2006 PLP 741 (CLC)

UMAR ATA BANDIAL, J.

This revision petition is filed to challenge the consistent findings recorded by the learned trial Court vide its judgment, dated 23-5-2005 as affirmed by the learned Appellate Court vide its judgment dated 24-10-2005 whereby respondents have been declared as the elected office-bearers of the Faisalabad Railway Employees Cooperative Housing Society ("Society"). Under the bye-laws of the Society, the elections of its office-bearers are to be held in its general meeting. Such a meeting was scheduled for 27-9-2003 but it could not be held for lack of quorum. An application was made by the respondent-candidates to the petitioner-officers that as their candidature in the election was unopposed, therefore, they should be declared elected. This application was declined by the petitioner No.1 vide his order dated 27-9-2003. The respondents filed a civil suit seeking declaration of their status as the office-bearers of the Society notwithstanding that elections had not been held. The relief was granted and then affirmed as already noted.

2. Learned counsel for the petitioners submits that the suit was barred by sections 70 and 70-A of the Cooperative Societies Act, 1925 ("Act"). Statement by Mumtaz Ahmed (P.W.) in evidence of the respondents-plaintiffs accepts that the respondents did not serve a notice under section 70 of the Act on the petitioner No.2, prior to the institution of the suit. In the light of the foregoing omission learned counsel for the petitioners submits that by the rule laid down in Lahore Cantt. Cooperative Housing Society Limited v. Messrs Builders and Developers (Pvt.) Limited and others PLD 2002 SC 660 and Messrs. Sunshine Biscuits Limited v. Muhammad Hassan Lodhi and another PLD 1982 Lah. 189 the suit by respondent-plaintiffs is rendered incompetent.

3. The next objection raised by the learned counsel for the petitioners is that there can be no waiver of law; nor of bye-laws of the Society which provisions are binding unless relaxed by the general body meeting of the Society or by the competent authority, including the petitioners. In the present case bye-laws 17 and 18 expressly require that the election of the office-bearers of the Society be held in a meeting of the general body. As the meeting that was convened suffered from lack of quorum, therefore, no election could be held. In the absence of election no person can be declared elected to an elected office. This aspect of the case has not been considered by both the learned Courts below whilst granting the said declarations. As the foregoing is an objection of' law, learned counsel asserts it can be taken at any stage.

4. Learned counsel for the respondents opposed the submissions made by the learned counsel for the petitioners and urged that section 70 of the Act is at best directory in nature. He has, however, not relied upon any law to sustain his plea. He further submits that as there was no opposition to the candidature of' the respondents, therefore, they should be deemed as lawful office-bearers indeed as the election schedule itself provided for declaration of unopposed candidates as elected. The provisions of bye-laws were duly complied by the respondents because the meeting was convened and the fact that the same was not held because of lack of quorum does not in any manner vitiate the whole election process.

5. The submissions by the learned counsel for the respondents do not answer or rebut the objections raised by the petitioners to the impugned judgments. These objections are well-founded on legal principles and binding instruments, including the bye-laws of the Society. These deal with the legal validity of the election process and can neither be treated as directory nor are deemed to be waived by the Society and its members. Both the Courts below have failed to apply their judicial mind to the consideration of that crucial aspect of the dispute. As a result of the foregoing discussion, both the impugned judgments of the leaned lower Courts are set aside for failing to examine and decide 'the defects in the suit and the legal objection to the relief prayed therein, Revision petition allowed with no order as to costs. F.M./A-25/L??????????????????????????????????????????????????????????????????????????????????????? Petition allowed.