The instant Constitutional petition has been instituted by the Managing Committee of the Revenue Employees Cooperative Housing Society, Rawalpindi to call in question the order, dated 12-10-2000 passed by the Secretary Cooperative Societies, Government of the Punjab, Lahore, whereby he has refused to grant interim relief to the petitioner Committee against the election scheduled to be held on 29-10-2000 for electing office-bearers/members of the Managing Committee of the aforesaid Society. The facts forming background of the order passed by respondent No. 1, Secretary, Cooperatives, Government of the Punjab, Lahore are that the Deputy Registrar, Cooperative Societies, R9walpindi, made a report on 26-6-2000 to the Registrar, Cooperative Societies, Lahore, that the Managing Committee of the Revenue Employees Cooperative Housing Society, Rawalpindi had resigned in the general body meeting and proposed a care-taker set-up.
Accordingly, the Registrar, Cooperative Societies, Lahore, appointed a care--taker set-up comprising the Deputy Registrar, Cooperative Societies, Rawalpindi, as convenor and Messrs Sardar Muhammad Akram, Liaqat A.I Khan, Sher Khan Niazi and Qazi Abdul Qayyum as members.
The task assigned to this care-taker set-up by the Registrar was to hold elections in a fair and impartial manner. The care-taker set-up accordingly announced the holding of elections of the office-bearers/members of the Committee. On the announcement for the holding of the election as aforesaid being made by the convenor of the care-taker set-up, the Managing Committee of the aforesaid Society approached the Registrar, Cooperative Societies, Lahore, vide its application made under sections 54 and 64-A of the Cooperative Societies Act, 1925 and prayed that the election announced by the care-taker set-up may be cancelled as the petitioner Committee had already been duly elected and that the petitioner Committee may be ordered to be restored and the care-taker set-up undone. The Registrar declined the petition of the petitioner Managing Committee for its restoration. He simultaneously removed the care-taker set-up appointed vide the aforesaid order. The Registrar further appointed the Deputy Registrar, Cooperative Societies, Rawalpindi, as Administrator of the Society with immediate effect with direction to him to hold the election through an Election Sub-Committee to be appointed by him as per law/rules, with immediate effect. The Registrar further directed that the elections will be held within 40 days of his order and that the Administrator appointed by him will not indulge in any business relating to the real estate of the Society, Finally, the Registrar directed the Administrator that the proceedings of the elections should be held in a fair, impartial and transparent manner keeping all likely contesting members/candidates in confidence. This order was passed by the Registrar on 18-9- 2000. Feeling itself aggrieved of the order, dated 18-9-2000 passed by the Registrar, Cooperative Societies, Lahore as aforesaid, the petitioner Managing Committee, Revenue Employees Cooperative Housing Society, Rawalpindi preferred an appeal under section 64 of the Cooperative Societies Act, 1925 and questioned the appointment of the Deputy Registrar, Rawalpindi as the Administrator and the holding of elections under his supervision by a Sub--committee. The appeal preferred by the petitioner Managing Committee was accompanied by a separate petition, whereby it was prayed that pending disposal of the appeal preferred by the Managing Committee against the order of the Registrar, the operation of the Registrar's order may be suspended. While the appeal preferred by the Managing Committee was entertained and admitted to regular hearing by the Secretary, Cooperatives, Government of the Punjab, Lahore, he declined the request of the Managing Committee for suspending the operation of the order of the Registrar which was under challenge in appeal. It is this order of the Secretary, Cooperative, Government of the Punjab, Lahore, declining the suspension of the order of the Registrar which has been assailed through the instant Constitutional petition.
2. Messrs Munawwar-us-Salam and Raja Imran Aziz, Advocates, appeared on behalf of the petitioner and raised the following contentions:--
(1) that the members/office-bearers of the petitioner were duly elected as such in the elections held on 20-2-2000 and as such there was no legal justification whatever for holding the elections afresh for the election of office-bearers/members of the Managing Committee over again through the election process announced and scheduled to be held on 29-10-2000;
(2) that the whole proceedings set afoot by the Deputy Registrar and the Registrar were based upon the plea that the members/office-bearers of the petitioner had resigned in the general body meeting of the Society. Learned counsel for the petitioner contended that the assertion of the Deputy Registrar and the Registrar as to the members/office-bearers of the petitioner having resigned was wholly incorrect and that they had not resigned at all and the whole process of election initiated afresh on the said assumption as to resignations is wholly uncalled for;
(3) that the general body meeting of the Society in which it had been resolved that consequent upon the resignations of the members/office-bearers of the petitioner, a void had been created and as such the holding of elections afresh was imperative, was defective -inasmuch as the required number of members for constituting quorum for the said meeting was not complete. Thus, very meeting of the general body being opened to question, no proceedings should have been ordered by the Deputy Registrar/Registrar on its resolution to the aforesaid effect;
(4) that a perusal of the order, dated 12-10-2000 passed by the Secretary, Cooperatives, Government of the Punjab, Lahore, would show that the Secretary while declining the request of the petitioner to suspend the order of the Registrar dated 18-9-2000 did not apply his conscious judicial mind;
(5) that the order passed by the Secretary, Cooperatives, Government of the Punjab, Lahore, was a contradiction in terms, in that while he admitted the appeal to regular hearing, he declined the prayer of the petitioner for the suspension of the order of the Registrar, Cooperatives, Lahore which was appealed against before him. Learned counsel submitted that having admitted the petitioner's appeal to regular hearing, the Secretary was bound to suspend the order appealed against;
(6) that as a result of the proposed election, a new Managing Committee shall be installed into office and the only body to be affected by such installation would be none but the petitioner. The petitioner Committee's members/office-bearers having been duly elected, the order declining the suspension of the order of the Registrar and consequently the process of election was going to work great hardship on the petitioner.
3. I have considered and evaluated the submissions of learned counsel for the petitioner hereinabove reproduced verbatim. I shall take up the contentions raised by learned counsel for the petitioner one by, one. The first contention raised as hereinabove reproduced was that the office -- bearers/members of the petitioner having been duly elected for the elections held on 20-2-2000, there was no justification for holding the election over again for the election of the new office- bearers. A perusal of the report made by the Deputy Registrar, Cooperative Societies, Rawalpindi to the Registrar, Cooperatives, Lahore, and the order passed thereon by the Registrar, Cooperatives, Lahore and narration of facts contained therein would show that the said functionaries came to the conclusion that the election held on 20-2-2000 was defective in more than one respect and as such it was not an election at all to which any sanctity could be attacked. The then Registrar, Cooperatives having been apprised of the said defects in the holding of election on 20-2-2000 did not act in the matter and failed to attend to the defects pointed out to him. In any event, the result of the election held on20-2-2000 had to be placed before the general body of the Society and had to be approved by it. The conclusion arrived at by the Registrar as to this was that' this approval of the election by the general body of the Society was never accorded. The second contention of learned counsel for the petitioner was that the only assumption on the basis whereof fresh elections were directed to be held was that the members/office-bearers of the petitioner had resigned in the general body meeting , held on 12-3-2000 and that this conclusion of the Deputy Registrar/Registrar was wholly unfounded in that the office-bearers/members of the petitioner never resigned from their respective offices. Now, this assertion of learned counsel for the petitioner could have been established by them by producing the record of the meeting of the general body.
In the absence of the said record, it is plain that their assertion remained only an assertion without any proof in its support. Needless to say that in the absence of proof of this assertion, the same cannot be accepted to be gospel truth. The third contention of learned counsel for the petitioner was that the meeting of the general body was defective .In that the required number of members of the Society was not present in the meeting and was necessary to constitute quorum for the meeting in question. The meeting of the general body viewed in this perspective as per learned counsel for the petitioner was such as could not be termed to be a meeting of the general body in accordance with the law and the rules applicable. They pleaded that no sanctity as such could be attached to such a meeting of the general body as lacked quorum. I am constrained to observe that this assertion of learned counsel for the petitioner as to the defective character of the meeting of the general body is an assertion without any proof in support of it. The only proof that could possibly be given by the petitioner was to give the record of the minutes recorded in respect of the said general body meeting of the Society. Now, this contention of learned counsel for the petitioner gives rise to two situations. One that the petitioner is not in possession of the said minutes/record of the, meeting of the general body of the Society. Second, that the petitioner did-have the record in its possession but it did not think it fit to produce the same to prove its assertion as to the defective character of the meeting of the general. Body on account of lack of quorum. If it is the case of the petitioner that the said record of the minutes of the meeting of the general body is not in its possession, then it would mean that it has raised a plea before the lower and the appellate forum in support whereof the petitioner had nothing with it. It is settled proposition of law that for urging a plea before a Court or Tribunal, a factual foundation has to be laid on the basis of record/evidence. If it is the case of the petitioner that it does not possess any record in support of the aforesaid plea, it would mean that the plea raised on behalf of the petitioner lacks factual foundation to sustain it. The other situation as suggested herein would be that the requisite record as to the meeting of the general body is with the petitioner but it has not been produced by it. The settled legal position as to this is that if a person is in possession of a piece of evidence in support of his case but he does not produce the said evidence before a Court or Tribunal seized of that person's case, the presumption would be that the evidence not produced was withheld by the said person for the reason that if produced it would have gone against his version of the case.
Therefore, on account of non-production of the record of the general body meeting of the Society, the presumption must be drawn against the petitioner that it has withheld the said record for the reason that it belies the plea raised on behalf of the petitioner as to the defective character of the general body meeting. The next contention of learned counsel for the petitioner was that a bare perusal of the order passed by the Secretary, Cooperatives, Government of the Punjab, Lahore, declining the suspension of the order of the Registrar and the process of election would show that the Secretary, Appellate Authority, did not apply its conscious judicial mind to the facts as urged before him. There could be no better answer to this assertion of learned counsel for the petitioner than to reproduce hereinbelow verbatim the reasons advanced by the Secretary for declining the suspension of the order of the Registrar and the process of election. The Secretary in his order under challenge held as follows:----- "His request for suspending the operation of the impugned order has been dispassionately considered. Without making any comments on the contents of the appeal, it can be safely stated that the process of elections has already been set into motion. A notice in the press has already appeared in the daily Nawa-e-Waqat of Rawalpindi/ Islamabad, dated 12.10-2000 carrying the schedule for elections to be held on 29-10-2000. The place and time for elections has been mentioned. All the members have been invited to participate in the meeting of the General Body.
The call to the electorate has, thus, been given. As stated in the impugned order (although subject to further examination), the previous elections were flawed. That is why, the elected management could not be installed into office. Instead, a Care-taker Managing Committee functioned and even now the Society is administered by an Administrator. The elections scheduled for 29-10-2000 will remove the persistent ambiguities. In this view of the latest position of the matter, I do not feel like agreeing to accept the prayer for suspension of the operation of the impugned order. The prayer for the interim relief is, therefore, not granted."
Calling such a speaking and a well-reasoned order of the Appellate Authority as having been passed without application of conscious judicial mind is nothing but a cruel joke. What other application of conscious judicial mind did the learned counsel for the petitioner expect of the Appellate Authority is something which is beyond the comprehension of an ordinary prudent person. Learned counsel for the petitioner felt aggrieved of the order passed by the Appellate Authority declining the interim relief on the ground that the same was an order which could be termed as a contradiction in terms. I am afraid if this contention of learned counsel for the petitioner has any force, either. What learned counsel for the petitioner contended was that in the event of an appeal being admitted to regular hearing, the grant of interim relief was sine qua non.
To say the least, this assumption of learned counsel for the petitioner is also such as does not deserve serious notice. The admission of a suit or appeal for regular hearing is one thing and the grant of interim relief pending the decision of the suit/appeal is another thing. Legal justifications for the two are different. The admission of the suit/appeal for regular hearing would only mean that a party tiling the suit or the appeal has a prima facie case in its favour. The fact that the petitioner's appeal was also admitted to regular hearing by the Appellate Authority would only mean that the petitioner/appellant had a prima facie case in its favour. We know it sol well by now that a person seeking interim relief against his adversary has not only to show that he has a prima facie case in his favour but he has also to establish other two ingredients before the Court, viz. Balance of convenience and irreparable loss. These three considerations are a must for the grant of interim relief. However, the ingredients at Serial Nos.2 and 3 viz. Balance of convenience and irreparable loss have no relevance for the admission of the suit/appeal for regular hearing. For, for the admission of the suit/appeal the Court has to tentatively assess the merits of a party's case before it and has to be satisfied that it has a prima facie case for the admission of the suit or appeal. Such is not the position with respect to the prayer for the grant of interim relief. The merits have not to be gone into. The only consideration to form the basis of an order granting interim relief is the aforesaid three ingredients. Having referred to the three ingredients required to be p established by a party asking for interim relief, it appears necessary to add that the presence of one or the two of the afore stated three ingredients is not sufficient for the grant of interim relief. As for example, a party may have a very good prima facie case, yet it may not have the balance of convenience in its favour as also the irreparable loss. It, therefore, has been settled by now by a preponderance of judicial pronouncement that in order to entitle a party to the grant of interim relief, all the three afore stated ingredients must be present and co-exist. In the event of even one ingredient being missing, the party cannot be held to be entitled to the grant of interim relief as a matter of right.
Prom the reasons which prevailed with the Secretary, Appellate Authority, for refusing the interim relief and which have been reproduced hereinabove, it would appear that the Appellate Authority was of the view that the whole process of election having been set afoot, machinery put into gear and all the arrangements having been made for the election, the balance of convenience lay not in favour of suspending the process of election, it was rather in favour of the election being allowed to be held. No exception can be legitimately taken by the petitioner's learned counsel to this conclusion of the Appellate Authority nor can any fault be found with the same by dint of any reason or logic. Finally, the petitioner's learned counsel contended that the petitioner having been duly elected, holding of fresh election and the substitution of the petitioner by the newly-elected Managing Committee would work great hardship on the petitioner. As hereinabove noticed. The reasons finding favour with the Deputy Registrar/Registrar, Cooperatives for holding the election to elect the new members/office-bearers of the Managing Committee of the Society were that the elected members of the Managing Committee had resigned in the meeting of the general body of the Society and a void had been created. Having been driven to this conclusion, the Deputy Registrar/Registrar directed in the first instance to set-up a care-taker set-up to save the affairs of the Society from chaos and confusion and to bring about an orderly management of its affairs. The bona fides of the Registrar for taking the action which he took are apparent from the fact that to the first instance he directed to have a care-taker set-up brought into office. Realizing, however; afterwards that this arrangement of care-taker set-up might also run contrary to the interest of the Society for the reason that the members of the care-taker set-up had been the members of the previous committee also and in running the affairs of the Society, they might be motivated by considerations which could be termed as partisan in character, the Registrar proceeded to direct the removal of the care-taker set-- up as well and appointed instead the Deputy Registrar as the Administrator to run the affairs of the Society and the process of election fairly, honestly and justly.
The last-mentioned contention of learned counsel for the petitioner cannot, therefore, be sustained viewed in the light of the reasons which prevailed with the Registrar for appointing an Administrator. This order of: the Registrar, in the facts and circumstances of the case, was a perfectly legal order. If it was so, then the law must take its course and the order of the Registrar deserves to be maintained and upheld on matter what hardship it causes to any one.
4. The aforesaid discussion was aimed a, evaluating the contentions raised on behalf of the petitioner by its learned counsel and to show their impropriety: The Constitutional petition instituted by the petitioner apart from the afore stated reasons, is such as cannot legally proceed. A perusal of the various contentions raised on behalf of the petitioner by its learned counsel would show that the same are essentially .Factual in nature. Thefactual assertions raised by the petitioner in the Constitutional petition are denied by the respondents. This being the nature of the rival contentions of the parties, it cannot be determined by this Court in the exercise of its Constitutional jurisdiction without recording evidence as to whether the assertions of the petitioner are correct or those of the respondents are so. Needless to say, such an exercise cannot be undertaken by this Court in the exercise of its Constitutional jurisdiction. There is yet another angle for examining the maintainability of the petitioner's Constitutional petition. It has not been denied by learned counsel for the petitioner that the petitioner---s appeal is still pending with the Secretary, Cooperatives, Government of the Punjab, Lahore, and awaits its disposal on merits. What has been brought under challenge before this Court in its Constitutional jurisdiction is an order which is interlocutory in nature and whereby the appeal ' has not been disposed of but the prayer of the appellant as to the grant of interim relief has been refused. Such being the character of the order impugned in this Constitutional petition, the Constitutional petition directed as it is against the interim order is unmaintainable. For this view of the law which I take, I am fortified by the law laid down in Mst.
Amera Saeed v. Syed Hassan Hamid etc. 1985 CLC (Lah.) 792, Mst. Hafeez Barohi v. Guardian/Family Judge 1987 CLC (Lah.) 1630 and Syed Sajad Hussain v. Syed Izhar Hussain etc. 1983 Law Notes (Lahore) 630, wherein it has been laid down that no writ is competent against an order which is interim/interlocutory in nature. There is yet another dimension to examine the maintainability of the petitioner's Constitutional petition. The Legislature while enacting the Cooperative Societies Act, 1925 made provision therein for filing of appeal and revision by person feeling aggrieved at the hands of the departmental authorities. The grievance arising out of the exercise of powers by the departmental authorities under the Act must be brought under challenge before the Appellate/Revisional Authorities provided in the Act and recourse can of be had for seeking relief against the action impugned to the High Court in its Constitutional jurisdiction. Alternative remedy has been provided to the petitioner to seek redress of its grievance by having recourse to the appellate and the revisional authority. The petitioner fully conscious of this fact has had recourse to the Appellate Authority and has filed its appeal before it. The presence-of this alternative remedy for the petitioner would stand in the way of this Court for assuming jurisdiction in the matter. When the law provides alternative forum for the redress of the grievance of a party at the hands of the department, resort can be had to that forum alone. The propriety of the order passed by the Secretary can be tested on yet another touchstone. In the case reported as Election Commissioner of Pakistan v. Javed Hashmi and others PLD 1989 SC 396. The Honourable Supreme Court refused to stay the process of general election set afoot pursuant to the schedule announced by the Election Commission of Pakistan on the ground that in the event of the person aggrieved having any grievance arising out of and in connection with the election, the same can be raised by him before the Election Tribunal constituted for the purposes of redressing such grievance. Having concluded to the aforesaid effect, the Honourable Supreme Court allowed the appeal of the Election Commission of Pakistan against Javed Hashmi who was seeking to have the process of election stayed. Applying the principle enunciated by the Honourable Supreme Court in the afore stated judgment, the availability of Appellate/revisional forum to the petitioner for seeking its redress against the election ordered to be held by the respondents would bar the maintainability of the Constitutional petition before this Court. There in the said case it was availability of the Election Tribunal which barred the jurisdiction of the High Court. Here it is the availability of Appellate/ revisional forum for seeking redress by the petitioner of its grievance arising out of and in connection with the election in question which would bar the petitioner's Constitutional petition. For all the afore stated reasons and reviewed from any angle, the petitioner's Constitutional petition is such as cannot legally proceed and is wholly misconceived. The same is dismissed as such in limine.