' IJAZ AHMAD CHAUDHRY, J.---Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner seeks a declaration that the amendment in section 31(i) of bye-laws of the WAPDA Employees Cooperative Housing Society Ltd. Gujranwala which imposes qualification of being a graduate from an institution recognized by the University Grants Commission of Pakistan may be declared to be null, void, ultra vires and the same may be struck down.
2. Brief facts leading to the filing of this writ petition are that the petitioner has purchased Plot No, 58-B, Block A-2 vide allotment letter No, 1514 and in this way he had become a member of WAPDA Employees Co-operative Housing Society Ltd. The Society invited nomination papers amongst from the members for contesting election for Management Committee to be held between 2010 and 2012 and the petitioner has submitted his nomination papers for contesting election as one of the member of Management Committee which were duly received by the Society vide Receipt No, 22.
According to list (Annexure-D) total 36 candidates were to contest election against 12 seats. It was held that the thirteenth member were to be nominated by the Registrar from amongst the officers of Cooperative Department. The Society introduced an amendment in section 31(i) of bye-law on 18-1-2007 whereby the contesting member should have possessed a degree of bachelor from any institution approved by the University Grants Commission of Pakistan which amendment has already been challenged in a Writ Petition No, 22587 of 2009 and as a consequence whereof the operation of the clause was suspended. The petitioner received a handbill from the Society informing that the amended Bye Laws No,31(i) would be put to vote on 10-3-2010 in the meeting of General Body of the Members of the Society for its continuance or otherwise. Hence, this petition.
3. The learned counsel for the petitioner contends that the bye-law No,31(i) is self-contradictory as one of the member of the Managing Committee does not require a bachelor degree. Reliance in this regard is placed on PLD 2009 SC 107. The learned counsel further contends that the bye-law No, 31(i) is discriminatory and is also in violative of Articles 17 and 25 of the Constitution of Islamic Republic of Pakistan, 1973.
4. It is contended by the learned counsel for the applicants who are 12 in numbers and out of 12 applicants 11 are returned candidates after the election which has been held on 12-3-2010 and the petitioner has contested the election and has lost the same. Two writ petitions have already filed by the members of Action Committee vide Writ Petition No, 22587 of 2009 and Writ Petition No, 2908 of 2010. The petitioner ought to participate in the general meeting of the members which was called on 10-3-2010 appended with this writ petition at page 53 as Annexure-E and if it the members relax the condition of graduation only then the petitioner can contest the election. The petitioner had earlier filed Intra-Court Appeal No,103 of 2010 which had already been dismissed by this Court and the order passed by this Court in writ petition had attained finality. Since 1998 total 12 general body meetings have been held regarding the amendment in bye-laws and this issue has never been raised. It is contended that the amendment in the bye-laws is the domain of the Registrar of Cooperative Society and the petitioner has a remedy under section 54 of the Cooperative Societies Act, 1929 before the Magistrate. The right to vote is a fundamental right but right to contest election is not a fundamental right and due to this reason qualification of bachelor has been imposed through bye-law No, 31(i) in the Society.
5. It is contended by the learned counsel appearing on behalf of the Society that the petitioner has not availed alternate remedy available to him under the Cooperative Society in terms of section 64 and sections 16, 16-A. All the process of convening of meeting has already been taken up and if the petitioner feels any grievance the petitioner can approach Registrar Cooperative under section 54.
The bye- laws cannot be assailed in writ jurisdiction. Society does not fall within the parameters of Article 199 of the Constitution. Under Article 25 of the Constitution only reasonable qualification is permissible. The learned counsel has placed reliance on 2004 SCM R 400, 2004 CLC 587. It is a modern society in Pakistan running the hospital, two colleges and two schools. From the panel of the petitioner one graduate has also won the election.
6. In reply to the arguments the learned counsel for the petitioners contends that only 2% members of the Society are graduate and 98 % could not have been deprived due to imposition of condition of graduation. Earlier some writ petition on identical point have already been accepted by this Court and jurisdiction has been exercised in this regard so the instant writ may also be accepted.
7. I have heard the learned counsel for the parties and perused the record appended with this writ petition with their assistance. It is observed that section 31(i) of bye-law of the WAPDA Employees Cooperative Housing Society provide a way-out to its members for contesting the election of Managing Committee which is reproduced as under:-- "31. (i). Managing Committee \including President, Vice- President, Secretary (if honorary) and Finance Secretary (if honorary) shall consist of 13 Members. All Members of the Committee shall be Members of Society, one out of 13 will be officers of Co-Operative Department nominated by the Registrar. Minimum age for a Member of Managing Committee shall be 35 years. 12 seats will be reserved for the Members enrolled under subsection 6(i) and 6(v) and have minimum educational qualification as Bachelor degree from any institution approved by the University Grant Commission of Pakistan.
(Amended on 18-10-2007)."
8. A bare perusal of the above mentioned reproduced clause (i) of section 31 of bye-law of the WAPDA Employees Cooperative Housing Society shows that the A condition of graduation is imposed through amendment dated 18-10-2007 and prior to this amendment the members had been contesting election for membership of the Managing Committee below graduation level.
Thus, it will create very anomalous situation if the same members will be deprived from enjoying the membership of Managing Committee who have been nourishing wishes in their mind before imposition of condition.
9. Another intriguing feature in this petition is that if the condition of graduation is imposed upon the members of the WAPDA Employees Cooperative Housing Society out of total strength about 98% members will be ousted from contesting the election because only 2% of the total strength possess degree of bachelor. This Court is not ready to deprive 98% members from contesting the election under the garb of section 31(i) of bye-laws for the sake of only 2% members. Law provides equal rights to every person in a country or a member of an autonomous body of a country and where the majority of people wish to do a particular thing in a particular manner the minority cannot be given preference over it.
10. The learned counsel for the respondents has argued that the petitioner has alternate remedy available to him under section 54 of the Cooperative Societies Act, 1929 and thus, technically the writ is not maintainable. I have, however, remained unable to subscribe to this submission of the learned counsel for the respondents as it always happens that whenever the rights of an individual have infringed or usurped by any act of any authority this Court had come forward to safeguard the rights of individuals. Here in this case Jhe precious rights of majority are being infringed due to amendment in section 31(i) of bylaws of the WAPDA Employees Cooperative Housing Society and, thus, this Court has deemed it fit to exercise its constitutional jurisdiction.
' So much so a writ cannot be declined mere on technical grounds as it has been settled way back in the year, 1963 that mere technicalities cannot thwart grant of justice. Reference is made to the case of PLD 1963 SC 382. The relevant portion is as under:-- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that given to every person what is his."
11. Even otherwise knowledge, wisdom and qualities are not bound by any certificate or degree as held in PLD 2009 SC 107 the relevant paragraph is reproduced as under "I cannot disagree with the arguments of Mr. Akram Sheikh that the knowledge and wisdom is not subject to the certificates and degrees; it is a God-gifted virtue and there are numerous examples in the world and around us that even illiterate or semiliterate people have sea deep level of knowledge on account of their experience, inborn talent, deep non-academic studies etc., and in some cases informally educated or non-educated persons, but these are exceptions. Similarly, there are people who are degree-holders and highly educated but proved failure and in some cases are parasites but those are also exceptions. Non- educated but knowledgeable people can guide, educate, train and transmit their wisdom and experience to the educated young generation who have to take over from them, and overtaking is a natural process for which one should be voluntarily prepared and accept the hard facts of the life. Service for the nation can be rendered even without being a member of the Assembly."
12. Another significant feature in this case is that section 6 of byelaws of the Society on one hand provides all the members equal rights as well as liabilities and on the other hand eliminate the factor of discrimination among them. Contrary to that, the imposition of condition as has been introduced by section 31(i) of bye-laws of the Society creates factor of discrimination among the members due to their different qualification. Thus, the later introduced condition is also in contradiction with" section 6 of the byelaws of the Society which cannot be sustained by this Court in any manner.
12- For what has been discussed above this writ petition is accepted and amendment made in section 31(i) of bylaws of the WAPDA Employees Cooperative Housing Society is declared null, void, ultra vires and contrary to the fundamental rights of the members of the Society. In consequences thereof the election held on 3-2010 are also declared null and void and the same is struck down.
The Society is directed to hold election on non-graduation basis.