BABAR SATTAR, J. This judgment shall decide the fore-titled writ petitions which have overlapping subject matter.
2. The petitioner is aggrieved by (i) notification issued by Registrar Cooperative Societies, ICT Islamabad dated 22.08.2022 ("impugned notification"), notifying the result of the election for the management committee of Federal Employees Cooperative Housing Society, Islamabad ("FECHS"), (ii) the appellate order passed in relation to the challenge to such notification by Deputy Registrar Cooperative ICT Islamabad dated 07.09.2022, and (iii) the orders in two revisions dated 07.09.2022 and 12.09.2022 filed before the Secretary Cooperatives against the notification of results and the Deputy Registrar's order (together with Deputy Registrar's order dated 07.09.2022, "impugned Orders").
3. The learned counsel for the petitioner stated that the election for the management committee of FECHS had been convened in breach of the provisions of the Islamabad Cooperative Societies Election Rules, 2019 ("Election Rules"). He stated that the person returned through the impugned notification as the President of FECHS had been incarcerated in relation to an FIR No.19 of 2022 due to an agreement between Messrs S.A Builders, of which he was a partner, and FECHS, dated 06.10.2022, in which S.A Builders undermined the interests of the society by causing it financial loss.
He stated that the President was not eligible to contest the election under Rule 3 of the Election Rules, and while another member of the suspended management committee, Mirza Muhammad Iqbal, was disqualified as a candidate, the petitioner was allowed to contest the election for the management committee. The election was convened on 21.08.2022 and the respondents were involved in fraudulent practices and polled fake votes. The petitioner filed a complaint on 22.08.2022 and an injunctive order was passed by the Deputy Registrar exercising powers of Registrar under Rule 34 of the Election Rules and the matter was next fixed for hearing on 25.08.2022. However, meanwhile, the Registrar without taking into account the injunctive order in the field, issued administrative directions to notify the result of the election and the impugned notification was issued on 22.08.2022. He stated that such notification was illegal in view of the injunctive order in field at the relevant time.
4. The petitioner then filed an appeal against the notification as well as the announcement of the result and by order dated 07.09.2022 the Deputy Registrar dismissed the petitioner's appeal while conceding all of the objections of the petitioner i.e. that the voting procedure prescribed under Rule 22(ii) was breached as the ballot papers were not stamped by the authorized members of the Election Commission, the requirements for counting votes under Rule 24(iv) was breached as votes not containing the signatures of the Election Commission or their authorized representatives were not declared as invalid, the result of the election was announced in breach of Rule 25, and the procedure prescribed for preserving the votes under Rule 27 was not followed. He stated that the consequence of such breaches was also provided within the Election Rules: the ballots which did not bear the signatures of the Election Commission could not have been counted while compiling the result of the election. He stated that the petitioner filed an application with the Deputy Registrar to summon the record to ascertain whether the requirement of Rule 27 of the Election Rules was complied with. And in response to such 61-application, it was advised by the ICT authorities that only the statement of result was available but not the record of preservation of ballets in accordance with Rule 27 of the Election Rules. He stated that the Deputy Registrar had wrongly concluded that the breach of provisions of the Election Rules was not material and upheld the impugned notification. The petitioner then filed a revision against the order of the Deputy Registrar dated 07.09,2022 before Secretary Cooperatives, who through a perfunctory order dated 12.09.2022 dismissed the revision without recording reasons or engaging with the objections of the petitioner raised in the appeal and the revision.
5. Mr. Abdul Wahid Qureshi, learned counsel for the petitioner in W.P No. 3952/2022 submitted that the Registrar who had directed that the results of election be notified despite an injunctive order having been issued by the Deputy Registrar was not duly authorized under provisions of the Cooperative Societies Act, 1925 ("Societies Act"). During the pendency of the instant petition a notification had been issued vesting authority in the Deputy Registrar by seeking to ratify his prior actions, which could not be done as a notification could only apply prospectively and not retrospectively. He submitted that a notification could only be regarded as having been duly issued if it were published in the official Gazette in view of section 20A of the General Clauses Act, 1897, and the notifications vesting authority in the Registrar and Deputy Registrar had not been so published. He cited case law for the proposition that delegated authority cannot be given retrospective effect. (The cases are not being cited here for the sake of brevity and economy given that the proposition is not contested, but is not relevant for the present proceedings as will be explained in the opinion that will follow). He submitted that ballot papers which were not stamped and signed could not be counted in view of requirements of Rules 22 and 24 of the Election Rules.
For this he relied on Mir Lashkari Raisani v. Qasim Khan Soori (2020 YLR 2031) and Feroze Ahmed Jamali v. Masroor Ahmed Khan (2016 SCMR 750). He further submitted that once an injunctive order had been passed by the Deputy Registrar in exercise of quasi-judicial authority, such exercise of authority could not be overridden by the Registrar in exercise of his administrative authority and any subsequent proceedings in breach of the injunctive order were liable to be set- aside. He relied on Syed Mohsin Naqvi v. Federal Land Commission (2010 YLR 3248), Muhammad Aslam Awan v. Federation of Pakistan (2014 SCMR 1289) and Lahore Electric Supply Company v.
National Electric Power Regulatory Authority (PLD 2018 Islamabad 20) to support this contention.
6. The learned State Counsel submitted that the fact that ballot papers were not stamped and signed by members of the Election Commission was an irregularity and not an illegality, and on such basis all the votes could not be discarded and members of the society who had duly participated in the election could not be disenfranchised. He further submitted that officials from the office of Circle Registrar had stamped the ballot papers with the stamp of the Cooperatives Department on the direction of members of the Election Commission, as they could not personally stamp and sign the vast number of ballot papers to be issued. The ballot papers had been duly issued under the authority of the Election Commission after having been stamped by officials of the Cooperatives Department and handed out to members of the society after due verification of the identity of such voting members. The Registrar during the appeal and the Secretary Cooperatives while hearing the revision concluded that the election results did not suffer from any illegality and that election was convened in a transparent manner. He submitted that on the date of the election no formal complaints were filed up until after the counting of the votes. It was only once the results emerged and it became clear that the petitioner was the losing candidate that objections by the petitioner were contrived. The Registrar in view of requirements of Rule 25 of the Election Rules came to the conclusion that he was under a statutory obligation to announce the result of the election, even if the result was disputed or was under challenge. Which is why despite the status quo order having been passed by the Deputy Registrar the result was announced in exercise of authority under section 25(1) of the Election Rules with the observation that recounting of the votes and the challenge to the acceptance of votes shall continue before the Deputy Registrar in exercise of his quasi-judicial powers. He submitted that it was after a recounting report was submitted to the Deputy Registrar that he rendered his decision in the appeal filed by the petitioner by order dated 07.09.2022. Consequent to the decision of the appeal the Secretary Cooperatives ICT dismissed the two revisions filed before her in relation to the election by orders dated 07.09.2022 and 12.09.2022, respectively. He submitted that the society had over twenty thousand members out of whom nine thousand were voter members, which is why the Election Commission concluded that it was not possible to physically sign each and every ballot paper, which was consistent with past practice. The previous management committee of the society was superseded on 01.06.2021 and an Administrator had been appointed and due to the litigation between contesting groups of members within the society, the election continued to be delayed and had finally been convened. He submitted that given that the litigation re FECHS election, fool proof security arrangements had been made by respondents Nos. 1 to 5 and the CCTV footage also reflected that the election was convened in a fair and transparent manner.
7. Learned counsel for the respondents (whose arguments are being summarized together due to their similarity and in the interest of economizing space) submitted that the case brought by the petitioners was that fake votes have been polled and counted in favour of the candidates who have been declared successful in the election. However, other than raising technical objections and pointing out irregularities on part of members of the Election Commission for not stamping and signing the ballot papers nothing had been brought on record to establish that any fake vote was either polled or counted. They submitted that there was a difference of over 250 votes between the winning and the losing candidates and merely because the Election' Commission had not complied with each and every requirement prescribed under the Election Rules, and had convened the election in accordance with past practice, members of the society ought not be disenfranchised. The freshly elected management committee had been elected by the majority vote of members of the society and should be given control of FECHS affairs. It was further submitted that it had been held by the august Supreme Court in Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore (PLD 1966 SC 1) that where law required that ballot papers should be stamped and signed so long as one of the requirements was satisfied the votes had to be counted. The proposition was reiterated in Zulfiqar Ali Ranjha v. Zia Ullah Ranjha(2018 SCMR 1036).
8. While various legal and factual arguments have been raised on behalf of the petitioner, the four basic issues flagged in the arguments are the following: (i) respondent No.6, who had been notified as President-elect, was not qualified to participate in the election and such disqualification could be taken note by this Court in its constitutional jurisdiction; (ii) the Registrar was not authorized to direct that the election result be notified in exercise of authority under section 25(i) of the Election Rules once the Deputy Registrar in exercise of his appellate authority under the Election Rules had issued an injunctive order in favour of the petitioner; (iii) the Deputy Registrar at the relevant time was also not vested with authority under section 4 of the Societies Act and had no authority to hear and dismiss the appeal by impugned order dated 07.09.2022, and (iv) Rule 22(ii) read with Rule 24(iv)(a) prescribed mandatory requirements under Election Rules and where the ballot papers was not stamped and signed by the authorized member of the Election Commission the ballot could not be counted as a valid vote and all the votes counted in the election were therefore liable to be declared invalid as all of them had been stamped by a stamp of the Cooperatives Department and none of them had been signed by any member of the Election Commission.
9. The first three questions do not raise any challenge to the legality and transparency of the election of FECHS. These are ancillary questions that do not impinge on whether or not election was convened in a fair and transparent manner by respondents Nos. 1 to 5. The question of eligibility of respondent No.6 or any other member-elect of the management committee of the society cannot be raised in these proceedings as the challenge was not brought forth by the petitioner at the relevant stage during the scrutiny of nomination papers of candidates. Rule 3 provides for the qualification and disqualification of candidates contesting elections of societies. Rule 13 provides for scrutiny and withdrawal of nomination papers and Rule 13(vi) provides that an appeal against rejection or acceptance of the nomination papers by the election commission is to be filed pursuant to rule 32 of the Election Rules within a period of 5-days of the acceptance or rejection of nomination papers, The petitioner had the opportunity to challenge the acceptance of nomination papers of respondent No.6, which was not done. The proceedings from which the instant petition has emerged impugned the honesty and transparency of the election and not the qualification of respondent No.6, and such challenge, which requires determination of a factual controversy, cannot be adjudicated by this Court in its constitutional jurisdiction when the petitioner has not availed the remedies of appeal and revision available under the Election Rules.
10. The second and third question are also not germane to the manner in which the election was convened or the outcome of such election. It has been argued by the petitioners that respondent No.3 passed a status quo order on 22.08.2022 while exercising quasi-judicial authority and respondent No.5 in exercise of his administrative authority directed that the result of the election be notified pursuant to section 25(1) of the Election Rules. The petitioner had filed a revision petition against notification dated 22.08.2022 under Rule 33 of the Election Rules and Secretary Cooperatives by order dated 23.08.2022 had suspended the operation of the impugned notification. Subsequently, on 29.08.2022 recounting of votes was conducted and after receipt of the recounting report respondent No.3 dismissed the appeal against the election outcome by order dated 07.09.2022. As the notification announcing the result of the election was suspended by the Secretary Cooperatives and the status quo order dated 22.08.2022 eventually merged in the appeal's order dated 29.08.2022, the petitioner suffered no injury due to the administrative decision of respondent No.5 to have the impugned notification issued on 22.08.2022. Consequently, any breach of the status quo order needs no further discussion as notwithstanding the issuance of the impugned notification, it has not been given effect till date.
11. The argument of the learned counsel for the petitioner with regard to delegation of authority to Mr. Kamran Ali Cheema as Deputy Registrar is also not germane to the controversy at hand.
Respondents Nos. 1 to 5 placed on record various notifications issued by the Chief Commissioner ICT in exercise of his authority under section 4 of the Societies Act read together with Article 2 of the Islamabad Capital Territory (Administration) Order, 1980, delegating authority to the Registrar and Sub-Registrars. It appears that at various times the office of the Chief Commissioner had delegated authority to a certain office within the hierarchy of the office of the Chief Commissioner ICT (such as Deputy Commissioner or Director or Secretary Islamabad Transport Authority etc.) and at other times the delegation was made to an office-holder within the hierarchy of the office of the Chief Commissioner by name. It appears that as a matter of practice the office of the Chief Commissioner has not paid diligent attention to the manner in which the Registrar, and the appellate and revisional authorities appointed under the Societies Act have been delegated authority or have been exercising authority. When the manner of delegation of authority in the offices of the Register and Deputy Registers was brought to the attention of respondent No.1 during the proceedings, the Chief Commissioner ICT issued a notification dated 14.11.2022 clarifying the powers that had been delegated to the office of the Deputy Registrar Judicial and the Deputy Registrar (Judicial and Admin) and clarified that all powers exercised and action taken by Mr. Kamran Ali Cheema, Deputy Registrar (Judicial and Admin) were recognized to have been validly taken by him. Learned counsel for the petitioner argued that such notification could not cure any defect in the decisions rendered and actions taken the Deputy Registrar prior to the date of issuance of such notification. This Court need not engage with such argument as the challenge brought before this Court is with regard to the legality and transparency of the election of FECHS.
The petitioner's claim relates to breach of provisions of the Election Rules by members of the Election Commission and not by the Deputy Registrar. If this Court comes to the conclusion that respondent No.3 was not authorized to exercise his powers as Deputy Registrar prior to 14.11.2022, the only consequence would be a finding that he was not authorized to decide the appeal filed by the petitioner. Such finding would not affect the result of the election as endorsed by the Election Commission, which was subsequently notified by the Registrar pursuant to section 25(i) of the Election Rules. Consequently, the question of delegation of authority to the Deputy Registrar is not relevant in the present context.
12. The only relevant question is whether mandatory requirements of the Election Rules were violated by the Election Commission in a manner that the result approved by the Election Commission is liable to be declared void and a fresh election is to be ordered. In view of the history of litigation between contesting candidates of FECHS (at least two rounds of which resulted in filing of petitions before this Court as well) in the backdrop of FECHS being managed by an Administrator for a year and a half, this Court had directed the Deputy Commissioner ICT in his capacity as Registrar of Societies and Director General ICT Administration in his capacity as Secretary Cooperatives, to appear before the Court and satisfy the Court that the authority of such offices had not been exercised in a colorable manner. The Registrar ICT explained that he was aware of the status quo order dated 22.08.2022 issued by the Deputy Registrar as appellate authority, but he was under the impression that he had a statutory obligation to declare result of the election one day after the date of polling. And thus on receipt of the result from the Election Commission he directed that the election result be notified pursuant to rule 25(i) of the Election Rules, while also noting that such result would remain subject to recounting and the challenge brought by the petitioner while availing the remedy of appeal under Rule 32 of the Election Rules. The Secretary Cooperatives also appeared in person on 04.11.2022 and was directed to peruse CCTV footage of the election in the presence of representatives of the contesting parties and file a report before the Court. On 17.11.2022 the Secretary Cooperatives filed a sealed report which was opened in open court and was made a part of Court record. Secretary Cooperatives submitted in his report that CCTV footage of up to two hours was viewed by him along with representatives of the contesting parties. The footage did not reflect stamps being embossed on ballot papers or the ballot papers being signed by the members of the Election Commission. But the CCTV footage revealed that ballot papers were being issued to voters after confirming their identification and obtaining their signatures and thumb impressions and no malpractice was observed at any of the polling stations.
The report also reflected that the sealed record of the used and unused ballot papers and stamps etc. was available and the representatives of the contesting parties had agreed to have such record de-sealed before the Court, if need be. The report counters the basic allegation of the petitioner that fake votes were cast during the FECHS election rendering the result untrustworthy.
13. The impugned order notes that the ballot papers issued to members of the society for purpose of election had the stamps of the Cooperative Department embossed on them. As the Election Commission was being assisted by employees of the Cooperative Department such stamps had been embossed on the instruction of the Election Commission. The petitioner had alleged that some of the stamps embossed on the ballot papers were different from others. The Election Commission had taken note of such concern and found that the rubber seal of one of the stamps had been worn out, which is why the mark created by such stamp was slightly different from the marks from other stamps. However, such worn out stamp seal was also within the possession of officials of the Cooperative Department who had been using such stamp under the supervision of the Election Commission, and consequently the petitioner's contention that difference between stamps suggested polling of fake votes was misconceived. What emerges from above is that the election for the management committee of FECHS was convened under foolproof security. There is no evidence that any individuals who were not members of the society were allowed into polling booths to stuff votes not duly issued under the authority of the Election Commission. The CCTV footage confirms that ballot papers were only issued to the members of the society after verifying their identity and credentials. The total numbers of votes polled were not in excess of the total numbers of ballot papers issued, which reaffirms that no fake ballot papers were issued to anyone during the election.
14. The only argument that remains to be addressed is one of law. Rule 22(ii) read together with Rule 24(iv)(a) required that ballot papers must be stamped and signed by members of Election Commission. As none of the ballot papers used in the election were signed by the members of the Election Commission, are all votes polled liable to be declared void resulting in reelection. This Court is not convinced that all of the ballot papers that had issued to members of the society after duly verifying the identification of such members should be declared invalid because members of the Election Commission did not emboss them with their own seal and did not sign the ballot papers as was required. The previous management committee of FECHS was superseded on 26.01.2021 and FECHS has been under the management of an officer from the office of the Chief Commissioner ICT appointed as administrator. No one has raised any objection with regard to the composition of Election Commission. It is also admitted that employees from the office of Cooperative Department were assisting the members of. the Election Commission. This is why the stamp of the Cooperative Department was used on the ballot papers to verify that the same had been duly issued under the authority of the Election Commission. Merely because the stamp embossed on all ballot papers was that of the Cooperative Department and not a custom-made stamp of the Election Commission doesn't inject any illegality into the election process. The stamping requirement is meant to confirm that the ballot paper being used was issued under the authority of the Election Commission. And such requirement was satisfied where all the ballot papers were stamped using the Cooperative Department seal.
15. Let us now consider the consequence of members of the Election Commission not having signed the ballot papers. The Election Rules are not the only legal instrument that requires that ballot papers be stamped and signed by conveners of the election. The National and Provincial Assemblies (Elections) Act, 1964, imposes such obligation under section 36(1)(b)(i). The requirement was not complied with during an election and a challenge to such election came before the august Supreme Court in Mian Jamal Shah v. The Member Election Commission Government of Pakistan, Lahore (PLD 1966 SC 1). A five-member bench of the august Supreme Court dismissed the challenge on the basis that "an error in this respect is totally outside the obligation of the elector, and the law could not intend that he should be penalised for it. It is the duty of the Presiding Officer, under section 32, before he hands a ballot paper over to the voter, to, apply the official mark to it, and at the same time, to place his initials on it. There is ground therefore for thinking that the existence of the official mark is by itself sufficient to show that the paper passed through this process at the hands of the Presiding Officer, and it was mere act of inadvertence on this part that he failed to initial it at the same time. These considerations are relevant for the decision of the question of construction, viz., whether the conjunction "or as used in the expression "no, official mark or initials" appearing in section 36(1)(b)(i) enjoining exclusion of the vote by the Presiding Officer and section 38(2)(a) enjoining rejection by the Returning Officer was not to be understood in a conjunctive, rather than in a disjunctive sense."
16. A similar question came before the august Supreme Court more recently in relation to an election convened under the Punjab Local Governments (Conduct of Elections) Rules, 2013, wherein Rule 35(4)(c)(i) required that for a vote to be deemed valid it ought to have an official mark and signature of the Presiding Officer. The official mark and the signature of the Presiding Officer were not both affixed available on the votes counted in such case. The matter came before the august Supreme Court in Zulfiqar Ali Ranjha v. Zia Ullah Ranjha (2018 SCMR 1036) wherein the following was held: Election laws are meant to prevent illegal and corrupt practices in an election process. Any omission on the part of the election officials in the enforcement of a rule which has nothing to do with the contesting candidate or the voters and such omission does not lead to form an opinion that bogus voting may have taken place then one cannot assume that object of sub-rule 4 of Rule 35 would be defeated if 207 validly cast votes are treated as valid and counted. On the contrary the said object would stand fully achieved, notwithstanding the omission of one of the two requirements of sub-rule 4 of Rule 35. When one of the two requirements have been fulfilled establishing that the disputed 207 ballot papers were issued to genuine voters of the constituency then there appears to be no reason to exclude them from the vote-count merely because one of the two requirements of sub-rule 4 of Rule 35 was not fulfilled by seeking strict compliance of both the requirements simultaneously. The object of sub-rule 4 of Rule 35 of Punjab Local Governments (Conduct of Elections) Rules, 2013 is to exclude bogus and not genuine vote from the vote count. In the light of specific facts and figures of this case discussed above, exclusion of 207 votes would amount to excluding genuinely cast 207 votes from the count, which in the circumstances of the case would amount to disenfranchising 207 genuine voters. A five member bench of this Court in the case of Jamal Shah supra has held that omission on the part of the presiding officer to sign ballot papers is totally outside the obligation of the voters and for that they cannot be penalized by excluding their votes which were nevertheless duly stamped with the official mark.
17. The requirement as prescribed in section 36(1)(b) of the National and Provincial Assemblies (Elections) Act, 1964, and the requirement prescribed in Rule 35(4)(c)(i) of the Punjab Local Governments (Conduct of Elections) Act, 2013, is par materia to the requirements imposed by Rules 22(ii) and 24(iv)(a) of the Election Rules. The law laid down by the august Supreme Court in Mian Jamal Shah and reiterated in Zulfiqar Ali Ranjha is therefore squarely applicable in the matter at hand. The august Supreme Court has held that a deficiency on part of election authorities in stamping and signing the ballot papers cannot be allowed to become a cause for disenfranchising the electorate and throwing out otherwise validly polled votes, where it has otherwise been found that ballot papers were issued by election authorities to properly identified voters and the votes counted were not bogus. In the instant case CCTV footage has confirmed that the election was conducted in a peaceful and transparent manner and such footage contradicts the allegation that Take votes were polled or ballot papers were issued without confirming the identity of voters. The result itself reflects that there is a difference of over 250 votes between the losing candidates and the winning candidates in an election where the overall votes polled were approximately three thousand. Likewise, the number of ballot papers issued were not less than number of votes polled and counted, leading to a conclusion that no fake votes were polled and the only votes polled and counted were based on ballot papers issued under the supervision of the Election Commission. In these circumstances, this Court finds that the challenge to the fairness and transparency of the FECHS election is without merit. Where a candidate loses an election on the basis of votes duly polled and counted, he/she cannot have the result undone through a victory in a court of law.
18. For the aforementioned reasons, this Court finds that the petition is without merit and is liable to be dismissed with a cost of Rs.360,000/- payable by the petitioner in the amount of Rs. 20,000 to each of the respondents (given that the petitioner and the respondents in both the petitions are identical).
19. During the hearing of the petition this Court has also observed that the office of the Chief Commissioner has not paid due attention to the manner in which the office of the Registrar is to be organized for it to function as an efficient and effective regulator to discharge its obligations under the Cooperative Societies Act, 1925. It appears that the officers within the hierarchy of the Chief Commissioner's Office, such as Deputy Commissioner and Director General ICT Administration etc. continue to be granted additional charge of the offices of the Registrar and Secretary Cooperatives, when such offices are full-time positions and require incumbents who were focused on nothing other than discharging the duties of such offices. The Court has also observed that those vested with the authority of Deputy Registrar, Registrar and Secretary Cooperatives are neither properly delegated authority pursuant to notifications that are published in the official Gazette enabling the societies regulated by the office of the Registrar to become aware of which officer is vested with what authority. And further such officers also appear oblivious to the manner in which adjudicatory authority is to be exercised to enable aggrieved parties to avail remedies of appeal and revision provided under the rules framed in exercise of authority under the Cooperative Societies Act, 1925. The consequences are that societies, as body corporates, are functioning without effective supervision, which not only inflicts losses on members of the society while allowing management committees to misuse their authority, but also create disputes due to ineffective regulation the adjudication of which consumes public resources. Revisiting the organogram of the office of the Registrar and putting in place fulltime trained staff with duly delegated and notified authority for continuing regulation of societies and for overseeing elections of societies in 1CT should be no rocket-science. Let a copy of this order be sent to Chief Commissioner ICT so he can ensure that societies functioning in the ICT are afforded a fair and effective regulator.