This Constitutional petition seeks election schedule dated 4.5.2004 announced by the Election Commission of Jammu and Kashmir Cooperative Housing Society to be declared illegal, unlawful, void and corum-non-judice being opposed to the rules and regulations of the Societies Act with a prayer of direction to Respondent No, 2 to announce the new election schedule for 'holding the election of the Society, giving sufficient and reasonable time to the members for their participation in the election.
2. Jammu and Kashmir Housing Society came into existence to fulfil the housing requirements of its members who hail from Jammu and Kashmir and it has membership of about 16000. The Society had its own byelaws, whereunder its Managing Committee was elected to run its .affairs. For the ensuing elections of the Managing Committee, Election Commission of the Society announced election schedule on 4.5.2004, which published in the press on 5.5.2004 and 6.5.2004, according to which date of submission of nomination papers was fixed as 8.5.2004. The schedule gave different dates for other process of acceptance and revisions/appeals against the nomination papers and date of election was given as 23.5.2004. Notification No, 15/2004/Election dated 4.5.2004 regarding election schedule was issued by the Secretary Election Commission by the order of the Election Commission. These elections were announced under Election Rules dated 14.5.2001. Petitioner aggrieved of the schedule so announced by the Election Commission, has filed instant Constitutional petition for the relief noted above.
3. Learned counsel for the petitioner submitted that under the Cooperative Societies Act, 1925, Registrar Cooperative Housing Societies being the regulatory authority is the only competent person to announce the .schedule and in his place Respondent No, 1 could not issue the notification dated 4.5.2004, thus the same is corum non judice. It was further contended that the petitioner being the member of the Society, has a fundamental right to participate in the elections of the Society, but in connivance inter Respondents Nos, 1 and 2 a short date for filing of nomination papers was fixed in the schedule in order to deprive the petitioner of his right of franchise or to participate in the elections. Learned counsel for the petitioner further elaborated his arguments by urging that members of the Society are not only scattered throughout the country but also live abroad and in order to facilitate them to participate in the election, sufficient time between the date of announcement of schedule and the filing of nomination papers etc, should have been given.
4. Learned counsel appearing on behalf of Respondents Nos, 1 and 3 seriously refuted the assertions of the petitioner and besides refuting maintainability of instant Constitutional petition, objected to locus standi of the petitioner to maintain it, by asserting that he is not a member of the Society and thus is not an aggrieved person within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Elaborating his submissions, he submitted that the petitioner claims himself to be attorney of Mian Muhammad Iqbal, but the Sub-Registrar, Gujrat after inquiry found the power of attorney in favour of the petitioner allegedly given. by Mian Muhammad Iqbal to be forged by his order dated 3.3.2004. He also urged that principal of the petitioner i,e, Mian Muhammad Iqbal has also got a criminal case registered- against the petitioner for forging the power of attorney, vide FIR No, 204 dated 20.3.2004 and thus the petitioner is not eligible to become a member of the Society in view of the provisions of Rule 3(b). Learned counsel for Respondents Nos, 1 and 3 also levelled the allegation of misrepresenting this Court as according to him the .press clipping appended with the writ petition at Page 10 was said to be dated 5.5.2004, but has been shown as 6.5.2004. It was also emphasized that Election Commission was .lawfully constituted by appointing its three members vide notification dated 4.5.2004 namely Mr. Justice Manzoor. Hussain Gilani, Mr. Shoeb Shaheen, Advocate and a representative of Circle Registrar, Cooperative Islamabad. He also referred to Notification No, EC/J&K CHS/4/2004 dated 17.5.2004 to counted that in presence of Rule 14 of the Election Rules of the Society, after elections, the Election Commission has declared the names of the successful office bearers and members of the Managing Committee whereafter it is submitted that the petitioner cannot challenge the election schedule, which is already over. Learned counsel appearing on behalf of Respondent No, 2 opted the arguments advanced on behalf of Respondents Nos, 1 and 3 and opposed issuance of writ as prayed by the petitioner.
5. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Respondents have placed on record a copy of the Notification No, 13/2004/Election dated 4.5.2004 showing that three members were nominated by the Managing Committee of the Society to at as Election Commission to conduct the elections of the new Managing Committee of the Society. The Election Commission so appointed issued the election schedule on 4:5.2004 and notification in this behalf was issued by the Secretary of the Commission under the orders of the Election Commission. Argument of the. Learned Counsel for the petitioner overlooks noting under the notification, which also appeared in the press that it was issued by the order of the Election Commission. Result of the elections of the Managing Committee of the Society were notified on 17.5.2004 through a Notification No, EC/J&K CHS/4/2004 since the entire process of elections have completed by declaration of result, to declare the schedule thereof to be illegal will be a futile exercise especially when Rule 15(a)(ii) of the Rules under which those elections were held, provides remedy by way of appeal to the Registrar Cooperatives. On account of alternative remedy by way of appeal, I am afraid that at this stage exert to Constitutional jurisdiction can be made. The Honourable Supreme Court has repeated mandated that by deserting statutory remedies, invocation of Constitutional jurisdiction, except in very special circumstances, should be avoided to be invoked. In this behalf reference can be made to the most recent judgments in the cases of Syed Match Company Ltd. through Managing Director vs. Authority Under Payment of Wages Act and others (2003 SCM R 1493) and Farzand Raza Navqi and 5 others vs. Muhammad Din through Legal Heirs and others (2004 SCM R 400).
6. Process of election is a democratic way of electing the Managing Committee of the Society and this method being most appreciated throughout the world, cannot in normal circumstances be interrupted. The interference in the election process through Constitutional petition, prayed on flimsy stands that the Election Commission was not properly constituted, there was a very short span of time between the date of issuance of notification of election schedule and the date of nomination papers or that the petitioner was deprived of his right of franchise neither appears to be just/fair nor is permissible, according to the law laid own by the Honourable Supreme Court in the cases of Election Commission of Pakistan through its Secretary vs. Javaid Hashmi and others (PLD 1989 S.C. 396) and Haji Muhammad Saifullah Khan vs. The Federation of Pakistan and others (1989 SCM R 22).
7. Locus standi of the petitioner to maintain Constitutional petition and he being an aggrieved person, is also worth scan. Petitioner claims .honourary membership on the basis of the alleged purchase of plot and power of attorney by Mian Muhammad Iqbal, the original member of the Society, but he has denied the agency of attorney-ship by getting a criminal case registered vide FIR No, 204 dated 20.3.2004. There is also an order by. the Sub-Registrar, Gujrat with whom the power of attorney was alleged to have been registered, holding that the same is forged. Petitioner has not appended with this petition any proof of his membership and the same was also not produced while hearing of the case inspite of assertive arguments by the Respondents to this effect. In absence of any proof of membership of the Society, petitioner could not maintain the Constitutional petition, in view of the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
8. Rules dated 14.5.2001 have not been shown to have superseded by any lawfully sanctioned fresh rules and thus those still hold the field. A copy of the draft rules dated 6.5.2004 has been placed on the record but these proposed rules have yet not published in the gazette. Even if assertion of the petitioner be accepted that on account of promulgation of fresh rules, the earlier rules stood repealed/rescinded even in that eventuality, the elections of the Managing Committee of the Jammu and Kashmir Cooperative Housing Society held under old rules dated 14.5.2001 would hold the field because Rule 15(iii) of the proposed rules provides that nothing contained in those rules shall apply to the committee of a newly constituted Society unless it has completed or is likely to complete its term at the commencement of those new rules. It clearly conveys that Managing Committee elected under the old rules would complete its tenure and will not be disturbed by notification of the new rules.
9. For what has been discussed above, it is obvious that Instant petition is not maintainable under law and the same having been filed by a person not aggrieved of the affairs of the Society, is not maintainable and besides it, having no merit is dismissed with no order as to costs.