(HRRS Act 2012 - With reference to housing societies condominiums and complex)
Samuel, a business analyst in a company in Mumbai was visiting his brother who was staying in a posh condo in Gurgaon owned by his brother. The day he reached there happened to be a Sunday and perchance the day when the resident welfare society had scheduled a general body meeting to discuss important business relating to the complex in which his brother David was staying for last two years. After the breakfast, David asked his brother also to accompany him in the meeting within the same complex. It was to great surprise of David that the staff at the entry gate politely told him that since Samuel was not the owner, cannot be allowed entry. It was not in the knowledge of David that such meetings are only meant for the registered owners who fall within the definition of ‘Member’ of the Society. But since both the brothers were well educated they understood the legal position and Samuel came back home while David attended the meeting, which was important as far as the agenda was concerned.
Immediately thereafter, came Dr. Upadhyay with his wife Kirti, son and daughter in law, Kirti’s brother and his wife where the flats were in every couple joint names. On being objected by the staff at the entry gate, all of them became highly rude with the staff. They were politely told that in each case only the first named owner was allowed in view of the settled law in this respect. But unfortunately, none of them budged and they all made their way inside. Once the meeting started, each one of them made noise on issues and disrupted the entire meeting (probably that was their main aim to come in numbers). As a result, the meeting could not be conducted properly. This happened despite the fact that Dr. Upadhyay and their immediate family was quite educated and residing in the complex for many years and well aware of societies' rules and procedures. There were many other such cases that day and the staff had a tough time to make everyone understand the purpose and procedure of this exercise and importance from the point of view of the bonafide residents and members of the society.
The dissimilarity of proper understanding in the cases above can be clearly made out. Let us study what is the real law in this respect.
Under the Haryana Registration and Regulation of Societies Act, 2012 (Act), it has always been a subject of debate within the society and condominiums weather a joint owner of the property is eligible to attend the general body meetings of the Residents Welfare Association (RWA). It has been observed that lot of disputes in a Society pertain to this, especially at the time of conducting meetings when non-members and joint owners (and sometimes the parents, brothers, sisters and even in-laws etc. of the first named member) force their way in to attend such meetings with wrongful intentions.
As per the above Act and in common parlance, the person who owns a flat in a society/condominium will be considered member, provided his name stands first in the deed of registration as registered with the sub-registrar of the relevant office/tehsil. As per the act and rules of the societies and based upon the number of decided case laws, only the members of a society are eligible to vote in any of the general meetings of the society. Therefore, the invitation is given only to the members of the society to attend such meetings and vote on any business as per the agenda items.
Further, where an apartment has been allotted in favor of one, two or more persons jointly, they may be jointly entitled to the ownership of the apartment and the share certificate 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 to vote for a particular meeting only to any one of the other joint owners for which a twenty-four or forty-eight hours advance written information to the society, is made a pre-requirement in the bye-laws of the society or at the time of issuance of such notice.
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 the election as per the original title deed of property papers registered by the office of Sub Registrar”. Therefore it is the intent of the legislature and lawmakers that the first named person only has a right to attend the general body meetings of the society. It further clarifies that the first owner can authorize the joint or the 2nd owner to cast vote after getting NOC from the first owner at the relevant time, if required, on the business of the said meeting. The Act, therefore, permits the second or the joint owner only for the purpose of casting vote on the business of the meeting, when the first named owner is finding difficult to attend the meeting and information in the prescribed format and within the prescribed time has been sent to the society.
Also in case of membership in joint names, only the member who stands first in order of the joint names shall be eligible to vote in the meeting and not any other co-member or joint owner. It is clearly mentioned that a non-member should not be allowed to attend the meeting of members of the society.
Sometimes it is argued that passive member will sit separately in the meeting or behind in a separate area and that the governing body should allow them on humanitarian grounds, but the legal position is very clear that meeting of members should be such, in which others are not able to disturb or disrupt or influence in any way whatsoever. Under all circumstances, it should be an independent meeting of members. The only person who could attend as a non-member is the representative from the office of the District Registrar or the Auditors or any other person invited by the society for a specific purpose of the business of the society or for imparting certain information to the members.
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 the case of Joint Apartment owners, the 1st owner will be eligible to contest the elections”. The Act vide definition of a member as per subsection (xv) of section 2 defines “member” as 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. This also clearly speaks about the intent of lawmakers.
In the case of any violation or unruly activity by non-members, any member of the society can make a verbal or written objection and the Chairman / President of the meeting is responsible to see that the proceedings go on uninterrupted in a lawful manner and also record the same properly in the minutes and proceedings. Non-members cannot and have no locus stand in such meetings and the society has all the rights to sue such individuals who try to force their way into the general body meetings of the members. All such complaints should be addressed to the District Registrar and to the law enforcement agencies including the Police department.