“Notification for relaxation in the collegium clause…but is this a sufficient relief? ”
A cream of the crop condominium, near the M.G.Road Metro Station in Gurgaon that has more than 700 flat owners (members), felt happy to note that the Govt of Haryana, vide a notification issued in September 2015, has at last, relaxed the collegium clause from earlier 300 members to 1000 members. Now, under the new Act, for a condominium/society that has at least a 1000 (300 earlier) members, a collegium will need to be formed.
As a result of public objections to several provisions of the Registration of Societies Act, 2012, the Haryana government has gone through multiple proposals of amending the law, but the result is disappointing. It is ironic that the Indian democratic system with more than 815 million voters (larger than both EU and US elections combined) can manage with a three-level system, but the Societies in Haryana need four levels of hierarchy i.e. General Body, Collegium, Governing Council and Office-Bearers.
If we talk of quorum, the provision in the original Act of requiring 40% attendance of members for quorum in all general body meetings still stays. In the amended Act, if a meeting is adjourned for the lack of quorum, next time at least 25% will be the requirement for attendance. If this does not materialize, the quorum figure will come down to 15% for the third attempt. This is a very difficult condition to meet in societies that have no internal issues, nor face litigious issues and are by and large healthy run. Many members just do not feel the need to be present at the meetings. In such bodies, even 10% attendance is quite difficult to ascertain. So as per the new Act, in a society of about 750 members, at least about 113 members should be present for a motion unless it is a special resolution where presence of at least 188 members is a must. The amended Act is quiet on how to carry on, if that minimum numeral is not in attendance. The repeated adjournments for lack of quorum will make a ridicule of the procedures of any general body meeting. Earlier, after any meeting was adjourned for lack of quorum; it was still possible to conduct business with smaller number of members, as residential societies were given abundant leeway in laying down their minimum number.
The denial of access to courts to people aggrieved by any decision of the District Registrar remains unchanged. The only appeal that is permitted against the decision is to the Registrar and Registrar General in Chandigarh. Recourse to judiciary is only possible through a writ filed in the State High Court. Section 89 put a bar of jurisdiction, according to which No Civil Court shall have jurisdiction to entertain or proceed with a suit, settle, decide or deal with any matter which, under the Act, is required to be settled, decided or dealt with by an authority under the Act. No order of the Government, Registrar General, Registrar or District Registrar made under or in pursuance of the Act shall be called in question in any court.
Section 23 of the 2012 Act had removed all body corporate or firms of any description from the members' lists of the RWAs in Haryana. In the case of group housing societies, this was felt to be quite unfair because of the fact that the corporate/firms that are owners of respective units in asociety pay the same amount demanded by the society for maintenance and other dues as by an individual. The law says that they could be represented as individuals who are partners of firm or members or shareholders of the corporate. Who is a member of a company? This is not defined in the statute and it was hoped that this matter would be clarified. Through casual conversations about these queries at the Registrar's office in Gurgaon, it was told that an advice or a letter from the company nominating any staff member as their representative would be good enough. If that is so, then it is unclear what the real meaning of introducing the above section in the statute is.
Another material change introduced was that each flat, irrespective of its size, is entitled for one vote. Previously, voting was on a weighted basis, and the weight (%) of the vote to which the owner was entitled to, was the weight assigned to the independent flat in the declaration (as per its area) which was logical too.
The Model Bye-laws applicable on the Housing Societies as per the Act of 2012, also give specific direction to members of a condominium to contribute towards various expenditures of the Society. It directs that the Association shall determinetherates of various charges to be contributed by the members on account of all or any of the following: (a) Charges for the maintenance of common areas and facilities e.g. security, cleaning, garbage disposal, horticulture, electrical and plumbing services, AMCs of various facilities e.g. lifts, gen-set etc.; (b) Charges for use of common facilities e.g. gym, indoor games, lounge, terrace with lounge, common kitchen area, lawns etc; (c) Utility charges i.e. electricity bills of individual dwelling units (if the power is being supplied to the Association Complex from an HT Connection), water charges etc.; (d) Contribution to the Reserve Fund for meeting major repairs and renovation works required for the common areas of the complex; (e) Costs towards payment of insurance premium to cover the risk against various eventualitiese.g. fire, earthquakes, calamity, strike by any terrorist action etc; (f) Any taxes or fees or cess payable to the local Municipal Corporation; (g) Any other charges not specifically covered under the above. The act further direct that all expenditure incurred on the maintenance of the common facilities and services of the housing complex shall be recoverable from and payable by them embers on a prorated basis i.e. divided or multiplied by a factor of (no. of members) in a uniform manner.
In the beginning, most of the condominiums in Gurgaon were reluctant to register under the new Act because of a number of apprehensions like the collegium clause which indirectly challenged the right of each member to be a part of the general body as it mandates virtually one member to be elected for every 10 members who in turn is supposed to elect the governing body. Now, whenever grievances are reported to the office of the District Registrar by the members of a Society, the direction/order is to first adopt the new Act of 2012. The old Bye-Laws of Societies, thus, have no recognition in the eyes of the Law.
However, the amended Act retains the government's right to exempt any Society or class of Societies from any specific provision of the Law. If group housing associations are asked for a wish list, they would say scrap the system of collegiums, impracticable quorums, re-admit corporate owners of units as members and elections of office bearers on the weightage of unit area basis. The law must recognize the difference between such societies and other NGOs which are formed for promoting art, fine arts, charity, craft, culture, education, literature, philosophy, political education, religion, sports, science, any public or charitable purpose or for matters connected therewith or incidental thereto.