• Election officer (returning officer) power in a residential owners association

Dear Learned Freinds,
I have been using regularly your forum to get nice tips with regard to our associan elections. 
Now the elections are notified and filing of nominations have started. 
Our Owners Association( registered under Societies Act in Tamilnadu) has a clause on who can contest in the election. 
One of the bylaw rule says that he / should be 
" residing in the complex " and in the definition clause it also says that Resident means A registered member who is resident of the complex.
Now I have a queries for you to conduct the election :
1. Has the law of the land has defined who is Resident of a flat? 
2. Has people who have taken possession but yet to move can contest as they are yet to do interior? 
3. If people who have taken possession and staying only in week ends due to their commitments an contest? 
4.People who have taken possession but not staying and kept the flat locked have rights to contest? 
The above are not defined clearly in by laws but our bylaw also says Election to be conducted as per Tamilnadu state govt Election rules. 
As Election office to take call properly I need your advise on how should I go about it to allow it or reject with valid reasons as per Law. 
Thanks in advance, 
Regards 
Krishnankv K V
Asked 4 years ago in Property Law
Religion: Hindu

2 answers received in 30 minutes.

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12 Answers

1. Refer to the Societies Act to get sch definition If the Act is also silent then it is open for interpretation .

2. A person who is no residing there can not be treated as resident to contest election.

3. Yes

4.No

To define resident a minimum time of stay is required in the flat.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1) "Residing in the Complex" means that particular body member should be available in the society every day. If tomorrow something goes wrong and he is the authorized person, he/she should be available in the society at list within 4 hours.And at night or in day he/she should be residing in the society.

2) For all your remaining points, members are bit staying yet to come or coming at weekends or they have to perform interior in their flat etc, means taking possession of the flat is not equal to residing it.

3) residential means person or his family continuously is touch within 24 hours of the day in the flat.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

1) flat owners who stay on weekends can contest

2) people who have taken possessionof flat can contest if interior work is Goni g on

3) flat owners who keep flat locked cannot contest

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Since the election rules are defined under the bylaws and resident in ordinary terms is not defined under the tamil Nadu co- Socities act but from defination in bylaws it is clear that the resident should be a member and he should be ordinarily residing in society only for day to day work and should be available in time frame within society.

So flat owners who reside temporarily within society or on weekends or has taken possession and interior is going can contest further the flat owners who flats are locked cannot as they are not residing.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. since the bye-law states that the candidate must be 'residing in the complex' , the said expression has to be taken in a manner which is ordinarily understood by a person of normal prudence

2. so as per bye law condition the candidate is required to be a resident of the complex, which means that he should be continuously and permanently residing in the complex

3. the object behind such a requirement is to ensure that management of the association will be taken care of efficiently only by a candidate who is present in the complex and residing there to overlook the various matters of the association

4. such management and overlooking cannot be obviously done by a person who intermittently resides in the complex or one who is not taken possession, since such persons would not be abreast of the various requirements of the association, which would not be in the best interest of the association

5. Let me give you an example of a school principal. The principal has to compulsorily be present in the school premises to overlook and monitor the various aspects pertaining to the school. A Principal who operates the school from somewhere else cannot perform such functions efficiently and the school administration would go haywire

6. with the above in mind, the answer to your queries are as follows:

1. resident of the flat has to be understood how a person of ordinary prudence would perceive it i.e. he should be continuously residing in the premises

2.No

3. No

4. No

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

1. IRRESPECTIVE of the Flat-Owners absence from his Flat, for any period of time .OR. if the Flat is rented /leased out, IT WOULD still amount to possession /resident of the Flat. AND the Flat-Owner would be eligible to contest the Elections.

2. Mere being absent does not derive him of any rights of the membership of his Flat.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

1. Has the law of the land has defined who is Resident of a flat? -- Owner of flat or member of family registered as member. Hope one member from each flat.

2. Has people who have taken possession but yet to move can contest as they are yet to do interior? - If registered with the association.

3. If people who have taken possession and staying only in week ends due to their commitments an contest? - as i said, only those members who are agreed to be part and are members in record at present.

4.People who have taken possession but not staying and kept the flat locked have rights to contest?

The above are not defined clearly in by laws but our bylaw also says Election to be conducted as per Tamilnadu state govt Election rules.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. To my knowledge, no law defines a 'resident'. However, in common law, a resident can be defined as a person who normally resides (read lives) in a place.

2. It naturally follows that a person who is yet to occupy a flat cannot be called a resident as yet.

3. Yes, it is not mandatory that they should reside there forever.

4. No, as they fail to qualify as residents.

Swaminathan Neelakantan
Advocate, Coimbatore
1923 Answers
20 Consultations

4.9 on 5.0

- As per Election bye-law , the candidate must be 'residing in the complex' . It means , the candidate should be a resident of the complex permanently.

- The main reason for bye-law ''residing in the complex'' is to ensure and guaranteed that management of the association will be responsible for day to day requirement of the complex by a person who is continuously residing in the complex.

Hence:

1. One should be a continuous and permanent resident in the complex.

2. No

3. No

4. No

Mohammed Shahzad
Advocate, Delhi
9905 Answers
121 Consultations

5.0 on 5.0

1. Yes the person who have purchased the flat also are not living at present will be considered as the residents of the flat.

2. everyone who has purchased the flat irrespective of the fact that he/ she is living or not is eligible to contest the election.

regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. Which law are you referring to seeking clarity on 'resident'

The law pertaining to flats or apartments differ from one state to another hence you cannot base or infer any meaning based on the general law to this situation.

2. A owner member of the association can contest if he has taken possession of his flat

3. If they have not let out their flats on rent, it can be deemed that they are in possession and occupancy of the flats.

4. Yes, why should they not, give me one good reason that why they are not entitled?

They are the owner and member of the association, they have not let out their flat on rent, they are holding the keys of their flats and they are paying maintenance like other members, so what is your objection to it?

The election rules can give only guidelines and it cannot clarify your imaginary doubts or it cannot go deep into specific doubts that may arise out of one's imagination.

You can accept the rules as general guidelines and proceed, as a election officer,m if you feel that certain aspect is not within the ambit of the rules framed for the purpose, you can refuse to accept the same, let the aggrieved knock the doors of the court with their own interpretation about the prevailing law and seek remedy.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Yes the definition of the bye laws is vague and not good in law. It is the Co-operative societies Act to decide the said meaning and definition. You are a resident even you dont Stay there.

Prashant Nayak
Advocate, Mumbai
27275 Answers
88 Consultations

4.4 on 5.0

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