Business Standard: Mumbai: Wednesday, 23 July 2014.
Recently, a
housing society in Bandra, Mumbai has sought expulsion of one of its members.
The complaint against him was that he used to harass the society by filing
Right To Information (RTI) applications. The Co-operative Societies Act, which
also governs housing societies, allows this. But the process is not easy.
A
co-operative housing society can expel members under Section 35 of the
Maharashtra Co-operative Societies Act, 1960. According to the Act, a member
can be expelled if he/she willfully deceives the society, provides false
information to the society, acts against the society’s by-laws, does not pay
the society’s dues persistently or is involved in illegal or immoral
activities. The co-operative societies rules are similar for other states and
include similar provisions for expelling members.
However, the
conditions are subjective and the society has to prove it to the Registrar of
Co-operative Housing Societies. The member can challenge the order in court.
Expelling a
member is a very stringent move and not something the society can follow as a
matter of right, says Anshuman Jagtap, advocate with Hariani and Company.
There is a
procedure to be followed for expelling members. The society has to first issue
a show cause notice to the member and give him a 30-day period to respond to
it. The member has to be informed of the date, time and place of the meeting.
If the notice of the meeting is not given, the expulsion will be illegal. Then the society has to call a General Body
Meeting. The resolution should be discussed at the meeting. The member should be
given an opportunity at the meeting to defend his case. He can either do it
himself or through other members.
The
resolution should be passed by three-fourths majority, and not simple majority.
Following this, the resolution has to be filed with the Registrar, within 30
days. The Registrar will then hear both parties-the society and the member
against whom action is being taken. Within 180 days of receiving the
resolution, the Registrar has to either reject it or approve it.
Sometimes the
society uses expulsion as a threat to ensure that members pay up pending dues,
especially if the member is not available, says Jagtap. In case of expulsion,
the member has to forfeit the shares of the society, in other words the right
to the property. Then the society gets the right of the property. But in cities
like Mumbai, where the value of the property can run into crores, it is
unlikely that members will give up the property, says Anil Harish, of D M
Harish and Advocates. “In such cases the member goes to court and the
litigation could go on for a long time. But in case of an agricultural society,
where the member has, say an acre of land, he may give up the property if
expelled,” he says. As an informal way out, the society may tell the member to
sell his flat and leave, Harish adds.
Expulsion on
grounds of religion is also not permitted according to law. In such case even
if the society amends its by-laws, the Registrar will not agree, Jagtap adds.
Consumer
activist Jehangir Gai says a member can be expelled if he causes damage to the
structure of the building or structurally weakens the building by carrying out
illegal repairs or renovation in his flat. But expelling a member for RTI is
unlikely to be approved since that is his right. At the same time, the society
is not bound to respond to the RTI, since it is not a public authority.
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