C.S. Dharmadhikari, J.
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 Cooperative 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.
4. So far as the question of mala fides is concerned, it was contended by Shri Khambata, that the allegations made in that behalf are not only vague but are also denied by the respondent No. 19 the Minister for State. The respondent No. 19 the Minister for State was not directly concerned with the appointment of Directors on the Board. Once it is held that the power is conferred upon the State Government to appoint Directors on the Board, and if the Directors are appointed on the Board in bona fide exercise of the said power, then only because the petitioners are not appointed on the Board of Directors, it cannot be held that the exercise of power is mala fide. In the affidavit filed in support of the allegations made about the mala fides, the petitioners have made references to the various other petitions pending before this Hon'ble Court in which interim orders are passed. The said petitions are still pending and, therefore, unless the controversies raised therein, which include allegations of mala fides are finally adjudicated upon, it cannot be said that the Minister for State had acted mala fide in all these cases. According to Shri khambata the petitioners have not placed before this Court any material from which an inference could be drawn that the respondent No. 19 the Minister for State has acted mala fides. So far as the question of consultation with the IDC is concerned, it is contended by the respondents that the said provision is directory and not mandatory. Therefore, failure to consult IDC will not vitiate the appointments.
5. To test the first contention raised by Dr. Naik namely that the Government has no power to appoint the Board of Directors under the model bye-laws 18.7, it will be worthwhile if the said provision is reproduced verbatum from the model bye-law :---
'18.7. Notwithstanding anything contained in the above bye-laws, till a Managing Committee in accordance with these bye-laws is elected, the first Managing Committee will be appointed by the Government in consultation with I.D.C. (while the financing of I.D.C. is in existence). The period of such Managing Committee will not exceed three years. Nevertheless, the Government will have the power to make any changes in such Committee during the said period. While the financing by I.D.C. continues, any such change will also be in consultation with the I.D.C. Similarly, in the District where the District Milk Federation exists and the Operation Flood Scheme is made applicable to such district, the Government will have power to appoint a Managing Committee as disclosed above.'
6. It appears that the question of amendment to the bye-laws was placed on the agenda of the general body meeting held on 14-2-1983. From the minutes of the general body meeting dated 14-2-1983 it appears that the model bye-laws Nos. 1 to 32 were read out in the meeting. These bye-laws were generally approved by the general body. However, certain amendments and modifications to some of the model bye-laws were proposed and it was decided that these modifications and the amendments should be brought to the notice of the Government and the Government should be requested to accepted the same. This resolution suggesting amendments to some of the bye-laws was also approved by the general body. Ultimately amendments of modifications were proposed to bye-law 18-1-A, 18.7 and 19.1.5. We are concerned in this writ petition with the bye-law 18.7, as approved by the general body. While adopting this part of the model bye-law the general body reduced the period of 3 years to one year so far as the tenure of the appointed Board of Directors is concerned. It also suggested an amendment to the said bye-law by adding a proviso to the effect that, notwithstanding any thing contained in the amended bye-law, the present Board of Directors which was duly elected in accordance with the provisions of the Cooperative Societies Act and Rules should continue in office till the expiry of their tenure of five years and fresh elections are held as per the amended bye-laws. It then appears that when this resolution of the general body was sent to the Registrar for registration, vide his letter dated 10th of May, 1983, the Joint Registrar Co-operative Societies returned the said bye-laws, as according to him they were not in tune with the model bye-laws. This letter was written to the Chairman of the Board of Directors who was requested to submit bye-laws after necessary amendments. On 11th May, 1983 itself the Chairman re-submitted the bye-laws to the Joint Registrar. It is an admitted position that before re-submitting the bye-laws to the Joint Registrar the matter was not placed before the general body. Therefore, it is practically an admitted position that there was no strict compliance with the provisions of the Act, and rules in that behalf. However, It is contended by the respondents that these amended bye-laws were placed before the Board of Directors on 24th June, 1983 and the petitioners were present at the said meeting. It was also placed before the general body for information and noting in the meeting held on 13th February, 1984. Therefore, there was substantial compliance with the provisions of law, we find it difficult to accept this contention. Section 13 of the Act deals with the amendments to bye-laws of the society. The said section reads as under :
'13(1) No amendment of the bye-laws of a society shall be valid until registered under this Act. For the purpose of registration of the amendment of the bye-laws, a copy of the amendment passed, in the manner prescribed, at a general meeting of the society, shall be forwarded to the Registrar. (Every application of registration of an amendment of the bye-laws shall, as far as possible, be disposed of by the Registrar within a period of two months from the date of its receipt.
Provided that where such application is not so disposed of within the said period of two months the Registrar shall record the reasons for the delay)
(2) When the Registrar registers an amendment of the bye-laws of a society, he shall issue to the society a copy of the amendment certified by him, which shall be conclusive evidence that the same is duly registered.
(3) Where the Registrar refused to registrar an amendment of the bye-laws of a society, he shall communicate the order of refusal, together with his reasons thereof, to the society.'
Then Rule 12 lays down the procedure for amendment of bye-laws. The said rule reads as under:
'12. Amendment of Bye-laws.---(1) Subject to the provisions of this rule, bye-laws of a society may be amended by passing a resolution at a general meeting of the society held for that purpose.
(2) The society shall give due notice in accordance with its bye-laws to all the members for considering any amendment thereof.
(3) An amendment shall be deemed to have been duly passed, if a resolution in that behalf is passed at a general meeting by not less than two-thirds of the members present thereof, and voting.
(4) After the resolution is passed, a copy thereof shall, within a period of two months from the date of the meeting at which the resolution was passed be furnished to the Registrar alongwith :---
(a) a copy of the relevant bye-laws in force with amendments proposed to be made in pursuance of the resolution, together with reasons justifying such amendments;
(b) four copies of the text of the bye-laws as it would stand after amendment, signed by the officers duly authorised in this behalf by the committee of the society;
(c) a copy of the notice given to the members of the society of the proposal to amend the bye-laws;
(d) such other information as may be required by the Registrar.
On receipt of a copy of the resolution and other particulars referred to in sub-rule (4) the Registrar shall examine the amendment proposed by the society and if he is satisfied that the amendment is not contrary to the Act or the Rules and is in the interest of the society and co-operative movement, he may register the amendment and issue to the society a copy of the amendment certified by him under sub-section (2) of section 13. Where the Registrar is of opinion that proposed amendment may be accepted subject to any modification, he may indicate to the society such modification after explaining in writing his reasons therefore.'
7. From the bare reading of the Rule 12 it is quite clear that on receipt of the copy of resolution and other particulars, in regard to the amendment of the bye-laws, if the Registrar is of the opinion that the said proposal should be accepted subject to any modifications, he is duty bound to indicate to the society such modification after explaining in writing his reasons therefore, so far as the Registrar is concerned, he had done his duty by returning back the amended bye-laws for necessary compliance, that is to amend it as per model bye laws vide his letter dated 10th of May, 1983. This letter was addressed to the Chairman of the Board of Directors. However, it is difficult to understand much less to accept, as to how the Chairman on his own could have conveyed to the Joint Registrar by his letter dated 11th May, 1983 that the procedure prescribed by law has been complied with and the bye-laws stand duly amended, when admittedly the said bye-laws were not again placed before the general body before they were re-submitted to the Joint Registrar. Placing of the bye-laws before the Board of Directors or in the subsequent meeting of the general body for information is not in compliance with the mandatory provisions of Rule 12 of the Rules. The Rule 12 lays down in specific terms that the bye-laws of the society could be amended by passing a resolution at a general body meeting of the society held for that purpose. In a general body meeting held on 13th February, 1984 the general body refused to amend the bye-laws as proposed, that is as per model bye-laws. It adopted the bye-laws with certain modifications, which were not approved by the Joint Registrar, who wanted that the bye laws should be approved and amended as per model bye-laws. It is well recognised rule of construction that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden Rule 12, expressly lays done the mode of carrying out amendments to bye-laws; therefore, it necessarily prohibits doing of it, in any other manner. Therefore, it is not possible for us to hold that the modern bye-law 18.7 was adopted by the general body in accordance with the procedure prescribed by law. To say the least this is nobody's case. However, it was seriously contended that there was substantial compliance with the rules and the law. It is also not possible for just to accept this contention. As a matter of fact when the bye-laws were returned by the Joint Registrar to the Chairman of the Board of Directors, he sent a letter of his own very next day, that is on 11th May, 1983. Thereafter also no steps were taken forgetting the said amendment approved by the general body as per rules. Mere placing of bye-laws before the general body for information in the annual general meeting without incorporating it in the agenda or without getting it approved or adopted by the general body, cannot be termed as substantial compliance with the provisions of the Rule 12. Rule 12 in terms contemplate that a resolution should be passed in the general body meeting of the society held for that purpose, namely held for the purpose of amending the bye-laws. In this context it is also pertinent to note that the Chairman of the existing Board of Directors respondent No. 3 Ashokrao Namdeorao Muhol is also appointed as Chairman of the newly constituted Board of Directors. We find much substance in the contention of petitioner that he acted on his own, By usurping the powers of the general body since he was assured that his name will be included in the proposed Board of Directors and that too as Chairman. Only because the petitioners were present in the meeting of Board of Directors in which amended bye-laws were placed for information, it cannot be held that they are estopped from challenging the same. There can be no estoppel against statute. Further the petitioners have no right to waive the illegality as their consent cannot cure or rectify it. The power to amend the bye-law vests in general body and not in the Board of Directors. In this view of the matter we have no hesitation in coming to the conclusion that the model bye-law No. 18.7 was neither adopted nor approved by the general body. Once it is held that the bye-law in not amended in tune with the model bye No. 18.7 then obviously the Government had no power to appoint the Board of Directors end, therefore, the appointment of the Board of Directors vide order dated 28th of February, 1984 is obviously without jurisdiction.
8. Even assuming that the Government had such power of appointment, then also the constitution of the present Board of Directors is illegal. The model bye-law No. 18.7 in terms lays down that the Government shall appoint the Board of Directors after consulting the I.D.C. This is not the end of the matter. The bye-law down that if the Government wants to make any change in the Board of Directors nominated or appointed, the said change will also be affected after consulting the I.D.C. From the bare reading of this model bye-law it is quite clear that the consultation contemplated is prior consultation. It is an admitted position that before constituting the present Board of Directors the I.D.C. was not consulted. It was argued that the said consultation is directory it is not possible for us to accept this contention. The very basis of these model bye-laws is the agreement between the Government of Maharashtra and the I.D.C. Clauses (2) of this agreement reads as under :
'2. to take necessary action including the amendments to the State Co-operative Act, if and when found necessary by State Government and the I.D.C. and issuance of State Notification, to facilitate the formation of Dairy Co-operative Societies, the District Co-operative Milk Producers' Union and Federations of such Union in the project Area, hereinafter called Co-operative Institutions' and to enable them to function in accordance with bye-laws which are framed in consultation with the State Government and are satisfactory to I.D.A and I.D.C.'
This clearly shows that framing of bye-laws should be to the satisfaction of I.D.C. By; this agreement between the Government of Maharashtra and the I.D.C., the I.D.C. has incurred financial responsibility for running the scheme. We are told that I.D.C. had given 70% of capital as loan to the society. Therefore, the I.D.C. is vitally interested in the management of the society. For protecting its own finance and for properly managing the affairs of the society the I.D.C. must have some control over the management of the society. This is not only necessary or protecting the interest of the I.D.C. but also to protecting the interest of general public and the members of the society. This prior consultation is advisedly provided so that the proper implementation of the Operation Flood Programme, meant for achieving an all round increase in the production of milk is not polluted or adulterated by internal and individual strife and party politics. This seems to be the reasons as to why vide bye-lays Nos. 18.1.2 to 18.1.6 provision is made for appointment of various officers on the Board of Directors, which include the representative of the I.D.C. The consultation contemplated is obviously prior to the appointment of the Directors. Such a consultation will have to be an effective one. It will be in public interest, if the I.D.C. has an opportunity to examine the credentials of the persons proposed to be nominated on the Board of Directors. In such a case it is reasonable to expect that the I.D.C. will express its opinion about the suitability or non-suitability of a person after proper scrutiny. The consultation with the I.D.C. is not an empty formality nor the opinion expressed by the I.D.C. could be lightly brushed aside. In this view of the matter, in our view the provision as to prior consultation with I.D.C., is mandatory and not directory.
9. As to what is the nature and scope of such consultation, has been laid down by the Supreme Court in Union of India v. Sankalchand Himatlal Sheth and another, : 1SCR423 , such a consultation should be full and effective. For the full and effective consultation, sufficient information and all other relevant material qua the persons to be appointed will have to be supplied to I.D.C. to enable it to tender advice. Otherwise prior consultation will loose its efficacy. The right of consultation conferred upon the I.C.C. is coupled with a duty. The I.C.C. is duty bound to examine and scrutinise each and every case so as to assure that the appointment are not being made on the basis of some extraneous considerations or will oblique motive. Under the bye-law the power to appoint the Board of Directors with prior consultation with I.D.C. for the initial period of three years is conferred on the State Government. The said period is crucial though transitory. Therefore, on the basis of admitted position, that there was no prior consultation with the I.D.C. it will have to be held that there was no compliance even with the model bye-laws. Therefore, taking any view of the matter, it will have to be held that order passed by the Government on 28th February, 1984 appointing new Board of Directors is wholly illegal.
10. In the view which we have taken it is not necessary to decide the wider question, as to whether the model bye-laws are repugnant or inconsistent with the provision of section 73-G of the Act, and, therefore, ultra vires It is also not necessary to deal with the question of mala fide qua the respondent No. 19, the Minister for State. It is no doubt true that the allegations of mala fides are often more easily made than proved and It is easy to make such allegations but difficult to prove. However, from the material placed on record it is obvious that the respondents have unnecessarily given an opportunity to the petitioner to make such allegations. In this context we cannot do better than to draw the attention of authorities concerned towards the observations of Supreme Court in A.I.R. 1984 S.C. 332, Chandrika Jha v. State of Bihar. However, since we have already held that the appointment of new Board of Directors vide Government order dated 28th of February 1984 is obviously without jurisdiction and, therefore, illegal, it is not necessary to deal with this aspect of the matter in this writ petition.
11. Though we have held that the appointment of the present Board of Directors is illegal, it is neither disputed nor it could be disputed that the appointments of other persons, such as, Commissioner of Dairy Development or his nominee, Joint Registrar of the Co-operative (Milk) or his nominee, representative of I.D.C. and the representative of the Maharashtra State Co-operative Milk Federation and the Managing Director, as per the bye-law Nos. 18.1.2 to 18.1.6. will be perfectly legal and valid since those model bye-law were duly adopted by the general body. This seems to be reason why petitioners have not joined those directors as parties to this writ petition. We are inclined to take this view for one more reason. In our view the representations of these persons on the Board of Directors will not only help the administration and management of the society but will also protect the interests of the Government as well as I.D.C. Therefore, as a result of our decision the Board of Directors duty elected in the year 1981 shall continue to be in the office and in addition to the said Director, the Directors nominated vide Government order dated 6th March 1984 under the bye-laws 18.1.2 to 18.1.6 will also continue to be the directors on the Board of Directors and to that extent the existing constitution of the Board of Directors shall stand duly modified and amended.
12. However, it was contended that since the new Board of Directors under the model bye-laws has been appointed in the interest of the administration and management of the society we should not interfere with the order passed by the Government in the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. It is not possible for us to accept this contention, in view of the patent illegality in the constitution of the Board of Directors. Further we do not think that any prejudice would be caused so far as the management of the society is concerned, since admittedly the old Chairman of the Board is also the Chairman of the newly constituted Board of Directors. From amongst the old Directors six were included in the newly appointed Board of Directors. Appointment of representatives of financial agencies and other bodies and authorities are held to be legal and valid. Thus the working and the management of the society will not be adversely affected. Therefore, it will not be fair to continue the patent illegality. That will amount to premium on illegality.
In the result, therefore, the writ petition is allowed. Rule is made partly absolute.
However, in the circumstances of the case there will be no order as to costs.