EKNATH VISHNOO HINGE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Respondent No. 18 the Pune Zilla Sahakari Dudh Utpadak Sangh Ltd., is a specified society within the meaning of section 73-G of the Maharashtra Co-operative Societies Act (hereinafter referred to as the Act). The Board of Directors of said society was duty elected in accordance with the provisions of section 73-G read with Chapter XI-A of the Act in the year 1981 and as such the said Directors were entitled to remain in office for a duration of five years under sub-section (2) of section 73-G of the Act, and thereafter till the new Board of Directors is Elected. The said term of five years will expire in the year 1986. The petitioners are the elected members on the Board of Directors of the said society and, therefore, were entitled to remain in office as Directors till 1986 so also till the new Board of Directors is elected. This position is not is dispute. However, by an order dated 28th of February, 1984 the State Government appointed a new Board of Directors to manage the affairs of the respondent No. 18-society. By this order in all 15 directors were appointed. Respondent No. 3 Shri Ashokrao Namdeorao Muhol was also appointed as Chairman of the said Board of Directors. By the said order it was also directed that the tenure of the newly appointed Board of Directors will be for 3 years and the Government will be entitled to make change in the Board of Directors even before the end of the said tenure. Thereafter vide Government Resolution dated 6th of the March, 1984, four more Directors were appointed which included the Dairy Development Commissioner, or his nominee. The Joint Registrar of the Co-operative Societies (Milk) or his nominee. Representative of Indian Dairy Corporation, a nominee of the Maharashtra State Co-operative Milk Federation and the Managing Director of the Pune District Co-operative Milk Producers Federation Ltd. who will act as member-secretary. On the same day by another Government Resolution a corrigendum was issued correcting was issued correcting the recitals in the Government Resolution dated 28th February, 1984 wherein it was stated that the present Board of Directors was to remain in the office from 1979 upto 1984. By corrigendum it was modified to 1981 and 1986, It is these Government Resolutions and orders appointing the Board of Directors and issue of subsequent corrigendum, which are challenged in this writ petition by the petitioners who were duly elected on the Board of Directors of respondent No. 18 society.

(2.) Dr. Naik, the learned Counsel appearing for the petitioners, contended before us that the Government has no power, authority or jurisdiction to curtail the tenure of duly elected Board of Director and appoint fresh Board of Directors by taking recourse to some model bye-laws which were not adopted by the society. It was also contended by Dr. Naik that, assuming that such a bye-law was adopted and approved by the general body of the society, the said amendment to the bye-law is wholly repugnant and inconsistent with section 73-G read with section 9 of the Act and Rule 12 of the Rules, as it gives a go-bye to the process of election, which is the heart of the Co-oprative movements. Under section 36 of the Act, the society is a body corporate, and the supreme power vests in the General Body of its members, and the State Government has no power or authority to usurp the power of general body. Therefore, according to Dr. Naik, assuming that the alleged bye-law was duly approved, still the said bye-law is wholly null and void being ultra vires. He also contended that the order issued by the Government dated 28th of February, 1984 is also bad in law since it has been issued at the instance of respondent No. 19 the Minister for State for Dairy Development and Animal Husbandry who is incidentally also incharge Minister of Pune District. He has a personal interest in the matter as he was director of society. By the order the respondent No. 19 has appointed only those persons as directors who belong to his own group and Congress (I) party and have bypassed the claims of others including that of petitioners only because they belong to rival political party or group. Therefore, the said order is also vitiated, it being issued in mala fide exercise of powers. A contention was also raised by Dr. Naik that before curtailing the tenure of the office of the existing Board of Directors, no opportunity of being heard was given to the petitioners, and on that count also the order passed by the Government is bad in law since it is contrary to the well established principles of natural justice. It was also contended by the learned Counsel that in any case the appointments made by the Government vide order dated 28th of February, 1984 are also illegal since the said Board has been appointed without prior consultation with the Indian Dairy Corporation (hereinafter called as the IDC).

(3.) On the other hand it is contended by Shri C.J. Sawant, Shri Govilkar, Shri Bhimrao N. Naik and Shri Khambate, the learned Counsel appearing for respondents that the bye-law which provides for constitution of new Board of Directors curtailing the tenure of the existing Board, was duly approved by the respondent No. 19 society. Amendments to the bye-law were carried out in accordance with the provisions of law. After the bye-law stood amended the State Government in exercise of the power conferred upon it by the said bye-law, appointed the Board of Directors for a period of 3 years by order dated 28th February, 1984. By a subsequent order dated 6th March, 1984 the Government appointed certain other Directors on the Board as per the bye-law 18.1.1 to 18.1.6. The separate corrigendum issued on the same day namely 6th March, 1984 was in the nature of correction of an obvious error and, therefore, it cannot be said that the said corrigendum is anyway illegal. They also contended that various provisions of law, including section 73-G, contemplate appointments and nominations of directors on the Board of Directors apart from the election process. A provision is also made in the Act and the Rules for the constitution of the Managing Committee by appointment or nomination, until regular elections are held. These appointments are provisional in nature. Section 2 sub section (20) defines term officer which includes officers appointed by society. Wherever the Act or Rules are silent, the committee could be constituted as per the duly approved bye-laws and, therefore, it cannot be said that a power cannot be conferred upon the State Government to nominate the directors till the fresh elections are held as per the agreement between the Government and the I.D.C. These appointments of directors are provisional and made only for a period of 3 years, so as to enable the society to hold fresh elections within the said period. If all the provisions of the Act, Rules and Bye-laws are read together and harmoniously, it cannot be said that the bye-law 18.7 of the model bye-law as adopted by the respondent No. 18 society, is in any way illegal, and ultra vires. So far as the approval of the impugned bye-law by the society is concerned it is contended by the respondents that after the said bye-law was sent to the Registrar for registration by a letter dated 10th of May, 1983 the Joint Registrar of the Co-operative Societies returned it back to the Chairman of the society for necessary compliance as it was not in tune with model bye-laws. By a letter dated 11th of May, 1983 the Joint the Chairman informed the Joint Registrar that the necessary amendments have been carried out. Thereafter on 30th of May, 1983 the Joint Registrar approved the revised text of the bye-laws Nos. 1 to 32 as per the enclosures to the letter of Chairman. On 24th of June, 1983 the amended bye-laws were placed before the Directors and according to the respondents in that meeting petitioners were present. In a notice issued on 30th January, 1984 convening a meeting of the General Body on 13th February, 1984 this item was included for being placed before the General Body for information. In the meeting held on 13th February, 1984 the General Body took note of it. Therefore, according to the respondents the necessary procedure for amending the bye laws has been fully followed or in any case there is substantial compliance with the provisions of law and, therefore, the bye-law was duly passed and adopted.