Suresh Dnyandeo Khumkar & others vs State of Maharashtra & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1987 Supreme(Bom) 94

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
C.S. Dharmadhikari H.W. Dhabe, JJ.
Suresh Dnyandeo Khumkar others .... Petitioners.
Versus
State of Maharashtra others .... Respondents.
Writ Petition No. 2380 of 1986 in Writ Petition No. 143 of 1987, decided on 26-2-1987.
Advocates appeared :
P.C. Madkholkar, for petitioner in W.P. 2380/86 for respondents, in W.P. 143/87.
V.R. Manohar and M.N. Ingle, for Coweator in W.P. 2380/86.
R.B. Pendharkar, for Intervenors, in W.P. 2380/86
M.N. Ingley, for petitioner in W.P. 143/87.

Headnote:Section 78 (1) - Consultation of Federal Society-Requirement of-The consulting authority should not only place. Sufficient material before the Federation but also give sufficient time to it for persuing its opinion - Noncompliance of these two conditions-Order of super session be set aside.

       For having effective Consultation, the consulting authority must place Sufficient material and give all relevant information to 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. Even assuming that the requirement of 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.
       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 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.

JUDGMENT - H.W. DHABE, J.:---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 c

Click Here to Read the rest of this document