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Petitioner: Wajid Rasool VS Respondent: Registrar Cooperative Societies and others
Court Name: Lahore High Court Judge(s): Anwaar Hussain Title: Wajid Rasool vs Registrar Cooperative Societies and others Case No.: Writ Petition No.1320 of 2022 Date of Judgment:2022-02-10 Reported As: 2022 MLD 859 Result: Order accordingly
JUDGMENT
JUDGMENT ANWAAR HUSSAIN, J.---Through this judgment, Writ Petition No.1320/2022 titled "Wajid Rasool v. Registrar Cooperative Societies and others" as well as Writ Petition No.1930/2022 titled "Hafiz Muhammad Shuaib v. Registrar Cooperative Societies, etc.," are being decided since common questions of law and facts are involved therein. 2. Briefly stated facts of the case are that the petitioners in both the petitions are, admittedly, Members of WAPDA Employees Cooperative Housing Society, Multan (hereinafter "the Society"), which is arrayed as respondent No.5 in both the petitions. The present controversy started when Circle Registrar (Housing) Cooperative Societies Punjab, Lahore, issued an order dated 24.12.2021 whereby the Convenor of Election Committee of the Society, arrayed as respondent No.2, has been conveyed that the competent authority i.e., Registrar, Cooperative Societies has approved the election schedule of the Society by adding office of the Secretary as one of the offices to be filled through election and that the Management Committee (hereinafter "the MC") shall comprise of 15 members. This order to the extent of addition of office of the Secretary to be filled through election instead of appointment by MC was, admittedly, challenged by the petitioner in Writ Petition No. 1320/2022, before the Secretary Cooperatives, which was upheld vide order dated 24.01.2022 and conveyed on 26.01.2022, where after both the orders have been impugned through Writ Petition No.1320/2022 on the ground that the office of the Secretary is to be filled by an appointment/selection and cannot be thrown open for election by virtue of Bye-Law No.39 of Model Bye-Laws of the Society. Therefore, the inclusion of the office of the Secretary in the schedule of upcoming elections of the Society to be held on 20.02.2022 is illegal and unlawful being against and repugnant to the Bye-Laws. Whereas in Writ Petition No.1930/2022, order dated 24.12.2021 has
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been directly challenged before this Court, without approaching the Secretary Cooperatives, Punjab, under the Act. 3. Report was filed on behalf of respondent No.1 wherein it has been stipulated that by virtue of Bye- Law No.31(1), the MC of the Society is described to include a President, a Vice President, a Secretary and a Treasurer and is to be filled through elections in terms of the applicable Bye-Laws and that Bye-Law No.39 only contemplates that an Office Secretary is to be appointed which is a different position from the office of the Secretary, envisaged under Bye-Law No.31(1). 4. Learned counsel for the petitioners submits that the Circle Registrar had no authority to pass the impugned order dated 24.12.2021; that cumulative effect of Bye-Law No.31 read with Bye-Laws No.32(5) and 39 amply clarifies that the office of the Secretary cannot be filled through election as the same is a selection post, in the nature of an employment, and in this regard impugned order dated 24.12.2021 passed by Circle Registrar (Housing) is not sustainable and the revision petition filed by the petitioner Wajid Rasool against the said order has been dismissed by the Secretary Cooperatives, vide impugned order dated 24.01.2022, without appreciating the true import of above referred Bye-Laws of the Society; that the notice dated 25.12.2021 published in the newspapers qua the upcoming elections of the Society was only for the offices other than that of the Secretary and the subsequent inclusion of the office of the Secretary through corrigendum dated 29.12.2021 published in the newspaper is in violation of the Model Election Rules of the Society (hereinafter "Election Rules") inasmuch as by virtue of Rule No.5 of. the Election Rules, prior to commencement of the election schedule, 15 days' notice is necessary to be given to the members of the Society and the said election schedule was mandatorily required to be sent to all the members through UPC (under postal certificate) or courier service at the members' last known address recorded in the Society which purpose has been defeated by issuance of corrigendum; and that even one of the Members of Election Committee/respondent No.4 has objected to the void and unwarranted action on part of the Registrar Cooperatives regarding inclusion of the office of the Secretary in the elections schedule. Draw the attention of this Court to the existing departmental practice whereby similar Bye-Laws were interpreted in the manner that the office of the Secretary was not included in election schedule of PIA Employees Cooperative Housing Society, Lahore (hereinafter "PIA Society"), which are available as Annexures 'O' and `P' the Writ Petition No.1320/2022 to contend that Registrar Cooperatives cannot deviate from the past practice qua interpretation of similar Bye-Laws. 5. Conversely, learned counsel for respondent No.9, submits that the Writ Petition No.1320/2022 is not maintainable before this Bench as the order impugned before this Court was earlier challenged before the Principal Seat vide Writ Petition No.2318/2022 and the same was dismissed as withdrawn, without any permission to file a fresh writ petition on the same cause of action. Add that even otherwise, impugned order dated 24.12.2021 was assailed at the Principal Seat and, hence, the second petition at Multan Bench against the same order and/or subject matter is not maintainable. On merits, submits that Bye-Law No.31 reflects the composition of the MC, which includes the office of the Secretary that is required to be filled through election in accordance with Bye-Law No.31(2) and Bye-Law No.39 is only a clarificatory provision, which stipulates for provision of salary where the Secretary is not the elected member of the society and therefore Bye-Law No.32(5) does not act as an impediment qua election of the office of the Secretary. Further submit that the term Secretary, referred in Rye-Law No.39 clearly means an Office Secretary since he has to work under the administrative control of the MC, which includes the Secretary and, therefore, the Registrar Cooperatives has rightly included the said office in the schedule for upcoming elections; that non-circulation of corrigendum, qua inclusion of the office of the Secretary in election schedule, to the members, in terms of Rule No.5 of the Election Rules is merely an irregularity, which does not vitiate the entire process of elections. Places reliance upon the Model Bye-Laws of MDA
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Officers Cooperative Housing Society Limited, Multan (hereinafter "the MDA Society") as well as Punjab Small Industries Corporation Cooperative Housing Society Limited, Multan (hereinafter " the PSICC Society") to contend that the Bye-Laws of said societies are in pari materia to that of the Society where elections are held for the office of the Secretary as is evident from various notifications issued by the office of Registrar Cooperatives, hence, there is a consistent practice followed by the regulator and needs to be respected in the instant case. 6. Learned Law Officer, while toeing the arguments advanced by the learned counsel for respondent No.9, adds that the Circle Registrar has only acted on the direction of the competent authority, which is the Registrar Cooperatives and, hence, he has not passed impugned order dated 24.12.2021 and only conveyed the same to the Election Committee, therefore, no violation has been made by the official respondents. 7. In rebuttal, Mr. Waqar A. Sheikh, Advocate submits that no doubt order dated 24.12.2021 was assailed through the above referred Writ Petition No.2318/2022 and same was later withdrawn; however, it was not withdrawal simpliciter inasmuch as a proper Civil Miscellaneous Application was filed for permission to withdraw the said case, for the time being, since the said order was challenged through revision petition under Section 64-A of the Cooperative Societies Act, 1925 ("the Act") and there was inaction on part of respondent No.1 in deciding the same, which fact is clearly mentioned in the Writ Petition No.1320/2022 as well as C.M. No.3 of 2022 filed in Writ Petition No.2318/2022. As the revision petition was fixed on 24.01.2022 before respondent No.6, the Writ Petition No.2318/2022 was withdrawn in order to pursue the alternate remedy. Qua the objection, vis--vis the maintainability of the Writ Petition No.1320/2022 before this Bench, learned counsel submits that after filing of Writ Petition No.2318/2022, he filed another Writ Petition bearing No.4394/2022 in respect of another housing society falling within the territorial jurisdiction of Rawalpindi Bench of this Court and the case was fixed at the Principal Seat, on judicial side, but the learned counsel stood guided by the observation of this Court qua the fact that the land forming subject matter in Writ Petition No.4394/2022 falls within the territorial limit of Rawalpindi Bench and the Office was directed to deregister the said case while treating the same as an objection matter and return it to the petitioner therein for its presentation before the Rawalpindi Bench of this Court and it is in this backdrop that the Writ Petition No.1320/2020 has been filed before this Bench within whose territorial jurisdiction the Society falls. 8. Arguments heard. Record perused. 9. Out of the rival contentions of the parties, the following legal questions emerge for the determination by this Court: i. Whether Writ Petition No.1320/2022 is maintainable in view of the fact that order dated 24.12.2021 had been earlier challenged through Writ Petition bearing No. 2318/2022 at the Principal Seat, which was dismissed as withdrawn? ii. Whether Writ Petition No.1320/2022 is maintainable before Multan Bench of this Court as the earlier petition on the same subject had been filed at the Principal. Seat? iii. Whether the office of the Secretary forming part of the MC of the Society is to be filled through election or is a selection post to be filled by way of an appointment to be made by the MC? iv. Whether inclusion of the office of the Secretary in schedule of election through a corrigendum, at a belated stage, is in derogation of Rule No.5 of the Election Rules? If so, what is the effect thereof? 10. As regards the first legal question, it is imperative to note that perusal of the record brings forth that petitioner Wajid Rasool earlier filed Writ Petition No. 2318/2022 before the Principal Seat and challenge was mounted against order dated 24.12.2021 and corrigendum dated 29.12.2021 whereby the office of the Secretary in the MC of the Respondent Society was thrown open for election rather than appointment. It also transpires from the record that the order dated 24.12.2021 was also challenged through revision petition before the Secretary Cooperative/respondent No. 6. In Para 10
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of Writ Petition No.2318/2022, petitioner Wajid Rasool has disclosed the filing of the revision petition before respondent No. 6, which could not be taken up and the said petitioner considering it as a matter of urgency filed Writ Petition No.2318/2022 before waiting for outcome of proceedings before respondent No.6. Subsequently, C.M No. 03 of 2022 in Writ Petition No. 2318/2022 was filed for withdrawal of the said writ petition. Perusal of C.M No.03 of 2022 in the said writ petition, which is available on record, reveals that petitioner Wajid Rasool had reserved his right to challenge the order, if and when, passed by respondent No. 6. Even otherwise, the impugned order passed by respondent No 6, announced on 24.01.2022 and issued on 26.01.2022, was neither in field nor was under challenge in the earlier Writ Petition No. 2318/2022. Therefore, the objection of respondents as to bar contained under Order XXIII, Rule 1, Code of Civil Procedure, 1908 does not come into play as in the instant case, it is order dated 24.01.2022 passed by respondent No. 6, which has been assailed and order dated 24.12.2021 having been passed by office sub-ordinate to respondent No.6 merges into the order passed by respondent No. 6. Hence, the Writ Petition No.1320/2022 is held to be maintainable. 11. The second legal question is based on the objection of respondent No.9 that Writ Petition No.1320/2022 before the Multan Bench is not maintainable as earlier Writ Petition No.2318/2022, by the same petitioner, was filed before the Principal Seat and hence, the present lis cannot be heard and decided at this Bench. In this regard, it is sufficient to note that filing of the Writ Petition No.1320/2022 before this Bench is not barred though the earlier petition had been filed at the Principal Seat, which was dismissed as withdrawn in as much as the explanation furnished by Mr. Waqar. A Sheikh, learned Counsel for petitioner Wajid Rasool has some force. Mr. Waqar. A Sheikh, Advocate sought guidance from the observation of this Court at Principal Seat in a similar matter when Office of this Court was directed to deregister that case at Principal Seat where the land in question forming subject matter of that case was situated in territorial limits of Rawalpindi Bench of this Court. Since the Society is located within the territorial jurisdiction of this Bench, this Court has no doubt that the Writ Petition No.1320/2022 is maintainable here. Even otherwise, connected Writ Petition bearing No.1930/2022 is fresh case by a different petitioner who had directly approached this Bench, therefore, it is in the fitness of things that both the petitions are heard and decided together to avoid any conflicting decision. 12. Having run through the preliminary objections qua the maintainability of the writ petitions and decided against the respondents, I would like to lay my hands on the main issue involved and spelled out hereinabove, in the form of third legal question, which relates to the interpretation of Bye-Laws of the Society in general and Bye-Laws Nos. 31, 32 and 39 in particular. At this juncture, it will be in fitness of things to reproduce the said Bye-Laws, for facility of reference. Bye-Law No. 31 reads as under: "Bye-Law No.31. MANAGING COMMITTEE (1) The business of the society shall be carried out by a Managing Committee consisting of 9 to 15 members above the age of 21 years including a President, a Vice President, a Secretary, a Treasurer and other person nominated by Registrar from amongst the members or officers of the department. The nominee of Registrar should have expertise in technical or administrative matters provided he is not loser in elections of Managing Committee. The members of the Managing Committee shall work honorarily. (2) The Managing Committee shall be elected for a term of three years......." (Emphasis supplied) Bye-Law No.32 contemplates as under: "Bye-Law No.32. A member of a Managing Committee shall cease to hold office if he:
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(1) Does not remain a member of society. (2) Is an un-certified or undischarged insolvent or is not competent to contract. (3) Has become of un-sound mind. (4) Has been convicted of any offence involving dishonest of (sic) moral turpitude and imprisoned for six months or whipping, unless such imprisonment was not later on reversed or withheld. (5) is directly or indirectly involved in any employm ent or agreement with the society. (6) Personally, does any such business directly or indirectly as is stated in the objects of society or is involved in it in any way e.g. professional Property Dealer, Contractor etc. (7) Is an officer or servant of the society or is indebted to it. (8) If he resigns and his resignation is accepted by the Managing Committee. (9) On his not attending three consecutive meetings without permission of the President or the Committee. (10) Is a defaulter towards dues of the society. (11) Becomes possessed of any other disqualification as narrated in the Rules." (Emphasis supplied) Whereas Bye-Law No.39 reads as under: "Bye-Law No.39. SECRETARY The Managing Committee shall appoint a secretary, to carry out the business of the Society, the qualifications mentioned in Bye-law No.32(2) to (12) shall ipso facto apply to secretary also. In case he is not member of committee he can get salary subject to the approval of the General Meeting and Registrar. The Secretary shall work under the general control of the Managing Committee." (Emphasis supplied) 13. Perusal of Bye-Law No. 31(1) reveals that the MC consists of 9 to 15 members including a President, Vice President, a Secretary, a Treasurer and other persons nominated by the Registrar from amongst the members or officers of the department. Bye-Law No.31(2) states that the MC shall be elected for a term of three years. Bye-Law No.32 spells out the disqualification for a member of the MC whereas Bye-Law No.39 specifically relates to the Secretary. Similarly, Bye-Law No. 39 states that the disqualifications attached to a member of the MC under Bye-Law No.32 are applicable ipso facto to the Secretary except Bye-Law No.32 (1), which implies that even a non- member of the Society can be Secretary of the Society. Bye-Law No. 39 further contemplates that a Secretary can get salary subject to approval of the General Meeting and Registrar provided he is not a member of the MC. The apparently opposing positions presented by Bye-Laws Nos.31, 32 and 39 qua the office of the Secretary have engendered the instant lis as Bye-Law No.31 includes the office of the Secretary as part of MC and Bye-Law No.31(2) states that the MC shall be elected for 3 years. On the other hand, Bye-Law No. 39 states that the MC shall appoint a Secretary which is being used as a launching-pad by the petitioners for their challenge to the impugned orders through the present petitions. 14. Above referred scanning of the Bye-Laws relevant to the present controversy reveals that a combined reading of Bye-Laws Nos. 31, 32 and 39 creates an ambiguity as to whether the office of the Secretary is to be filled through election or through appointment. The Registrar Cooperatives has decided to include the office of the Secretary to be filled through the election, which order has been upheld by the Secretary Cooperatives vide impugned order dated 24.01.2022. It is salient feature of the impugned order dated 24.01.2022 passed by the Secretary Cooperatives Department that it acknowledges the ambiguity in the combined reading of the Bye-Laws No. 31 and 39. It is at this juncture that the object and spirit of the Act, the rules made thereunder and the administrative directions and decisions of the Registrar Cooperatives, being frontline regulator of the Cooperative Societies becomes relevant for passing Bye-Laws Nos.31 and 39 through the crucible of established
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principles of interpretation and construction of statutory instruments. The object of the Act, 1925 has been elaborately discussed by this Court in judgment reported as "Military Account Cooperative Housing Societies Limited v. Secretary to the Government of the Punjab and others" (PLD 2016 Lah 223) wherein it was held that a cooperative society is an autonomous association of persons united voluntarily to meet their common economic, social, and cultural needs and aspirations through a jointly owned and democratically controlled enterprise. In case of Military Account Cooperative Societies Limited supra, this Court laid down the cooperative principles on the basis of International Cooperative Alliance, which are voluntary and open membership, democratic member control, member economic participation, autonomy and independence, education, training and information, cooperation among cooperatives and concern for community. It was further held that while the cooperative society enjoys its democratic independence, the government, in order to ensure that the cooperative principles are not compromised or overlooked, regulates its affairs. Such regulation by the government has been held not to stifle the voluntary character and democratic spirit behind a cooperative society rather to safeguard the foundational cooperative principles, at work, behind any cooperative society. Thus, the cooperative character and democratic tinge formulates the bedrock of cooperative societies and the, conduct and/or operation of the cooperative society has to be seen through the prism of their cooperative nature and democratic undercurrent. In case reported as "Vipulbhai M. Chaudhary v. Gujarat Cooperative Milk Marketing Federation Limited and others" [(2015) 8 SCC 1], the Supreme Court of India has also held as under: "53. The cooperative society registered under the Central or the State Act is bound to function as a democratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or Bye-laws both on the principle and procedure. If not, it is for the court to read the democratic principles into the Act or Rules or Bye-laws." (Emphasis supplied) This Court in Military Account Cooperative Societies Limited case supra also laid down the statutory framework of a cooperative society and the order of statutory force behind various facets of statutory framework in the following words: "21. Another dimension that requires clarity is the structure of governance of a Society under the law. The statutory instruments that, regulate a society are the Act, the Rules, the Directions issued under Section 44-D of the Act and the Bye-laws and the statutory force of these instruments is also- in the same descending order." Thus, there remains no cavil to the proposition that the Bye-Laws of a society carry statutory force not greater than the directions issued by Registrar, Cooperative Societies, under Section 44-D of the Act. It is in this background of statutory force attached to each statutory instrument respectively, which is relevant for the determination of the legal question under discussion pertaining to the direction of the Registrar Cooperatives to include the office of the Secretary within the election schedule although same has not been specifically passed under Section 44-D of the Act. Such direction brings the office of the Secretary in consonance with the democratic spirit and cooperative tinge of cooperative society envisaged by the Bye-Laws in general and also dovetails with the object and spirit of the Act. This Court, while relying upon the judgment of august Supreme Court reported as "Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. And others" (PLD 2010 SC 1109), in "Chenab Flour and General Mills v. Federation of Pakistan and others" (2021 PTD 892), has held that when the intention of the legislature and the object for which the law had been enacted were clear, the Courts were not allowed to interpret such a law in a manner which could impede or defeat the object for which such law had been enacted. Therefore, the direction of the Registrar Cooperatives was in consonance with the object of the Act and the intention of the
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legislature underlying the Act that a particular group of persons gathered together with the object to achieve their shared aspirations, social or economic are to do so in a cooperative culture and democratic manner and considered that even the office of the Secretary should be filled through election rather than appointment and such direction, attains the statutory force superior to the Bye-Laws as held in the case of Military Account Cooperative Societies Limited, supra. There is nothing wrong on part of the Circle Registrar (Housing) to convey direction/decision of the Registrar. Cooperatives to the Convenor of the Election Committee as the said Circle Registrar never made decision dated 24.12.2021 on his own to include the office of the Secretary in election schedule. 15. This Court in the exercise of constitutional jurisdiction is bound to show deference to the departmental construction of a sub-statutory legislation unless the same is against the object and purpose of the parent enactment. In this regard, much emphasis was made by the learned counsel for both sides that the departmental practice with regard to other similarly placed societies must be adhered. It is the case of the petitioners that the Registrar Cooperatives in similar cases such as that of the PIA Society has not included the office of the Secretary to be filled through election and he cannot deviate from his earlier decisions / practices whereas on behalf of respondent No. 9, reliance has been placed on elections held in the MDA Society as well as the PSICC Society to contend that the said two societies and not the PIA Society his Bye-Laws which are part matria to that of the…
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