing both the parties. i.e. Reporting Officer & aggrieved candidate. The Ward/taluka level Election Officer`s decision shall e final and no further appeal or revision shall lie against the decision of the ward/taluka level Election officer.

PROCEDURE FOR FORFEITING CANDIDATES DEPOSIT AMOUNT.

Q. What is the procedure to be followed by the Returning Officer for forfeiture of candidate`s deposit money?

Ans: The deposit money shall be forfeited to the Election Fund, if at an election, where poll has taken place, the candidate is not elected and no of valid votes polled by him does not exceed one-tenth of the total no of valid votes polled by the candidate or in case of election of more than one member at the election one-tenth of the no of valid votes, so polled divided by the no of members to be elected.

Example: –

If the no of voters in the Raj SahakariGruhNirmanSansthaMaryadit Society is 95 as per the final list of voters and votes casted in the election are 70, out of which valid votes are 60.

So, if candidate M got 5 votes in the general constituency where 6 candidates are to be elected. Then one-tenth of valid votes is 6. Now 6 divided by no of candidates to be elected are 6/6 that is 1. Therefore, if M got 5 votes his deposit shall not be forfeited.

PROCEDURE FOR RETURN OF DEPOSIT AMOUNT TO CANDIDATES.

Q. State the procedure for return of deposit money to candidates?

Ans:  The candidate contesting the elections and in case his deposit is not forfeited, it shall be returned back immediately after the result of the election is returned back and an acknowledgement to that effect is to be taken from the candidate.

PROCEDURE FOR SCRUTINY.

Q. What is the procedure for scrutiny?

Ans: a) The Returning Officer shall in the presence of the members attending the scrutiny examine the Nomination forms and decide on any objection raised by any such member to any nomination.

b) The Returning Officer may either suo-motto or upon any objections, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that:

i) The candidate is disqualified to be elected under the Act, rules or bye laws.

ii) The signature of the proposer, seconder or a candidate is not genuine or they have not signed on the Nomination forms.

PROCEDURE TO BE FOLLOWED BY REPORTING OFFICER ON RECEIPT OF REQUEST OF CANDIDATE TO WITHDRAW HIS NOMINSATION

Q. State the procedure to be followed by the Reporting Officer after receipt of withdrawal form E-6 form by the candidate?

Ans: The Reporting Officer shall give the receipt for the same and record the same in the register with the date and timing.

PROVISION OF APPEAL AS REGARDS CLAIMS AND OBJECTIONS AS REGARDS PUBLICATION OF FINAL LIST OF VOTERS.

Q. Is there any provision for appeal on the decision of the returning officer on claims and objections.

Ans: As per section 152 A of the Maharashtra Co-operative Societies Act  appeal against order of returning officer rejecting the right of the candidate to contest the election can be filed within three days from the date of declaration of results of the final list of members.

PROVISIONAL LIST OF VOTERS TO BE PREPARED BY.

Q. Who prepares the Provisional List of Voters?

Ans: The Provisional list of Voters is prepared either by the Secretary or the Authorised officer or Board of Administrators as the case may be.

PROVISIONAL LIST OF VOTERS

Q. What is Provisional List of Voters?

Ans: Provisional means temporary and therefore the list can be termed as temporary list of voters/members.

PROVISIONAL LIST TO BE PUBLISHED WHERE

Q.Where is the Provisional List of Voters to be published?

Ans: The Provisional List of voters shall be published on the Notice Board of the society.

QUALIFICATIONS OF RETURNING OFFICER

Q.State the criteria or eligibility required to function as a returning officer.

Ans:There is no such criteria provided in the Rules, save and except that a Returning Officer must have undertaken training for conducting elections through a notified institute, notified by the State Government and approved by SCEA and whose name is listed in the list maintained by the Divisional Joint Registrar having jurisdiction.

REASONABLE OPPORTUNITY TO MEMBERS AT THE TIME OF SCRUTINY OF NOMINATION FORMS.

Q. Whether Returning Officer can allow examination of Nomination forms to the members at the time of scrutiny?

Ans: Yes, The Returning Officer may give reasonable opportunity to the members present at the time of scrutiny to examine any nomination forms.

REDUCTION IN AMOUNT OF DEPOSIT FROM CANDIDATES CONTESTTING ELECTIONS.

Q. Can this amount be reduced as per the whims and fancies of the candidates/returning Officer?

Ans: No. This is decided as per Election rules and constituencies of the candidates for which they aspire to contest. The Returning Officer does not have the powers and authority to either reduce or to increase the deposit fees.

RETURNING OFFICER AND MEMBERSHIP.

Q.Does the returning Officer have power to decide on issues pertaining to Membership?

Ans: No. Membership issues are subject of the society/Registrar. The Returning Officer does not have power to decide membership issues but he can decide on the claims or objections based on the facts and records in the books of the society.

RETURNING OFFICER NOT APPOINTED IN E CLASS SOCIETY BY CO-OP. SOCIETY.

Q. if a society has failed to appoint Returning officer for E class societies within the prescribed limit, then what is the recourse of action to be taken?

Ans: On an application of any member of the society or on suo-motto, if the registrar of the society comes to the conclusion that the society has failed to appoint the Returning Officer within the prescribed period, then the registrar shall appoint the Returning Officer from the panel. However reasonable opportunity of being heard shall be given to the society before issuing such order.

REVOKING OF WITHDRAWL OF CANDIDATURE BY CANDIDATE

Q. Can a candidate revoke his withdrawal of his candidature having once submitted to the Reporting Officer?

Ans: The withdrawal form E-6, once submitted to the Reporting Officer by the candidate is irrevocable in nature and it cannot be cancelled because it will affect the final and third list of candidates as well as the election process

RIGHT OF MEMBERS TO  VOTE IF THEY HAVE MORE THAN ONE FLAT.

Q. How many times the name of a member holding more than one flat appear in the Provisional List of voters?

Ans: The List is termed as Provisional List of members/voters and not Owners.Hence, the names of members owning multiple flats are registered/listed only once in the provisional list of Voters because cooperatives function on principle of one ember one vote. In cooperative society the concept is one member one vote.

SCEA MEANING.

Q. Who is SCEA?

Ans: SCEA means State Cooperative Election Authority, who is an IAS cadre  Officer appointed by the Governor based on the recommendation of the  State Government.

SCRUTINY OF NOMINATION FORMS WHO CAN REMAIN PRESENT.

Q. Who can remain present at the time of scrutiny of nomination (E-5) forms?

Ans: The candidate and one proposer of each candidate duly authorized in writing may attend the scrutiny of nomination forms at the time and place as notified.

SECTION 152-A OF MAHARASHTRA CO OPERATIVE SOCIETIES Act

Q. What is section 152A of the Maharashtra Co Operative Societies Act?

Ans: Section 152A is the provision of appeal which can be exercised by an aggrieved candidate whose nomination for candidature has been rejected by the Reporting Officer.

SELECTION OF SYMBOL BY CANDIDATES.

Q. If more than one candidate has preferred for the same symbol then to whom should the symbol be allotted?

Ans: The symbol should be allotted on `First come First Serve basis`.

STATUS OF PERSON WHOSE NAME DOES NOT APPEAR IN THE FINAL LIST OF VOTERS.

Q. State the status of a person whose name does not appear in the final List of Voters?

Ans: A person whose name is not listed in the final List of voters is not eligible to contest the election neither is he permitted to vote.

SURRENDERING OF VOTING RIGHTS FOR SECOND FLAT OCCUPIED BY MEMBER.

Q. Can an Original member owing two flats/Units in a CHS surrender his voting rights in favour of Joint/Associate member for the 2^nd Unit?

Ans: Technically the answer is no because this comes into effect whenever the original member remains absent for voting in election. However, the original member while he is present for voting for the first unit is not eligible to transfer his voting rights for the second unit.

SYMBOLS FOR ELECTIONS.

Q. Can symbols associated with political parties operating in India be used for  elections of a coop society?

Ans: No. The symbols associated with political parties cannot be used. However, Various other symbols approved and permitted by SCEA can be used by Coop societies.

TENURE OF SCEA.

Q. What is the tenure of the SCEA?

Ans: The tenure of SCEA is three years. His tenure can be extended by another Two years. However he cannot continue in office after the age of 65 years.

TIME FRAME TO RAISE OBJECTIONS.

Q. State the time frame to raise claims/objections?

Ans: Within 10 days from the publication and display of the provisional List of voters on the Notice board of the society.

TIME FRAME WITHIN WHICH ELECTION OFFICER HAS TO DECIDE THE CLAIMS.

Q. What is the time frame for the Returning Officer to decide on such claims and objections?

Ans: if the claims/objections or corrections are minor in nature it can be done immediately. However, if they are major, then the Returning Officer has got another additional term of 10 days after the expiry of the initial ten days time mentioned in the provisional List of voters.

TIME LIMIT FOR PUBLISHING FINAL LIST OF VOTERS.

Q. When does the Returning Officer publish the Final list of Voter?

Ans: The Returning Officer shall publish and display within two days the final list of voters after the claims, objections and corrections are sorted out.

TRANSFER OF FORFEITED DEPOSIT AMOUNT BY RETURNING OFFICER.

Q. Where does the Returning Officer need to transfer the forfeited deposit amount?

Ans: The forfeited deposit amount should be transferred to the election fund of SCEA A/c no 34944703338 of SBI, Main Branch Pune. The amount shall be deposited within 2 days of election results by demand draft or banker’s cheque and details to be communicated to the Hon. Secretary, SCEA, Pune.

VALIDITY OF CASE CERTIFICATE ISSUED BY COMPETENT AUTHORITY OF OTHER STATES.

Q. State the validity of caste certificate issued by a Competent Authority other than the State of Maharashtra?

Ans: Caste Certificates issued by the state of Maharashtra are only valid.

https://www.freepressjournal.in/business/housing-society-elections-a-step-by-step-guide-on-rules-rights-of-members-all-other-important-things

Advocates’ office can be operated from a residential place since it is not regarded as a commercial activity. However, this is subject to the space restrictions imposed by the local laws.
The legal profession is not a commercial activity. Instead, it is regarded as a professional activity, which is distinct from business, trade or commerce.

There are several judgments of the Supreme Court and High Courts which explain this distinction. Since the service of an advocate is based on specialized knowledge, skills and experience, which are very person-specific, it is treated as a ‘professional service’.

Delhi High Court Answers
In Sasidharan v Peter and Karunakar AIR 1984 SC 1700, the Supreme Court had held that a lawyer’s office is not a ‘commercial establishment’ which requires registration under the Shops and Establishments Act. The SC held that it does not require any strong argument to justify the conclusion that the office of a lawyer or a firm of lawyers is not a ‘shop’.

The Division Bench Jjudgment of Madhya Pradesh High Court in Shiv Narayan and another vs. M.P. Electricity Board and others AIR 1999 MP 246 held that classification of Advocate under the heading “Commercial” for payment of consumption of electricity energy at commercial rate is arbitrary and irrational and ultra vires of Article 14 of Constitution of India.

“…in a case of professional activity, an individual has to apply his professional skill as against commercial or business activity where the transaction is done with the active cooperation of employer and his employees for sale of certain goods or with the profit motive. In case of profession, one works for livelihood and not only for a profit motive”, observed the MP High Court, explaining the distinction between profession and commerce.

This was appealed before the Supreme Court. The Electricity Board relied on the judgment rendered in New Delhi Municipal Council vs. Sohan Lal Sachdev (dead) rep. By Mrs. Hirinder Sachdev (2002) 2 SCC 494 . That decision had held that a building used as a guest house is a commercial establishment, observing that if the use is not domestic, it is commercial

The Division Bench of Justices Arijit Pasayat and H K Sema expressed approval of the conclusions of the MP High Court in relation to applicability of domestic electricity tariff to advocates’ office.

Explainer
“A professional activity must be an activity carried on by an individual by his personal skill and intelligence. There is a fundamental distinction, therefore, between a professional activity and an activity of a commercial character”, it observed.

However, the Division Bench expressed reservations about the observations in Hirinder Sachdev that all non-domestic activities are to be treated as commercial, and the matter was referred to a larger bench for consideration.

The larger bench of the Supreme Court in the decision made in Civil Appeal No.1065 of 2000, dated 27.10.2005 observed that the issue whether an advocate was running a commercial activity was not related to the decision in Hirinder Sachdev. It held Hirinder Sachdev to be a correct decision, as the distinction there was based on statutory definition. The larger bench also clarified that it did not go into the question as to whether or not an advocate can be said to be carrying on commercial activity.

So, the conclusions of MP HC that an advocate’s work is not a commercial activity can be taken as settled by the SC.

A Division Bench of the Rajasthan High Court, Jaipur Bench, held in J.V.V.N. Limited and others vs. Smt. Parinitoo Jain and another AIR 2009 Rajasthan 110 that an advocate running his office from his residence cannot be charged the additional tariff on commercial basis. However, if the office is run in an independent commercial place, then the advocate cannot be exempted from commercial tariff. A distinction has been made between the office in a residence and office in a commercial place. This was followed by the Madras High Court in K.Kanagasabai v The Superintending Engineer.

No property tax on advocates’ office as ‘business building’

The Delhi High Court held in B N Magon v South Delhi Municipal Corporation that a residential premise used by an advocate to run office will not become a ‘business building’ for the purposes of property tax. This was held by the Court after noticing that the Master Plan of Delhi 2021 permitted use of residential premises for professional activities of lawyers, doctors, chartered accountants, architects etc, on condition that professional space should not exceed 50% of the permissible FAR for the area.

In District Bar Association Panchkula v State of Haryana AIR 2015 P& H 13, the Punjab and Haryana Division Bench quashed the regulations of Haryana Urban Development Authority, which had prescribed a fees for using residential premises allotted by it for use as advocates’ office. The Authority had taken the stand it amounted to change of residential use to commercial. The HUDA regulation had permitted use of 25% of the built up area for such professional activities. However, the Authority charged a fees for giving permission for use of residential premises for professional use, which was quashed by the High Court.

“We put a query to learned senior counsel for HUDA that if a well known author makes a study which he utilizes for writing a book and that is his source of earning, can it be called a non – residential use? There is really no satisfactory answer to this because the activity of an individual profession of a lawyer is also based on a study of the books and papers for which he maintains the space. It is a noble profession and in that context it has been held not to be commerce or business”, the bench headed by Justice Sanjay Kishan Kaul observed.

Keeping in mind the nature of the legal profession of an individual lawyer, the use of a limited space as prescribed in the HUDA Regulations cannot change the character or the activity to commercial, added the Bench.

When the High Court of Kerala was petitioned to take action against allottees of the Kerala State Housing Board who were using their residential premises for commercial activities, it refused to pass orders against advocates’ offices, though directions were issued against several others who were using their space for commercial activities. The court held that an advocate carrying out his office in his residence provided under the scheme, cannot be termed as a commercial activity.

“…residence of the professional along with his office in an apartment cannot be termed as a commercial one”, the Court said.

Restrictions in local laws

Several local laws in relation to building occupancy impose a restriction on the space which can be used for professional activity in a residential premise. The Delhi Master Plan referred in the Magon B case permitted professional activity within 50% of the FAR of the residential space.

In case of HUDA Regulation, it was 25% of the built up space. The Kerala Municipal Building Rules state that small professional spaces for advocates, doctors, architects etc not exceeding 50 square meter floor area and used as part of the principal residential occupancy are included in the group of ‘residential buildings’. These regulations may vary based on local laws.

In the context of Delhi, the Supreme Court ordered in Delhi Pradesh Citizen Council v Union of India (2006) 6 SCC 305 that professional activities even by architects, chartered accountants, doctors and lawyers cannot not be carried on in excess of 50% permissible coverage in residential premises and by anyone who is not a resident in such premises.

In conclusion, advocates’ office can be operated from a residential place, since it is not regarded as a commercial activity. However, this is subject to the space restrictions imposed by the local laws.

Office of Co-operative Commissioner and Registrar, Co-operative Societies, State of Maharashtra, Pune New Central Building,

2nd Floor, Pune-1

Phone no. 20-26122846/47                                          Email-comm.housing20@gmail.com

Jaavak  Kramaank No. Home/ D-3/ Housing Sosa./ Grievance Redressal/ 14 SAA 1654

Date :- 04 May, 2023

Sir,

1.         Divisional Joint Registrar, Co-operative Societies, All 2. District Deputy Registrar, Co-operative Societies, All

3.         Joint Registrar, Co-operative Societies, CIDCO

4.         Deputy Registrar, Co-operative Societies, Mhada

5.         District Co-operative Housing Federation, All

Subject:       Regarding the complaint made by the members of the organization against the Executive Committee / Administrator in the Co-operative Housing Society in the State.

Reference:  This office circular no. Home/D-3/Housing Sosa./Grievance Redressal/10, dated 15/03/2010

Since many complaints of the members of the organization against the executive committee and the administrators in the state cooperative housing organization are being received at the Office of the Hon. The Deputy Commissioner had informed the Government in the reference letter dated 15/06/2019 that it is necessary to carry out effective measures for redressal of the complaints of the members of the Housing Society by conducting independent inquiry and appointing a study group for their effective implementation. Accordingly, the government appointed a study group under the chairmanship of Additional Registrar (Collection and Planning), Co-operative Societies, M.R. Pune vide letter dated 18/07/2009. The said study group submitted the said report on 27/11/2009 to the Government and Hon. It has been submitted to the office of the People’s Commissioner. Accordingly circular instructions were issued on 15/03/2010 for redressal of complaints received frequently and on a large scale at various levels. However, after this, many changes have taken place due to the changes brought about by the 97th Amendment to the Co-operative Act, the inclusion of a new section under Section 154 (b) relating to housing societies in the Co-operative Act. Taking that into consideration, the above mentioned circular instructions need to be substantially modified. Therefore, the previous circular is canceled and the following revised circular instructions are being issued.

PREFACE:-

1.         Regarding Absence of Members from Annual General Meeting, Non-participation in Elections- The functioning of Co-operative Housing Societies depends on the attendance of all the members in the meeting as well as in the election. Most of the members of the organization do not attend the monthly / annual meetings as well as elections and later complain about the decisions / resolutions of the meeting. As above, remedial measures should be planned to minimize the complaints received and it is hereby indicated that all the meetings/elections organized by the organization should be attended by the members. If the members who will not be present complain about the proceedings of the meeting, they should inform the court under section 91 and close the complaints

2.         Provision regarding security arrangement of members

In many co-operative housing societies, the original flat holders are not resident and they rent out the flats. The managing committee does not have the details of who lives in the said flats. Also, there is no detail about security guards, cleaning staff coming to the institution. It is necessary from the point of view of the members of the organization that the management committee should have this information.

In this regard, it is indicated that the management committee shall appoint persons residing in the institution, owner tenants, security guards, cleaning staff etc. Complete information along with photographs should be kept in the organization’s computer or if there is no computer in the register

3.         Regarding Minutes of Management Committee Meeting

The minutes of the managing committee of the organization are not written. Following the complaints received regarding wrong entries in the minutes, it is indicated that after the meeting of the Managing Committee, it is mandatory to write in the minutes of one month / next meeting.

4.         Anti-bullying mechanism

            Many complaints are frequently received from organizations and members regarding the functioning of cooperative housing societies at various levels. The said grievances are expected to be resolved at the local level within a short period of time. For that, the following should be done.

In that regard, it is suggested that the complainant should first file their complaint by applying to the organization. After receiving the complaint application, after discussion in the committee meeting, the committee will decide on such application by majority vote. The decision of the management meeting will be communicated to the members within 15 days. If not satisfied with the decision communicated by the committee, a complaint can be made to the advisory committee constituted by the general meeting of the organization.

The Advisory Committee of the Institute shall be as follows –

1.         Chairman elected by the General Assembly (other than Working Committee Chairman)

2.         A member elected by the General Assembly (other than a working committee member)

3.         A member of the Managing Committee

4.         Certified Auditors and Statutory Auditors of the Organization

5.         Federation representative

The Advisory Committee will resolve the complaint application within 45 days and inform the applicant with a majority decision. If the decision given is not accepted, the complainant may refer to Housing Societies Bye-law no. According to the nature of the complaint as per 174, a complaint can be made to the Registrar/ Cooperative Court/ Civil Court/ Municipal Corporation/ Local Authorities/ Police/ Federation.

If not satisfied with the decision given by the advisory committee of the institute, the complainant can file a complaint with the concerned registrar. The concerned registrar will be required to take action in this regard within 7 days and give a reply/decision within 30 days. However, if action is not taken within the prescribed period, the complainant can file a complaint with the District Deputy Registrar. They should give a decision after hearing the applicant within 45 days. If the district deputy registrar does not act in this way, a complaint can be filed with the divisional joint registrar. They should hold a hearing and give a decision within 60 days. Out of the above, if no action is taken by any of the offices, a complaint can be filed with the Cooperative Commissioner. They should give a proper decision within 60 days.

5.         Regarding Registration of Federation of Housing Societies at Ward Level

In Pune/Mumbai/Thane/Nashik district, action should be taken regarding registration of Federation of Housing Institutions separately on the lines of Area Local Management of Mumbai Municipal Corporation, ward and taluka wise.

6.         Regarding appointment of administrator

Due to various complaints against cooperative housing societies, the board of directors is dismissed and an administrator is appointed. However, it has been noticed that the members are making many complaints regarding the administrative work.

It is mentioned in this regard that if the registrars are convinced that it is necessary to appoint an administrator / authorized officer to the said institutions, they should appoint the person on the panel prepared by the divisional joint registrar office as the administrator / authorized officer while appointing the administrator / authorized officer. A 3-member administrative board should be appointed preferably. Out of which at least one member should be member of the organization and one member should be on the panel constituted by the office of the Divisional Joint Registrar, Co-operative Societies. Renewal of roll on the panel will be required before 31st March every year.

7.         Regarding audit

Audit of Housing Society is not done on time. The members do not get a copy of the audit report.. It is not found that objectionable matters are mentioned in the audit report, as these and many other types of complaints are received regarding the audit, the following points should be strictly followed while auditing housing societies. (a) The CA/Certified Auditor conducting the audit should be changed after a certain period of time.

An auditor cannot audit the same organization for more than three consecutive years. (b) Instructions have been issued as per the Government Decision dated 27/02/2018 regarding the matters to be checked in the audit so that disputes do not arise in the matter of audit. It mentions the barbie of what auditors should or should not do.

8.         Developing Computer Controls.

All the cooperative societies have been computerized and every society is keeping its information in computerized form, so it is convenient to update the information from time to time, so housing societies are also expected to keep their information in the computer.

9.         Appointment of manager to look after the working of housing societies

While dealing with many complaints of Housing Societies, it has been observed that many managing committee members / office bearers do not have sufficient knowledge about Co-operative Act and Bye-laws so the work is not carried out properly. Further action should be taken for that.

It is mandatory to appoint a manager who has full knowledge of Cooperative Act, Rules and Bye-laws. If the organization cannot afford a full-time manager financially, organizations should merge as per need. And the Federation should assist the organization in appointing a manager. The federation should form a panel of trained managers and appoint the manager from that panel.

(Anil Kawade)

Cooperative Commissioner and Registrar,

Cooperative Society, Maharashtra State, Pune.

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