Bombay High Court
Suresh Dnyandeo Khumkar And Ors. vs State Of Maharashtra And Ors. on 26 February, 1987
Equivalent citations: 1987(3)BOMCR211
JUDGMENT H.W. Dhabe, J.
1. These two writ petitions can be conveniently disposed of by this common judgment as they arise out of the same order passed in the appeal by the Additional Registrar, Co-operative Societies. A reference to the parties, for the sake of convenience, would be with reference to the Writ Petition No. 2380 of 1986. The petitioners 1 to 8 were elected as members of the Managing Committee of the petitioner No. 9 Society, registrar under the provisions of the Maharashtra Co-operative Societies Act, 1960 (for short the Act). They were elected on 8-7-84 and entered the office when the first meeting of the Managing Committee was held on 22-7-1984. It is non in dispute that according to the bye-laws of the petitioner No. 9 society, the tenure of the Managing Committee is five years and as such they would have been entitled to continue in office until 22-7-1989.
2. A show-cause notice dated 25-4-1986 containing five charges was issued under section 78 of the Act to the Managing Committee of the petitioner No. 9 society by the District Deputy Registrar, Co-operative Societies, Akola a copy of which was also sent to the Federal Society, as alleged in para 17 of the return filed on behalf of the respondents. The petitioners 1 to 8 submitted their reply to the show-cause notice. The matter was fixed 15-5-1986 for hearing which was subsequently changed to 12-6-1986. However, the petitioners 1 to 8 did not remain present on that day and, the application for adjournment filed by them was rejected. The matter was then fixed for orders by the then District Deputy Registrar Shri Bannore but as in the meantime he was promoted, Mr. Zalke, who took additional charge of his post of the District Deputy Registrar, Akola, passed an order dated 11-8-1986 under section 78 of the Act holding that all the charges were proved against the Managing Committee of the petitioner No. 9 society. He, therefore, ordered supersession of the Managing Committee of the said society and appointed an administrator in its place.
3. The petitioners 1 to 8 filed an appeal before the Additional Registrar, Co-operative Societies who granted stay of the order of supersession which in revision preferred against the same was vacated by the State Government without hearing the petitioners 1 to 8, who, therefore, filed a writ petition in this Court, in which this Court, directed the Appellate Court to pass an order on merits within 15 days. The Appellate Court, therefore, passed an order on merits on 20-11-1986, in which it held that the charge relating to keeping the cash balance in hand in contravention of the relevant bye-laws, was only proved but all other charges were not proved against the Managing Committee. However, since one charge as stated above was held proved, the learned Appellate Court maintained the order of supersession of the Managing Committee of the petitioner No. 9 society.
4. Being aggrieved the petitioners have preferred the instant writ petition challenging the order of the District Deputy Registrar and the Additional Registrar of Co-operative Societies superseding the Managing Committee of the petitioner No. 9 society. Certain members of the society who are not the members of the Managing Committee, have preferred the Writ Petition No. 143 of 1987 challenging that part of the order of the Appellate Authority by which it held that certain charges were not proved against the Managing Committee of the society. It is clear that petitioners in the above Writ Petition No. 143 of 1987 support the order of supersession dated 11-8-86 passed by the District Deputy Registrar.
5. It is not necessary for us to go into the merits of the charges against the petitioner No. 9 society in these writ petitions, because according to us, the Writ Petition No. 2380 of 1986 filed by the members of the Managing Committee of the petitioner No. 9 society deserves to be allowed on a short ground that there is no effective consultation with the Federal Society, as contemplated by section 78 read with Rule 64(2) of the Act and the Rules framed thereunder. The only compliance which is pointed out in para 17 of the return filed by the respondents regarding the requirement of effective consultation is that a coy of the show-cause notice was sent by the District Deputy Registrar to the Federal Society and that no opinion was communicated by the Federal Society till the order was passed by the District Deputy Registrar though he waited for about 3 months for the reply of the bank and the Federal Society.
6. It is, however, urged on behalf of the intervenors by Shri M.N. Ingle, Advocate, that the requirement as to consultation under section 78 of the Act is not mandatory. In support of his submission, he has relied upon a decision of this Court in the case of Karbhari Govindrao Patil v. B.D. Pawar and others, 1976 Mh.L.J. 841. The learned Counsel for the petitioners, has however, relied upon the subsequent decisions of this Court in the case of Patesinghrao Anandrao Naik v. R.V. Deshmukh, 1981 Mh.L.J. 983 and in Agricultural Produce Market Committee v. District Deputy Registrar, Co-operative Societies, 1986 Mh.L.J. 374 to show that the requirement of consultation under section 78 of the Act is mandatory in the sense that it should be an affective consultation.
7. It is clear from the above decisions relied upon on behalf of the petitioners that Karbhari's case relied upon on behalf of the intervenors is referred to and distinguished in the said decisions. It is held that after the decision in Karbhari's case the Supreme Court has considered the requirement of consultation in the case of Union of India v. Sankalchand, in which it is held that there must be an effective consultation in regard to the transfer of the High Court Judges, which was the subject-matter in the said case. It may be seen that the same view about the effective consultation is also taken by the Supreme Court thereafter in the case of S.P. Gupta and others v. President of India and others, vide para 641 at page 412 although as regards the general policy of transfer the view taken in Sakalchand's case is explained in the said para). In the latest decision of this Court in the case of Agricultural Produce Market Committee, cited supra summarising the law in regard to consultation this Court held that consultation is not an empty formality or a ritual. It has to be real, full and effective. Unless there has been full consideration of all the matters relevant to the question, it cannot be said that the process of consultation has taken place. The decision in Karbhari's case relied upon on behalf of the intervenors is considered in the later decisions of this Court cited supra which have based their view upon the decision of the Supreme Court in Sakalchand's case cite supra rendered subsequent to the decision in Karbhari's case. In this context, a reference could also be usefully made to a later decision of the Supreme Court in S. Kewal Ram v. Dist. By. Registrar of Co-operative Societies etc., Special Leave Petition (Civil) No. 4593 of 1986, decided on 18th August, 1986, reported in 1986(2) S.C. A.L.E. 398, wherein while considering the scope of proviso to section 45 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, the Supreme Court has observed as under :---
"The impugned order of supersession of A.P. M.C. Armori dated 3-9-85 has been passed without consulting the Federation of Market Committees as enjoined by proviso to section 45(1) of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963. The learned Counsel for the respondents has placed reliance on the affidavit in reply to show that a request was made to the Federation in order to elicit its opinion in regard to the proposed supersession but that the Federation had not given reply one way or the other. The expression "previously consulted" means that the opinion of the Federation one way or the other must be taken into account before reaching the conclusion whether or not to supersede. It is no good answer to say that the opinion of the Federation could not be taken into account because no opinion was expressed by it. In the eye of law supersession cannot be said to have been made in consultation with the Federation. A reply from the Federation one way or the other should have been insisted upon and the opinion expressed by the Federation should have entered into the reckoning before the conclusion to supersede was reached. The order therefore is unsustainable in law."
Further, it is quite clear that Rule 64 has neither referred to nor considered in Karbhari's case. Rule 64(2) in clearest terms lays down that before making any order under sub-rule (1) the Registrar shall consult the federal society to which the Society is affiliated. It has, therefore, to be held that the requirement of consultation in section 78 of the Act as is also clear from Rule 64(2) of the Rules framed thereunder is mandatory and such consultation should be meaningful and effective.
8. It may be seen that in the earlier decision of this Court in the case of Patesingrao v. R.Y. Deshmukh, cited supra, this Court has in para 22 of the report referred to the decision of the Madhya Pradesh High Court in the case of Radheshyam Sharma v. Government of M.P., and has extracted from the said decision, two conditions laid down therein in order to make the consultation effective and meaningfully and not merely superficial. These conditions are :
(1) Sufficient information or in other words all relevant material must be supplied to the person to be consulted to enable him to tender advice, inviting his attention into the points on which the advice is sought, indicating how the authority seeking advice views the matter.
(2) Sufficient opportunity must be given to such person to tender that advice.
9. The above conditions would show that for having effective consultation, the consulting authority must place sufficient material and give all relevant information the Federation, so that it can form its opinion in regard to the matters upon which it is being consulted. The second requirement is that sufficient time must be given to the Federation for giving its opinion. In our view, even assuming that the requirement of the consultation is considered as directory, it is necessary for the consulting authority to comply with the above two conditions, in order to make substantial compliance with the requirement of consultation under section 78 of the Act and Rule 64(2) of the rules framed thereunder . It is well settled that even if a rule is construed as directory, it does not mean that it need not be complied with at all. What is then required is that it must be substantially complied with failing which such non-compliance would render the action void.
10. In the instant case, except sending a copy of the show-cause notice, no other relevant material was sent to the Federation so that it could form its opinion and send it to the District deputy Registrar within a reasonable time. Even the copy of the reply submitted by the petitioners in answer to the show cause notice under section 78 of the Act was not sent to the Federation, in these circumstances, there is no compliance with the two conditions referred to above and hence there is no consultation much less any effective consultation as contemplated by section 78 of the Act read with Rule 64(2) of the rules framed thereunder. The impugned order of supersession thus must fail on this ground.
In the result, the Writ Petition No. 2380 of 1986 is allowed. The impugned orders of the respondents 2 and 3 are set aside. The Writ Petition No. 143 of 1987 is dismissed. Rule made absolute in the Writ Petition No. 2380 of 1986 and rule is discharged in Writ Petition No. 143 or 1987. We are told that the Administrators has taken the charge of the affairs of the petitioner No. 9-society, which in view of our decision should be restored to its Managing Committee. However, in the circumstances, there would be no order as to costs in these writ petitions.