2010 PLP 1474 (MLD)

IJAZ AHMED, J.

It is contended by the learned counsel for the petitioners that the petitioners are members of the Pakistan Atomic Energy Commission-Employees Co-operative Housing Society (PAEC ECHS). The elections of the society are scheduled to be held on 12-6-2010. The petitioners are the candidates in the election. The respondents Nos. 7 and 8 from the opponent group are also contesting the election for the posts of Vice-President and General Secretary. The Deputy Registrar, respondent No.2 vide notification dated 26-3-2010 being satisfied that Managing committee was not performing its functions properly, dissolved the same and a Caretaker Committee was constituted. The said respondent by another order dated 12-4-2010 constituted the Election Commission.

2. It is contended by the learned counsel for the petitioner that the notification dated 26-3-2010 dissolving the managing committee and appointing the caretaker committee and the notification dated 12-4-2010 constituting the Election Commission for holding the elections of the Society are illegal, since the same have been issued by an authority, not competent to do so. Learned counsel for the petitioner refers to the Bye-Laws of the society. Under clause 31 of the said Bye-Laws, it is the Registrar Co-operative Societies who can appoint a caretaker committee. The reference is also made of section 4 of the Co-operative Societies Act, 1925. The Provincial Government may appoint a Registrar for the province. He is the authority under the Act. Any other person or persons may only assist the Registrar, The government may however confer on any such person all or any of the powers of the Registrar. Under Rule 48 of Co-operative Societies Rules, 1927, only the Registrar can supersede management committee and under Rule 5(2) of the Islamabad Capital Territory Co-operative Societies Elections (Amendment) Rules, 2004. An Election Commission may only be constituted by the Registrar.

3. On the other hand, the learned counsel appearing for respondents Nos.1 to 3, the learned A.A.-G. and the learned counsel for respondents Nos.5 to 8 and others contend that by Notification No.1(19) Law/2007-4666 dated 22-12-2009 issued by the Chief Commissioner Islamabad Capital Territory, the powers of the Deputy Registrar, Co-operative -Societies, have been conferred upon Mr. Farasat Ullah Khan, Additional Deputy Commissioner (Revenue) Islamabad. Reliance is placed on the judgment dated 9-1-2009 pronounced in Writ Petition No.1617 of 2008 titled Ch. Abdul Azeem and 1 another v. ADC(G) Deputy Registrar, Cooperative Housing Society ICT, Islamabad etc. to argue that a party who does not raise objections to the jurisdiction before the forum seized with the matter and takes a chance to succeed, cannot in case of failure challenge the jurisdiction.

4. I have heard the learned counsel for the' parties and have also gone through the record.' There is no cavil to the proposition that under section 4 of the Co-operative Societies Act, 1925, the Registrar only is the authority. The other person or persons may only assist the Registrar. The Provincial Government may however by general or special order, confer on any such person all or any of such powers of Registrar. Under Rule 5(2) of Rules, 2004, referred above, an Election Commission may only be constituted by the Registrar. Under Rule 48 of Co-operative Societies Rules, 1927 only the Registrar can supersede the Management Committee. The pivotal point that need be resolved is whether the powers of the Registrar 'under Rule 48 of Rules 1912 to supersede the management Committee and to constitute a care-taker Committee as done by respondent No. 2 vide Notification dated 26-3-2010, and the powers of Registrar under Rule 5(2) of the Rules, 2004 to appoint an Election Commission, as have been exercised by respondent No.2 vide Notification dated 12-4-2010, have by a general or special order been conferred on the said respondent No.

2. The Notification dated 22-12-2009 need be scanned. This Notification does not generally or specially confer these powers of the Registrar on any person as is required under section 4 of the Act, 1925. It confers the powers of the Deputy Registrar on Mr. Farasat Ullah Khan. In fact the Deputy Registrar could only be a delegated of the powers specifically stated in the order. His powers cannot further be delegated to or conferred upon any person. The Notification dated 22-12-2009 is of no avail to the respondents. It is meaningless and sterile. When law prescribes a procedure for doing a certain thing in a certain manner, it has to be done in that manner alone. Reliance is placed on 1994 MLD 1637 titled "Ch. Khalil-ur-Rehman v. The Registrar Co-operative and 2 others" and PLD 1993 Lahore 1141 titled Islamia University Bahawalpur v. Dr. Muhammad Khan Malik. The judgment dated 9-1-2009 passed in Writ Petition No.1617 of 2008 referred by the respondents does not apply in the circumstances of this case. The petitioners have not taken a chance. The moment the respondent No.2 exercised the powers of Registrar, they have promptly instituted this constitutional petition.

5. All the steps taken and acts done specially the issuance of the impugned Notifications dated 26-3-2010 and 12-4-2010 by the Deputy Registrar, respondent No.2 are declared illegal as they have been taken and done without lawful authority. They are set aside. The Registrar may however, if satisfied that circumstances so, require, himself take steps, do the acts and issue notifications' afresh for smooth running of the affairs of the PAEC-ECHS. This petition stands accepted. H.B.T./S-127/L Petition accepted.