AAMER FAROOQ, J. This judgment shall decide instant writ petition as well as W.P. No.3581-2020 and Crl. Org. No.20-2022, as common questions are involved.
2. In W.P. No.2406-2020, the petitioners are Members of Pakistan Atomic Energy Commission Employees Cooperative Housing Society (the Society) and are aggrieved of inaction on part of Cooperative Societies Department (respondent No.1) regarding failure to notify the Election Commission in accordance with relevant rules; they also seek direction to hold the elections immediately. The petitioners also seek direction to the Administrator to manage the affairs of the Society and ensure the progress and development work in order to protect their rights. In W.P.
No.3581-2020, the petitioners were originally Muhammad Ismail Awan and Syed Muhammad Ayub Shah, whereas the former withdrew the petition on 10.05.2022; the referred petitioners seek to challenge the holding of elections of the Society in violation of Rule 9 of the Islamabad Capital Territory Cooperative Societies (Managing Committee Election) Rules, 2014 (the Rules), as the requirement for membership slips as well as CNIC, was dispensed with.
3. Mr. Abu Zar Salman Niazi, Advocate, appearing on behalf of petitioners in both the petitions, inter alia contended that elections were required to be conducted in accordance with the Rules. In this behalf, it was contended that needful has been done without complying with Rule 9 of the Rules.
Learned counsel took the Court through various aspects of the matter and submitted that after expiry of the term of Management Committee on 03.04.2019, elections for the referred positions, were not announced immediately but the Administrator was appointed, who has stopped the development work. It was contended that election schedule was specifically announced and elections were to take place on 18.08.2019 but the elections were delayed and the matter came up before this Court in W.P. No.2406-2020 and on 01.10.2020, a direction was made to hold the elections in accordance with law. It was contended that since the elections have been held but the writ petition was not disposed of on the basis of doctrine of 'continuous mandamus. In support of his contentions, learned counsel placed reliance on cases reported as Muhammad Suleman v.
Station House Officer and others (PLD 2020 Lahore 534), Muhammad Tahir Jamal Advocate v.
Government of the Punjab and others (PLD 2020 Lahore 407). It was further contended that elections were held on 08.11.2020 and respondent No.4 was the Election Commissioner and respondents Nos. 7 and 8 as Members; the elections were rescheduled due to lack of quorum which were challenged before the Deputy Registrar who passed the order on 20.11.2020, which is the subject matter in W.P. No.3581-2020. It was submitted that conditions for original allotment letter were declared not to be mandatory and only CNIC and any proof of membership was held to be sufficient. Learned counsel pointed out that elections were conducted thereafter. Learned counsel pointed out that since the order passed in W.P. No.3581-2020 is based on mala fide and is against the law, hence petition is maintainable and other availability of the alternate remedy, as such, is not an impediment to the maintainability of the petition. Reliance was placed on case reported as The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 Supreme Court 279). Learned counsel further added that since a direction was made to hold elections in accordance with law and the writ petition was kept pending, it has not become infructuous and same is in the nature of 'continuing, mandamus'. It was submitted that constitution of Election Commission and holding of elections are in violation of Rules 6 and 9 of the Rules inasmuch as the mandatory Rule, for showing proof of ownership of membership slip and CNIC, could not have been dispensed with. Reliance was placed on cases reported as 'Master Said v. Ch. Iftikhar Hussain, District Judge, Jhang and others (2002 CLC 54) and Commissioner of Income Tax and others v. Mubashar Sheikh, City Towers (2017 PTD 795).
4. Learned counsel for respondent No.11 inter alia contended that W.P. No.3581-2020 is not maintainable inasmuch as against the order passed by the Deputy Commissioner, revision petition was filed and was withdrawn during pendency of writ petition. It was submitted that even- otherwise, W.P. No.2406-2020 has become infructuous. In so far merits of the case are concerned, learned counsel pointed out that rules and regulations have been duly complied with inasmuch as in the facts and circumstances, substantial compliance of Rule 9 ibid was made and elections were ordered to be held in compliance thereof. It was submitted that elections have been held and no report, as such, has been made in respect of any malpractice and even notification has been issued on 18.03.2022.
5. During course of proceedings, various applications were filed to become party to the proceedings in which the applicants were duly heard.
6. Arguments advanced by learned counsel for the parties have been heard and the documents, placed on record, examined with their able assistance.
7. The controversy raised in the petitions in hand, has been spelt out hereinabove.
8. The petitioners are basically aggrieved of holding of elections in violation of Rule 9 of the Rules and constitution of Election Commission.
9. Since at the very outset, an objection regarding maintainability of W.P. No.3581-2020 was raised and it seems that same is dispositive, hence it is taken up for consideration first.
10. Learned counsel for respondent No.11 pointed out that alternate and adequate remedy was availed by the petitioners but the referred petition was withdrawn. In this behalf, it was pointed out that under Rule 16 and section 64-A of the Cooperative Societies Act, 1925, an alternate and adequate remedy is provided, which is held to be sufficient in light of judgment reported as Zia Ullah Shah v. Muhammad Khaqan and others (2018 MLD 1869); reference was also made to cases reported as Sheikh Rashid Ahmed v. D.M. Rawalpindi and others (PLJ 2004 Lah. 1221 (FB)j, Khalid Mehmood v. Collector of Customs (1999 SCMR 1881), Syed Match Company Limited v. Authority under the Payment of Wages Act and others (2003 SCMR 1493) and Farzand Raza Naqvi v.
Muhammad Din and others (2004 SCMR 400). Learned counsel for the petitioners does not controvert the factual position that a revision petition was filed against the order impugned in W.P.
No.3581-2020 but was subsequently withdrawn. In this behalf, through C.M. No.1653-2022, relevant documents were placed including the one of withdrawal of revision. The withdrawal was made after writ petition had been filed and entertained by this Court. The rationale and reason for doing of the same is not understandable. In this behalf, section 64-A of the Cooperative Societies Act, 1925 does provide for the revisional powers of the Provincial Government or the Registrar, as the case may be. There does not seem to be an impediment for continuing of the same, as the points agitated in the revision application, were quite the same as in instant petition. Learned counsel for the petitioners in defence of action of the petitioners, has contended that where the order is without lawful authority or is without jurisdiction and based on mala fide, availability of the remedy is inconsequential. The submission of learned counsel does have some substance as wherever appropriate, if the order is without jurisdiction or patently illegal, a petition under Article 199 of the Constitution would be maintainable, but since remedy was availed in the instant matter mere assertion that writ is a more appropriate remedy, is not really a plausible argument in the facts and circumstances, especially when, revisional authority had all the powers to set aside decision dated 20.11.2020 passed by the Deputy Commissioner.
11. In so far as W.P. No.2406-2020 is concerned, learned counsel for the petitioners contends that matter is still alive and direction to hold elections in accordance with law tantamount to 'continuing mandamus' that is to supervise the state of affairs; reference was made to cases reported as Muhammad Suleman v. Station House Officer and others (PLD 2020 Lahore 534) and Muhammad Tahir Jamal Advocate v. Government of the Punjab and others (PLD 2020 Lahore 407). The grievance in W.P. No.2406-2020 was only to the extent of direction to hold elections and direct the Administrator to conduct development work. The elections have taken place and even the result has been notified on 18.03.2022, hence the prayer has borne fruit. This Court cannot transpose the prayer made in W.P. No.3581-2020 to this Writ Petition to rectify the mistake made by the petitioners of filing revision petition against order dated 20.11.2020; both the writ petitions are independent of each other. The objections regarding conduct of elections, if any, were to be taken before the appropriate forum under the Cooperative Societies Act, 1925 and even the Rules provide remedies for any orders passed by the Cooperative Societies regime while conducting elections and this Court, in its jurisdiction under Article 199 of the Constitution, cannot assume the role, especially when, the remedies have already been availed and withdrawn. The concept of 'continuing mandamus', as such, would not be applicable in the present case as has been propounded in the judgment mentioned hereinabove
12. For the above reasons, W.P. No.2406-2020 is disposed of as having become infructuous and W.P.
No.3581-2020 is dismissed. Since W.P. No.3581-2020 is being decided on the question of maintainability, hence no finding on merits is required to be rendered. All pending applications are accordingly disposed of.
13. Since Writ Petition No.3581-2020, out of which Crl. Org. No.20-2022 arose; stands decided, contempt petition has become infructuous and is accordingly disposed of. 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.