' IJAZ AHMAD CHAUDHRY, J. This judgment will dispose of the instant Writ Petition (W.P. No,2663 of 2010) as well as Writ Petition No,3844 of 2010 filed by Khalid Mehmood Qureshi and Writ Petition No,5304 of 2010 filed by Rashid M. Arshad, whereby order dated 2-10-2009 and the proceedings of election, dated 19-12-2009 have been challenged.
2. The grievance of the petitioners is that they have permanent membership of NFC Employees Cooperative Housing Society and have a right to participate in the affairs of the society regarding its management. The petitioners filed an application under section 54 of the Cooperative Societies Act, 1925 before the Circle Registrar/respondent No,3, who was working as Registrar, regarding the illegal enhancement of water charges and depriving of the majority of the members of the Society from their lawful right to cast vote and right to participate in the election of the Management of the Society. Respondent No,3 vide order dated 2-11-2007 issued verdict/directed the Society to amend its Byelaws and to B provide the right of vote, to participate and to contest the election being all members/share-holders but a large number of the members including the petitioners; were not given such right so far. It is also stated that more than two years have elapsed but the society has not challenged the said direction before any higher forum, therefore, said verdict has attained finality in the eyes of law.
' Meanwhile, Registrar, Cooperative Societies, Punjab issued directions of the same nature vide order No,RCS/H/L-176/ 1469-71, dated 3-5-2006 under section 44-D of the Cooperative Societies Act, 1925, which has the sanction of law and was binding upon the NFC Employees Cooperative Housing Society. When after passing of such a long time the Society did not comply with the said direction, some of the members once again approached respondent No, 1 for implementation of the order passed by respondent No,3, who dismissed the said application vide order dated 16-12- 2009. On 2-10-2009 the D Assistant Registrar issued a notification regarding appointment of Election Commission and also issued election schedule in utter violation of direction issued by the Registrar vide order No,RCS/H/L-176/1469-71 dated 3-5-2006. The election was conducted on 19-12- 2009 but its result was not announced so far. So, as the election was conducted in violation of the above-referred order, it was liable to be declared null and void. Hence these petitions.
3. Learned counsel for the petitioner in the instant petition as well as in the connected writ petitions in support of these petitions have argued that order has been passed by the Registrar, Cooperative Societies, Punjab on 3-5-2006 through which a direction was issued to the Society that all the members of the Society shall be given right of vote in the best interest of all the members of the Society with immediate effect, but no action has been taken on that order; that along with the report; and parawise comments letter issued by the Registrar, Cooperative Societies Punjab, Lahore, dated 14-9-2006 has been appended, wherein it is stated that the direction issued earlier vide order No,RCS/H/L-176/1469-71 dated 3-5-2006 has been withdrawn with the observations that Byelaw No,10(iv) of the Society is against the spirit of Cooperative Societies Act/Rules, therefore, need necessary amendment; that it was also directed therein to the "Society to submit a draft of proposed amendment duly confirmed by the Annual General Meeting within time frame as laid down under section 16-A(i) of the Cooperative Societies Act, 1925; that the said direction of the Registrar has not been complied with so far by the Society; that there are 6500 members of the Society out of which only 900 are given right to cast vote and the remaining members over than 5000 have been deprived of their right to cast vote; that the Registrar has only made a reply that since election has been held the Society shall amend the Byelaws in the next election and the Registrar had not directed the Society to make the said amendment before the election; that it was the duty of the Registrar under section 10(2) of the Cooperative Societies Act, 1925 to make amendment and intimate the Society; that there is no other remedy against the inaction on the part of the Registrar, except to file the writ petition before this Court; that Byelaw No,25 also provides that the election of the Managing Committee will be held in the general meeting of the Society but no general meeting has been held so far in compliance of the order dated 14-9-2006; that no rules have been framed and one group of the members is running the Managing Committee for the last so many years; that the Managing Committee consists of two members of the choice of the; previous Secretary and one member is Assistant Registrar, who is in league with the persons who wants to win the election to usurp the rights of other persons and the petitioners have been deprived of their valuable right by denying their right to cast votes; that an award has been made by the Circle Registrar on 2-11-2007 through which direction has been issued to the Society including all the members to the effect that "After hearing the arguments and perusing the record, I intend to understand that the respondent society established its residential colony, Phase- I near WAPDA Town. The society has entered at this stage, whereas maintenance charges are essential for running the affairs of the society efficiently. The increase in the water supply rates and maintenance charge is accepted by the counsel for the petitioners but he insisted on the reasonable limit of increase of the water and maintenance charges. The increase in water and maintenance charges as fixed by the society is upheld with a direction that the maintenance charges shall include collection of solid waste/garbage by the society from the house of every resident/member. An efficient and well equipped security system shall also be a part of maintenance charges and the society shall make efforts for efficient security system. Further the society is directed to seek approval of increase of water charges and maintenance charges from the competent authority as required under the provisions of the byelaws of the society. The society is also directed to amend byelaws and grant equal rights to cast vote and right to contest election to the members. "; that if within fifteen days amendments were not filed by the Society the Registrar was duty bound to prepare the amendment and direct the Society to include the same in the Byelaws; that at the time when the election was being held the Managing Committee put the matter for the next election; and that to deprive the petitioners to cast votes in the election for the Managing Committee of the Society is the clear cut violation of the fundamental rights of the petitioners, who are permanent members of the Society. Leamed counsel further argues that before election petitions were filed before the Registrar that right of vote should be granted to the petitioners and thus, the petitioners have gone from pillar to post; that the preamble of the Cooperative Law is clear that the matter is to be dealt with mutually; that the election rules have not been farmed so far; that there are number of persons who were elected twice and they were again candidates in third election; that Society has committed illegality by allowing 2/3 members to contest the election as their dues were not clear before the election and the same were cleared after the election.
4. On the other hand, Mr. Waqar A. Sheikh, Advocate, learned counsel appearing on behalf of the Society/ respondents states that the prayers made by the petitioners in their petitions cannot be granted in writ jurisdictions, as statutory remedy is available to them; that the Byelaws are registered under section 10 of the Act and the amendment can be incorporated under section I6 of the Act. However, subsequently section I6-A has been introduced through which direction can be issued by the Registrar and said order can be challenged under section 64 by filing an appeal before the Secretary, Cooperative Societies, Government of the Punjab, Lahore; that direction was issued on 3-5-2006 which was subsequently withdrawn vide order dated 14-9-2006 and the matter was placed before the General Body and the General Body did not agree with the direction issued by the Registrar, however, two amendments were made that the election will not be held by show of hands and Election Commission should be constituted by the Registrar, which shall be headed by the officer not below the rank of Assistant Registrar; that all the members including the petitioners, when they become members of the Society had given declaration that they will not exercise their right of vote. In support of these contentions learned counsel relies upon PLD 1989 SC 396; that before election advertisement was published in the Daily Dawn and Daily Jang, dated 7/8-10-2009; that according to the comments submitted in writ petition No,3844/2010 the election was held on 19-12-2009, which was contested by 28 persons and the list of the successful candidates is available at pages 7 and 8 of the said comments; that the respondents being successful candidates may be allowed to work. Reliance is placed on PLD 1970 Karachi 200 and 2004 CLC 587 Further contends that when the advertisement was published in the newspapers regarding the holding of the election, the petitioners had remedy to approach the Registrar but they remained silent; that the second remedy available to the petitioners was that they could file appeal under section 64 of the Cooperative Societies Act, 1925 for registration or amendment in the Byelaws; thaf the petitioners were not interested in amendment of the Byelaws or setting aside of the election. He placed reliance on order dated 18-12-2009 passed in Writ Petition 24236 of 2009 which was disposed of with the observation, that the petitioner may seek his remedy before the competent forum to enforce the order of respondent No,3; that amendment if any is made which shall have the prospective effect and not retrospective; that Jimkhana also does not give right to all the members to cast their votes and there is classification of all the members; that Article 25 of the Constitution classification is permissible; that only final order can be challenged before this court. Relies upon 2007 YLR 522. Learned counsel also contends that principle of Laches is applicable in the instant case and reference is made on PLD 2003 SC 1329.
5. The learned A.A.-G. Had adopted the arguments advanced by the learned counsel for the respondents.
6. I have heard the learned counsel for the parties at length and gone through the record.
7. The grievance of the petitioner in nutshell is regarding the casting of vote in the elections for the Managing Committee for running the affairs of the Society in accordance with its Byelaws. The petitioners have prayed for setting aside of the order dated 2-10-2009, whereby the Deputy District Officer Cooperative constituted a Committee for holding the elections of the Society and the proceedings dated 19-1-2009, be declared as illegal, void ab initio and of no consequences.
' There is no denial of the facts that petitioners are members of NFC Employees Cooperative Housing Society and have a right to participate in the affairs of the Society. On an application made some members of the Society under section 54 of the Cooperative Societies Act, 1925, the Deputy District Officer Cooperative/Circle Registrar/respondent No,3 vide order dated 2-11-2007 directed the NFS Employees Cooperative Housing Society to amend its Byelaws as provided under section 16-A of the Cooperative Societies Act, 1925 to provide right of vote and to participate and contest the elections being members/ Shareholders but even then the petitioners were not given the right to cast vote. The aforesaid order was not challenged by the Society before the higher forum and the said order has attained finality. The Registrar, Cooperative Housing Societies, Punjab also issued direction of the same nature vide order dated 3-5-2006 under section 44-D of the Cooperative Societies Act, 1925 but even then the Society did not amend its Byelaws giving right of vote to the petitioners. It appears that respondent Nol. Registrar, Cooperative Housing Societies, Punjab, instead of first getting implemented his own directions issued under section 44-D of the Act
(ibid) and to implement the award announced by the Deputy District Officer/Circle Registrar got conducted the elections on 19-12-2009 in violation of his own order and the award without mentioning the law or Byelaw under which the election was being held. The petitioners have inalienable right of vote and to participate in the elections being Members of the aforesaid Society which right has been guaranteed to them by the Constitution of the Islamic Republic of Pakistan, 1973. The whole process of election was against the spirit of law as the petitioners were deprived of their rights of franchised, along with other 7000 other members. The petitioners along with other members of the society have right to vote and contest the elections of the Managing Committee in accordance with law and Byelaws of the Society. The action of constituting a sub-committee and preparation of voters list by the subcommittee at its discretion depriving more than 7000 members of their right to vote is absolutely illegal and against the norms of justice. Bylaw 25(iv) clearly shows that the election of the Managing Committee shall be held in accordance with the rules framed in the General Meeting but there are no such rules.
8. As far as the argument of the, respondents that this writ petition is not maintainable as the petitioners have an alternate remedy under section 64 of the Cooperative Societies Act, 1925 to file an appeal by agitating their grievance is concerned, suffice it to observe that since whole the action on the part of the respondents regarding holding of the election of the Managing Committee of the Society was illegal, therefore this Court can exercise its constitutional jurisdiction against such an action. In this view of the matter, the argument of the respondents has no force at all.
9. As regard the arguments of the respondents that the petitioners and other members have no right of vote and contest the election as they themselves at the time of becoming members of the society had given declaration that they will not exercise their right of vote is concerned, it is inalienable right of every member of the society which cannot be taken away under the garb of so called undertaking which even otherwise is against the law. The other legal issues raised by the learned counsel for the respondents are not worth the consideration for the reasons that the whole process of election was based on mala fide of the respondents in order to elect the persons of choice of a group in the society.
10. For the foregoing reasons, I allow all the aforesaid writ petitions, declared the election held on 19-12-2009 as null and void with the direction to the Registrar, Cooperative Housing Societies, Punjab, to amend the Byelaws of the NFC Employees Cooperative Housing Society as provided under section 16-A of the aforesaid Act giving right to all the members of NFC Employees Cooperative Housing Society to cast their votes and participate in the election process/contest the election of Managing Committee of the Society, issue a new list of the members of the Society and hold new elections within a period of three months from today in accordance with law with further direction that till such time the elections are held and new Managing Committee is elected by the members of the NFC Employees Cooperative Housing Society, an Administrator be appointed for looking after the affairs of the Society.