SAMAN RAFAT IMTIAZ, J. Through this Judgment we intend to decide the instant appeal as well as connected appeal i.e. I.C.A. No.353 of 2020 as both appeals have been filed by the same Appellant and common questions of law and facts are involved.
Facts in I.C.A. No.352/2020.
2. The Appellant has assailed the Order dated 03.11.2020 ("Impugned Order- I") passed by the learned Single Judge-in-Chambers whereby Writ Petition No.215/2020 filed by the Appellant was dismissed.
3. The facts constituting the background of the said Writ Petition are that the Appellant is a member of the Respondent No.4 i.e., Multi Professional Cooperative Housing Society (MPCHS), which is registered under the Cooperative Societies Act, 1925. According to the Memo of Petition filed in the said petition, the elections of the Managing Committee of the Respondent No. 4 were required to be conducted in accordance with the Islamabad Capital Territory Cooperative Societies (Managing Committee Election) Rules, 2014 (" Election Rules, 2014 ").
4. The Appellant filed the Writ Petition No.215/2020 in January, 2020 alleging various illegalities and violations of the Election Rules, 2014 in the election process due to be held on 01.02.2020 and as such prayed for, inter alia, a declaration that the entire election was illegal; direction to Respondents No. 1 to 3 (Circle Registrar , ICT Cooperative Societies Department; Election Commissioner MPCHS; and Registrar , ICT Cooperative Societies Department, respectively) not to proceed with the elections on 01.02.2020; and to hold the elections of the Respondent No.4 Society afresh in accordance with the Election Rules.
5. On 03.11.2020 the learned Single Bench dismissed the Appellant' s writ petition vide the Impugned Order-I on the ground that the election had been conducted and that the Petitioner had an alternate remedy to voice his grievance before the Election Commission. Hence, the instant appeal.
Facts in I.C.A. No.353/2020.
6. The Appellant has assailed the Order dated 26.10.2020 ("Impugned Order- II") passed by the learned Single Judge-in-Chambers whereby W rit Petition No.362/2020 filed by the Appellant was dismissed.
7. The facts constituting the background of the said Writ Petition are that elections of the Respondent No. 4 could not be held on 01.02.2020 due to lack of quorum as required under Rule 10 of the Election Rules, 2014 and therefore were rescheduled to be held on 11.02.2020 and a public notice was issued in this regard by the Respondent No. 2 on 02.02.2020.
8. On 03.02.2020, the Petitioner filed an Application for issuance of fresh election schedule with the Respondent No.2 to give effect to Rule 6(iii) of the Election Rules, 2014 but the same was not responded to by the said Respondent.
9. Consequently , the Appellant filed Writ Petition No.362/2020 praying, inter alia, for quashing of the publication dated 02.02.2020 announcing the new election on 11.02.2020; direction to Respon dents No. 1 to (Circle Registrar , ICT Cooperative Societies Department; Election Commissioner MPCHS; and Registrar , ICT Cooperative Societies Department, respectively) not to proceed with the re-poll scheduled on 11.02.2020 and to hold re-election instead of re-poll on 1 1.02.2020 in accordance with Election Rules.
10. This Court while issuing notice in the said writ petition passed an Order dated 06.02.2020 wherein the Respondent No.2 was directed to decide the Appellant' s application dated 03.02.2020 forthwith by affording an opportunity of hearing to the Appellant. Subsequently on 26.10.2020 the said Writ Petition was dismissed as having become infructuous on account of the fact that Respondent No.2, in compliance of the aforementioned Order dated 06.02.2020, had already decided the Appellant' s application dated 01.02.2020 vide its Order dated 07.02.2020, which was termed as an appeal order by the learned counsel for the Respondent No. 1.
11. Learned counsel for the Appellant, inter alia, contended that the Impugned Orders are against the law and facts of the case as the Court failed to take into consideration that the subject matter of the case was not amenable to the jurisdiction of the Election Commission (Respondent No. 2); that on account of the violations of law, as enunciated in the case of Zia Ullah Shah Vs. Muhammad Khaqan, 2018 MLD 1869, the process adopted was absolutely illegal; that the violations committed by the Respondent No.3 are manifold; that the irregularities in the election process are not erased from the record; that the Single Bench had taken cognizance of the challenge to the election process and had issued directions for filing of comments and production of voter list and all necessary material for the fair conduct of the elections however the learned Single Bench did not consider its earlier order while passing the Impugned Orders; that the remedy of appeal being illusory was not appropriate remedy in view of the fact that the right of appeal has not been created by the Statute i.e. Cooperative Societies Act, 1925; that the right of appeal is a substantive right to be created and regulated by an Act of Parliament which must also vest jurisdiction in the appellate forum; that this being the situation, the remedy of appeal created through unauthorized rules was not a remedy at all; and that the Impugned Orders are completely oblivious to these factors.
12. On the other hand, learned counsel for the Respondents supported the Impugned Orders as lawful and justified. However , as a preliminary matter , the learned counsel objected to the maintainability of the instant Intra Court Appeals in view of the proviso contained in Section 3(2) of the Law Reforms Ordinance, 1972. The learned counsel relied upon the case National Electric Power Regulatory Authority , Islamabad Vs. Gujranwala Energy Pvt. Ltd, 2020 CLC 173 for the said proposition.
13. In response to the said objection, the learned counsel for the Appellants submitted that the Rules providing the right of appeal are ultra vires. He argued that under Section 71 of the Cooperat ive Societies Act 1925, it is the provincial government that may make rules to carry out the purposes of the said Act whereas the Election Rules, 2014 were made by the Chief Commissioner , ICT. He referred to the definition of "Provincial Government" as provided in the General Clauses Act to argue that the Chief Commissioner , ICT, is not the Provincial Government.
In view thereof he contended that since the Election Rules, 2013 are ultra vires it is inconsequential that the same provides for an appeal for purposes of Section 3(2) of the Law Reforms Ordinance, 1972 and the bar contained therein could not be attracted.
14. Arguments advanced by learned counsel for the parties have been heard and documents placed on record examined with their able assistance.
15. The preliminary issue that arises is whether the instant ICA can be held not maintainable pursuant to the proviso to Section 3(2) of the Law Reforms Ordinance, 1972 if the said Election Rules, 2014 which provide for an appeal are not validly made.
16. While the learned counsel for the Appellant challenged the vires of the Election Rules, 2014, the learned counsel for the Respondents drew our attention to the prayer clauses of the Appellant in his Writ Petitions whereby he prayed for fresh elections to be held in accordance with the Election Rules, 2014. They argued that the Appellant was seeking to take advantage of the Rules which he is now challenging. Conversely the learned counsel for the Appellant submitted that they received copy of the said Rules for the first time in January , 2021.
17. Be that as it may, the bottom line is that this Court cannot consider the vires of Rules in an Intra Court Appeal when the vires of such Rules have not been challenged by the Appellant in the Writ Petition from which the instant ICA arises
18. In any event, there is a more basic condition contained in the proviso to Section 3(2) of the Law Reforms Ordinance, 1972, which ought to be considered first in deciding the maintainability of the instant Petition for which purpose, Section 3(2) of Law Reforms Ordinance, 1972 is reproduced hereunder: "3. Appeal to High Court in certain cases. --(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub-paragraph (i) of paragraph (b) of that clause:--- Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least on appeal or one revision or one review to any court, tribunal or authority against the original order" [Emphasis added].
19. As may be seen from the above, in order for an appeal not to be available or competent under the proviso to Section 3(2) of Law Reforms Ordinance, 1972, the application under Article 199 of the Constitution must arise out of "proceedings" as described in the said proviso. Therefore, the fundamental question that arises in order to decide the maintainability of the instant appeals is whether the underlying writ petitions arise out of "proceedings" as referred to in the proviso to Section 3(2) of Law Reforms Ordinance, 1972.
20. The term "proceedings" as used in the said proviso was considered in the case of Mst. Karim Bibi Vs. Hussain Bakhsh, PLD 1984 SC 344 . Relevant portion is reproduced hereunder: "The term `proceedings' is a very comprehensive term, and, gene rally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A `proceeding' would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective, to be achieved, say for instance the judgment in a pending suit. The proceeding, commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible -steps in the action under the law , from its commencement to the execution of the judgment."
21. In light of such meaning, it is noted that in the instant case, no prescribed course of action had been undertaken or judicial action invoked nor any step had been taken toward the progress of any cause in any Court or tribunal which gave rise to the filing of the writ petitions from which the instant appeals arise. Rather the grievance of the Appellant in W.P. No.215/2020 pertained to the alleged violations of the Election Rules, 2014 in the process of the elections of Respondent No.4 to be held on 01.02.2020 and in W.P. No.362/2020 in respect of the act of publication dated 02-02-2020 for re-poll on 1 1.02.2020.
22. A similar question was dealt with by a learned Division Bench of the Honorable Lahore High Court in the case of State Life Insurance Employees Cooperative Housing Society Vs. Nemat Ali Nagra, 2020 CLC 1005 as follows: "7. The moot question is that whether application brought before the High Court, in terms of Constitutional petition bearing W.P. No.241634/2018, has arisen out of any proceeding, wherein applicable law provides for a remedy by way of appeal, review or revision against the original order. In all probability the relevant enactment is Punjab Co-operatives Societies Act 1925 (Act, 1925) and remedies of appeal and revision were provided against various orders passed in various kinds of proceedings. Now, pivotal issue is that whether proceedings of any kind were initiated by any of the parties, out of which application has arisen to High Court? No reference was made by the counsels to any proceedings pending, let alone initiated, under the provisions of Act, 1925. In the instant case the matter, at first instance, was brought before the High Court, not in the exercise of its original civil jurisdiction but constitutional jurisdiction of an original kind, as opined by their Lordships of the Supreme Court of Pakistan in the case of 'Ahmad Khan v. Chief Justice and Judges of the High Court of West Pakistan' (PLD 1968 SC 171). At that point in time neither was any proceeding commenced nor any original order in field. The existence of some proceedings and original order therein are critical for determining the question of availability and competency of appeal under subsection (2) of section 3 of Ordinance, 1972. The expression "arises out of the proceedings" as employed in subsection (2) of section 3 of Ordinance, 1972 envisages commencement or existence of some form of proceedings, out of which application / petition has arisen." {Emphasis added].
23. Taking guidance from the aforementio ned cases, we find that no "proceedings" were in existence giving rise to the application to the High Court under Article 199 of the Constitution which led to the instant Intra Court appeals.
That being the position, we are of the opinion that the objection to the maintainability of the instant appeals is without substance.
24. On merits, admittedly the elections which were scheduled for 01.02.2020 and which were challenged in W.P.
No.215/2020 were in fact not held due to lack of quorum. On the other hand the re-poll scheduled for 11.02.2020 which was challenged by the Appellant in W.P. No.362/2020 has already been held. As such the reliefs claimed by the Appellant for restraining Respondents No.1 to 3 from proceeding further with the elections on 01.02.2020 and for re-poll scheduled on 11.02.2020 and for holding fresh elections are no longer available. Therefore, the Impugned Orders passed by the learned Single Judge-in-Chambers dismissing the appeals as having become infructuous do not suf fer from any illegality or infirmity which would warrant interference by this Court.
25. Even otherwise it is noted that an alternate remedy was available to the Appellant under Section 54(d) of the Cooperative Societies Act, 1925 which provides for arbitration in case of any dispute touching the business of the society arising between the society or its committee, and, any past or present member of the Society. We rely upon the cases of Zia Ullah Shah Vs. Muhammad Khaqan, 2018 MLD 1869, Dhunjishah B. Ghadialy Vs. Karachi Parsi Cooperative Housing Society Ltd., 2004 CLC 587, and Sindh Baluchistan Provincial Co- Operative Bank Limited, Karachi Vs. Dilawar Khan, PLD 1970 (Karachi) 200, and Mian Mubarak Din Vs. Registrar, Co-Operative Society, PLD 1957 Lahore 1013 wherein it has been held by various High Courts of the country that the election process relates directly to the business of a cooperative society. As such, disputes pertaining to the elections of a cooperative society may be referred under the Cooperative Societies Act, 1925 to the Registrar for decision by himself or his nominee or arbitration of three arbitrators including the Registrar or his nominee and two persons to be nominated by each of the concerned parties. Therefore, the Writ Petitions filed by the Appellant were in any event not maintainable in view of the availability of an adequate, alternate remedy.
26. In light of the foregoing, the instant Intra Court Appeals are not maintainable and are even otherwise devoid of merit, hence the same are, hereby, dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.