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Petitioner: WALI MUHAMMAD KHAN VS Respondent: GOVERNMENT OF KHYBER PAKHTUNKHWA through JUDGMENT
Court Name: Peshawar High Court Judge(s): Yahya Afridi, Syed Afsar Shah Title:WALI MUHAMMAD KHAN vs GOVERNMENT OF KHYBER PAKHTUNKHWA through
JUDGMENT
Reported As: 2018 CLC 134 Result: Petition dismissed Judgment JUDGMENT YAHYA AFRIDI, C.J.--- Wali Muhammad Khan, the worthy member of the Khyber Pakhtunkhwa Provincial Assembly from PK-59 Battagram, seeks the constitutional jurisdiction of this Court, praying that:- "It is, therefore, most respectfully prayed that on acceptance of this constitutional petition, this Honourable Court may be pleased to Order/Decree: a. That the letter No.125/1-H dated 22.07.2015 of the respondents be kept intact and the petitioner be allowed to identify the feasible site to process PC-L PC-II as per Development Scheme of 150845-Construction/Improvement and black topping of (a) Internal roads of Tehsil Battagram and (b) Thakot Bana Road via Kar Kalay Koz Cheena District Battagram in ADP 2015/2016 reflected as ADP No.1151/150845 (2015-2016) and work be done only on those sites. Set aside the request dated 14.09.2015 of Members Local Council Battagram identifying projects to be completed under ADP No.1151 as illegal, void ab initio and contrary to law. c. Set aside the notification dated 05th Oct 2015 of the respondents approving internal roads as per ADP No.1151 on the request of District Nazim Battagram as illegal, void ab initio and contrary to law. d. Set aside the letter dated 24.11.2016 of the respondents approving revised Administrative approval for the implementation of scheme under ADP No.1059/150845 (previously ADP No.1151 in 2016/2017) for roads identified by LG's on the request of District Nazim Battagram as illegal, void ab initio and contrary to law. e. Set aside the Tender advertised via advertisement dated 24th Nov, 2016 of the respondents for
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roads identified by LG's on the request of District Nazim Battagram as illegal, void ab initio and contrary to law. f. Restrain the Approval, Work Order and the whole Tender Process advertised via advertisement dated 24th Nov, 2016 of the respondents for roads identified by LG's on the request of District Nazim Battagram as illegal, void ab initio and contrary to law. g. That the allocation of funds to non-members of the Provincial Assembly be declared null and void and the Provincial. Government be directed to allocate developmental funds to all the members equally without discrimination. 2. In essence, the contentions of the petitioner are that he contested in the general election held in May, 2013 on Pakistan Muslim League (Nawaz) ticket and was declared the returned candidate from PK-59 Battagram seat of Khyber Pakhtunkhwa Provincial Assembly; that he is being discriminated against by the Provincial Government for his party affiliation in illegally approving developmental projects in his constituency; that the unlawful influence of District Nazim, Battagram affiliated to the ruling Pakistan Tehreek-e-Insaf Party ("PTI") and that too in violation of law, and in particular, the Khyber Pakhtunkhwa Establishment of District Development Advisory Committee Act, 1989 ("Act of 1989"). In this regard, he has specifically challenged the Developmental Project (ADP No.1059) Construction/ Improvement and Black Topping of (a) Internal Roads of Tehsil Batagram and (b) Thakot Bana Road via Kar Kalay Koz Cheena District Battagram ("Objected Scheme"). 3. The worthy counsel for the petitioner confined his legal submissions to section 3 of the Act of 1989, which he vehemently contended clearly mandated that the selection of site and allocation of projects within a district would fall within the domain of District Development Advisory Committee ("DDAC"), and the Objected Schemes introduced by the District Nazim Battagram, without it being approved by the DDAC is a clear violation of the law. 4. The official respondent-Department in response to Objected Scheme explained that it was reflected in ADP 2015-16 at Sr.No.1151/ 150845 with an estimated costs of Rs.2500.00 million, and after its approval by Planning and Development Department ("P&D") was referred to Communication and Works Department ("C&W") for preparation of PC-1, which was finally approved by the Provincial Development Working Party ("PDWP") headed by Additional Chief Secretary, and has now been put to its execution through a public notice, which has been challenged and stayed by this Court in the instant petition. 5. The worthy Additional Advocate General admitted that the District Nazim, Battagram approached the Chief Minister Khyber Pakhtunkhwa for the inclusion of the Objected Scheme in the ADP for the year 2016-17. He further contended that the objected project was processed and finally approved PDWP and the tenders have been invited through publication. On the constitutional stand, the worthy AAG contended that the Executive Authority of the Province under the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") vested in the Chief Minister and his Cabinet having full spectrum of powers available to it for carrying out development activities after the required authorization from the Provincial Assembly under Article 122 of the Constitution, which in the case in hand culminated in Khyber Pakhtunkhwa Finance Act, 2016. As for the scope of DDAC, it was contended that the developmental activities carried out by or under the directions of the Provincial Government were beyond the scope of the DDAC under the Act of 1989. It was further contended that the Act of 1989 did not aim to exclude the powers of the Provincial Government for carrying out any developmental activity in any District of the Province. He finally opposed the legal claim of the petitioner in regard to the domain of DDAC, contending that the same if allowed would result in violating the powers of the Provincial Government under the Constitution and the same cannot be abridged except by a constitutional amendment. Finally, it was argued that the subject of Communication and Works has been devolved upon the District Government under the LGA 2013, as per Entry 21 of the First Schedule provided therein.
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6. The District Nazim, Battagram, the private respondent, who had the objected scheme included in the ADP took serious legal objection to the very maintainability of the petition and emphasized the diminished legal influence and effect of the Act of 1989 after the promulgation of the Khyber Pakhtunkhwa Local Government Act, 2013 ("LGA 2013"). The worthy counsel even went to the extent of contending that the provision of sections 4 and 5 of the Act of 1989 be read down in view of the legal dominance of the LGA, 2013. In addition to the legal objection, on the factual side, it was brought to the attention of the Court that the petitioner had himself not come to the Court with clean hands, as he had requested the Chief Minister for inclusion of his scheme in the ADP, which was respected and accordingly, the scheme, without it being carried through the procedure provided under the Act of 1989, was approved as ADP Scheme No.1152-150873 titled "Construction/ Rehabilitation/ Widening Road Chata Bata, Landay Road Chilar Sokadr Sarkhel Banda, Chapar gram Markhani and Batangi Road, (Petitioner's Scheme). 7. In order to fully grasp the contesting claims of the parties, this Court deemed it appropriate to be appraised about the procedure involved in formulation and the various forums for approval of the development schemes in Khyber Pakhtunkhwa. Accordingly, the worthy representative of the P&D Department was requested to explain the same to the Court, which was explained in terms that; "Soon after independence Development Board was established early in 1948 in Economic Affairs Division. To prepare a more comprehensive national plan on Development the Government of Pakistan decided to setup a planning Board on 18th July 1953. Subsequently, on 22nd October 1958, the National Planning Board was re-designated as Planning Commission. Under Article 156 of the Constitution of Pakistan, National Economic Council (NEC) was constituted. The NEC is the supreme policy making body in the economic field. It is headed by the Chief Executive of the Country. Its members include Federal Ministers incharge of Economic Ministries, the Deputy Chairman of Planning Commission and the Governors/Chief Ministers of the Provinces. The NEC is an overall control of planning machinery and approves all plans and policies relating to development. The functions of National Economic Council as envisaged are reproduced as under: i. The National Economic Council shall review the overall economic condition of the country and shall, for advising the Federal Government and the Provincial Governments, formulate plans in respect of financial, commercial, social and economic policies; and in formulating such plans it shall, amongst other factors, ensure balanced development and regional equity and shall also be guided by the Principles of Policy set out in Chapter 2 of Part-II ii. The meetings of the Council shall be summoned by the Chairman or on a requisition made by one-half of the members of the Council. iii. The Council shall meet at least twice in a year and the quorum for a meeting of the Council shall be one-half of its total membership. iv. The Council shall be responsible to the Majlis-e-Shoora (Parliament) and shall submit an Annual Report to each House of Majlis-e-Shoora (Parliament). Sanctioning Powers of Approving Authorities Initialing in 1959, all the schemes of the Provincial Governments and Federal Ministries costing Rs.2.5 million nonrecurring and / or Rs.0.5 million recurring were required to be submitted to Executive Committee of National Economic Council (ECNEC) constituted by the Government of Pakistan. The schemes costing less than the said amounts used to be sanctioned by the Provincial Governments themselves. Subsequently, with more and more experience and expansion in the development programmes, these limits were enhanced and sanctioning powers were gradually de-centralized and delegated to various authorities by the National Economic Council (NEC). Present status of these developments for a duly constituted and powers delegated by NEC is as under:
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1. Executive Committee of National Economic Council (ECNEC). The forum is chaired by the Federal Finance Minister and its Members include Federal Secretaries of the Economic Ministers, Provincial Finance and Planning Ministers, Chief Secretaries, Additional Chief Secretaries and Provincial Finance Secretaries. Sanctioning Power i. All Federal Projects costing more than Rs.3000 million. ii. All Provincial Projects costing more than Rs. 10000 million. 2. Central Development Working Party (CDWP). The forum is chaired by the Deputy Chairman, Planning Commission and its members include Federal Secretaries of the Economic Ministries and Additional Chief Secretaries of the Provinces. Sanctioning power: All Federal Projects costing up to Rs.3000 million. 3. Provincial Development Working Party (PDWP). The forum is chaired by the Additional Chief Secretary and its permanent members include Secretaries of Finance, C&W, Local Govt. and Environment Departments. Sanctioning Power:-- All provincial Projects costing up to Rs.10000 million subject to no Federal Share and less than 25% Foreign Component. Projects exceeding the limit or having the conditionality, submitted to ECNEC for final approval. 4. Departmental Development Working Party (DDWP). The forum is chaired by the concerned Administrative Secretary and its members include representatives of Finance and P&D Departments. Sanctioning Power: All Provincial ADP Projects costing up to Rs. 60 million subject to no Foreign Component". 5. District Development Advisory Committee (DDAC) Composed of local MPAs of the district and headed by one of them, it is an Advisory Committee proposing different nature of scheme and location for the project out of funds received from oil and gas royalty, net hydal royalty and tobacco cess or any other block allocation schemes assigned to DDAC by the provincial government. The government usually honour the advice tendered by DDAC. The Committee was created under District Development Advisory Committee Act, 1989 to ensure participation of public representative in development programme at a time when local government institutions were disbanded." As for the specific position in Khyber Pakhtunkhwa that too in relation to the Objected Scheme, and its approval, it was explained that; Total Development Budget outlay of the Government of Khyber Pakhtunkhwa for the fiscal year 2016-17 Rs.161 Billion (Local component Rs. 125b) (Foreign component Rs.36b) 2. Share of Local Government for the Fiscal year 2016-17 30% of the Provincial development budget as per Section 53(a) of LGA, 2013 which comes to Rs. 33.96 Million. 3. Criteria for Distribution of 30% Development grant among the Local Governments Under Section 53 of LGA, 2013, Provincial Finance Commission ("PFC") is empowered to make recommendations to the Government on the formula for distribution of grant among Local Governments in the Province. However, development grant for Village Council/Neighborhood Council is to be determined on the basis of population. For horizontal distribution weight age is given to population, poverty, lag in Infrastructure and revenue, base of Local Governments. In the PFC award, which is in operation since 2011, weight age is given to three parameters as follows:
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Population 60% Backwardness 20% Lag in Infrastructure 20% PFC Formula for the development funds of local government for 2017-18 is as follow: - Population 50% Backwardness 25%
Lag in infrastructure 20% Revenue base 5%
4. ADP Preparation Process:- Stage-I. The administrative Secretaries are asked by the Planning and Development Department to submit draft ADP for the next Financial Year which, as per schedule is submitted by the end of March. This is followed by the consultative meetings with the department in April. By mid May, 2nd Draft is submitted in the light of Sectoral ceilings indicated by the Finance Department. Stage-II Final Draft is presented to the Chief Minister by the end of May. Finally, draft is submitted to cabinet for approval and onward submission to Provincial Assembly with Finance Bill. Stage-III. The Provincial Assembly deliberates upon the Finance Bill. What is important to note is that the projects proposed in the ADP have to be voted by the worthy members of the Provincial Assembly. Stage-IV. This is followed by preparation of PC-Is by the departments for the individual projects. PC-Is, after scrutiny, are placed before Departmental Developmental Working Party/Provincial Development Working Party for technical clearance. After approval of PC-I, administrative approval is issued by the Administrative Department concerned and the execution of the project starts. 5. Role of DDAC-Past and Present:- District Development Advisory Committees were the outcome of Act of 1989 meant to formulate and recommend, inter alia, a. Proposals for ADP of the District. b. The list of schemes to be implemented under the Rural Development Programme other than these of union councils. c. Location and selection of sites in the following sectors; Primary, middle and high schools. Rural Health. Public Health Engineering. The enactment of the LGA 2013, mandates allocation of 30% of the Provincial Development Budget to the Local Governments comprising three tiers i-e District Council, Tehsil Council, Village Council/Neighborhood Council. After approval of the district ADP from the District Council, the schemes are placed before District Development Committee for approval. Similarly, at Tehsil level there is Tehsil Development Committee. Consequently, DDAC has no role to play in the utilization of 30% development grant to local governments. Nevertheless, according to the Planning and Development Guidelines (2015) for Devolved Tiers of Local Governments under Local Government Act, 2013, District Development Advisory Committee
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will remain intact even after implementation of Local Government Act, 2013. It will approve Provincial Annual Development Programme schemes falling within its ambit and will have no concern with ADP of District Government, TMAs and Village Councils. The Provincial ADP Schemes falling within the purview of DDAC relate to; Block allocation for development in concerned districts out of federal receipts like Net Hydel Royalty, Oil and Gas Royalty and Tobacco Cess. One line grants provided for District Development Initiatives. Priority Project. The Projects cleared by DDAC are approved by District Development Committee (DDC)". (emphasis provided) 9.(sic) Valuable arguments of the worthy counsel for the parties heard and the available record perused. 10. One of the fundamental themes engrained in the Constitution is the trichotomy of powers, whereby each organ of the State has been allocated its specific functions and duties to be performed within the legal contours specified therein. The Legislature is to legislate and enact laws, while the Judiciary is to interpret the enactments, and the Executive is to enforce the law, as enacted and interpreted by the Judiciary. 11. To further regulate the affairs of the Executive Authority of the Province, Article 129 of the Constitution mandates that the same are to be exercised in the name of the Governor by the Chief Minister and his cabinet members. In turn, the Executive Authority of the Province is regulated by rules framed under Article 139 of the Constitution, more commonly known as Rules of Business. These Rules form the foundation upon which the entire edifice of the Provincial Government is governed. It expressly provides, inter alia, the different departments, the distribution of business of the departments, and the attached departments. In relation to the case in hand, it would be important to note the Planning and Development Department ("P&D") has been stated to be a department of the Provincial Government, which is, inter alia, to provide for; 1. Planning and Development including policy and procedure. Coordination work relating to the preparation of the Provincial Annual Development Programme and its review. 2. Processing of all development schemes, programmes and proposals submitted by other Departments including autonomous bodies and making recommendations to Government thereupon; Secretariat functions of the Provincial Development Working Party. 3. Maintaining liaison with the National Planning Agencies. 4. Dealing with Autonomous and Semi-Autonomous Bodies in regard to development planning programmes and projects in Khyber Pakhtunkhwa. 5. Foreign Aid. 6. Coordination of technical assistance from abroad including training facilities; expert advisory services and equipment. 7. Coordination of training of Local Officers and private sector candidates in foreign countries. Secretariat functions of the Provincial Selection Committee for training abroad. 8. Arrangement of the services of foreign experts/advisors including Secretariat functions of the Provincial Screening Committee for the appointment of foreign expert/advisors. 9. Economic research and matters relating to the Board of Economics Enquiry. 10. Coordination of Provincial statistics in general and all matters relating to the Bureau of Statistics. 11. General Economic appraisal evaluation of progress and performance of Development Schemes and Programmes and their critical appraisal. 12. Initiation of measures for giving a suitable publicity to the Development plans and educating the public on the results achieved from time to time. 13. Matters relating to the Regional Development Projects , Khyber Pakhtunkhwa.
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14. Price Stabilization Policy, 15. Protocol functions in connection with visits of foreign economics missions and delegations; etc. 16. Appropriation and re-appropriation of development grants provided in the budget. (emphasis provided) 12. From the above listed functions of the P&D Department, the most essential is the preparation of the Annual Development Plan, which forms part of the 'other expenditures' entailed in Annual Budget Statement of the Provincial Government, provided under Article 120 of the Constitution. The Annual Budget Statement separately expresses; Firstly, the sum required to meet the expenditure described by the Constitution under Article 121, which is charged upon the Provincial Consolidated Fund, and Secondly, the sum required to meet other expenditure purposed to be made. 13.It is this other expenditure, which includes the developmental projects prepared by the P&D Department, and placed as demands for grants seeking a vote of approval of the Provincial Assembly under sub-article (2) of Article 122 of the Constitution, which reads,- "22. Procedure relating to Annual Budget Statement. (1) So much of the Annual Budget Statement as relates to expenditure charged upon the Provincial Consolidated Fund may be discussed in, but shall not be submitted to the vote of the Provincial Assembly. (2) So much of the Annual Budget Statement as relates to other expenditure shall be submitted to the Provincial Assembly in the form of demands for grants, and that Assembly shall have power to assent to, or to refuse to assent to, any demand, or to assent to any demand subject to a reduction of the amount specified therein." (emphasis provided) 14. What is crucial to note is the role of the Chief Minister of a Province in presenting the Annual Budget Statement of a Province. Sub-Article (3) of Article 122 and Article 123 of the Constitution, expressly vests in the Chief Minister of the Province, the authority to seek the same in terms;- "122. Procedure relating to Annual Budget Statement. 1. .................................. 2. ............................... 3. No demand for a grant shall be made except on the recommendation of the Provincial Government." 123. Authentication of schedule of authorized expenditure. (1) The Chief Minister shall authenticate by his signature a schedule specifying- (a) The grants made or deemed to have been made by the Provincial Assembly under Article 122, and (b) The several sums required to meet the expenditure charged upon the Provincial Consolidated Fund but not exceeding, in the case of any sum, the sum shown in the statement previously laid before the Assembly. (2) The schedule so authenticated shall be laid before the Provincial Assembly, but shall not be open to discussion or vote thereon. (3) Subject to the Constitution, no expenditure from the Provincial Consolidated Fund shall be deemed to be duly authorized unless it is specified in the schedule so authenticated and such schedule is laid before the Provincial Assembly as required by clause (2). 15. This authority of the Chief Minister of a Province is further supplemented in Schedule VI of the Khyber Pakhtunkhwa Rules of Business, which reads;- "LIST OF CASES TO BE SUBMITTED TO THE CHIEF MINISTER FOR APPROVAL BEFORE ISSUE OF ORDER. 1 to 9 ...................... 10. Annual Budget Statement to be laid before the Provincial Assembly. 11. Authentication of the Schedule of Authorized Expenditure.
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16. The legal mandate vested in the Chief Minister under the Constitution, as discussed above, clearly reflects his sole authority to seek from the Provincial Assembly the approval of all the developmental schemes to be executed in the province in that financial year. 17.Now moving on to the Act of 1989, the Preamble whereof aims it "to provide for proper planning and supervision of local level developmental activities in the Khyber Pakhtunkhwa". It is to be kept in mind that this enactment was introduced at a time when the Local Governments in the Khyber Pakhtunkhwa were nonfunctional. Hence, the legislature in its esteemed wisdom deemed it appropriate for elected representatives to be also involved in planning and supervision of developmental projects at local level. Section 3 ibid provides for the establishment of DDAC in each District consisting, inter alia, all members of the Provincial Assembly from the said District. Interestingly, the Chief Minister under subsection (3) of section 3 ibid retains the authority to appoint one of the members of DDAC to be its Chairman. It is also important to note that under subsection (4) of section 3 ibid, all decisions of DDAC are to be decided by majority of votes of its members, while the Chairman has been given the casting vote in case of equality of votes of the members. The exception to this rule is when a quota of developmental scheme is allocated to a Member of the DDAC. However, no arguments were addressed by the worthy counsel for the parties on the issue of allocation of development funds to a particular member and the discrimination that may be caused to the other worthy members. 18.Most…
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