P L D 2005 Lahore 141
Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ
NEK MUHAMMAD ‑‑‑Appellant
Versus
REGISTRAR COOPERATIVE PUNJAB, LAHORE and 14 others‑‑‑Respondents
Intra‑Court Appeal No. 551 of 2004 in W. P. No. 16249 of 2004, decided on 1st December, 2004.
(a) Cooperative Societies Rules, 1912‑‑‑
‑‑‑‑R. 48‑‑‑Dissolution of Election Committee by the District Officer Cooperatives followed by an order by the Registrar Cooperatives exercising his powers under the Bye‑Laws of the Society dissolving the Managing Committee and appointing Administrator of the Cooperative Society‑‑‑Validity‑‑‑Such orders of the functionaries could not be termed as void; at the most same could be said to be erroneous, wrong or even illegal, but not’ corum non judice or nullity‑‑‑Said orders, therefore, could not be overlooked and shall entail legal consequences, until same were set aside by the forum of competent jurisdiction.
(b) Cooperative Societies Rules, 1912‑‑‑
‑‑‑R. 48‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Dissolution of Election Committee of the Society by the District Officers Cooperatives followed by an order by the Registrar Cooperatives exercising his powers under the Bye‑laws of the Cooperative Society dissolving the Managing Committee and appointing Administrator, of the Society‑‑‑Such orders were suspended till the pendency of Constitutional petition by the High Court and the Society held its election meanwhile‑‑‑Validity‑‑‑Suspension of the order of the High Court was a temporary arrangement which was dependent upon the final outcome of the case and on the basis of such temporary injunctive orders, no structure of any permanent nature could have been raised and rested‑‑‑Exception‑‑‑Order passed in the Constitutional petition, in the present case, showed that Court specifically declined the request of the petitioner to dispose of the matter as having borne fruit and the dismissal of the Constitutional petition was on the basis of withdrawal simpliciter‑‑‑Such order of the Court had not been challenged, thus the same had, attained finality and elections after the dismissal of the Constitutional petition stood annulled‑‑‑Principles.
The suspension of the orders by the Court, till the pendency of the writ petition, obviously was a temporary arrangement, which was dependent upon the final outcome of the case, thus, on the basis of such temporary injunctive order, no structure of any permanent nature could have been raised and rested. Such order would survive or die; swim or sink subject to the final decision of the case. However, the only exception to the above rule, shall be where the Court even while dismissing the main cause, by a conscious application of mind and for justifiable reasons protects, preserves and keeps, intact, any act done on the basis of an order granting some temporary relief. But in the present case, from the order passed in the Constitutional petition it was clear that the Court specifically declined the request of the petitioner to dispose of the matter as having borne fruit and the dismissal was on the basis of withdrawal simpliciter. This order had not been challenged and it had attained finality.
Elections after the dismissal of the Constitutional petition stood` annulled; the elections were not conducted by a validly constituted Election Committee and even without the issuance of a proper schedule. The person who was the convener of the committee and was also the Election Commissioner on account of the Bye‑Laws, was not associated with the elections. There was no proof on the record that he declined to participate, and even if that was, so, the Managing Committee or the Election Committee should have approached the cooperative department for a afresh nominee. But in any case, no valid elections could have been conducted without there being the representative of the Registrar, who otherwise was the convener and the Election Commissioner. Consequently, the contention that such elections could only be challenged through some suit etc., had no force.
After the dismissal of the writ petition, the impugned order was the natural outcome and the consequence and had been rightly passed by the High Court. Moreover, there was no error in the order of the Registrar to hold fresh election which was absolutely valid and justified in the light of the facts and circumstances of the case. Because, as there existed no Managing Committee at present, therefore, the Registrar had rightly directed for the ‘fresh elections, which was upheld.
Malik Saeed Hassan and Awan Muhammad Hanif Khan for Appellant.
Muhammad Ilyas Khan for Respondents Nos. 1 to 4.
Muhammad Saleem Chaudhary‑1 for Respondent No. 15.
Khalid Pervez, Registrar, Cooperatives Societies Punjab, Lahore.
ORDER
Through this Intra Court Appeal, the order dated 1‑11‑2004, passed by the learned Single Judge in Chambers, has been assailed on the ground that the relief granted to the writ petitioner (respondent No.15) by virtue of the said order and the direction issued to the Registrar, Cooperatives “to immediately take up the matter and to decide the same after hearing all the concerned including the petitioner, through a reasoned order and strictly in accordance with law within a period of one month from today” is illegal and unlawful, and therefore, should be set aside.
2. Briefly stated the facts of the case are, that the Canal View Cooperative Housing Society (the society), is duly registered under the Cooperative Societies Act, 1925. According to bye‑laws of the society, it has a Managing Committee, comprising of the President, the Vice President, the General Secretary, the Joint Secretary and five members of the Executive Committee. For the purposes of constituting the Managing Committee, the elections of the society were held on 29‑8‑1999 and the group, of which the appellant, Nek Muhammad, was a member, came into power. The said committee, as per the bye‑laws of the society, then in vogue, had the tenure of five years. But. Subsequently, in order to bring the bye‑laws in line with the general rules prescribed by the Registrar Cooperatives, the tenure of the Committee was reduced, through an amendment, passed in a A.G.M. of the society, which was approved by the Registrar vide order dated 30‑3‑2004 and thus, became effective from that date. Anyhow, the same committee, which was elected on 29‑8‑1999, continued to manage the affairs of the Society, when the fresh elections became due. And for that purpose, as per rule‑24 of the bye‑laws of the society and as required by the law, a three members election committee was constituted by the Deputy Registrar vide order dated 13‑7‑2004. This committee comprised of Mr. Masood Ali Khan and Mr. A.M.S Bokhari, the members of the society, whereas Mr. Moazzam Ali Khan, was the representative and the nominee of the cooperative department, who also was the convener of the Committee. The election schedule was announced by the election committee and the elections were to be held on 29‑8‑2004; for this purpose, certain members of the society filed their nomination papers, and we are told in the Court by the Registrar, that quite a many were rejected by the majority decision of Mr. Masood Ali Khan and Mr. A.M.S Bokhari, whereas Mr. Moazzam Ali Khan disagreed. The aggrieved candidates availed the remedy with the cooperative department. And viewing the situation as being unreasonable and not conducive to the fair and free elections, the District Officer Cooperatives dissolved the aforementioned election committee vide order dated 25‑8‑2004. This was followed by another order dated 26‑8‑2004 passed by the Registrar Cooperatives, whereby while exercising his powers under sub‑clause 5 of clause‑24 of the Bye‑Laws, the Managing Committee was also dissolved and an Administrator was Appointed. The order dated 25‑8‑2004 was challenged by the Managing Committee through W.P.No.13323 of 2004, but as the interim relief was not granted, therefore, it was withdrawn on 1‑9‑2004, on the pretext that as the Registrar has also passed an order dated 26‑8‑2004, appointing the Administrator, thus such order also needs to be challenged. However, both these orders were assailed by Mr. Amjad Pervaiz, one of the members of the Managing Committee, through a civil suit, but he failed to get any injunctive order; this suit too was withdrawn on 28‑8‑2004. Thereafter, the orders were challenged in W. P.No.13793 of 2004 by the Managing Committee, but interim relief could not be achieved and the petition was withdrawn on 30‑9‑2004. Thus, remaining unsuccessful in securing any interim relief in the above manner by the group of Mr. Nek Muhammad, now he filed a writ petition bearing No.15482 of 2004, in which, without disclosing the facts about the earlier litigation, the appellant was able to seek the suspension of the orders dated 25‑8‑2004 and 26‑8‑2004 from this Court vide order dated 22‑9‑2004.
3. It may be pertinent to state here that Mian Muhammad Akram Farhan, the member of the rival group, also filed a civil suit and procured the order on 24‑9‑2004, which reads as follows:‑
“Prima facie, the contention raised by the plaintiff/petitioner seems to be genuine. As such, the defendants/respondents are hereby restrained from holding forthcoming election of the society without giving election schedule as provided in Bye- Laws of he society till then subject to notice.”
This was followed by an other order dated 25‑9‑2004, which is as under:‑‑
“Notices to the other party be issued for 9‑10‑2004 already fixed in the main suit. In the meantime, DPO (SSP), Lahore and Registrar Cooperatives Punjab, Lahore are hereby directed to ensure the implementation of order dated 24‑9‑2004 passed by this Court on 24‑9‑2004 and restrain the defendants Nos. 1 to 3 from holding any election in violation of Bye‑laws of this society. Ahlmad of this Court is directed to issue robkar along with copy of this order and order dated 24‑9‑2004 to DPO (SSP) and Registrar Cooperatives Punjab, Lahore.”
4. Anyhow, after the suspension of the orders dated 25 & 26‑8‑2004 by this Court on 22‑9‑2004, the two members of the election committee namely Mr. Masood and Mr. Bokhari, without associating Mr. Moazzam, the convener of the committee, but on the basis of the earlier schedule, announced the elections to be held on 26‑9‑2004 at some Banquet Hall outside the precinct of the society and in this behalf two newspaper adds were publicized on 25 and 26‑9‑2004. It is claimed by the appellant that on 26‑9‑2004, the elections were duly conducted and the new Managing Committee resultantly came into being.
5. It shall be significant to mention, that in the meanwhile, respondent No.15 filed Writ Petition No.16249 of 2004 before this Court, in which the relief claimed is, that respondents Nos. 1 to 4 (the officials of the cooperative department) be directed to administer the affairs of the society in accordance with law and should proceed and announce the fresh election schedule, for the election that is due on account of the expiry of the term of the Managing Committee, which was constituted on the basis of the elections held on 29‑8‑1999. This petition came up before the Court for hearing, for the first time on 6‑10‑2004 and the learned Single Judge in Chambers was pleased to dismiss the same through an oral order. But while dictating the judgment, it is ordered I feel that there is some substance in its, moreso, when another Constitutional petition (W.P.No.15482 of 2004), on the same subject matter, is pending in this Court. I hereby recall the oral order of the dismissal of the petition and direct that the same be heard along with W.P.No.15482 of 2004.” Accordingly, both the petitions were fixed for hearing on 1‑11‑2004, when the appellant moved a miscellaneous application, stating that as the orders dated 25/26‑8‑2004 were suspended by this Court on 22‑9‑2004, therefore, the dissolved election committee got revived, which has completed the remaining process of election, by issuing advertisements/notices, published in the newspapers on 25 & 26‑9‑2004 and the elections were conducted on 26‑9‑2004; and on account of the above, a new Managing Committee has been elected for a fresh term of three years, which is now running the affairs of the society, therefore, the writ petition has borne fruit, and the petitioner does not wish to pursue the matter, which may be disposed of as such. The application was vehemently contested by Mr. Muhammad Ilyas Khan, learned counsel for the Registrar Cooperatives and my learned brother Mian Hamid Farooq, J, seized of the matter, was pleased to pass the order as below:‑‑
“3. Be that as it may, I am of the view that the controversy, raised by the learned counsel for the respondents, cannot be resolved in the present proceedings, moreso when the learned counsel for the petitioner has orally requested for the simpliciter withdrawal of the Constitutional petition. In view whereof and not withstanding the contents of C.M.No.2915 of 2004, the petitioner is allowed to withdraw the present petition. However, this order will not debar any of the parties to seek legal remedies available to them, under the law.
4. Present petition stands dismissed as withdrawn.”
6. As the Writ Petition No. 15482 of 2004, along with which W. P. No. 16249 of 2004 was directed to be heard, was dismissed, the learned, Judge was pleased to dispose of the second petition in the terms of the impugned order, directing the Registrar/respondent No. 1 to decide the dispute between the parties in accordance with law. The appellant though has not challenged the order about the dismissal of his petition, but is aggrieved of the order passed in W.P.No.16249 of 2004. Hence this appeal.
7. Malik Saeed Hassan, learned counsel for the appellant has raised the following points:‑
(i) that both the orders dated 25‑8‑2004 and 26‑8‑2004 were void ab initio, particularly, the latter passed by the Registrar, whereby the Administrator of the Canal View Cooperative Housing Society was appointed, because this was passed in violation and absence of the conditions laid down in Rule‑48 of the Cooperative Societies Rules and clause‑24(2) of the Bye‑Laws of the Society, the existence of which conditions was sine qua non for the validity of such order. Therefore, the order was corum non judice, corum non est and thus being nullity in the eye of law, should have been ignored by the Court.
(ii) the elections of the society were duly conducted by a validly appointed election committee on 26‑9‑2004 and, therefore, if any member of the society or any candidate had any grievance against such elections on the ground of illegal and corrupt practices in the conduct of the elections, the only remedy available was to challenge the elections before the appropriate forum and no writ petition was competent;
(iii) the order of the Registrar dated 26‑8‑2004 has not been published in the official Gazette and resultantly, it has no legal effect;
(iv) the appellant was not given any opportunity of hearing before passing the impugned order by the learned Single Judge in Chambers.
(v) About the legal consequences of the withdrawal of the Writ Petition No. 15482 of 2004 by the appellant, by relying upon PLD 1978 SC 220 (at 226), the learned counsel has argued that while considering a lis, the Court can take notice of the events occurring during the pendency of the matter and can mould the relief in the changed circumstances. Therefore, when the aforementioned writ petition had borne fruit on account of the elections held on 26‑9‑2004 after the suspension of the orders dated 25/26‑8‑2004, the impugned order could not have been passed. While arguing this point, Malik Saeed Hassan, the learned counsel for the appellant has vowed, that as the order of Registrar in appointing the Administrator was corum non judice, corum non est, and void, therefore, such order should not have been challenged before any Court of law; according to him, the assailing of this order was a foolish act, and the withdrawal even foolisher. He submitted that because the order dated 26‑8‑2004 was void ab initio, therefore, should have been ignored all together.
8. Replying to the above, Mr. Muhammad Ilyas Khan, learned counsel for the respondent‑Registrar has given certain additional facts, such as the history and the outcome of other writ petitions/suit, which we have incorporated above. He thus, submitted that in view of the injunctive order passed by the Civil Court in the suit of Mian Muhammad Akram Farhan, no election could validly be conducted on 26‑9‑2004; without prejudice to the above, it is submitted that on account of the withdrawal of the Writ Petition No. 15482 of 2004 by the appellant, the orders dated 25 & 26‑8‑2004, which were earlier suspended by the Court on 22‑9‑2004, got revived and anything done during the interregnum, such as the holding of the elections dated 26‑9‑2004, automatically vanished, annulled and washed away. It is further submitted that no elections could be conducted on 26‑9‑2004, as Mr. Masood Ali Khan and Mr. A.M.S Bokhari, were not competent to hold the elections, in the absence of Mr. Moazzam Ali Khan, who was the convener of the election committee, and was the representative of the department, but was not associated with the process of elections.
9. Heard. The facts in considerable detail have been consciously recorded in this judgment, with an object to elucidate the nature and the parameters of the dispute between the concerned rival groups and their conduct in dealing with the matter, so that, as and when and wherever required, proper inference can be drawn. However, in our view, the fate of this appeal is dependent on the resolution of following questions:‑‑
(i) Whether the orders dated 25/26‑8‑2004 are void?
(ii) Whether the elections allegedly held on 26‑9‑2004 remains intact even after the withdrawal of the appellant’s writ petition, in which the orders dated 25/26‑8‑2004 were suspended and these elections were conducted during the interregnum?
(iii) Whether valid elections were conducted on 26‑9‑2004, which could only be challenged through a civil suit or the election petition in appropriate proceedings before a proper forum?
(iv) Whether these elections were conducted by a validly constituted committee?
10. We are very clear in our mind that even by giving the arguments of the learned counsel for the appellant the fullest amplitude, the orders dated 25/26‑8‑2004 cannot be termed as void etc; at the most, on the basis of his submissions, these can be said to be erroneous, wrong or even illegal, but not corum non judice or nullity. And it is with this perception and for such reason that the appellant and his group have been repeatedly challenging the orders at different forums. Therefore, the orders cannot be overlooked as argued, and shall entail legal consequences, until these were set aside by the forum of competent jurisdiction The answer to the proposition thus, is in the negative.
11. Answering question No.2, it may be held that the suspension of the orders by the Court, till the pendency of the writ petition, obviously was a temporary arrangement, which was dependent upon the final outcome of the case, thus, on the basis of such temporary injunctive order, no structure of any permanent nature could have been raised and rested. Such order would survive and die; swim and sink subject to the final decision of the case. However, the only exception to the above rule, shall be where the Court even while dismissing the main cause, by a conscious application of mind and for justifiable reasons protects, preserves and keeps intact, any act done on the basis of an order granting some temporary relief. But in the instant case, from the order dated 1‑11‑2004, passed in the W. P. No. 15482 of 2004 filed by the appellant, it is clear that the Court specifically declined the request of the petitioner to dispose of the matter as having borne fruit and the dismissal was on the basis of withdrawal simpliciter. This order, as mentioned earlier, has not been challenged by the appellant and it has attained finality. The proposition is answered accordingly.
12. For the propositions Nos.3 and 4, we are of the view, that besides the legal position stated in the preceding para, that such elections after the dismissal of the W. P.No.15482 of 2004 stands annulled; we are also constrained to hold, that the elections were not conducted by a validly constituted election committee and even without the issuance of a proper schedule. In this regard, it may be held that Mr. Moazzam was the convener of the committee and was also the Election Commissioner on account of the Bye‑Law No.24(vii), but he was not associated with the elections. There is no proof on the record that he declined to participate, and even that was so, the Managing Committee or the Election Committee should have approached the cooperative department for a fresh nominee. But in any case, no valid elections could have been conducted without there being the representative of the Registrar, who otherwise was the convener and the Election Commissioner. Consequently, the argument that such elections could only be challenged through some suit etc. has no force and is hereby repelled.
13. In view of the above discussion, we hold that after the dismissal of the appellant’s writ petition, the impugned order was the natural outcome and the consequence and has been rightly passed by the learned Single Judge in Chambers. Moreover, we are not convinced that there is any error in the order of the Registrar dated 6‑11‑2004, which in our view, is absolutely valid and justified in the light of the facts and circumstances of the case. Because, as there exists no Managing Committee at present, therefore, the Registrar has rightly directed for the fresh elections, which should have been ordered otherwise. It may be relevant to mention here, that against this order dated 6‑11‑2004, the appellant has the alternate remedy, but we have examined the said order on the insistence of the appellant’s counsel, and find no illegality in such order, which is being upheld.
In the light of above, we do not find any merit in this appeal which is hereby dismissed. No order as to costs.
M.B.A./N‑137/L Appeal dismissed.