From The Desk Of(G.V. NAYAK)
Advocate, High Court
The Maharashtra Co-Operative Society Act provides four types of membership under section 2 (19) and they are:-
1. A member means a person who submits an application for registration of co-op. Hsg. Society which is subsequently registered, or a person duly admitted to membership of the society after registration. It includes nominal, associate or sympathiser member.
2. Associate member: Associate member means a member who holds jointly the share of the society with others but whose name should not stand first in the share certificate.
3. Nominal member: Nominal member means a person admitted to membership as such after registration in accordance with the bye-laws.
4. Sympathiser member: Sympathiser member means a person who sympathises with the aims and objectives of the society and who is admitted by the society as such member after registration of the society.
All promoter/ members at the time of registration are considered to be the main member and all people who were admitted as such member by the society can be called as the member of the society.
A member occupying the flat in the housing society is not a tenant of the society. There is no relationship between the society and the member as landlords and tenants. The relationship is a special type which is governed by special law made for the purpose, i.e. Co-operative societies act and the rules and bye-laws with regulations framed from time to time. The nominal member or the sympathiser members are not entitled to any share in any form whatsoever in the profits and assets of the society. The nominal or sympathiser member does not enjoy ordinarily any privileges and rights of a member. But a member or an associate member have some privileges and rights subject to such liabilities of a member as specified in the bye-laws of the society.
I will explain the legal position of a member and an associate member. A member of the society is fully qualified to enjoy the rights in respect of the property and also enjoy additional rights of administration to the affairs of the society. If one member purchases a flat that member is not only the owner of the flat but also has a right to participate in the administration of the society, viz. To attend the meetings, exercises vote, become a member of the managing committee and hold any post of office bearers after election. So he enjoys two rights, one proprietary right and second administrative rights. This member has absolute rights to dispose of his flat and transfer his proprietary rights as well as administrative rights to a purchaser.
But the associate member is a member who has been delegated with the powers to participate only in the administration of the society but he has no proprietary rights in the property, viz. The flat. The associate member is like a joint member but he is not exactly the joint member as understood by us.
Some times the flat is purchased by two persons and these two persons either might have contributed equal amounts for purchase or some share in the property, may be 50-50% of both are joint owners. Here the joint owner is not an associate member. First member and joint member both have property rights and at the time of sale of the flat, both have to execute the deed of transfer or agreement of transfer. The associate member is a member created by the main member. In the society’s administration, a member cannot grant to third party a power of attorney to participate in the administration of society’s affairs. But he has absolute right to grant power of attorney to deal with his flat for selling or dealing with it. The associate member enjoys the rights only to the extent of participating in the administration provided he submits his application to the society. His rights are derivative rights although the law provides that the associate member’s claim can be joints as next to the main member. He does not enjoy the power to execute the deed of sale when the flat is sought to be transferred.
The power of the associate member extinguishes when the main member dies.
These legal implications of an associate member are not clearly stated in law but by various judicial precedents and judgement, the privileges and the rights of the associate member are stated. When a member appoints an associate member and if the main member exercises his power of attending the meetings, to exercise his vote and participate in the election, the associate member cannot claim the right to participate jointly with the main member.
It is only the main member who is unable to exercise his powers on account of staying away from the area of operation or sick or mentally unsound, then the associate member can exercise the participative right in the administration of the society.
All societies should always remember that whenever an application for associate membership is filed with the recommendation of the main member, the society must ascertain whether the associate member stays in the flat. It is necessary that the associate member should reside with the member. If he is not residing, the society is justified in rejecting such intending associate member’s application for admission. (this is a mere guideline given by the federation).
It is very pertinent to note that although the associate member is not having a share in the property or no proprietary rights, he is bound by the liability to pay to the society if there is any arrears.
The associate member by accepting his status of the society, becomes liable to pay to the society’s outgoings in the event of the first member or the main member failing or unable to pay. The associate member therefore has only the liability to pay the outgoings and also enjoys the participative right in the management but he has no right to claim any share in the property and in the flat.
The societies therefore should not admit an associate member unless they ensure that the associate member has an income and that he is residing with the main member and that he has to exercise the right only in the absence of the main member. These three criteria’s are to be considered before the society accepts the associate member.
The associate member in the absence of the main member can attend general body meetings, exercise voting rights, get himself elected in the managing committee and become office bearers. These are the administrative rights enjoyed by an associate member so long as he is an associate member. The termination of the associate membership has to be done only in accordance with the provisions of the bye-laws. As regards nominal member, neither they have proprietary rights nor do they have administrative right. They are enjoying the right because the society has accepted them and they have to play their role within the permissible limit. But, however, they are liable to pay admission fees before they are enrolled.
If you have any doubt about the rights and the privileges of the associate member after reading the legal implications of associate member, you may write to me.
