Cooperative housing societies (CHSs) are bound by the model bye-laws, which prescribe several rules and procedures for various activities, including electing new members for the managing committee. Members of the committee are to be elected every five years, and elections are to be conducted before the expiry of the term. Even in small residential societies, elections for managing committee members are mandatory.
In rare cases, it may be so that none of the residents are interested in taking up the responsibilities of the managing committee. Here, the residents can form an administrative committee with the bare minimum of committee members or request the deputy registrar to appoint an authorised officer (administrator) for the Society. It is important to note that appointing an authorised officer should be the worst-case scenario, and efforts should always be made to form a committee with an election.
This week, I will address one such problem where the residents of a small society are not interested in taking up the responsibilities of the managing committee. We will also look at a case where the managing committee has illegally delayed and denied the transfer of a share certificate and another where the share certificate has to be transferred through a power of attorney in the names of owners who reside abroad.
Residents Have No Interest in Taking Up Responsibility of a Managing Committee
Question: Ours is a small housing society with 20 flats. Out of these, only 12 members currently reside at the location. No member has come forward to become part of the managing committee (MC). Hence, the existing MC members have to keep on carrying the burden. Is it possible to dissolve the managing committee as no one is ready to take up the responsibility and the Society be run cooperatively by all members?
Answer: Even if just six male members come forward, it is possible to manage a CHS by appointing the committee for five years at a stretch.
Find from residing 12 flat-owners members willing to work for your Society. If two women members from 12 flat-owners come, then it will be much better. Within the required minimum of six members, if those who come forward are only female or only male or in a mixed form, but they represent separate flats in your Society, then they can form a managing committee with the bare minimum strength.
If nothing is manageable, find at least three flat-owners who come forward to work as an administrative managing committee. Then you can still manage the administration of your Society.
If no one comes forward to work for the Society, then take a general body meeting (GBM), in which you can pass a resolution that the present managing committee is formally resigning, that no residents are interested in forming a managing committee, or to work as an administrative committee. This letter should then be submitted to the deputy registrar of cooperative societies, and he may be prayed to appoint an authorised officer (earlier referred to as an administrator) to manage your Society.
Remember, the appointment of an authorised officer to run the work of the Society is the worst-case scenario and, therefore, at least three flat-owners should ideally come forward to become an administrative committee of the Society or better yet, six flat-owners should come forward, to form a managing committee with the bare minimum strength. Additionally, suppose two female flat-owners also come forward. In that case, an eight-member managing committee will be an ideal situation to run the administration of the Society for five years.
Power of Attorney and Names to be Mentioned on the Share Certificate
Question: A married couple in our Society is staying abroad. Both have given a power of attorney (POA) to the husband's father, and they both send funds to India. The husband's father has now purchased a flat in our Society and registered the names of his son (husband), jointly with himself and his daughter-in-law through the POA.
Can the Society issue a share certificate in the names of the husband and wife (mentioning 'through the POA') and in the name of the husband's father? Or should they issue the certificate directly in the names of the husband, wife and the husband's father, without mentioning the words 'through his/her POA'?
Answer: If a couple residing abroad buys a property, with their POA given to the husband's father, and he signs the agreement separately, then he is to be considered a co-buyer along with his son and daughter-in-law. Alternatively, if the father's signature in the sale deed is as a POA of his son and daughter-in-law, then his name will be shown as a buyer but only as a POA. If the couple are not physically present to sign the sale deed, then it is impossible to avoid the father's name as a POA.
If the sale deed is signed by the POA holder, the share certificate for the flat will be issued in the names of the husband, wife and the POA holder, without mentioning the phrase 'through the POA of'.
NOTE
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Managing Committee Refusing to Transfer Share Certificate
Question: My younger brother gave me his flat through a transfer deed in relation without a no objection certificate (NOC) from the Society. Now, the Society is not transferring the share certificate in my name. What should I do?
Answer: Society's NOC is not required for the transfer of a flat, either by sale deed or by a gift deed.
After you give a copy of your sale deed or gift deed with your younger brother and the needful transfer papers to your Society, if they are not transferring the share certificate in your name, then under Bye-law No. 174(A)(iii), make a complaint against the managing committee of your Society, to the deputy registrar of cooperative societies of your area.
The deputy registrar will write a letter to your Society, asking it to transfer the membership of your flat in your name by transferring the share certificate, and a copy of this letter shall be sent to you so that you may follow up with the managing committee.
Disclaimer: The guidance provided in these columns and on our Legal Helpline is on the sole basis of the facts provided by the reader/questioner and does not amount to formal legal advice in any form whatsoever.
(Shirish Shanbhag has an MSc in Organic Chemistry, a Diploma in Higher Education, and a Diploma in French and has completed his LL.B. in first class in 2021. Before his retirement, he was a junior college teacher at Patkar College from July 1980 to May 2012, teaching theoretical and practical chemistry. Post-retirement in 2012, he started providing guidance and counselling to people on several issues, specifically focusing on cooperative housing society-related matters. He has over 30 years of hands-on experience in all cases about housing societies and can provide out-of-box solutions for any practical issue.)
