1 WP 4696.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4696 OF 2011 1. Gyanbarao S/o Marutirao Suryawanshi Age : 50 Yrs., Occ. Agril., R/o : Asola, Tq. Kalamnuri, Dist. Hingoli. 2. Shaikh Isaq S/o Shaikh Maheboob Age : 47 Yrs., Occ. Agril., R/o : Asola, Tq. Kalamnuri, Dist. Hingoli. .... PETITIONERS V E R S U S 1. The State of Maharashtra Through Secretary, Revenue & Forest Department, Mantralaya, Mumbai. 2. District Depuyty Registrar Co-operative Societies, Hingoli. 3. Assistant Registrar Co-operative Societies, Kalamnuri, Tq. Kalamnuri, Dist. Hingoli. 4. Returning Officer, Vividh Karyakari Seva Co-operative Society Ltd., Asola, 2 WP 4696.2011 - [ J ] Tq. Kalamnuri, Dist. Hingoli. 5. Vividh Karyakari Seva Co-operative Society Ltd., Asola, Tq. Kalamnuri, Dist. Hingoli Through its Secretary, Anandrao Vnkatrao Shinde Age : 42 Yrs., Occ. Secretary, R/o : Belthar, Tq. Kalamnuri, Dist. Hingoli. .... RESPONDENTS Mr. B.S.Kudale, Advocate for the Petitioner. Mr. K.B.Choudhari, Addl. Govt. Pleader for State. Mr. B.R.Kedar, Advocate for Resp. Nos. 4 & 5. Mr. R.T.Nagargoje, Advocate for Resp. Nos. 6 to 19. CORAM :S.V. GANGAPURWALA, J. DATE OF JUDGMENT :24/08/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 2. Heard the learned counsel for the respective parties. 3. The respondent no. 4 as per the directions of Respondent no. 3 declared the election of Board of Directors of Asola Vividh 3 WP 4696.2011 - [ J ] Karyakari Seva Co-operative Society Ltd. on 26/5/2011. The said election programme is at Page No. 23 ( Exh. E ). As per the said election programme, the last date of acceptance of nomination paper was 6/6/2011. The voting was to take place on 3/7/2011 and the declaration of result was also to be made on the same day. The respondent no. 2 thereafter modified the said election programme on 24/6/2011. As per the said modified election programme, the last date of acceptance of nomination was changed to 13/6/2011 and the voting was to take place on 24/7/2011. The petitioners have assailed the said modified election programme. 4. Mr. Kudale, the learned counsel for the petitioners submits that in fact the respondents did not have any authority and jurisdiction to modify the election programme on the count suggested i.e. the panchanama conducted by the Election Officer while publication of the election programme, did not contain the signature either of the Gram Sevak, Talathi, Sarpanch/Police Patil or the Secretary. According to the learned counsel, the election programme can be modified only on the ground stated in Rule 56 ( K ) of the Maharashtra Co-operative Societies Rules [ For short, ‘ said Rules ’ ]. The learned counsel relies on the Judgment of the Division Bench of this Court in the case of Chandrakant Mahadev Patole & Oths. V/s State of ;Maharashtra & 4 WP 4696.2011 - [ J ] Ors. Reported in 2010 ALL MR (Supp.) 457. According to the learned counsel, even the modified election programme suffers from the same defects as was alleged in respect of the first election programme. None the less, the respondents exceeded their jurisdiction while modifying the said election programme and the same could not have been done. 5. Mr. K.B.Choudhari, the learned Additional Govt. Pleader for the State and Mr. R.T. Nagargoje, the learned counsel for the intervener submit that gross illegality was committed while declaring the earlier election programme and as such the respondents were constrained to modify the said election programme invoking their powers under Rule 56 ( K ) of the said Rules. According to them, the election programme was not published as is contemplated under Rule 56 ( L ) of the said Rules and Rule 56 ( K ) gives ample power to the authority to modify the election programme. 6. With the assistance of the learned counsel, I have gone through the election programmes. 7. The election of the present respondent no. 5 – Society is to be held as per the rules applicable to the elections of notified Society. 5 WP 4696.2011 - [ J ] Rule 56 ( K ) of the said Rules deals with the manner of publication of election programme and Rule 56 ( L ) of the said Rules deals with the requirements of the publication. Rule 56 ( L ) and 56 ( K ) of the said Rules are reproduced herewith : “ 56 ( K ) : Manner of publication of election programme under Rule 56 J. : (1) The Returning Officer shall send a copy of the election programme declared under Rule 56 J in Form M-3 to the society either by special messenger or the District Election Officer shall make arrangement to get all the ballot boxes to the office of the Returning Officer or to the registered office of the societies or to such other safe places as he deems fit. (2) The time during which poll shall be taken should be mentioned in the election programme. The time of poll should not be earlier than 8.00 a.m. and later than 5.00 p.m. (3) Wherever it is necessary to fix time, date and place for any stage in the election programme, it shall be fixed by the Returning Officer and shall be mentioned in the election programme declared by him. (4) Except with the previous approval of the 6 WP 4696.2011 - [ J ] District Election Officer or the Chief Election Officer as the case may be, the date fixed under this rule shall not be changed within 7 days or the date fixed for the poll. 56 ( L ) : Manner of publication of election programme under Rule 56 K. : (1) The Returning Officer shall send a copy of the election programme declared under the Rule 56 J in Form M-3 to the society either by the special messenger or through post under certificate of posting addressed to the society at the registered address with instructions to display the copy of the programme on the notice board of the society. In addition, the said election programme shall be displayed on the notice board of the office of the Returning Officer, Registrar and the District Election Officer. (2) The election programme shall also be published at least in one local daily newspaper for a society or class of societies at the discretion of the District Election Officer ”. 8. Rule 56 ( L ) ( i ) of the said Rules mandates that the election programme shall be displayed on the notice board of the office of the Returning Officer, Registrar and District Election Officer, so also sub rule ( 2 ) of Rule 56 ( L ) of the said Rules cast duty on the 7 WP 4696.2011 - [ J ] authority to publish the election programme in at least one local daily news paper. 9. In the present case, it is not disputed that the earlier election programme was not published in any local news paper nor it is disputed by either party that the earlier election programme was not displayed on the notice board of the office of the Returning Officer, Registrar and the District Election Officer. Proviso to Rule 56 ( K ) of the said Rules gives power to the authority to modify the election programme in case of unavoidable circumstances and if in public interest it is eminent to do so. The learned Single Judge of this Court in the case of Baburao Virupaksha Kore and others V/s Murgha Rajendra Co-operative Bank Ltd., Miraj and others reported in 2001 ( 1 ) Mh.L.J. - 376 has held that the election programme can be modified even dehors the period mentioned in the said Rule. 10. The concept “ public interest ” will have to be given a wide meaning. It is on record that the respondents have received representation of about 100 persons stating that the earlier election programme was published in a secret manner and the members were not aware of the publication of the said election programme. In such circumstances and more particularly in view of the fact that Rule 56 8 WP 4696.2011 - [ J ] ( L ) of the said Rules has been followed more in breach, the respondents were justified in modifying the election programme. 11. In light of the above, no illegality has been committed by the respondents in modifying the earlier election programme. 12. The subsequent election programme also suffers from the same defects of the earlier election programme. The second election programme was also not published in any local news paper nor it appears to have been displayed on the notice board of the office of the Returning Officer, Registrar and the District Election Officer. More over, the subsequent election programme was also stayed by this Court. In view of that, even the subsequent election programme would not survive. 13. In the result, I quash and set aside both the election programmes i.e. the election programme published at Page No. 18 [ Exh. A ] and the subsequent election programme at Page No. 23 [ Exh. E ] of the petition and direct the respondents to proceed, prepare and publish election programme afresh scrupulously adhering and following rules 56 ( K ) and 56 ( L ) of the said Rules. 9 WP 4696.2011 - [ J ] 14. Rule is accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 4696.2011 - [ J ]