' UMAR ATA BANDIAL, J.--- Learned counsel for the petitioner submits that the election rules of the petitioner society ("petitioner") contemplate an election sub-committee of 3 non-contesting members to be constituted specifically for giving the election schedule and conducting the election of the Managing Committee ("MC") of the petitioner. The petitioner applied to the Registrar, respondent No,1 on 20-1-2006 for appointing a third member of the sub-committee. The office of the respondent No,1 replied on 26-1-2006 asking for the names of the petitioner's nominees for the sub-committee which were provided by return post.
2. On 26-1-2006 the petitioner issued its notice of AGM to its members convened on 12-2-2006 to consider, inter alia, an election schedule to be proposed for elections scheduled on 26-2-2006.
Notice of the AGM was also published in the papers on 28-1-2006. Two days prior to the AGM, however, the respondent No,2, Deputy Registrar passed the first impugned order, dated 10-2-2006, inter alia, suspending the AGM agenda item regarding approval of election schedule on the ground that it violated the Model bye-laws and NAB's action plan which require "completion of election process in 45 to 60 days by issuing election schedule in proper manner".
3. After the tenure of the incumbent MC expired on 28-2-2006 the respondent No,1, Registrar without issuing notice or granting hearing to the petitioner, passed the second impugned order, dated 4-3-2006 under Rule 48 of the Cooperative Societies Rules, 1927. This order superseded the MC of the petitioner and appointed respondent No,3, District Officer Cooperative as its Administrator for 120 days duly vesting him with all powers of the MC. The aforesaid second impugned order does not specify any mandate for the Administrator to discharge in his 120 days tenure. The foregoing impugned actions by the respondents Nos.1 and 2 are challenged as being excessive and disproportionate for a curable default; without aim or purpose suggesting unjustified aggrandizement of authority; vast and sweeping in ambit showing ulterior motives. For all these reasons the impugned orders are characterized as being arbitrary non-transparent and illegal.
4. Learned counsel for the respondents has controverted the allegations. He submits that the petitioners' notice of AGM failed to provide the election schedule and did not cater the time stipulation of 15 days prior notice of election to members prescribed in the petitioners' election rules. On the expiry of its terms the MC had to step down and alternate management was essential, hence the appointment of an Administrator.
5. The first impugned order dated 10-2-2006 refers to a mandatory period of 45 days to 60 days for completion of the election process under the "model byelaws, and NAB's action plan". For the lack of availability of such a time span, the petitioner's election process was suspended by the said order. However, upon perusal of the record it transpires that there is nothing in the claimed documents that prescribes such a period for completing the election process of a cooperative society. Accordingly, the ground given in the first impugned order, dated 10-2-2006 for suspending the election process of the petitioner is wrong; therefore, the sanction against the AGM from considering the agenda item was unjustified. The impugned action, however, also prevented the AGM from finding a solution to the petitioners' actual lapse of noncompliance with the 15 days prior notice of MC election to its members required by rule 6(b) of its Election Rules.
6. The second and more drastic impugned order dated 4-3-2006 superseding the MC in fact punished the petitioner for its incapacity caused by the first impugned order to schedule and hold the MC election. It is noted at the outset, that the second impugned order, dated 4-3-2006 is passed under Rule 48 but fails to give prior notice mandated by sub-rule (6) of Rule 48. Omission to give the prescribed notice makes the said order illegal for breach of statutory condition and therefore, void. Reference is made to Zaibun Textile Mills Ltd. v.- Central Board of Revenue and others PLD 1983 SC 358 at 382 wherein it has been held as follows:-- "The question whether the lack of hearing at the initial stage would vitiate the order even if there is a subsequent hearing afforded to the affected party at the appellate or review stage, depends upon the question whether the rule of natural justice is incorporated in the governing statute or is being merely imported on the basis of the common law rule. It is well-established that if the law under which action is taken by an authority expressly provides for notice then non-compliance with such provision would render the action taken or order passed in pursuance of the powers conferred by such law as void, but if there is no express provision to that effect, then the requirements of the rule of natural justice would be sufficiently fulfilled and the defect resulting from not hearing the affected party would stand cured by the subsequent hearing."
7. Having said that, the impugned order, dated 4-3-2006 deprives the petitioner of management by its elected members solely for delay in holding its MC election, a default that is partly precipitated by the respondent's impugned order dated 10-2-2006. The impugned order of 4-3- 2006 does not cast any allegation of misconduct or wrong doing upon the MC. Without facilitating or directing the MC to forthwith hold fresh elections, the said impugned order simply avoids the duty under law to hold the MC election, by omitting its mention and by authorizing the Administrator to become the MC for business as usual notwithstanding the illegality under rule 48(6), the foregoing approach taken by the respondent No,1 is otherwise misdirected and illegal.
The supersession of the MC is a drastic measure meant for serious defaults. An unmotivated delay of a few days in scheduling elections as in the present case does not involve the injury and prejudice, or threat thereof, to the interests of the petitioner that ought to necessitate the removal of its management. In having done so, the impugned order, dated 4-3-2006 has committed excess by administering a remedy that is disproportionate to the mischief being redressed. On this point Independent Newspapers Corporation (Pvt.) Ltd. v. Chairman, Fourth Wage Board 1993 SCM R 1533 made a poignant observation:-- "The principle is well-settled that when express statutory power is conferred on a public functionary, it should not be pushed too far, for such conferment implies a restraint in operating that power, so as to exercise it justly and reasonably."
8. The foregoing rule was elaborated with clarity by Sabihuddin Ahmed, J., (as his Lordship then was), in Messrs Neelam Textile Mills Ltd. v. State Bank of Pakistan and 2 others PLD 1999 Kar. 433 at page 441:-- "We may further observe that it is now settled law that all public power and administrative discretion ought to be exercised fairly and reasonably and a burden imposed must bear a reasonable nexus with the harm caused. The concept of proportionality in the exercise of public power has been recognized and approved by our Courts and in the case of Independent Newspaper Corporation v. Chairman Fourth Wage Board 1993 SCM R 1533."
9. The upshot of the foregoing discussion is that the second impugned order, dated 4-3-2006 is illegal for violating the rule of proportionality and is therefore, without lawful authority and of no legal effect.
10. Be that as it may, the life of MC came to an end on 28-2-2006. E Therefore, the next question before the Court is whether the MC should be revived to conduct the fresh election or should this task be assigned to some other neutral person. Quite plainly, once the tenure of the MC expired on 28-2-2006 it is neither visualized by law nor otherwise appropriate for a judicial verdict to extent the life of the MC. Therefore, an interim set up having the task of holding the MC election expeditiously and meanwhile running the affairs of the petitioner should be installed. This could be done by an interim committee constituted for the said purpose. As the impugned orders do not level any allegation of misconduct or wrong doing against the outgoing MC, therefore, it is appropriate that the said MC shall nominate any three non-contesting members of the petitioner to be members of the interim committee. Such committee shall function subject to the supervision of the respondent No,3 who shall be its Chairman. The interim committee shall ensure that fresh election of the MC of the petitioner are scheduled and held forthwith in accordance with law but not later than 30 days from the date of nomination of the 3 members of the interim committee by the outgoing MC. The interim committee shall carry on and manage the day to day affairs of the petitioner but shall not take steps that materially affect its finances or property by any single transaction exceeding of Rs,50,000 in value. Disposed of with above directions.