• Imposition of fines as per apartment association by-laws

Hello Sir,

We are an apartment complex with 900 + flats. We have an owners association registered under 'Karnataka Apartment Owners Act 1972'. In the recent election of Board (management committee), we ran into some controversies. I am requesting legal opinion based on the facts below.

1. The present Board (management committee) appointed an election officer (returning officer) to oversee the election. This person was not elected in the general body meeting, but was just called in by the present committee to oversee the upcoming elections. The dates for nomination, withdrawal, election etc. were announced. 
One of the candidates submitted his form without signature. This was found after the cutoff date for nomination submission. The election officer called the candidate and asked him to sign and admitted the form. Some residents pointed out this as a lapse in the process and that the election officer cannot allow signature to be put after the date. One of the candidates also gave a written complaint to the President to look into the matter. The election officer took a stand that we is the authority and can take a decision based on his wisdom. Is the election officer doing the right thing or should he reject the application of the said candidate who failed to put the signature in time.

2. We have 8 blocks and we elect 2 members from each tower. Candidates from 4 towers now complained that they don't trust the election officer, and the election for all the 8 towers must be conducted afresh, starting from fresh nomination. Is this a valid demand or should the election be conducted only in the affected tower.

3. In our Bye-laws the term 'Board'(management committee) is defined in two places.
 a) Under definitions: Board means board of managers consisting of 4 persons, all of whom shall 
 be Owners.
 b) Under the section Election and Terms of office: The Board shall consist of 4 members, and 
 shall consist of at least 2 members from each block and 1 member representing the occupant. 
 
 Which of the above definition is to be taken?

Also the section Election and Terms of office states, the board shall hold office, till the new board is elected and holds its 1st meeting. In this election, in two blocks, there are no nominations. 

Does this mean the existing members of those two block will have to continue into the new board?

Regards
Suresh Balakrishnan
Asked 6 years ago in Property Law
Religion: Hindu

15 answers received from multiple lawyers

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15 Answers

1. Yes during the process of election after the cut off date for the welfare of the society and for conducting the free and fare election this act of the election office is OK but you may complain to competent authority forvyour disagreement not to the president.

2.I f there is a disagreement this should also be brought in the notice of registrar who is competent authority to stop the precess by declaration on null and void.

3. The board constitutes of 4 members the first definition is in the agreement of the welfare society which non profit making welfare body.

Normally board holds office till one year but if the board is not working in agreement to the model bye laws the the competent authority may dissolved the board and order fresh elections

Vimlesh Prasad Mishra
Advocate, Lucknow
6852 Answers
23 Consultations

4.9 on 5.0

Is the election officer doing the right thing or should he reject the application of the said candidate who failed to put the signature in time.

The election officer has ran out of his wisdom, he ought to have rejected the application instead of allowing it.

The president could have been urged to replace the election officer for his biased action as well as for his nil knowledge on the subject hence it cannot be expected out of him for a proper conduct a fair and proper election.

s this a valid demand or should the election be conducted only in the affected tower.

This should be for all since the election officer has failed to his duty properly hence he cannot be expected to be fair and just in his decision.

A fresh election should be conducted again for all the towers.

Which of the above definition is to be taken?

The latter which involves members to represent all the towers.

Does this mean the existing members of those two block will have to continue into the new board?

It depends on the interpretation of the by laws.

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

5.0 on 5.0

It is imperative that even in absence of these clauses the erstwhile board would continue the job till the new Board after free and fair election is put in place.

The same things happens in democratic country also where the caretaker government rules the states til the new government takes charge.

So there is no infirmity of the old board to carry on its management till a fresh election is completed.

The election officer is certainly abusing his position by allowing the candidate to correct the mistake You can challenge this decisison beofre the Competent Authority as prescribed in your local law,

Devajyoti Barman
Advocate, Kolkata
22917 Answers
497 Consultations

5.0 on 5.0

Application form should have been rejected by election officer if candidate had not signed the form

2) no need for fresh elections. Only the candidate application form should be rejected

3) you cannot have more than 4 committee members

4) if elected members are four you cannot have 2 elected members from each tower

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

1. The KAO Act is silent about issue no.1 stated by you. However, S.16(2) the bye-law shall provide the manner in which the election shall be conducted and shall express such acts which shall disentitle due to discrepancies in the application. In the absence of express provision in the act, the bye-law should have explicit provisions regulating all commissions and omissions which would lead to disqualification including conduct of the election officer.

2. If this is an unanimous and unequivocal demand from all members, then a fresh election is absolutely essential. Again, no specific provision supports fresh election in view of the mistrust.

3. Board of managers and members are different even as per the Act. S.16(2)(a) of the act, states board of managers and members separately.

Rajaganapathy Ganesan
Advocate, Chennai
2132 Answers
8 Consultations

4.9 on 5.0

1)i disagree that election officer was right in allowing applicant to sign the form after cut off date

2)if there are 8 towers you cannot have 16 committee members

3) the maximum members of board should be 4 . it no where mention that the 4 members of committee would mean the office bearers .does the bye laws mention that for association having x members MC should consist of Y MC members

4)it is not necessary that all 900 members demand reelections

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

that is possible interpretation . words should have been board shall consist of minimum 4 members and then stated that 2 members from each block

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

If 899 of 900 members demand re-election in view of mistrust, then it is absolutely essential and shall be governed by the provisions of bye-laws of the society.

Rajaganapathy Ganesan
Advocate, Chennai
2132 Answers
8 Consultations

4.9 on 5.0

Not signing the form is just an act of oversight and not an intentional omission hence there is nothing wrong in the election officer allowing the candidate to sign it at the later stage too since the application has already been submitted by him in the presence of every to the returning officer, hence it cannot be said that the application has not been given or there is any other major information that makes the candidate not eligible for contesting the election.

It is not a grave error that may change the fate of the election, hence creating dispute to this great extent on this may not be necessary.

If the by law says that there should be a representation of at least two members from each block, it implies that all of them are office bearers and among them they will select the president and secretary or any other designation.

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

5.0 on 5.0

Sections from out Bye-laws that says there have to be 16 members is as follows.

Section 23 of our Bye laws reads as follows: Election and terms of office: The board shall consist of four (4) members, and shall consist of at least 2 members from each block.

We have 8 Blocks. So doesn't it mean we must have at least 16 members (8 x 2) on the board?

You can go through the bye law referred to herein properly once again.

If the law states that there can be a representation of at least two members from each block, thus it can 8 x 2 = 16 and i by law permits there can be more members also besides this.

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

5.0 on 5.0

Dear sir,

The application forms are filled by the candidates in his/her hand writing and missing signature allowed by the election officer is due to the the over site by the election office during the scrutiny and now allowed.

As I suggested if a group of members are in disagreement this should also be brought in the notice of registrar who is competent authority to stop the process by declaration on null and void.

Housing societies are cooperative society of no profit base and the law allowed only 10 members. so the clause of two members from the each tower is void as per the legal structure.

The model bye laws normally framed by the initial members are made as per their convenience and easiness and the same should be changed as per the model bye laws or as per the provisions of the act.

Vimlesh Prasad Mishra
Advocate, Lucknow
6852 Answers
23 Consultations

4.9 on 5.0

1. The election officer was wrong in allowing that candidate to sign his application after the cut off date. He has no right to so since he has to act based on the law/rule and procedure.

2. Since election was conducted tower wise, reelection for the affected tower can be conducted now afresh.

3. You shall, have to get your bye laws amended with greater clarity and till then you shall can follow the secondt clause since the such a big society can not be managed by a board consisting of just 4 members. The clauses are required to be clearer.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. The election officer has no authority to bye pass the bye law set for the election and frame his own rule. His authority, duties and responsibility has already been pre-clarified. The cut of date has been fixed after which he is supposed to reject or accept the applications filed for the election.

2. The first clause might be indicating at the nos. of office bearers though the bye law has been ill clarified.

3. Few towers have no complaint about the election for which they can not be forced to under go the process of election again. The affected towers should reelect their representatives since their election have been cancelled.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

Yes it amounts to or arrives at 16 members though it was required to be clearly mentioned in the 1st clause that the office bearers will be 4 in numbers. However it has mentioned that the Management Committee should have 4 members.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. The election officer does not have the authority to permit the candidate to sign the application form after the cut off date had expired. He is not a law unto himself. He had to function within the realm of the rules. Submission of a form after the cut off date merits an outright rejection.

2. The towers which are not aggrieved by the election cannot be forced to under the ordeal of re-election. However, in so far as the 4 towers which have complained are concerned they can opt for reelecting their representatives for a fresh election.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

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