Under the Haryana Registration and Regulation of Societies Act, 2012 (Act), it has always been a subject of debate within the society or condominium weather a joint owner of the property is eligible to vote or contest election of the Residents Welfare Association (RWA). It has been observed that the maximum number of disputes in a Society pertain to memberships especially at the time of elections.

As per the act where an apartment has been allotted in favour of two or more persons jointly, they may be jointly entitled to the ownership of the apartment and the share of the Association in such case may be issued in their joint names. However, the person whose name stands first in the share certificate shall have the right to vote; provided that such person, whose name stands first in the share certificate, may transfer such right of vote to any one of the other joint owners.

It’s the duty of the society right at the time of admission of member to go through the title deeds and ownership papers while issuing the share certificate to the members of the society to ascertain that the names to be mentioned in the share certificate are in accordance with the title and ownership papers of the property like conveyance deed etc. duly registered in the office of the sub registrar having relevant jurisdiction.

According to the clarification issued by the state government in this respect “In case of joint ownership only the first owner is eligible to contest election as per the original title deed of property papers registered by the office of sub Registrar”. It further clarifies that the first owner can authorize the joint or the 2nd owner to cast vote after getting NOC from first owner. The Act permits the second or the joint owner only for the purpose of casting vote and not for contesting the election.

It is relevant to refer here the “Certificate of Registration which is issued under Section 9(1) of the Haryana Registration and Regulation of Societies Act, 2012” at the time of registration of the society by Department of Industries & Commerce, Haryana in form III under rule 5 and 6 of HRRS Rules 2012 where the notes are provided for Some Important Provisions of The HRRS Act 2012 to be followed by the societies. This states “In case of Joint Apartment owners, 1st owner will be eligible to contest the elections”. The act vide definition of a member as per sub section (xv) of section 2 define “member” means a person who fulfills the eligibility criteria for becoming a member of a Society, as specified in the Act and has been admitted as a member of the Society in accordance with its Bye-laws;

Section 25(i) of the Act states that “The Bye-laws shall generally conform to the model Bye-laws as prescribed and shall contain provisions regulating the membership of the Society i.e. eligibility, admission, kinds of membership, membership fee, subscription fee, resignation, withdrawal and termination etc.

Part III of the HRRS Rules 2012 prescribes the Model Memorandum of Association and Model Bye Laws of the societies.

Annexure -2 of above rules provide Explanatory notes for the Contents of the ‘Bye-laws’ of a Society. vide S.No. 2 it states that Sections 14 to 23 of the Act may be carefully read while framing the bye-laws in this behalf. It has been observed that the maximum number of disputes in a Society pertain to memberships. The bye-laws must address the issues of the maximum number of members it would like to fix for the Society, types of membership, the fees for each type of membership, the manner and the process of admitting a person as a member, cessation of membership etc. Further, all particulars of a person admitted as a member, such as Name, Father’s name, address (both correspondence and permanent address), contact details (such as telephone number, email ID), caste or community (if the bye-laws of a Society so restrict), may be obtained for ease of establishment of identity as well as timely communications.

The Haryana Apartment Ownership Rules, 1987 also prescribe rules as regards Joint apartment owners. It states where an apartment has been purchased by two or more persons jointly, they shall be jointly entitled to the apartment and the shares of the Association shall be issued in their joint names, but the person whose name stands first in the share certificate shall alone have the right to vote.

It is therefore required of a society to draft the bye-laws carefully so as to minimize the disputes in this regard.

- sunil@sunilkumarjain.com