AYESHA A. MALIK J. --- This judgment decides upon the issues raised in W.P. Nos, 24052/17, 22371/17, 21036-04/17, 23965/17 and .25640/17 as all the petitions raise common questions of law and facts.
2. The petitioners are all members of the National Fertilizer Corporation Employees Cooperatives Housing Society, Lahore ("NFC Society") who have challenged orders dated 31.10.2016, 24.4.2017 issued by the Registrar, Cooperative Societies, Lahore and 21.4.2017 issued by the Secretary, Cooperatives, Lahore and also seek amendment in Bye-Law No,31(1) of the NFC Society through this Court. The petitioner in W.P. No, 25640/17 has challenged the amendment made to rule 3(b) of the Model Election Rules.
3. The basic grievance of the petitioners is that they are all permanent members of the NFC Society yet they are not eligible to contest the elections of the NFC Society due to Bye-Law No, 31(1). Bye- Law No, 31(1) of the Model Bye-Laws provides the President, Vice President and General Secretary will be serving or retired employees of the NFC Society or its subsidiaries. The petitioners do not qualify against this requirement, hence are aggrieved by the stated Bye-Law. The petitioners' case is that they have been agitating this issue for some time, however they have not been successful in getting Bye-Law No,31(1) amended despite the order dated 19.5.2015 issued by the Secretary Cooperatives and a direction of this Court dated 19.5.2010 passed in W.P. No,2663/2010. Therefore the question before the Court is whether the petitioners are entitled to the amendment of Bye-Law No,31(1) prior to the elections which are scheduled on 21.5.2017 or whether the petitioners will have to place the issue of amending Bye-Law No,31(1) before the AGM after the elections of 21.5.2017.
4. Learned counsel for the petitioners argued that the respondent Society cannot hold its elections without amending Bye-Law No,31(1) as a specific direction was given in the judgment of this court cited at (2010 YLR 2497) to the Registrar Cooperative Societies to amend Bye-Law No, 31(1) of the NFC Society Bye-Laws, such that all members of the Society can cast their votes and participate in the election process. Learned counsel argued that the petitioners are adversely affected by Bye- Law No,31(1) as they represent a large proportion of the members of the NFC Society who are not ex-employees of the NFC or its subsidiaries but are residents of the NFC Society for a long time yet they are unable to fully participate in the management of the NFC Society as they cannot participate in the elections for the seats of President, Vice President and General Secretary of the NFC Society. in this regard judgment cited at 2010 YLR 2497(supra) directed that the AGM be held in order to deliberate on the amendment to the Bye-Law which AGM never took place. Learned counsel further argued that the Registrar, Cooperative Societies was bound to direct the NFC Society to first amend the Bye-Laws before carrying out the elections. Learned counsel further argued that despite clear directions from this Court, the respondents are holding the elections on 21.5.2017 so as to deprive the petitioners of their participatory right as well as of their electoral right.
Learned counsel argued that the members have been deprived from the contesting the elections against the seat of President, Vice President and General Secretary of the management committee of the NFC Society and can only contest for the seats of the Executive Committee whereas they represent the majority of the members. The matter was taken to the Secretary Cooperatives who through the impugned order dated 21.4.2017 dismissed the appeal of the petitioners on the ground that it was a time-barred, this matter has been agitated by the petitioners regularly hence the findings are against the record. Learned counsel further argued that time and again the petitioners have brought up the matter of the disproportionate representation caused in the elections on account of the existing Bye-Laws, however the NFC Society and some members are not keen to amend the Bye-Laws, hence they are repeatedly creating hurdles in order to prevent the AGM from taking place where this matter can be discussed.
5. On the other hand, learned counsel for respondent NFC Society submitted that the NFC Society is under the control of a Caretaker since 12.8.2016 and that the elections of the NFC Society have not taken place since 2015 on account of the consistent agitation by the petitioners and others who have managed to have the election process delayed. Learned counsel argued that the NFC Society has held two AGMs during this time, however the petitioners with others have challenged the holding of the, AGM on one pretext or the other due to which the election process was delayed.
Learned counsel argued that the first AGM took place on 11.6.2011 where the Model Bye-Law were approved on 7.1.2013 by the DDCO. The second AGM was called by the Caretaker through letter dated nil on 5.11.2016 at 10:30 a.m. at Maraka Multan Road Phase-II, Lahore. The petitioners did not attend the AGM and instead filed W.P. No, 16774/2015 wherein they challenged the holding of the Special General Meeting on 5.11.2016. This matter was ultimately decided by the Registrar Cooperative Societies vide order dated 31.10.2016 who stated that the Caretaker can only deal with day to day matters of the NFC Society and cannot call a special meeting without proper permission from the competent forum as required under the rules. He argued that the matter in issue was ultimately decided vide judgment dated 4.1.2016 passed in ICA No, 818/2015 also filed by some members of the NFC Society wherein the Court accepted the appeal and dismissed W.P. No, 16774/15 in which the members sought for a restraining order from holding the Special General Meeting on 5.11.2016 and prayed for implementation of order dated 19.5.2010 passed in W.P. Nos, 2663/10, 3844/10 and 5304/10. The Court directed that the matter be placed before the AGM after holding the elections. Therefore learned counsel argued that the petitioners cannot re-agitate this matter before the Court at this stage.
6. The relevant facts of the case are that some members of the NFC Society challenged the fact that they did not have the right to participate in the management of the NFC Society even though they are permanent members of the NEC Society. They are all non-NEC members meaning that they are not ex-employees of the NFC or its subsidiaries. This Court in the case cited at 2010 YLR 2497(supra) allowed the writ petition and directed the Registrar, Cooperative Societies to amend the Bye-Laws of the NFC Society so as to give all the members the right to vote as well as to participate in the management of the NFC Society. ICA No, 400/2010 was filed against the aforesaid decision which was ultimately settled between the parties as recorded in order dated 16.3.2011.
Some members filed on application under section 12(2) of the Code of Civil Procedure, 1908 (CM No, 1294/2011) against the order of 16.3.2011 on the ground that the settlement could not be representative of all the members as the appellants in that case could only settle the matter with respect to their own rights and not the rights of the other members. Vide order dated 20.4.2011 passed by a learned Division Bench of this Court in CM No, 1294/2011 in ICA No, 400/2010, the Court clarified that the settlement order of 16.3.2011 did not affect the rights of all the applicants and will not prejudice them against any right that they may have on account of the judgment of the learned Single Judge dated 19.5.2010. Hence if anyone wanted to pursue the judgment of 19.05.2010 they could. The AGM was called on 11.6.2011 and the Model Bye-Laws were approved and registered on 7.1.2013 as is without any change. The Caretaker of the NFC Society also called for an AGM on 5.11.2016, however since the petitioners challenged the carrying out of that AGM, the Caretaker was restrained from holding the AGM by the Registrar, Cooperative Societies, Lahore vide his order dated 31.10.2016. The petitioners continued to pursue the matter with reference to the implementation of judgment cited at 2010 YLR 2497 (supra) which matter was then heard and decided by the Secretary Cooperatives vide order dated 21.4.2017 consequent to a direction given by this Court vide order dated 14.4.2017 passed in W.P. No, 13301/2016, in which he found that the AGM was held on 11.6.2011 pursuant to judgment cited at 2010 YLR 2497(supra) and the model Bye- Laws were adopted. The petitioners did not agitate the matter nor did they challenge the resolution at that time. hence he declared the appeal to be barred by time. In the meantime W.P. No, 16774/2015 was filed by some members whose prayer was that the respondents be restrained from holding special general meeting on 5.11.2016 and further prayed that the order of 19.5.2010 passed in W.P. No, 2663/10, 3844/10 and 5304/10 be implemented. The registrar made a statement in Court on 4.6.2015 in W.P. No, 16774/15 that he would have-the AGM called The matter in issue was ultimately decided vide order judgment dated 4.1.2016 passed in ICA No, 818/2015 also filed by the members of the NFC Society, wherein the Court accepted the appeal and dismissed the order dated 4.6.2015 declared that the Registrar could not -have made such a statement in Court as the AGM was held on 11.6.2011 and the Bye-Laws as approved were notified on 7.1.2013. The Court also held that the members were aware of the approval if the model Bye-Laws yet never challenged it and it was when the elections were scheduled that the dispute arose again. Hence the appeal was allowed.
7. The petitioners are permanent members of the NFC Society who want representation in the management of the NFC Society. After the judgment cited at 2010 YLR 2497(supra) an AGM was called on 11.6.2011 where the model Bye-Laws were adopted and registered 7.1,2013. Admittedly this approval was never challenged yet the members kept agitating for implementation of the judgment dated 19.5.2010 passed in W.P. No, 2663/2010. The consistent challenge to various different orders by different members has in fact delayed the election process since 2015. It has also caused the NEC Society to be placed in the hands of a Caretaker. In reference to the petitioner's consistent agitation, this court held in ICA No, 818/2015 that:
9. It shall be out of place to mention here that in case judgment passed by this Court in 2010 was not implemented in letter and spirit, respondent No, 1 had multiple remedies to avail; he could either have filed a contempt petition before this Court or else could have filed an appeal under section 64 of the Act before the Government of Punjab assailing the amendment:
10. Despite of the fact that respondent No, 1 had alternate efficacious remedies available to him under the Law, which he did not opt to avail, therefore, in the light of judgments passed by the Hon'ble Supreme Court of Pakistan reported as Dr. Sher Afghan Niazi v. Ali S. Habib and others (2011 SCM R 1813) and Muhammad Abbasi v. S.H.O Bhara Kahu and 7 others(PLD 2010 SC 969) a writ petition could not be maintained.
11. In the attending circumstances Registrar had no mandate to undertake before this Court that he will implement the judgment dated 19.5.2010 passed by this Court in W.P. No, 2663/2010 as the requisite amendment in By-Laws was carried out/approved in the Annual General Meeting in 2011 and notified by D.D.C.O in 2013. The Registrar by way of giving such an undertaking has practically set aside the decision take by the members of the NFC in its Annual General Meeting and the notification issued thereupon, especially so when no proceedings are pending before him.
So far as the petitioner in W.P. No 25640/2017 is concerned, it is noted that any amendment to the Bye-Laws must be made before a full house meeting of the members in the, first instance. In this case the petitioner has not raised the issue before the full house of the NFC Society nor has he takes The matter to the Registrar Cooperative Societies. The entire thrust of the petitioner's case has been to seek a direction from this Court that rule 3(b) of the Model Election Rules be amended through a direction of this Court.
8. Under the circumstances, there is no reason for the Court to interface and direct for an amendment as the Bye-Laws and the Model Election Rules have been duly approved by the members of the NFC Society in the AGM and were duly registered by the DDCO on 7.1.2013. Any challenge to the Bye-Laws or its adoption by the members has to be made either before the members themselves or before the Registrar Cooperative Societies. Since different members have repeatedly raised the issue before this Court through various different writ petitions, the petitioners are now collectively agitating that they in fact have raised this issue before the Registrar as well as before the Secretary. The record shows that the issue whenever raised before the Registrar or the Secretary has always been last minute, just before the elections, consequent to which directions were given that the elections should be carried out and thereafter the matter can be taken up before the AGM. In ICA No, 818/15 a clear direction to this effect has been given. Hence the issue of following judgment cited at 2010 YLR 2497(supra) has been put to rest and the petitioners or the members of the NFC Society cannot repeatedly agitate this issue in one form or the other. The elections are scheduled for 21.5.2017 after which the new elected management committee can call for an AGM wherein the members can deliberate on the issue of amending Bye-Law No, 31(1) or the Election Rules.
9. Under the circumstances, no case for interference is made out. All the