I intend to decide the following writ petitions by one consolidated judgment having similar facts and law:--
(1) Writ Petition No.781 of 2003.
(2) Writ Petition No. 1241 of 2003.
2. The brief facts out of which the aforesaid writ petitions arise are that the Model Town House Building Society, Sialkot was registered under the provisions of Cooperative Societies Act on 27-5- 1951. The bye-laws of the Society were published in the year 1956 with the approval of the competent authority. Bye-laws were amended of and on with the approval of the Registrar, Cooperative Societies. According to the amended bye-laws an addition was made in bye-law 15(d) for the appointment of a Commission to hold election consisting non-contesting members of the Society and the Election Commissioner. The Election Commissioner must be officer of the Cooperative Societies not below the rank of Assistant Registrar, Cooperatives who would supervise the election. The Managing Committee allegedly committed huge frauds. The petitioners being aggrieved filed a complaint before the Registrar, Cooperative Societies. An inquiry officer was appointed under the direction of the Registrar, Cooperative Societies. The Inquiry Officer submitted report dated 22-4-2002 with several recommendations including that the Election Rules have not yet been trade by the Society and recommended that the same may be drafted and approved respondent No.2 i.e. The Registrar on the basis of aforesaid inquiry report passed an order of supersession of the Managing Committee and appointed an Administrator to deal with the affairs of the Society vide order dated 17-6-2002. Assistant Registrar, Cooperatives, Daska was appointed as Inquiry Officer with a direction to complete the inquiry within 30 days. The aforesaid order was not implemented. The Managing Committee without legal justification and authority issued schedule of election. The Registrar had issued instructions on 8-7-1996 according to which number of the enrolled member was not to exceed the number of plots at any cost. The Managing Committee issued election schedule on 24-12-2002 published in daily 'Jang' without publishing the list of eligible voters. According to the aforesaid schedule the list of Members was to be provided till 26-12-2002. The aforesaid election schedule does not contain any date for calling objections, alterations or cancellation of list of voters. The aforesaid schedule contains the following particulars:--
(i) Date for filing nomination papers was 28-12-2002.
(ii) Scrutiny of nomination papers to be concluded till 30-12-2002.
(i.e) Objections were to be raised on 2-1-2003.
(iv) Appeal against the acceptance or rejection of nomination papers was to be filed till 7-1-2003.
The same was to be heard by the same Election Commissioner.
The petitioners being aggrieved filed an application before the Registrar, Cooperative Societies on the ground that the Managing Committee against whom an inquiry relating to illegalities and fraud has been conducted, superseded, has proceeded for the purpose of election, duly constituted with their connivance with the prayer that Circle Registrar be directed to nominate a new Election Commission. The Registrar passed the following order on the said application on 31-12-2002:-- "Please examine and put up why not to constitute a neutral Election Commission under section 44- D."
The Registrar vide order dated 6-1-2003 constituted a neutral Election Commission comprising of following persons:-- Mr. Arshad Mahmood Cheema, Assistant Registrar, Gujranwala, Convener; Mr. Muhammad Khan, Assistant Registrar, Daska, District Sialkot, Member: and Mr. Muhammad Waris, Inspector, Sialkot Sadar, Member.
The respondents being aggrieved filed revision petition before the Secretary, Cooperative. The petitioners had also filed revision petition before the Secretary against order dated 4-1-2002. The Managing Committee also filed revision petition challenging the vires and supersession order dated 17-6-2002 on 26-6-2002. The Secretary suspended the operation of order dated 17-6-2002 on 28-6-2002. The said revision petition is pending before the Secretary concerned and the next date of hearing is fixed as 8-4-2003. The petitioners being aggrieved filed aforesaid writ petitions.
3. Learned counsel of the petitioners submit that according to bye-laws following persons are eligible to take membership of the said Society and termination of their membership:--
(i) Persons who joined in the application for registration.
(ii) Persons admitted in accordance with these bye-laws, and membership be terminated on the following reasons:--
(i) Death.
(ii) Seizing to hold one full share.
They further submit that Managing Committee shall exercise all the powers of the Society except those reserved for the general meeting and subject to any restrictions laid down in these bye-laws or by the Society in the general meeting. The Managing Committee had no lawful authority to recommend the names for the purpose of Members of Election Commission which is the prerogative of the General House which can be approved in the annual general meeting of the house in view of bye-laws amended under the instructions of National Accountability Bureau Authorities in view of bye-law 15-D. They further submit that impugned orders are not sustainable in the eyes of law in view of section 18 and section 71 of the Cooperative Societies Act, 1925 and Rules framed thereunder read with rules 53, 39 and 40. They further submit that election schedule does not reveal that election be held 'on the basis of panel whereas the ground realities are that the election was held on the basis of panel. Therefore, the impugned order is not sustainable in the eyes of law. They further submit that Registrar has passed the order under section 44-D of the Cooperative Societies Act, 1925, therefore, revision petition before the Secretary concerned under section 64-A is not maintainable. In support of their contention they relied upon Pakistan Employees Cooperative Housing Society Ltd. v. Secretary to Government of Sindh (1989 MLD 2880).
They further submit that Managing Committee with the connivance of the respondents secured the order in violation of the mandatory provisions of bye-laws of the Society. They further submit that impugned order was passed by the respondent Secretary without providing proper hearing to the petitioners. They further submit that Secretary concerned suspended order of supersession of Managing Committee of respondent dated 17-6-2002 on 28-6-2002 whereas the revision petition is still pending adjudication before him. The next date of hearing is 8-4-2003. They summed up their arguments that petitioners submitted various objections before the authorities qua the schedule of election in-question and irregularities committed by the Managing Committee.
4. Learned counsel of the respondents submit that Registrar passed the order in violation of Bye- law No.15-D on 16-1-2003 who is admittedly a subordinate to the Secretary concerned therefore, revision petition is competent before the Secretary concerned under section 64-A of the Cooperative Societies Act, 1925. They further urge that petitioners challenged the vires of order dated 11-1-2003 in the aforesaid writ petitions as is evident from the prayer clauses. Therefore, other facts and contentions raised by the learned counsel of the petitioners cannot be taken into consideration. They further submit that bye--laws were framed in accordance with law. They further submit that petitioners submitted application before the Registrar, Cooperative Societies with the prayer that Managing Committee was involved in corruption and malpractice therefore, Circle Registrar be directed to constitute neutral Election Commission so that malpractices could not be committed in the forthcoming election. District Officer Cooperative vide letter dated 1-1- 2003 proposed the aforesaid Arshad Cheema and others as Election Commission. National Accountability Bureau vide letter dated 31-5-2000 directed the Chief Secretary of the Province to constitute the Election Commission comprising two members of the concerned Society who are not contesting election themselves and an Election Commissioner nominated by the Cooperative Societies Department who will ensure that elections are held strictly in accordance with their bye- laws, election rules/these instructions. In case of clash between these instructions and bye-laws of the Society then these instructions will take precedence. The aforesaid instructions of National Accountability Bureau were placed in the agenda at Serial No. 12 dated 1-8-2000 of the Society and the same was approved vide clause (j). The aforesaid amendment was subsequently approved by the Registrar vide letter dated 4-11-2000 and the said rule was published as is evident from Annexure R/7. The Committee nominated Mian Muhammad Safdar and Tariq Mahmood on 19-12- 2002 as is evident from Annexure R/8 attached with the report and parawise comments. They further submit that order of the Registrar dated 6-1-2003 is not in accordance with the bye-laws.
When a thing is to be done in a particular manner it must be done in that way and not otherwise. In support of their contention they relied upon the following judgments:-- Atta Muhammad Qureshi v. The Settlement Commissioner (PLD 1971 SC 61).
Jalil Ahmad v. Public Service Commission (1998 CLC 435).
They further submit that special bye--laws excludes the general bye-laws. In support of their contention they relied upon the following judgments: Azad Government of Kashmir v. Genuine Rights Commission (1999 MLD 268).
Muhammad Nawaz v. Allah Bakhsh (2000 CLC 575).
Managing Director, Ravi Rayon v. Province of Punjab (2001 MLD 577).
They further urge that Circle Registrar is a Registrar in terms of section 4 read with section 7(2) and section 16. They summed up their arguments that election process should not be stopped while exercising Constitutional jurisdiction. In support of their contention they relied upon unreported judgment dated 25-4-2002 passed in Writ Petition No.6957 of 2002. The learned Additional Advocate-General submits that action of the respondents is in accordance with the bye-laws and petitioners have alternative remedy to challenge the election of the respondents after election in appropriate proceedings before the competent authority under the provisions of Cooperative Societies Act, 1925 and Rules framed thereunder.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
6. It is admitted fact that Registrar has passed the order on the application of the petitioners in the proceedings qua the election process. It is also admitted fact that Secretary 'concerned has a supervisory jurisdiction under section 64-A and the matter does not pertain to matters classified under sections 10, 16, 46, 50, 50-A and 54 or subsection (3) of section 54-A. Therefore, the powers under section 64-A of the Cooperative Societies Act extended to scrutiny of administrative or departmental inquiries or proceedings and not the arbitration proceedings as is held by the Karachi High Court in Sheikh Haider v. Registrar, Cooperative Societies (PLD 1966 Karachi 177). The aforesaid view was followed by this Court in Hafiz Ghulam Nabi's case (1989 MLD 4732). The expression "any proceedings" mentioned in section 64-A encompasses much wider connotation on the legal fabric and comprehensive enough to cover all concelable stages in an action under the law. In arriving to this conclusion I am fortified by the following judgments:-- Messrs Sunshine Biscuits' case (1987 CLC 1659).
Mst. Karim Bibi's case (PLD 1984 SC 344).
The aforesaid proposition of law is also supported by the following judgment:-- Karachi Cooperative Housing Society's case (1990 MLD 389).
As mentioned above the Registrar is subordinate to the Secretary concerned in view of section 64- A. In arriving to this conclusion I am fortified by Messrs Kashif Cooperative Credit Corporation's case (1988 CLC 744). It is pertinent to mention here that the petitioners have not challenged interim order dated 28-6-2002 passed by the Secretary Cooperative through the petitions in hand.
7. In view of aforesaid discussion, the revision petition filed by the respondents before the Secretary concerned is validly entertained by him. It is also a fact that order of Registrar dated 6-1-2003 was not in accordance with bye-law 15-D whereas the order of the Secretary concerned is in accordance with the bye-law 15-D. Therefore, I do not find any illegality in the impugned order of the Secretary. It is also settled principle of law that this Court has no jurisdiction to substitute its own finding in place of the finding of the Tribunal below as per principle laid down by the Division Bench of this Court in Musaddaq's case PLD 1973 Lahore 600).
8. In view of what has been discussed above, these writ petitions have no force. The petitioners are well within their right to avail the proper remedies before the competent authorities under the provisions of Cooperative Societies Act, 1925 and the rules framed thereunder. The petitioners have levelled serious allegations against the Managing Committee. In somewhat similar circumstances this Court vide judgment dated 15-12-2000 passed in Writ Petition No. 10206 of 1998 sent a copy of the writ petition to the Chairman, National Accountability Bureau so that he may proceed in accordance with law after such inquiry or investigation as the law provides and in case the Chairman, NAB feels that the matter ought to be investigated by a Provincial Agency like Provincial Police it may take its help in accordance with law. It is further for consideration of the National Accountability Bureau to provide relief to the petitioners in accordance with law. In the interest of justice and fairplay let a copy of the writ petition, report and parawise comments, rejoinder and this order be sent to the Chairman, National Accountability Bureau who is directed to look into the matter in terms of the aforesaid direction and proceed in accordance with law within reasonable time. He is further directed to send his report to the Deputy Registrar (Jud1.) of this Court within reasonable time.
With the aforesaid observations the petitions are disposed of.