MISBRA, J.

(1.) This is a petition under Articles 226/227 of the Constitution of India, whereby the petitioners seek issuance of a writ of Certiorari and/or any other appropriate direction or order in tbe nature of a writ for quashing the order of supersession of the Board of Directors of Shri Ganesh Sahkari Vipnan (Marketing) Sanstha, Maryadit, Khargone, passed by the Deputy Registrar, Co-operative Societies, Khargone, on 22.5.1981 (Annexure-3).

(2.) Shortly put the facts necessary for decision of this petition are as under : Shri Ganesh Sahkari Vipnan (Marketing) Sanstha, Maryadit, Khargone (hereinafter referred to as the Society) is a co-operative society governed by the Madhya Pradesh Co-operative Societies Act, 1960 (for short the Act). The Board of Directors of this Society was constituted on 22.5.1979 for a period of three years, ending on 22.5.1982. At the relevant time the society was indebted to the Jila Kendriya Sahkari Bank Maryadit, Khargone (respondent No. 2). After issuing a show cause notice No. Vidhi/81/1549, dated 4.5.19. 1 (Annexure-2), the Deputy Registrar, Co-operative Societies, Khargone, by his order No Vidhi/1723/81, dated 22 5.1981 (Annexure-3) passed the order of supersession of the Committee and in place of supreseded committee, an ad hoc committee respondent No. 3) has been appointed to discharge its functions. Hence this petition.

(3.) The petitioner contended that the impugned order of supersession of the Board of Directors (for short, the Committee) is illegal, void and inoperative inter alia on the grounds that (1) the show-cause notice dated 4.5 1981 (Annexure-2), issued by the Deputy Registrar respondent No. 1) was not served on petitioner No. 2 Prakashchandra Shivrana Vyas, President of the Commitee, who was at the relevant time in the knowledge of respondent No 1 at Maxico, and thus, there has been denial of reasonable opportunity of showing cause against the proposed order of supersession of the Committee and as such, there has been contravention of Section 53 (2) of the Act; (2) that the Society at the relevant time was a Society indebted to the Jila Kendriya Sahkari Bank Maryadit, Khargone (respondent No. 2) and as such, it was obligatory on the part of respondent No. 1 to have consulted the said Bank in the manner enjoined by Section 53 (7) of the Act. However, in this case there was no consuttation as envisaged by the law. Moreover, without waiting for a period of 45 days, respondent No. 1 has hastened to pass the impugned order of supersession, for this reason also it is illegal, void and inoperative.

(4.) On behalf of the respondents the petition is opposed by submitting separate returns. However, the main grounds on which the petition is resisted are (i) (a) that the petition cannot be maintained in the name of Board of Directors as it is not a juristic person, and (b) that the petition suffers from the defect of non-joinder of parties, inasmuch as members of the Committee, other than petitioner No. 2, have not been joined as parties to the petition ; (ii) that service of notice to show-cause oa petitioner No. 2 was not necessary, as serviee on other member of the commute is deemed to be service on all members thereof ; (Hi) that the provisions placed in Section 53 (7) are not mandatory and are merely directory in nature ; (iv) that the proviso to Section 53 (7) is for the benefit of the financing Bank. As such, no grievance can be made in respect of non-compliance thereof by the petitioner ; that (v) passing of the order of supersession prior to expiry of 45 days, does riot vitiate it, and (vi) that the alternative remedy of appeal under Section 77 of the Act being available to them, the petitioners cannot invoke the extraordinary jurisdiction vested in this Court under Articles 226/227 of the Constitution of India.

(5.) It is true that the Board of Directors has not been given the status of a juristic person by any provision placed in the Act. By virtue of the definition placed in Section 2 (d) of the Act, the term Committee has been defined to mean the Board of management by whatever name called constituted under Section 48. Now, Section 48(1) of the Act provides that the final authority in a society shall vest in the general body of members. Subsection (2) thereof proceeds to provide that subject to sub-section (1) the management of every society shall vest in a committee constituted in accordance with this Act or rules made thereunder or bye-laws of the society and it shall exercise such powers and perform such duties as may be conferred or imposed respectively by the Act or rules made thereunder or bye-laws of the society. Nothing could be shown by the petitioners in the Act, rules or bye-laws of the society on the basis of which it may be concluded that the Board of Directors (petitioner No. 1) is a juristic person, capable to act in its own name. As such, the petition could not be maintained in the name of Board of Directors through its President, Prakashchandra Shivram Vyas. However. this appears to be a defect pertaining to mere form and does not affect the tenability of the petition. The petition has been filed by Pfakash Chandra Shivram Vyas also as petitioner No. 2. So far as the question of non-joinder of other members of the Committee is concerned, it cannot be regarded to be fatal to the maintainability of the petition, inasmuch as the other members of the Committee cannot be regarded to be necessary parties to the petition. They are at the most proper parties. A necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made, but whose presence is necessary for a complete and final decision on the question involved in the proceeding. This is what has been held in United Provinces v. Atiqa Begum [AIR 1941 FC 16 [LQ//1940/1] ]. Accordingly, the petition cannot be dismissed as non-maintainable on account of any of the defects pointed out by the respondents.

(6.) This brings us to the second contention. Sub-sections (1), (2) and (7) of Section 53, which are relevant for the decision of controversy between the parties read as under :

"53. Supersession of Committee. (1) If, in the opinion of the Registrar, the Committee of any society (a) persistently makes default or is negligent in the performance of the duties imposed on it by or under this Act or bye-laws of the society or by any lawful order passed by the Registrar or is unwilling to perform such duties ; or (b) commits acts which are prejudicial to the interests of the society or its members ; or (c) is otherwise not functioning properly ; the Registrar may, by order in writing remove the committee and appoint a person or persons to manage the affairs of the Society for a specified period not exceeding two years in the first instance : Provided that in case of a Co-operative Bank, the order of supersession shall not be passed without previous consultation with the Reserve Bank : Provided further that if no communication containing the views of the Reserve Bank of India, on action proposed is received within forty- five days of the receipt by that Bank of the request soliciting consultation it shall be presumed that the Reserve Bank of India agrees with the proposed action and the Registrar shall be free to pass such order as may be deemed fit. (2) No order under sub-section (1) shall be made unless the Committee has been given a reasonable opportunity of showing cause against the proposed order and representation, if any. made by it, is considered, (3) (4) (5) (6) (7) Before taking acttion under sub-section (1) in respect of a financing bank or in respect of society indebted to a financing bank, the Registrar shall consult, in the former case, the Madhya Pradesh State Co-operative Bank Limited and, in the latter case, the financing bank concerned, regarding such action. If the Madhya Pradesh State Co-operative Bank Limited or the fin incing bank, as the case may be, fails to communicate its views within forty-five days of the receipt by such bank of the request soliciting consultation, it shall be presumed that the Madhya Pradesh State Co-operative Bank Limited, or the financing bank concerned, as the case may be, agreed with the proposed action."

In this case the Deputy Registrar (respondent No. 1) issued the show-cause notice dated 4.5.1981 (Annexure-2) in the name of the President, Directors and representatives manning the Committee and not in the name of the Committee. Having acted in this manner, the contention that service of the notice on some of the members of the Committee should be regarded as service on all its members, is not open to the respondents. What sub-section (2) of Section 53 of the Act contemplates is giving of a reasonable opportunity of showing cause against the proposed order of supersession This opportunity had of necessity to be given to the petitioner No. 2 also, who happened to be its President. However, he had left for Maxico on 30.4.1981 for attending a Sugar-cane Conference. This fact appears to have been within the knowledge of the Dy. Registrar (respondent No. 1) as is clear from the recital to the effect that he was proceeding to Maxico in connection with the said Sugar-cane conference for a period of 20 days, contained in the show-cause notice dated 4 5.1981 (Annexute-2), sent by registered post (A.D.) on 7.5.1981 to him vide Annexure-1-A, to the return of respondent No. 1. The endorsement dated 22.5.1981 on Annexure 1-A is to the effect that the addressee is avoiding service and inspite of instructions he does not remain present during the period of distribution of the post. Thus, the show-cause notice was not served at all on petitioner No. 2. From these facts it is clear that the mandatory provisions placed in Section 53 (2) have not been complied with and no opportunity of showing cause, what of reasonable opportunity of showing cause against tbe proposed order of supersession was given to him.

(7.) So far as the other contentions of the petitioner regarding non- compliance of the provisions of Section 53 (7) and its proviso are concerned the argument is to the effect that respondent No. 1 had merely sent a copy of the show-cause notice to the finaneing Bank (respondent No. 2), to which the Society was indebted at the relevant time and no relevant material was made available to the respondent Bank. Now what the enacting part of Section 53 (7) provides is that the Registrar shall consult, in respect of a Society indebted to a financing Bank, the financing Bank concerned, regarding taking of an action under sub section (1). The use of tbe expression "before taking action under sub-section (1)" in Section 53 (7)of the Act makes the consultation a condition precedent for passing an order envisaged by Section 53 (1) of the Act. While dealing with a case under the Madras Co-operative Societies Act No. 53 of 1961, on construction of analogous provision placed in Section 72 of that Act it has been observed in Joint Registrar, Co-operative Societies, Madras v. P. S. Rajqgopal Naidu, [AIR 1970 SC 992 [LQ/SC/1970/183] ] as under :

"Thus even though the opinion may be a purely subjective process, there must be cogent material on which the Registrar has to form his opinion that the society is not functioning properly in order to sustain the issuance of a notice under Section 72 (1) (a) and subsequent supersession of the Committee after considering its representation on that ground. The requisite opinion has indisputably to be formed honestly and after applying his mind by the Registrar to the relevant materials before him the only condition precedent for taking action under Section 72 (1) is that the Registrar must consult the finaneing Bank to which the society is indebted [vide sub-section (6)]."

The provision placed in Section 72 (1) read with sub-section (7) thereof (of the Madras Act) is a statute in pari materia with Section 53 (1), and 7) of the Madhya Pradesh Co-operative Societies Act, 1960. Accordinly, consultation within the contemplation of Section 53 (7) is a condition precedent for taking action by way of supersession of the committee and as such, it is mandatory provision and not directory, as contended by the respondents. The view taken about tbe nature of the provision regarding consultation under Section 53 (7) of the Act in Bansilal v. Asstt. Registrar, Co-operative Societies, Ratlam and another [M. P. No 68 of 197], decided on 23.7.1973 and reported as 1975 J.L J. Short Note No. 171 is as under :

"Prior consultation with the financing bank concerned under Section 53 (7) is a condition precedent to the exercise of the power of supersession under Section 53 (1) of the Act."

Similar view is taken in the context of Section 53 (1) of the Act in the case of Radheshyam Sharma v. Govt. of M. P. [1972 MPLJ 796 [LQ/MPHC/1971/263] ] is a case of construction of the provisions placed in Section 53 (1), yet the requirement with regard to consultation being couched in similar terms, the import of consultation in sub-section (1) as well as sub-section (7), having regard to the context and the purpose, appears to be the same. Now, the very object of consultation is to obtain the view of the person or body to be consulted in order to arrive at some conclusion in respect of the matter on which the consultation is made. In order that the consultation may not remain a mere formality, but should be effective and meaningful, it appears to be necessary that all material available on the basis of which a particular conclusion is to be reached, had to be supplied to the financing Bank by the Deputy Registrar. While construing the word "consultation" occurring in sub-section (1) of Section 1 of the New Town Act, 1946. Bucknil L J., in Rollo and another v. Minister of Town and Country Planning, [(1948) 1 All ER 13] obseived as under : "Consultation in the sub-section means that on the one hand, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender that advice."

So also Subba Rao, J. (as he then was) in R. Puspam and another v. State of Madras, [MR 1953 Mad 392] [LQ/MadHC/1952/266] construed the word "consult" occurring in Section 43 of the Madras District Municipalities Act, at page 393, Col. 1, as under :

"The word consult implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject involved in the discussions. The consultation must enable the consulter to consider the pros and cons of the question before coming to a decision."

Having regard to the context and the purpose in which the term consultation has been used in Section 53 (1) of the Act, this Court has in the case of Radheshyam Sharma (supra) held that the following two conditions must be fulfilled in order that consultation may be regarded as effective and meaningful :

"(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 to the points on which the advice is sought, indicating now the authority seeking advice views the matter ; (2) Sufficient opportunity must be given to such person to tender that advice."

It is true that in the case of Radheshyam Sharma (supra) while explaining the concept of consultation the aforesaid observations were made in the context of Section 53 (1) of the Act and in the Instant case we are concerned with the concept of consultation in the context of Section S3 (7) of the Act. These provisions with regard to consultation appear to be similar with the only difference that in case of consultation envisaged by sub-section (7) of Section 53, failure of the Bank to communicate its views within 45 days gives rise to a presumption of law that the Bank concerned agreed with the proposed action. In a similar situation in the case of Bansilal (supra), it has been held that "in the present case, the Assistant Registrar, before making the order, did not await the advice of the financing Bank. That being so, the order of supersession passed by him under Section 53 (1) is bad and must oe struck down." So also in the case of Hiralal v. State of M. P. [Misc. Petition No. 85 of 1977, decided on 16.10.1978], the order of supersession of the Committee passed before forty-five days, was quashed and it was held that such an order of supersession will be regarded as having been passed without compliance with the mandatory provisions of Section 53 (7) of the Act.

(8.) Thus, from the aforesaid discussion, the position of law with regard to consultation as envisaged by Section 53 (7) appears to be as under : (i) that there should be effective and meaningful consultation. For this purpose sufficient information, i.e., relevant material must be shown to have been placed to the Bank consulted to enable it to tender advice on the questions on which the advice is sought in the light of the views of the authority seeking advice ; and (ii) that sufficient opportunity must be given to the Bank to tender advice, i e., the authority seeking advice must await communication of the views by the Bank consulted for a period of 45 days. If no views are communicated by the Bank within this period, the authority seeking advice will have right to act on the presumption that the Bank agrees with the proposed action. In this case also after issuing the show-cause notice dated 4.5.1981, the Dy. Registrar (respondent No. 1) did not wait for the period of 45 days and hastened to pass the order of supersession dated 225.1981. In these circumstances it has to be held that the legal presumption by virtue of the proviso to Section 53 (7) was not available to the respondent No. 1 and that the order of supersession having been passed before the expiry of the period of eonsultation, was bad in law. Thus, viewed, it has to be concluded that neither there was consultation as envisaged by the law nor the order of supersession was passed after expiry of the period of 45 days within which period the Bank consulted can send its views. Accordingly, the impugned order of supersession violates both the aforesaid requirements of law on the point, which are mandatory in character.

(9.) Faced with this situation tha learned counsel for the respondents contended that the provisions placed in Section 53 (7) are for the benefit of the financing Bank merely and as such, the petitioners have no right to maintain the petition. It is for the financing Bank to have voiced the grievance with regard to the breach of those provisions regarding its consultation in the matter. In this connection reliance was placed on Note No. 22 of Section 53 of the Act, at page 265 of the "Madhya Pradesh Co-operative Societies Act and Rules by K. L. Sethi (1980 Edn)", which runs as under:

"22. Consultation provision beneficial to Federal Society No challenge by it Managing Committee cannot enforce this right in writ jurisdiction The Bombay High Court observed that on the ground of consultation, the Federal Society only is entitled to challenge the same, as this provision is for the benefit of Federal Society only. If the same is not challenged by it, members of Managing Committee cannot seek to enforce provision by writ Karbhari Govindrao v. B. D. Pavar, [1976 Mah LJ 841]."

We are afraid, this contention too does not merit acceptance. Firstly, it is not understandable as to how a member of the Committee, which has been superseded, can be denied the right to challenge the validity of the order of supersession of that Committee. A distinction has to be made between enforcement of a provision with regard to consultation of a Bank and challenging the order of supersession of Committee on the ground of absence of consultation, as enjoined by the law. In a case where a member of Committee is challenging the validity of the order of supersession of the Committee of which he was a member, it has to be held that he has a right to maintain writ petition for the purpose. It is not shown to us as to what was the reasoning employed in the authority on the basis of which the position of law has been stated in the aforesaid Note No. 22. Accordingly, petitioner No. 2, who was elected as a member of the committee and later on elected as its President, has locus standi to maintain the petition.

(10.) Thus, viewed, the order of supersession (Annexure-3) passed on 22.5.1981, by the respondent No. 1, deserves to be quashed, as having been passed without affording reasonable opportunity to show cause against the same, as enjoined by Section 53 (2) of the Act and because there was no consultation as envisaged by the enacting part of Section 53 (7) of the Act and also because it was passed before the expiry of the period of consultation.

(11.) Faced with this situation the learned counsel for the respondents contended that in view of the availability of alternative remedy by way of an appeal under Section 77 of the Act, the petition deserves to be dismissed as not maintainable. This contention too does not merit acceptance. This Court admitted the petition for hearing parties and the remedy of appeal, if any, has since ceased to be available to the petitioner. As such, there appears hardly to be any justification in dismissing the petition as not maintinable ; more so when the impugned order has been passed in flagrant violation of the mandatory provisions of law on the point, depriving the petitioner No. 2 of his legal right to function as President of the Committee throughout its term, which is up to 22.5.1982.

(12.) In view of the discussion aforesaid, this petition succeeds and is hereby allowed. The impugned order of supersession dated 22.5.1981 (Annexure 3) passed by the respondent No. 1 is hereby quashed. Let a writ of Certiorari be issued for the purpose. Counsels fee shall be Rs. 100/- if certified. The outstanding amount of the security deposit shall be refunded to the petitioners. Petition allowed.