Agricultural Produce Market Committee, Dharni and others vs District Deputy Registrar, Co-operative Societies, Amravati

V.A. Mohta, J.—The Agricultural Produce Market Committee, Dharni and its Chairman Prakashchandra Khandelwal have by this petition, challenged the order of supersession of the Market Committee u/s 45 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1%3 (the Act).

A show cause notice dated 17-7-1984 was issued to the Market Committee. The reply to the show cause notice was ordered to be given on or before 9-8-1984. A copy of the show cause notice was given to the Federation of the Market Committees referred to in section 44 of the Act and the said Federation was also called upon to give the reply if any, failing which it would be presumed that the Federation had nothing to say in the matter. A reply to the show cause notice was given by the Market Committee. Federation gave no reply. After considering the reply of the Committee and the other material placed on record, the order of supersession dated 17-1-1985 came to be passed.

The principal contention raised by Shri Chandurkar, the learned Counsel for the petitioner, is that the order of supersession is illegal for not complying with the requirement of prior consultation of the Federation as per proviso to section 45(1) of the Act which reads as under: -

Provided that, no Market Committee shall be superseded without the Federation of Market Committees referred to in section 44 being previously consulted.

Two points arise for consideration : (1) Whether the consultation is mandatory? (2) Whether what has been done amounts to consultation?. We will take up the second point first. The word "counsel", says Corpus Juris Secundum (1956 Edition Volume 16A at page 1242), is frequently defined as meaning "to discuss something together or to deliberate." This word fell for consideration before the Supreme Court in the context of Article 233(1) of the Constitution of India in the case of Chandramouleshwar Prasad Vs. The Patna High Court and Others, . The Court''s observations are as follows: -

Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation.

The above observations were approved in the two well known cases: (a) Union of India v. Sankalchand Himattal Sheth and another (1977 SCC 193 ) and (b) S.P. Gupta Vs. President of India and Others, in the context of Art. 222 of the Constitution of India. Consultation is thus 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. Indeed there is a corresponding duty also on the body whose consultation is mandatory to give its opinion. In the matter at hand, nothing of this type has taken place. Mere sending of a copy of the Show Cause Notice without anything more cannot amount to a consultation within the letter and spirit of the proviso. Neither the defence put up by the Market Committee nor the relevant material on the basis of which proposed supersession was to take place was placed before the Federation. No opinion could be given only on the basis of a show cause notice issued by the respondent The way, reply was sought from the Federation, it is clear that the authorities treated the requirement of consultation in a most casual fashion as if it is a mere ritual. Not even minimal requirement was fulfilled. There was no occasion for the Federation to discharge its duty of giving the opinion. There was no occasion for the two minds to be able to confer and give each other''s opinion in respect of the topic at hand. For all these reasons we have no hesitation in coming to the conclusion that'' order of supersession was passed without consultation.

This takes us to the first point. Proviso has been added by amending Act No. 2 of 1977 and the language used leaves no scope to doubt mandatory nature of requirement of consultation. Use of the word "shall" in the context is significant and does not permit it to be read as "may". In this connection, our attention was invited by the learned Asstt. Government Pleader Shri Deshbhratar to the Division Bench decision in the case of Karbhari Govindrao Patil and another v. B. D. Pawar and others (1976 Mh. L J. 841) in which case, section 78 of the Maharashtra Co-operative Societies Act dealing with supersession of societies fell for consideration. It reads thus:

78.(1) If, in the opinion of the Registrar, the Committee of any society or any member of such committee persistently makes default, or is negligent, in the performance of the duties imposed on it or him by this Act or the rules or the bye-laws, or commits any act. which is prejudicial to the interests of the society or its members or willfully disobeys directions issued by the Registrar for the purposes of securing proper implementation of co-operative production and other development programmes approved or undertaken by Government, or is otherwise not discharging its or his functions properly, or where, a situation has arisen in which the committee or any member thereof ceases or refuses to discharge its or his functions and the business of the society has or is likely to come to a standstill, or where any member of such committee stands disqualified by or under this Act for being a member, the Registrar may, after giving the committee or the member, as the case may be, an opportunity of stating its or his objections {if any) within fifteen days from the date of issue of notice, and after consulting the federal society to which the society is affiliated,'' by order -

x x x x

The comparison between section 78 of that Act and the proviso in question indicates that language used is not similar and that degree of emphasis is different Moreover the said decision was given before Supreme Court interpreted consultation in the cases cited earlier. In the case of Patesinghrao Anandrao Naik and others v. R.V. Deshmukh, Joint Director and Joint Registrar Co-operative Societies and others (1981 Mah. L.J. 936), another Division Bench of this Court had once again an occasion to consider section 78. Correctness of Karbhari Patil (supra) was doubted in the light of observations of the Supreme Court. In the present matter it is unnecessary to go deep into that question as we are not called upon to interpret section 78. On the plain language of the proviso, consultation in our view is mandatory and non-compliance with it renders the order of supersession bad in law.

To conclude, the petition is allowed. The order of supersession (Annexure-III) is quashed and set aside. Rule made absolute accordingly. No order as to costs.