AYESHA A. MALIK, J. --- This judgment decides upon the issues raised in W.P. No, 11356/14, 12151/14 and 19609/14 as all the petitions raise common questions of law and facts.
2. In W.P. Nos, 11356/14 and 12151/14, the petitioner Model Town Cooperative Housing Society Limited, Sialkot ("Petitioner Society") has challenged orders dated 20.12.2013 issued by respondent No,3, circle registrar (Housing), Cooperative Societies, Punjab, Lahore and 15.4.2014 issued by respondent No, 1, Secretary to Government of Punjab, Cooperatives Department, Lahore being violative of the judgment of this Court dated 7.12.2010 passed in W.P. No, 24032/10 and order dated 4.11.2011 passed by the august Supreme Court of Pakistan in C.P No, 265-L/2011. In W.P. No, 19609/14, the petitioner has impugned notification dated 8.6.2014 issued by District Officer Cooperatives Jhelum/Convener Election Sub-committee.
3. The case of the petitioner Society is that it is a Society registered under the Cooperative Societies Act, 1925 ("Act"). It adopted the Model Election Rules on 20.8.2013 with a proposed amendment which is in consonance with the Model Bye-Laws adopted by the petitioner Society and duly registered under the law. The Registrar, Cooperative Societies, Punjab ("Registrar") and thereafter the Secretary, Government of Punjab, -Cooperatives Department, Lahore ("Secretary") rejected the amendments made by the petitioner Society to the Election Rules which is against the dicta laid down in the judgment of this Court dated 7.12.2010 passed in W.P. No, 24034/10 and order dated 4.11.2011 passed by the august Supreme Court of Pakistan in C.P No, 265-L/2011. The basic dispute with respect to the Election Rules is the definition of voter as given in rule 2(xxvii) of the Election Rules. Rule 2(xxvii) provides that a voter is a member of the society holding requisite number of shares and plot of the society under the Bye-Laws and who is not defaulter of the dues of the society. These Election Rules were adopted on 20.8.2013. The 'Election Rules were placed before the registrar who on 20.12.2013 rejected the amendment on the ground that it is against the interest of the petitioner Society and its members. The Secretary upheld the order of 20.12.2013 holding that it is against the interest of the petitioner Society.
4. Learned counsel for the petitioner Society argued that once the amendment was placed before the full house and the members of the petitioner Society approved the Election Rules, the Registrar and the Secretary have no jurisdiction to reject the amendment which has been duly approved by its members. Learned counsel further argued that the members of the petitioner Society have been in litigation for some time over the question of who is a voter. Consequently a direction was given on 12.11.2012 by the District Officer Cooperatives, Sialkot to adopt the Election Rules by placing it before the General Body Meeting. The petitioner Society responded to this letter by stating that they have no objection to the Election Rules except with the definition of voter under rule 2(xxvii) on the ground that every member of the petitioner Society is a voter and no member can be restrained to cast a vote on any ground. This stance was taken in terms of the direction of this Court dated 7.12.2010 passed in W.P. No, 24034/10 and order dated 4.11.2011 passed by the august Supreme Court of Pakistan in C.P No, 265-L/2011. Accordingly the Election Rules were approved by the petitioner Society. Learned counsel further argued that originally the Election Rules required that a voter is a member of the society holding requisite number of shares and a plot of the society under the Bye- Laws and is not defaulter of any dues of the society. Whereas the members approved the definition of voter as being a member of the society holding requisite number of shares under the Bye-Laws of the society who is not a defaulter of any dues of the society. in this way, the requirement that he owns a plot was removed.
5. On behalf of the respondents it is argued that to own a plot in the petitioner Society for casting a vote is illegal and unlawful as the condition of ownership of the plot was struck down in judgment dated 7.12.2010 passed by this Court, in W.P. No, 24034/10 which was upheld vide order dated 4.11.2011 passed by the august Supreme Court of Pakistan in C.P No 265-L/2011. The respondent members were eligible to vote and participate in the elections on account of the fact that they were members. The fact that they did not have any plot allocated to their name was, not a bar to their participation in the elections.
6. During the pendency of the writ petition, the elections of the managing committee of the petitioner were held and the only issue before the court is whether the Registrar and the Secretary could set aside any rule of the approved Election Rules given that not only the petitioner Society had approved it but that it was also in consonance with the Model Bye-Laws and as per the dicta laid down by the superior Courts.
7. The judgment of this Court as well as the order passed by the august Supreme Court of Pakistan essentially provide that every member of the society has a right to cast its vote and participate in the election. Therefore the condition that only those members who own plots are eligible for casting vote or have paid substantial amounts towards the cost of land for allotment of plot was struck down. This decision was challenged before the august Supreme Court of Pakistan in C.P No, 265-L/2011 wherein the august Supreme Court of Pakistan vide order dated 4.11.2011 dismissed the appeal and upheld the judgment of this Court dated 7.12.2010 passed in W.P. No, 24034/10.
8. Under the circumstances, given that this matter has been agitated before the Court and thereafter was decided in favour of the petitioner Society, there was no justifiable reason for the Registrar or the Secretary to set aside the definition of member or voter in the Model Election Rules.
In this regard, it is also noted that the Model Election Rules have been duly approved by the petitioner Society in its AGM dated 5.5.2013 with the amendment meaning thereby that the members of the petitioner Society are in agreement with the definition of voter and member as given in the proposed Election Rules. Since the adopted Election Rules modified the definition voter in the Election Rules, the Secretary struck down the amendment and required the petitioner Society to adopt the Model Election Rules in its entirety. The Registrar and the Secretary have provided no explanation as to why the amendment is against the interest of the members. There also appears to be no justification for this decision as in terms of section 16 of the Act. If the Registrar is satisfied that any amendment of the Bye-Laws made by a society is not contrary to any law for the time being in force, he may register the amendment.. In terms of this section, the Registrar on the scrutiny of the proposed Bye-Laws has to satisfy himself that due process was followed and that the Bye-Laws or its amendment is not contrary to any other law. In this case, the Registrar and the Secretary have failed to point out any laws to which the Model Election Rules are contrary and the proposed Model Election Rules were in any way offending any right of the members. In fact the Model Election Rules are totally in consonance with the Bye-Laws of the petitioner Society.
9. In view of the aforesaid, W.P. Nos, 11356/14 and 12151/14 filed by petitioner Society are allowed. The impugned orders dated 20.12.2013 issued by respondent No,3 and 15.4.2014 issued by respondent No,1 are set aside. However, W.P. No, 19609/14 filed by petitioner Waheed Butt is dismissed.
CM No, 1257/14
10. Since the main writ petition has been heard and decided vide judgment of even date, the instant application has become infructuous. Disposed of.