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.