2014 PLP 2279 (YLR)

UMAR ATA BANDIAL, C.J.

The order of the SCS dated 4-2-2014 is assailed on the ground that it treats the disqualification contained in Byelaw 25(viii) of the Society to provide alternate disqualifications rather than separate disqualifications as contended by the petitioner. As a result, the private respondent No.4 ("respondent") has been allowed to contest the election for member Managing Committee of the respondent society. The said Byelaw provides as follows:-- "Byelaw

25. Notwithstanding anything to the contrary in these Bye-Laws, no member shall be eligible for election as a member of the Managing Committee who: (viii) Does not own four fully paid up shares in his individual capacity, or does not own at least one plot."

2. Learned counsel has read from the remaining seven clauses of Byelaw 25 to submit that word "or" between the disqualifying events is used to establish that each of the said events provides separate disqualification. He has further relied on Rule 2(f) of the Election Rules which gives definition of the word "voter": "Rule 2(f)

Voter means a member of the Society who is not a defaulter in the payment of prescribed dues and the cost of plot to the Society" Thirdly, he has relied on Byelaw 4(iii) of the Society which requires the following conditions from every member: "Byelaw

4. Every member of the Society must be: (iii) A prospective builder of a house in one of the colonies of the Society"He has also mentioned Byelaw 9(iii) which provides for expulsion of a member who has failed to build a house within reasonable time determined by Managing Committee.

3. Learned counsel for the respon-dent No.4 ("respondent") has read from Byelaw 51 which allows that irrespective of the number of genuine owners of any plot, only one person therefrom can become a member of the Society. In case of a deceased member, only the nominee heir has the right to become a member.

4. In the present case, the respondent along with his brother is an equal co-owner of a plot measuring 30-marlas purchased in the year 2008. The co-owner brother of the respondent has already nominated latter to own/hold the rights of membership and voting in the Society. Documents to such effect have been placed on record. The respondent is a member having voting rights and there is no disqualification in Rule 3 of the Election Rules that requires a member to be an exclusive owner of the plot in the Society. Consequently, prays for dismissal of the petition.

5. The order of the DOC dated 23-1-2014 disqualified the respondent because he failed to submit a power of attorney or authority given in his favour by his co-owner. The learned counsel for the respondent has placed on record a certificate by the society that although House No.353 is co-owned yet corresponding Membership No.767 is held by the respondent. The question before the Court is whether a nominee co-owner possessing rights of membership and voting is disqualified from contesting election because he is not an exclusive owner. In the case of a member who is residing in the Society in his own house, all his heirs become co-owners; but only one nominee of such heirs can exercise the rights of membership and voting.

6. If the argument of the learned counsel for the petitioner is accepted then all the heirs of a deceased member of the society even if they are resident in the society shall stand excluded from becoming candidates for election to the Managing Committee of the Society. The requirement of exclusive ownership for such candidacy would permit eligibility to persons who are either original members or purchasers of property in one name. In the present day where the price of urban land is high, the requirement of exclusive ownership would block resident members who are co-sharers from contesting in the management of the Society. This would pave the way for only wealthy members to qualify for management. In the view of this Court, the fair and purposive reading of the Byelaws and Election Rules, shows that there is no express disqualification against a non-exclusive owner of a plot from contesting for management of the society. Nor public policy and public interest should favour that the wealth of a member outweighs other qualities of representation, including, leadership and public service profile of candidates. It is in the interest of justice that a nominee co-owner is permitted to contest the election of the Society. The impugned order is in accordance with the law.

7. This petition is dismissed. MH/K-17/L Petition dismissed.