Judgment : 1. Heard finally and rule is made returnable forthwith by consent of Shri Ghare, learned counsel for the petitioner, Shri Kothari, learned AGP for respondent No.1, Shri Deo, learned counsel for respondent No.2 and Shri Gupta, learned counsel for the intervenor. 2. By this writ petition filed under Articles 226 and 227 of Constitution of India, the petitioner challenges the Election Programme of a notified Cooperative Society by name Chikhali Urban Cooperative Bank published by Respondent No.2 on 09.01.2010 on the ground that it is not in conformity with requirements of Section 73B of Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as the Act). However, by additional affidavit, later on defective implementation thereof is also made the bone of contention. Section 73B of the Act provides for reservation of seats on society and it is an admitted position that in Election Programme as published, reservation has not been provided for. 3. The petitioner is a Member of said Cooperative Society and he has filed this petition on 22.01.2010. The elections are regulated by Chapter VA of Maharashtra Cooperative Societies Rules, 1961, (hereinafter referred to as the Rules). The petitioner points out that as per bye laws of society, four seats are reserved and out of those four, one is for Scheduled Caste/Scheduled Tribe category, one for member belonging to weaker sections and two for women members as per provisions of Section 73B of the Act. The provisions of said section are further amended on 23.04.2001 and added subsections (a1) and (a2) provide one reserved seat each for VJNT category and OBC category. In General Elections now due for tenure 2010 to 2015, the said reservation for VJNT and OBC has not been provided. The petitioner belongs to VJ category and he, therefore, contends that Election programme is wholly vitiated. The next ground is though provisions of Rule 56J of the Rules provided for declaration of various dates and various stages of Election programme and the Election Officer did not take prior approval of competent authority for said purpose. It is contended that had there been such approval, the mistake could not have been there. The Board of Directors consisted of total 16 Directors and out of them 11 are to be elected by members of the society. It is contended that had there been such approval, the mistake could not have been there. The Board of Directors consisted of total 16 Directors and out of them 11 are to be elected by members of the society. The relevant bye law No. 29(1) provides that if society has branch/ branches outside the Headquarters beyond 25 kms, three out of such 11 Directors have to be from amongst the members residing in the area served by such branch/ branches. The petitioner argues that there are several such branches beyond 25 kms. From Headquarters and hence eight Directors are to be elected from amongst members while three from such branches. The classification or categorization has not been clearly mentioned in Election programme and it has, therefore, misled the candidates desirous of contesting or then the voters. This has been sought to be demonstrated by filing additional affidavit to show that one member though residing within 25 kms. has opted to contest in such three seats. The last contention is, the corrective measures taken by Respondent No. 2 after filing of this petition are not legal as law does not permit such rectification. The provisions of Rule 56K of the Rules cannot be used to provide an election to constituency not already included in the Election programme. 4. The Society itself has filed Civil Application No. 252 of2010 seeking leave to intervene and I have heard Shri Gupta, learned counsel for intervenor. On 22.01.2010, after noticing the grievance in brief, notice for final disposal was issued and made returnable on 29.01.2010. On 29.01.2010, the matter could not be taken up and learned counsel for Returning Officer has sought leave to publish amended Election programme on 01.02.2010. The request was opposed by the petitioner but in order to save situation from becoming irreversible, the Election Officer was permitted to notify the change on 01.02.2010. 5. Shri Ghare, learned counsel has placed reliance upon the judgment in the case of B.K. Garad vs. Nasik Merchants Coop. Bank Ltd., reported at AIR 1984 SC 192 , to urge that the Election programme being defective, cannot be allowed to be implemented and the legislative mandate cannot be allowed to be defeated. 5. Shri Ghare, learned counsel has placed reliance upon the judgment in the case of B.K. Garad vs. Nasik Merchants Coop. Bank Ltd., reported at AIR 1984 SC 192 , to urge that the Election programme being defective, cannot be allowed to be implemented and the legislative mandate cannot be allowed to be defeated. He argues that looking to democratic process and political equations, the entire election for all constituencies must be notified at once and if that is not done, whole election programme from commencement till end gets vitiated. For same purposes, he has also relied upon two Division Bench judgments of this Court reported at Sow Saralabai Arjun Bajaj vs. State of Maharashtra, reported at 1994 MCR 19 and Kartarsingh vs. State of Maharashtra, reported at 1994 MC 250. He, therefore, argues that the amended Election programme or additional election programme as published on 01.02.2010 is liable to be ignored and Respondent No.2 needs to be directed to publish fresh Election programme. He has invited attention of the Court to relevant provisions of the Act and Rules in support of his contention. 6. Shri Deo, learned counsel for respondent No.2 – Election Officer has contended that the Election Officer has accepted the inadvertent error which occurred while publishing Election programme on 09.01.2010. He points out that no grievance was made by any member contesting the election and present petitioner has opted to approach this Court after the date of withdrawal and date of publication of contesting candidates. He further states that the Election programme published on 01.02.2010, has not in any way adversely affected the elections or interfere with it. It is in accordance with the provisions of law and all steps therein from publication of list of contesting candidates from 26.02.2010 till polling and declaration of result are consolidated. He states that in such circumstances, when well before election the corrective steps have been taken and no grievance has been expressed either by contesting candidates or majority of voters, the Election should be allowed to take place as it is. He contends that acceptance of a nomination paper from a particular category is an individual grievance and it need not and cannot vitiate the entire election programme. He, therefore, prays for dismissal of writ petition. 7. He contends that acceptance of a nomination paper from a particular category is an individual grievance and it need not and cannot vitiate the entire election programme. He, therefore, prays for dismissal of writ petition. 7. Shri Kothari, learned AGP points out that error has been rectified and the election programme is approved by the Competent authority, hence, petition should be dismissed. He states that Respondent No.1 – District Deputy Registrar has given prior approval to election programme and as bye laws of society do not provide for additional reserved seats required by subsections (a1) (a2) of Section 73B of the Act, the error occurred. 8. Shri Gupta, learned counsel on behalf of proposed intervenor society has argued that elections are overdue and society has already spent huge amount. He argues that programme has proceeded further and the interference at this stage by this Court is not necessary. 9. The defect in election programme as published on 09.01.2010, is therefore, an admitted position. It is also clear that as byelaws of society do not provided for these additional reserved seats for VJNT & OBC, the mistake occurred. As per election programme published on 09.01.2010, the polling was scheduled on 13.02.2010. The scrutiny of nomination papers was conducted on 16.01.2010 and list of validly contesting candidates has been published on 18.01.2010. That election programme contained reservation for SC/ST candidate, for women and for Economically Backward Class. The petitioner did not approach this Court immediately after 09.01.2010 and he claims to have learnt about the lacunae therein only after 18.01.2010. That lacunae has been cured by publishing an amended and additional election programme on 01.02.2010. By this programme, reservation for OBC and VJNT has been provided for and it expressly makes reference to earlier election programme dated 09.01.2010. It also mentions that after 26.02.2010, the earlier election programme and the amended election programme are clubbed together for further conduct of election. Those elections are now scheduled on 12.03.2010. 10. The judgment of the Hon’ble Apex Court in the case of B.K. Garad vs. Nasik Merchants Coop. Bank Ltd., (supra), considers the challenge to Election after the elections were over. Those elections are now scheduled on 12.03.2010. 10. The judgment of the Hon’ble Apex Court in the case of B.K. Garad vs. Nasik Merchants Coop. Bank Ltd., (supra), considers the challenge to Election after the elections were over. It has been held by the Hon’ble Apex Court that the election programme for electing members in order to comply with legal formality must show whether any of the seats are to be filled in from reserved category and specify the class in whose favour reservation has been made. This is essential to give notice to persons eligible for contesting the election to reserved seats. Section 73 of the Act requires Collector to hold election in accordance with the Act including Section 73B and failure to hold election in accordance with Act including Section 73B vitiates whole election programme from commencement to end. When the election programme notified by the Collector did not specify that two seats on Board of Directors were to be reserved seats, one for Scheduled Caste or Scheduled Tribe and one for weaker section, the election was held exfacie illegal. The facts there show that the Collector had notified Election programme on October 29, 1981, poll was held on 12.12.1981. The Additional Commissioner in Election Petition found that the result of election was materially affected and hence quashed the elections and directed Collector to hold fresh elections. The matter came up before this High Court and Division Bench of this Court held that it was not imperative that reserved seats must be filled in only election and mandate of Section 73B would be adequately complied with if reserved seats are filled in by cooption. Hence, the order of Additional Collector was quashed and Election Petition filed before him was set aside. 11. In this background, the controversy is examined and the Hon’ble Apex Court noticed that if the interpretation of High Court on Section 73B is accepted, the entire purpose of amendment and reservation for SC/ST and weaker section would stand defeated. The persons for whom reservationwas made would not get equal treatment and cooption is permissible only when members are not elected. The section contemplated an opportunity for filling in seats by election. The reserved seats can be filled in by cooption only if there is failure to elect such persons. The persons for whom reservationwas made would not get equal treatment and cooption is permissible only when members are not elected. The section contemplated an opportunity for filling in seats by election. The reserved seats can be filled in by cooption only if there is failure to elect such persons. All these observations, therefore, show that the situation arising after holding of elections without any reservation for reserved categories has been considered by the Hon’ble Apex Court. 12. In Kartarsingh vs. State of Maharashtra, (supra), the Election programme was amended changing the date of election to 25.12.1992. The Election programme was challenged on the ground that there was no reservation to the Members of Scheduled Caste and Scheduled Tribe. There was one more ground and that ground was nomination by continuing members of Board of Directors as members of Election Committee. These continuing members were to act as Returning officers for these elections. The Division Bench of this Court quashed that election programme and directed reservation to be made applicable to Respondent No.6 – Bank. The Division Bench found that the intention of Legislature was very clear and material before it revealed that area of operation of Bank consisted of people belonging to SC, ST and OBCs in substantial number. It was, therefore, found necessary to give representation to them onBoard of Directors. Though Division Bench held that provisions of Section 73B are not applicable to Bank, still Model Bye lawswere found applicable through Section 14(1) and (2) and hence reservation was found automatically applicable. This judgment, therefore, again shows that the issue required to be considered by this Court did not fall for consideration there. 13. In the case of Sow Saralabai Arjun Bajaj vs. State ofMaharashtra, (supra) it was noticed that if Election programme as published was to continue and provision was made therein for reservation of two seats in favour of women, the candidates would not get opportunity to file their nominations as last date for filing of nomination was already over. The Division Bench, therefore, found that it was not possible to permit the election programme as published to continue further. In para 17, the request of respondents before it, not to postpone the election has been considered and that request was rejected as women candidates would not get an opportunity to file their nomination as last date for filing nominations had already expired. In para 17, the request of respondents before it, not to postpone the election has been considered and that request was rejected as women candidates would not get an opportunity to file their nomination as last date for filing nominations had already expired. Again, the publication of amended or modified election programme to fill in reserved seats and holding of all elections together was not the question required to be considered there. 14. Rule 56-J of the Rules permits Returning Officer to draw and declare an election programme of various stages with prior approval of Registrar or District Election Officer. Respondent No.1 has filed reply affidavit before this Court stating that the Election programme has been published after its approval. 15. The provisions of Rule 56K of the Rules provide manner of publication of election programme under Rule 56J. Subrule (4) thereafter states that date fixed under said rule cannot be changed within seven days of the date fixed for poll except with previous approval of District Election Officer or Chief Election Officer. The proviso thereto permits change byReturning Officer in unavoidable circumstances and in public interest even without such previous approval but for the reasons to be recorded in writing. Here, there is already approval obtained by Respondent No.2. The elections now scheduled are from all constituencies together on 12.03.2010. In the case before the Hon’ble Apex Court, the elections were already conducted and to justify the elections, effort was being made to point out power to co opt reserved category candidates. In other two judgments of Division Bench of this Court, there was no effort to correct the error and to hold all elections together. In situation before me, the entire elections are postponed by one month and are being held together. As already mentioned above, before Division Bench in case of Sow Saralabai Arjun Bajaj vs. State of Maharashtra (supra), the society and Election Officer were requesting not to postpone the elections. I, therefore, find all the above rulings not applicable in present facts. 16. Apart from pointing out the breach of mandatory provision of Section 73B at the threshold, the petitioner has not pleaded any other prejudice if the election programme as amended is allowed to proceed further. Respondents No. 1 & 2 as also intervenor society are correct when they point out that huge amount is already spent in prosecuting the election process. Apart from pointing out the breach of mandatory provision of Section 73B at the threshold, the petitioner has not pleaded any other prejudice if the election programme as amended is allowed to proceed further. Respondents No. 1 & 2 as also intervenor society are correct when they point out that huge amount is already spent in prosecuting the election process. I am, therefore, not inclined to interfere with the election on this ground. 17. The other contention is about no specific description or identification of constituency from which three Directors are to be elected. The election programme specifically mentions that eight Directors are to be elected from general constituency i.e. from amongst the members of the Bank. Three to be elected are shown as from constituency of representatives of branches. It is to be noted that said constituency is of members residing in areas served by Branch/ Branches situated beyond 25 kms. From Headquarters of society. If there are no such branches, all 11 Directors are to be elected from amongst members. If there are such branches, the members have to elect 8 while members residing in areas served by such branches have to elect 3. Except for petitioner, nobody has made any grievance and as the provisions of Bye laws in this respect are very clear and previous elections are also held on the strength of same bye law, this ground cannot be a sufficient ground to declare entire election programme vitiated. The Election Officer has specified that voters list are prepared Branch wise and out of total 16 branches, 13 branches are situated beyond 25 kms. Each list clearly states whether or not that branch is located beyond 25 kms. The petitioner has not pointed out that any objection in this respect was raised at the time of finalization of voters list. Though the petitioner has pointed out two instances in which Returning Officer accepted nomination papers of members residing in area served by branches located within 25 kms., against these three seats, such incorrect or wrong acceptance cannot by itself result in vitiation of election programme as published. The wrong acceptance or wrong rejection can be challenged in accordance with law. 18. It has also been brought to the notice of this Court that in nomination paper, the constituency from which these three Directors are to be elected is shown as reserved constituency. The wrong acceptance or wrong rejection can be challenged in accordance with law. 18. It has also been brought to the notice of this Court that in nomination paper, the constituency from which these three Directors are to be elected is shown as reserved constituency. Shri Deo, learned counsel has argued that as only members residing in areas served by branches outside 25 kms. are eligible to participate in this election, it has been shown in nomination paper as reserved constituency. In view of clear scheme of bye law and clear mention in respective voters list, I find that this description by itself is not sufficient to hold that election programme itself as bad. 19. The Division Bench of this Court in its judgment in thecase of Kulwantsingh Parmar vs. SherePunjab Cooperative Society, reported at 2008 (1) BCR 190, held that when enquiry into several disputed questions of fact is required to be undertaken and same is not possible within parameters of jurisdiction under Article 226 of Constitution of India, the parties have to approach the other remedies as are available in accordance with law. Here, it is clear that whether alleged wrong description of constituency in Election programme or in nomination paper will materially affect the elections in any way is a disputed question which cannot be resolved at this stage. 20. I, therefore, find that no case is made out warranting any interference on any count in present matter. Writ Petition is, therefore, dismissed. Rule discharged. However, in the facts and in the circumstances of the case, there shall be no order as to costs.