MIAN SAQIB NISAR, J. --- The petitioners are the Office Bearers of the Public .Health Engineering Department Employees Cooperative Housing Society (hereinafter called the Society) and were elected to their respective offices in the election of the Society held in December, 2004. Soon after their assumption to the offices, a complaint was filed by one Muhammad Mubeen son of Abdul Waheed resident of Hameed Park, Raiwind, Lahore on 27.05.2005, before the Registrar, Cooperative Societies, Punjab, Lahore levelling the allegations of mal-practices and corruption in theconduct of the affairs of the society. It is the case of the petitioners that such application is fictitious and no person by the name . Exists. Another application was filed by Muhammad Mubeen 'on 22.08.2005 followed by a complaint of one Muhammad " Azam; these are also imputed by the petitioners to be bogus.
Howver, without probing about the genuineness and veracity of the allegations levelled in these complaints, the accounts of the Society were frozen by respondent No. 1 on 20.09.2005, but later on those were defrozen on 17.11.2005. The inquiry under Section 43 of the Cooperative Societies Act, 1925 against the management was initiated, but under the order dated 17.12.2005 of the Secretary, Cooperative; it C.L.R. is pending adjudication besides the above, a notice under Rule 45-A of the Cooperative Societies Rules, 1927, according to the stance of the respondents, because of he impugned action has abandoned.
2. In the afore-mentioned backdrop, respondent No. 1 vide impugned Order dated 31.01.2006, passed under Rule 48(3) of the Cooperative Societies Rules, 1927, has superseded the managing committee- of the Society and has appointed the Assistant Registrar (Housing-II) Cooperative Societies, Lahore as the Administrator. It may be pertinent to mention here that in the impugned order, it is clearly and unequivocally mentioned "A detailed order will follow separately." Aggrieved of the above, the petitioners have filed the present writ petition.
3. Pursuant to the order of, this Court, the respondents have filed the para were comments in which, it has been admitted that the inquiry under Section '43 of the Cooperative Societies Act, 1925 is still,pending. It is further stated in reply to ground No. 4 of the petition that a show-cause notice was issued to the petitioners before taking the impugned action and they have filed a reply, thus their plea of being condemned unheard has been refuted. The respondents have propounded that as the Managing . Committee of the Society is guilty of the mal-administration, therefore, the action against the petitioners has been legally and appropriately taken. In this behalf, a reference is also made to some investigation being conducted by the NAB into the affairs of the society and also an audit report in which, the vices of corruption and misappropriation have been highlighted.
4. It has been argued by Mr. Muhammad Ilyas Khan, learned counsel for the respondents that the Administrator has fixed' 25.12.2006 as the date for the fresh elections and, therefore, as the process to elect the new office bearers has commenced, resultantly, the petition should be dismissed on this score alone.
5. I have heard the learned counsel for the parties. Under Rule 48(1) of the Cooperative Societies Rules, 1927 (the Rules), the Registrar has the power.On his on motion; and as contemplated by sub- rule (2), to conduct, an inquiry into the working and financial condition of the society. Admittedly 'such an inquiry as contemplated by the. Above rule has not been conducted in this case; the inquiry initiated under Section 43, is yet pending, whereas upon the notice under Section 45-A, it has been abandoned. In this behalf, it is stated in the parawise comments, "The inquiry u/S. 45-A was abandoned due to the action to have been taken under Rule 48 of the Cooperative Societies Rules, 1927." It is further sated "it is significant that exercise under Rule 48 is independent from the inquiry initiated u/S.43 of the Cooperative Societies Act; 1925."
6. One of the key questions thus, to be examined in this case is if in view of the above situation, a harsh and penal action such as the supersession of the elected body of the Society was warranted under the law. Mr. Ilyas Khan Advocate has relied upon some investigation being carried on by the NAB and also the audit report in which a recommendation has been made to take action against the management under Sections 22-A and 50 of the Act, 1925.
7. 1 am afraid that neither on account of any investigation being conducted by the NAB, the management of the Society could be suspended or superseded under Rule 48 nor on the recommendation of the auditor, any action straightaway could be taken without confronting the petitioners with such report and giving them an opportunity of meeting the objection raised therein. Even otherwise, such report of the auditor was not available with the De.Puty Registrar/respondent No. 1 at the time of passing of the impugned order, which is dated 31.01.2006, whereas the report was made on 31.08.2006. The audit report as mentioned earlier has not even been confronted to the petitioners and I fail to understand as to how the material, which was not available with respondent No. 1, but has been C.L.R. procured subsequently, can be made the basis impugned order.
8. As it has been conceded by the respondents that the inquiry under Section 43 is still pending and that, under rule 45-A, has been abandoned; however, the argument that the power under Rule 48, which can be independently exercised, requires the scope of the rule and the manner of the exercise of power within the parameters thereof. According to Rule 48(1) of the Cooperative Societies Rule, 1927, the Registrar may supersede the committee or the society but he has to give the reasons in the order, which should be published in the official Gazette. Undoubtedly, under sub- rule (6), before making an order under sub-rule (1), the Registrar shall give an opportunity to the society as to why the action should be taken. This opportunity should not be illusionary or an eyewash or to just fulfill the requirement of law, rather the opportunity must be purposeful and must satisfy the criteria on touchstone of the principle of natural justice. It is the case of the respondents that reply was filed by the management of the Society. But it is not their case that the allegations of the show-cause notice were accepted, rather according to the order, the reply was "unsatisfactory". This is the most convenient way to elude the explanations given in the reply. And it is to cater far such a situation that the law requires, that the order under Rule 48 should specify the "Reasons". Obviously, the duty to give reasons is not purposeless, but is meant to circumvent the arbitrariness of the authority in taking such a drastic action under Rule 48.
9. According to the settled law, no Administrative Authority of the State has the power to pas an order affecting the rights of the citizens in an arbitrary, whimsical, fanciful and subjective manner.
The petitioners on account of their elections have the right to be the office bearers of the Society for the term they have been elected, which admittedly has not expired so far. Therefore, in order to deprive the petitioners from such lawful right. The' Deputy Registrar/respondent No. 1, in the garb of the powers available to him under Rule 48, could not assume certain. Allegations levelled against the petitioners, to be true; and without giving reasons as to why the explanation of the petitioners is not accepted, take a penal action against them.
Furthermore, the impugned order does not reflect as to what material and data was available with the Deputy Registrar to hold in the impugned order "After perusing the record and hearing the Managing Committee, I conclude that there is corroborative and substantial evidence available in support of show-cause notice. The Managing Committee miserably failed to run the affairs of the society which provides sufficient grounds to proceed against them, on the basis of allegations stated in both the show-cause notices and mala fide conduct for personal gain in the working of the society." The corroborative and substantial evidence, which according to the Deputy Registrar is available in support of the show-cause notice, has neither been referred to in the impugned order nor discussed therein and above-all, it has not even been placed before this Court enabling it to examine if such evidence was relevant and sufficient to prove the allegations against the petitioners for the initiation of the action.
10. 'In my view for the validity of an order passed under rule 48, it is sine qua non that the "reasons" must be given, but the impugned order is conspicuously lacking in this.Behalf, therefore, it is liable to he struck down on this ground alone, coupled with the fact that it has not been published in the "official Gazette" as required by the Rule; Mr. Muhammad Ilyas Khan, learned counsel for the respondents, has not been able to establish such a publication. It is settled, that where the law requires an act to be done in a particular manner, it has to be performed in such manner alone and not otherwise and any deviation shall render the action as illegal and unlawful. This principle is squarely applicable to this case for the lack of publication of the order in the "official Gazette."
11. Mr. Muhammad Ilyas ,Khan, Advocate has laid much emphasis on the point that the matter is being investigated by the NAB, suffice it to say that such plea is altogether extraneous to the action contemplated under Rule 48. Likewise the audit report to which reference has been made to justify the order, was not available at the time of passing of the impugned order .And resultantly, cannot be made the basis of supersession, especially when the petitioners have not been given an opportunity to meet the same; therefore, no reliance can be placed by this Court.
12. The other submissions of Mr. Muhammad Ilyas .Khan, that as the date for the election has been announced, resultantly, the writ should not he issued; the plea does not sound to the reason; firstly, because if the foundation of an action is void, the superstructure built thereupon has to fall; secondly, through an illegal order, the management of the society has been superceded and on that basis, the election had been called, therefore, if this petition is dismissed only -for the reasons of the fresh election, it will amount to endorse the order which 'otherwise is illegal and cannot sustain; besides,- the petitioners have quite a lot of time as their term and their tenure to hold the affairs of the Society shall be unlawfully curtailed.
13. Another very important reason as to why the impugned order should not be sustained is, that being conscious of the legal position that. The order does not fulfill -.He requirements of Rule 48, as it lacks to provide the reasons, it was mentioned that "A detailed order will follow separately". The representative of the respondent-department, present in the Court and Mr. Muhammad Ilyas Khan, Advocate, when questioned, have conceded that. The detailed order has hot been passed till date.