1989 PLP 390 (CLC)

Sub: Special general body meeting the Rizwan Coop: Housing Society Ltd. Karachi under section 13(2) of the Co‑operative Societies Act of 1925 read with the Rule 6‑A of the Co‑operative Societies Rules, 1927. Whereas the Registrar, Co‑operative Societies, Sind, while disposing of the petition under section 43(2)(b) of the Co‑operative Societies Act, 1925 moved by the President and others on the affairs of the Rizwan Co‑operative Housing Society Limited, Karachi, has been pleased to order for holding elections under Rule 6‑A of the Co‑operative Societies Rules, 1927 and till such time both the groups should maintain status quo with regard to the affairs of the Society and restrain from issuing fresh allotment, transfer, mutation and enrolment of new members etc. and not to take any action prejudicial to the interest of the Society. Now, therefore, I, as Deputy Registrar, Co‑operative Societies, Karachi in exercise of the powers vested in me under section 13(2) of the Co‑operative Societies Act, 1925 read with Rule 6‑A of the Co‑operative Societies Rules, 1927 do hereby appoint Mr. Muhammad Haneef Siddiqui, Special Auditor Co‑operative Societies, Karachi as authorised officer to convene the special body meeting of the Society for holding election under Rule 6‑A of the Co‑operative Societies Rules, 1927 as per bye‑laws of the Society. Sd/ (Syed Sirajuddin) Deputy Registrar Co‑operative Societies, Karachi For the purpose of passing the order for holding the election, the respondent No.l has invoked section 43(2)(b) of the Act which reads as follows:‑

43. Inquiry by Registrar.‑(1) The Registrar may of his own motion by himself or by a person duly authorised by him in writing in this behalf hold an inquiry into the constitution working and financial condition of society. (2) The Registrar shall hold such an inquiry as is contemplated under subsection (1) of this section (a) on the requisition of society, duly authorised by rules made in this behalf to make such requisition, in respect of one of its members, such member being itself a society, (b) on the application of a majority of the Committee of the Society; and (c) on the application of 1/3 of the members of the society. (3) All officers and members of the society whose affairs are investigated shall furnish such information in their possession in. regard to the affairs of the Society as the Registrar or the person authorised by the Registrar may require. (4) The result of any inquiry under this section shall be communicated to the society whose affairs have been investigated. Mr. Niaz Ahmad Khan, the learned counsel for the petitioner has contended that under section 43 the Registrar has no power to order for holding the election. Section 43 empowers the Registrar to hold an inquiry into the constitution, working and financial conditions of the Society suo moto or an application filed by any person. Such inquiry can also be made in the manner provided in subsections (a) (b) and (c) of section 34(2). After making inquiry the Registrar should communicate to the society the result of the inquiry. The inquiry is, therefore, restricted to matters relating to the constitution of the Society, its working and financial condition. It does not in any manner authorise the Registrar to supersede any managing committee or order to hold elections. The Registrar is required to intimate the Society the result of his inquiry. There is nothing on record that except the impugned order any other communication was made by respondent No.l relating to the inquiry. Mr. Jatoi, the learned counsel has contended that the petition is mala fide for the reason that respondent No.4 has been sued through its ex‑president. This fact by itself is not sufficient to hold that the petition is mala fide unless it is shown that any prejudice has been caused to society or any undue advantage has been taken by the petitioner by adopting this procedure. The learned counsel contended that the election of the society according to the bye‑laws is to be held every year and now it is due. The last election which is subject‑matter of this petition was held on 17‑9‑1987 whose result has not been announced and is subject‑matter of this petition. He pleaded that the results of the election which has been held should be announced. On query he has stated that on result being announced the successful candidate shall continue for a period of one year from the date of announcement of the election. The term of the member of the Managing Committee will also be determined according to rules as 1/3 members are to retire every year. We have observed that in an inquiry under section 43 (2) (b) the Registrar is not entitled to hold an election, and therefore, the order was passed without any lawful authority. Consequently, all such actions which were taken in pursuance of such an illegal order are also void. If we permit the election result to be announced and be given effect to, then it means A that persons elected under illegal order who otherwise would have completed a period of one year, would be installed for another period of one year from today. This in our view would not be proper as the elections are again due and a period of one year from the date when the election was held last has expired whose result has remained in abeyance. Mr. Warsi for respondents Nos.l and 2 has stated that hel would have no objection if the election is held afresh. This is a very sensible and proper approach. We, therefore, declare that the order passed by the respondent No.l dated 27‑6‑1987 is without lawful authority and of no legal effect. The election held in pursuance of the said order is also declared to be void and illegal. The Registrar is directed to hold election according to bye‑laws of the Society on or before 30‑11‑1988. The parties to bear their own costs. M . Y . H . /N‑133/ K Petition allowed.