2013 PLP 338 (MLD)

SHAUKAT AZIZ SIDDIQUI, J.

By this single judgment Writ Petitions Nos. 2239 of 2009 and 2255 of 2009, involving common questions of law and ore being disposed of.

2. Facts presented through these petitions are as under:-- Petitioners namely Lt. Col.(Retd) Muhammad Azhar and Pervez Akhtar-ul-Hasan Shah were elected President and Finance Secretary of Civilian Employees Co-operative Housing Society, Soan Garden, Zone-V Islamabad Highway Islamabad, respectively for two terms consecutively. According to Clause 2 of Rule 5 of Co-operative Societies Election Rules, 2004, respondent No.3 is required to initiate the process of elections by constituting the Election Commission and announcing the schedule of election thereof ninety days prior to the completion of term of elected representatives. That vide Letter No.F1(2)/ Misc/JS(NAB)/2000 dated 31st May, 2000, National Account-ability Bureau forwarded "an action plan to combat Cooperative Housing Societies scam" to respondent No.2, according to which, number of irregularities in co-operative housing societies were pointed out and appropriate action was also suggested against each irregularity. In section 3 of the. Chapter "Strengthening of institutional Regulatory Framework", of said action plan, certain suggestions were made. Since instant matter relates to Elections, therefore, directions of NAB relating to Elections are provided. "

3. ELECTIONS: Most of the Housing Societies do not hold elections on time, as prescribed in their byelaws and Election Rules. Even if elections are held, the same people, somehow, manage to get themselves re-elected "unopposed". The Registrars should direct the societies under their control to strictly observe the following instructions to be issued under section 44-D & E of the Coop. Societies Act, 1925:-- (i) The tenure in office of the Managing Committees of all the societies will be TWO years, in future. (ii) The quorum for AGM/General Meeting for holding elections will be 20% of the total membership of the Society. (iii) It should also be incorporated in the byelaws of every society that the MCS are bound to arrange holding elections before the date of expiry of its term. In case of their failure in this connection, the MC shall stand dissolved automatically. (iv) No one will be eligible to contest elections for more than TWO TERMs in office. (v) Elections will be held through SECRET BALLOT and not through show of hands etc.; (vi) An Election Commission comprising two members of the concerned society (who are not contesting elections themselves) and an Election Commissioner nominated by the coop. Societies Department, will ensure that elections are held strictly in accordance with their byelaws/Election Rules/these instructions. (In case of a clash these instructions will take precedence)." Pursuant to the said suggestions, respondent No. 2 framed "the Co-operative Societies Election Rules" and notified the same through notification No. 1 (19)-law/2004 dated 6-5-2004, which was also instructed to be published in the extraordinary Gazette of Pakistan-Ill. Subsequently, on 6-3-2006 an amendment was made in sub-rule (a) of Rule 3 of the said Elections Rules which clearly bars to contest the election for third term. As petitioners were candidates to contest the election for the third time, therefore, being aggrieved, they assailed the validity of Co-operative Societies Election Rules, 2004 and amendments made therein from time to time including amendment dated 6-3-2006, through instant writ petition.

3. Learned counsel for petitioners submits that the impugned notification is illegal, void, without lawful authority, as it was not issued on the instructions of Federal Government or President of Pakistan but acting upon the suggestions of NAB authorities. Learned counsel further submits that section 71 of the Co-operative Societies Act, 1925 as well as Presidential Order 18 of 1980 confers no authority upon the respondent No. 2 to frame rules. Similarly Islamabad Capital Territory (Administration) Order of 1980 delegates powers of provincial Government to respondent No.2 to be exercised subject to general or special instructions by the Federal Government but no such instructions were given by the Federal Government to respondent No.2 to frame such rules. Elections Rules are integral part of Societies by-laws, which provide a comprehensive procedure for amendment of by-laws by the Society itself, therefore, respondent No. 2 has no jurisdiction to make or amend the by-laws of the Societies, but if so required the procedure given in sections 16 and 16(a) is to be adopted. Hence the impugned action of framing and amendment thereof, of Election Rules and issuance of impugned notifications is ultra vires of sections 16, 16(a) as well as section 71 of the Co-operative Societies Act, 1925; therefore, the same may be declared null and void, and ineffective upon the rights of petitioners.

4. Learned counsel for respondents submits that vide notification dated 6-3-2006, a ban was imposed on such members, who already remained in Management of the Society for two terms, to contest election of a Co-operative Society. Subsequently, the said notification was withdrawn by the Chief Commissioner office on 14-2-2009, but on the instructions of Senate Standing Committee on Cabinet, again ban was imposed on such members to contest election of a Co-operative Society who already availed two terms, vide notification dated 1(151)-Law/2006-2179 dated 23-5-2011. I have heard the learned counsel and perused the record annexed with the petition.

5. It is an admitted fact that amendment brought into the clause 2 of Rule 5(2) of Co-operative Societies Election Rules, 2004 was firstly on the suggestion of National Accountability Bureau (NAB) and thereafter on the recommendation of Standing Committee of the Senate. Amendment to any statute and rules from thereunder is prerogative of the legislature, which can be achieved through prescribed mode and required procedure and while doing so care and caution is required so that proposed amendment may not offend the guaranteed constitutional rights. The Parliament in its wisdom through 18th Constitutional Amendment even removed the restriction upon a member of parliament with regard to his being elected for the 3rd term as Prime Minister.

6. In the instant matter ban on 3rd term has been imposed as a preventive measure to control the corruption and mis-conduct allegedly being committed by the elected office bearers of any Society. The entire procedure of bringing amendments to the rules is alien to law and without jurisdiction. The ban imposed on 3rd term of being elected as office bearer is against democratic values, settled norms and scheme of the constitution. Such, arbitrary exercise of an authority in fact infringes the rights of the members of society, as it limits their option to elect any member among them as their office bearer. If any office bearer is found involved in any corrupt and mal practices, he can be proceeded against in accordance with law and any allegation or charge, culminating into his conviction may otherwise, debar him from being elected. Even otherwise any amendment to the statute or rules framed thereunder inconsistent with the theme of the constitution and penal in nature cannot be allowed to take effect, more particularly when it came from the executive, that too by adopting a novel procedure In this view of the matter, instant petitions are allowed and amendment brought through notification No. 1(19)-Law/2004, dated 6-5-2004, No.1(151)-Law/2006 dated 6-3-2006 and No.1(151)-Law/ 2006-2179 dated 21-5-2011 are declared to be illegal, unconstitutional, unprecedented, offensive to fundamental rights, without jurisdiction, void ab initio, sham and besides the dictums of the superior courts of the country and for this reason same are set at naught. KMZ/147/Isl Petition allowed.