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Petitioner: M.Q.M. (Pakistan) and others VS Respondent: Pakistan through Secretary Cabinet Division, Government of Pakistan and others
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Mazhar Alam Khan Miankhel, Gulzar Ahmed (C.J) Title:M.Q.M. (Pakistan) and others vs Pakistan through Secretary Cabinet
Division, Government of Pakistan and others Case No.: Constitution Petition No. 24 of 2017 Date of Judgment:2022-02-01 Reported As: PLD 2022 Supreme Court 439 Result: Order accordingly Judgment ORDER GULZAR AHMED, C.J.---This petition has been filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter called "the Constitution") in which the following prayers have been made:- "It is accordingly prayed that this Hon'ble Court may kindly be pleased:- a. Declare section 3 of the KDA (Revival and Amending) Act, 2016 and similar dispensations in other statutes to be completely without jurisdiction, illegal, unconstitutional, void ab initio and of no legal effect, while striking down the same: b. Declare sections 74 and 75 of the Sindh Local Government Act, 2013 and section 18 of the Sindh Building Control Ordinance, 1979 to be completely without jurisdiction, illegal, unconstitutional, void ab initio and of no legal effect, while striking down the same: c. Declare that "Authority" under section 4 of the Sindh Building Control Ordinance, 1979, for each territorial jurisdiction falling under the local government institutions, shall be the Mayor or the Chairman as the case may be, of such local government institutions, while annulling all dispensations, statutes, notifications, rules, delegated legislations or executive orders in derogation to such declaration as ultra vires to law and the Constitution; d. Direct the respondents to suitably amend the Sindh Building Control Ordinance, 1979, the KDA Order No.5 of 1957, the Malir Development Authority Act, 1993, the Liyari Development Authority Act, 1993, Karachi Water and Sewerage Board Act; 1996, the Hyderabad Development Authority Act, 1976, Sehwan Development Authority Act, 1993, the Larkana Development Authority Act, 1994, any dispensation pertaining to the Board of Revenue or the Master Plan Departments of any Body or
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any other Development Authority in Sindh, the Sindh Mass Transit Authority Act, 2014, the Sindh Food Authority Act, 2016, the Sindh Environmental Protection Agency Act, 2014, all delegated legislations or executive orders thereunder, so that the powers, functions and authorities under the said dispensations devolve to the local government institutions in consonance with Article 140-A of the Constitution; e. Order that the employees of the all boards, authorities or bodies liable to be devolved to the local government institutions, are to be transferred to the said local government institutions, who would function under their service rules and structures; f. Permanently and pending disposal of the main petition pass such interim orders for the purposes of devolution of powers to the local government institutions, as are deemed fit by this Hon'ble Court so as to make compliance of Article 140-A; g. Direct the Respondents to release Rs.29.366 Billion to the Karachi Metropolitan Corporation, pertaining to its share of Octroi/Zila Tax (OZT) along with mark up and additional mark up; h. Direct the Respondents to suitably amend the Sindh Local Government Act, 1913, and any delegated legislation or executive order issued thereunder so that all functions and powers of subjects falling under Article 140-A of the Constitution, presently usurped by the Respondent No.3, are devolved to the local government institutions, at least in a manner similar to the dispensation available under the erstwhile Sindh Local Government Ordinance, 2001; i. Alternatively the Sindh Local Government Act, 2013 may be annulled and directions be issued to the Respondents to revive the Sindh Local Government Ordinance, 2001; Direct the respondents to release all the due share of the funds to the local governments of Sindh, in particular the KMC for the period from 2008 till date along with mark up/additional mark up, so also the due share of the Annual Development Programmes (ADPs) pertaining to the latter period; k. For future also direct the Respondents to keep on releasing the due share of funds to the local governments of Sindh, so also funds for any devolved departments; 1. Award costs and special costs; m. Award any other relief, deemed fit in the circumstances of the case." 2. Comments have been filed by Respondent No.7-Government of Sindh through Secretary Finance by way of C.M.A. No.5627 of 2020. Concise statement being C.M.A. No.10101 of 2018 is filed on behalf of the Secretary, Cabinet Division, Government of Pakistan. 3. We have heard the learned counsel appearing for the parties and have also gone through the record of the case. 4. Mr. Salahuddin Ahmed, learned counsel for the petitioners has also filed written synopsis/arguments by way of C.M.A. No.6728 of 2020. Additional written synopsis have also been filed by the learned counsel for the petitioners. 5. Mr. Khalid Javed Khan, learned Attorney General for Pakistan has also filed written synopsis/arguments. 6. Mr. Salman Talib-ud-Din, learned Advocate General, Sindh has also filed written synopsis/arguments. 7. Sardar Shahbaz Ali Khoso, learned counsel appearing for Respondent No.8-Pakistan Peoples' Party Parliamentarian has also filed written synopsis/arguments. 8. Learned counsel for the petitioners has argued about the history of Local Government in Sindh. He has contended that in the democratic system of governance, the Local Government empowers people at grassroots level and gives them authority over their day to day issues. He contended that globally the empowerment of people at grassroots level has improved interaction between the public and their elected representatives, politically educated the people and given the people sense of participation in the governance and also improved accountability of political parties. He
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contended that the Local Government System works as nurseries for future Provincial and National level leadership. 9. Relying upon Article 32 of the Constitution, the learned counsel contended that as a Principle of Policy, the State is under-command to encourage local Government institutions, while Article 37(i) of the Constitution provides for decentralization of the Government administration to enhance public convenience. Learned counsel for the petitioners further contended that the Local Governments were already functioning in whole of Pakistan when Article 140A was added to the Constitution by the Legal Framework Order, 2002 (LFO of 2002). This Article was omitted from the Constitution by the Constitution (Eighteenth Amendment) Act, 2010 and by the same Act of 2010, new Article 140A was inserted in the Constitution. He contended that the inherent functions of the Local Government includes, Building Control and Town Planning, Water Supply, Sewerage and Waste Disposal, Local/Public Transport and Civic Facilities like Parks, Playground, Libraries, Mosques, Graveyards, Parking Facilities etc. He contended that in terms of existing Article 140A of the Constitution, the Provincial Government is under-command to establish a Local Government System and devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Governments. 10. He further contended that Article 140A of the Constitution does not provide any measure and extent the Province shall establish a Local Government System, devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Governments, rather this Article provides establishment of a Local Government System and to devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Governments in full, in that, the province has no power to allow certain functions of the Local Governments to the Local Governments and not to allow certain other functions of the Local Governments to the Local Governments. He contended that Article 140A ibid is being clearly violated in the Province of Sindh, where the Province of Sindh, though has established Local Government System but has not actually devolved political, administrative and financial responsibility and authority to the elected representatives of the Local Governments has usurped many functions of the Local Governments by making amendments in the very. Act of 2013 so also by enacting the provisions of Sections 74 and 75 in the Act of 2013 and also Sections 4 and 18 of the Sindh Building Control Ordinance, 1979 as well as the Karachi Development Authority (Revival and Amending Act) 2016, specially Section 3, which may be declared unconstitutional. He has also contended that the Sindh Building Control Authority Ordinance, 1979, the KDA Order No.5 of 1957, the Malir Development Authority Act, 1973, the Liyari Development Authority Act, 1993, the Hyderabad Development Authority Act, 1976, the Sehwan Development Authority Act, 1993, the Larkana Development Authority Act, 1994, the Karachi Water and Sewerage Board Act, 1996, the Sindh Solid Waste Management oard Act, 2014, the Sindh Mass Transit Authority Act, 2014, the Sindh Food Authority Act, 2016, the Sindh Environment Protection Agency Act, 2014, the Board of Revenue Master Plan Developments may be amended suitably to ensure that the functions contained under the laws are devolved to the Local Governments in consonance with Article 140A of the Constitution. 11. He further contended that the Provincial Financial Commission, constituted under Section 112 of the Act of 2013, should also workout financial implications of such devolution and make appropriate recommendation of fund allocations from the Provincial Consolidated Funds (PCF) to each Local Council and such be implemented by the Sindh Government. He further contended that the Local Government law should contain appropriate legislation to ensure that the Local Government is able to levy sufficient tax/fee, to achieve maximum financial autonomy. He referred to the collection of Octroi/Zila Tax by the Local Governments in Karachi, which was abolished and the National Finance Commission recommended that 0.66% of provincial share in the net proceed of divisible pool be reserved and the same was incorporated by Section 7 of the President's Order
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No.5 of 2010. He contended that the Sindh Government has failed to provide to Karachi Metropolitan Corporation (KMC) with its due share from this allocation and there are arrears in this regard for the years 2008-09 to 2015-16, amounting to Rs.29.366 billion. He contended that the arrears may be paid to KMC by the Sindh Government to enable better provision of municipal services to the citizens of Karachi and future share be also paid promptly. He finally contended that the Sindh Government be directed to frame and ensure passage of appropriate legislation to provide for meaningful enforcement of Article 140A of the Constitution. He also relied upon the framework and functions of the Local Government in other jurisdictions pf Canada, UK, India, US, Brazil and Bangladesh and in this respect filed C.M.A. No.5622 of 2020. He has. relied upon the cases of Raja Rab Nawaz v. Federation of Pakistan through Secretary, Defence and others (2013 SCMR 1629), Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others (PLD 2014 Supreme Court 531), Government of Balbchistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341), Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404), Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994 SC 105), Al-Jehad Trust through Habibul Wahab Khairi Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others (1999 SCMR 1379), Election Commission of Pakistan through Secretary v. Province of Punjab through Chief Secretary and others (PLD 2014 Supreme Court 668), Khan Asfanduar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 Supreme Court 607), Mehram Ali and others v. Federation of Pakistan and others (PLD 1993 Supreme Court 1445) and Awais Younas v. Federation of Pakistan and others (PLD 2016 Lahore 1). 12. Learned Attorney General for Pakistan, on the other hand, contended that as the Local Governments are empowered to impose tax or cess or fee by virtue of Article 7 of the Constitution, it has a. status that of a State. He contended that by Article 140A of the Constitution, Provinces are mandated to establish Local Government System by law and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments and such mandate has to be complied with by the provincial government to ensure and good governance at grassroots level for effective delivery of municipal/public services. He contended that the power of such devolution rests with the provincial legislature and it has to ensure establishment of an effective Local Government System by law. While relying upon the case of Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739), the learned Attorney General contended that instead of declaring the statutory provisions as invalid or ultra vires to Article 140A of the Constitution, as prayed for by the petitioners, the Court may give certain guidelines on issues, which are as follows:-- i) What is the essence of Local Government. ii) Relationship between Provincial and Local Government. iii) Essence of Local Government (Functional test/structure): (a) Local Government-Representative of people, (b) Mayor-Elected Directly, (c) Devolution at District Level, (d) All Civil Agencies performing functions in the area should be made accountable to Provincial Assembly. iv) What functions are inherently local and can be performed by Local Government only. Such as: (a) Sewerage. (b) Water Supply: (c) Garbage Collation/Solid Waste.
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(d) Town Planning/Building Control. (e) Intra City Transport. (f) Civic Facilities i.e parks, parking facilities, mosques and graveyards. v) Provincial Financial Commission (Local Government Autonomy Strong Accountability to Provincial Government). vi) No concept of suspension and or dissolution of Local Government. vii) Accountability (Audit by Accountant General for Pakistan-Provincial Accountability Committee. viii) The Honourable Court may, if deem appropriate, make it mandatory that 2/3rd majority is required for amending any Local Government Laws. 13. Referring to the Constitution of India, learned Attorney General contended that by 73rd and 74th Constitutional Amendments, adopted in 1992, Articles 243-G and 243-W, were added to the Indian Constitution, which laid down that the State legislature will endow on Municipalities and Panchayats with such powers and authority necessary to enable them to function as institutions of self-government and devolution of powers and responsibilities upon the Municipalities. He relied upon the cases of K. Krishna Murthy and others v. Union of India [(2010) 7 SCC 202], U.P. Gram Panchayat Adhikari v. Daya Ram Saro [(2007) 2 SCC 138)], State of U.P. and another v. Zila Parishad Ghaziabad [(2013) 11 SCC 783)] and Shanti G. Patel and others v. State of Maharashtra and others (2006) INSC 48)]. He also gave comparative table of Local Governments of Bangladesh, Malaysia and United Kingdom. 14. Learned Advocate General, Sindh has contended that no sufficient measure has been brought on record by the petitioners to invoke the jurisdiction of Article 184(3) of the Constitution and such jurisdiction should not be exercised by this Court and the petitioners be asked to approach the High Court in the first instance. He contended that the Sindh Government has fully complied with Article 140A of the Constitution by promulgation of the Act of 2013. He contended that Article 140A ibid only requires a province by law to establish a system within which a Local Government shall function and keeping in view the said system, devolve corresponding political, administrative and financial responsibility and authority to the elected representatives of the Local Governments. He contended that the Act of 2013 has complied with the mandate of Article 140A ibid. He further contended that the petitioners by this petition have sought a change in the system established by the Act of 2013, which objective can best be achieved through political means and not through judicial intervention. He has contended that this Court and the High Court have consistently declined to exercise jurisdiction in the matters, where the political questions are involved and the laws sought to be amended by this petition by the petitioners, have been legitimately enacted reflecting the will of the people. He contended that the learned Attorney General in his submission has already contended that none of the provisions of various laves be struck down as prayed for by the petitioners but the Court may give some directions or observations regarding the import of Article 140A ibid and as to what it required. Learned Advocate General contended that he supports the submission of the learned Attorney General that none of the provisions of law, as prayed for by the petitioners, be struck down. 15. As regard the submission of learned Attorney General for issuing of direction regarding the import of Article 140A ibid, learned Advocate General contended that he does not support the same and gave reason that any direction or observation made by the Court will be binding upon all provinces and it should not be done without affording opportunity of hearing to them. He further contended that the compliance of Article 140A ibid is completed when a province enacts law as is done by the Province of Sindh by Act of 2013, devolving some political, administrative and financial responsibility on the Local Governments and in doing so, the Provincial Government has striped itself of those political, administrative and financial responsibilities. He contended that the silence of Article 140A ibid about the extent of political, administrative and financial responsibility and
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authority to be devolved on the Local Government is not without reason. He contended that Article 140A's silence on these aspects is explained by the fact that the dynamics of each province are not only different but are prone to change from time to time and these changes 'are addressed by the provincial legislature in the manner that best serves the populous and thus, it is not a case of one size fits all solution. He contended that such silence in Article 140A ibid of the Constitution be not regarded as a flaw and remedy by judicial intervention and such has been recognized by this Court in Imrana Tiwana's case (supra). 16. Sardar Shahbaz Ali Khosa, learned counsel appearing for Respondent No.3 has raised question of locus standi of the petitioners to file the petition after the expiry of its tenure and has contended that the petition is liable to be dismissed or declared as infructuous. He has further contended that the petition before this Court is not maintainable, for the reason that the petitioners have not approached the High Court in the first place. He has contended, that every province has its own sources to set up the Local Governments and that their problems and solutions are also distinct and the judgment passed by this Court will have an impact on all the provinces. He contended that in Imrana Tiwana's case (supra), this Court has exercised caution for the reason that it will have application on other provinces. He contended that rolling back powers from the local government to the provincial government is not illegal and ultra-wires and such has been dealt with by this Court in Imrana Tiwana's case (supra). 17. On merits, he contended that the petitioners have miserably failed to discharge their powers/duties for the welfare of the public at large and shows their incapability despite enjoying full tenure of office at Karachi. He contended that the prayer made in the petition is in fact to usurp the power of the legislature of the Province of Sindh and also the executive power of the Province of Sindh. He contended that under Article 140A of the Constitution as interpreted by this Court, devolution is to take place as a process and no extent in this regard has been mentioned in Article 140A of the Constitution, and such has been intentionally left so as to ascertain the strength of bargaining power of Local Government vis-a-vis Provincial Government. Learned counsel in support of his submissions also relied upon the cases of the Province of East Pakistan and others v. Sirajul Hug Patwari and others. (PLD 1966 Supreme Court 854), Mehreen Zaibun Nisa v. Land Commissioner, Multan and others (PLD 1975 Supreme Court 397), Mst. Kaneez Fatima v. Wali Muhammad and another (PLD 1993 Supreme Court 901), Multiline Associates v. Ardeshir Cowasjee and others (1995 SCMR 362), Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others (PLD 1997 Supreme Court 582), Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of-Pakistan Islamabad and another (2000 SCMR 1956), Mian Asif Islam v. Mian Muhammad Asif and others (PLD 2001 Supreme Court 499), Pakistan Muslim League (Q) and others v. Chief Executive' of Islamic Republic of Pakistan and others (PLD 2002 Supreme Court 994), Pakistan Lawyers Forum and others v. Federation of Pakistan and others (PLD 2005 Supreme Court 719), Messrs Master Foam (Pvt.) Ltd. and 7 others Government of Pakistan through Secretary Ministry of Finance and others (2005 PTD 1537), Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others (PLD 2006 Supreme Court 697), Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq and others (PLD 2007 Supreme Court 133), Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265) and Engineer Iqbal Zafar Jhagra and another v. Federation of Pakistan and others (2013 SCMR 1337). Learned counsel further contended that one provincial legislature could not bind the future legislature in making of Local Government law, for the provincial legislature in existence is only the competent forum who can decide as to what matters are to be devolved and to what extent to the Local Government.
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18. First of all we propose to take up the question of very maintainability of the petition under Article 184(3) of the Constitution filed by the petitioners, as to whether the same is at all maintainable. 19. The case of the petitioners is that in terms of Article 140A of the Constitution, there. has to be a full-fledge third tier of Government with devolution of political, administrative and financial responsibility and authority. The Sindh Government, by denying such devolution to the Local Government, is infringing upon the rights of the people as envisaged in Article 2A, the Objectives Resolution, Article 4 and the Fundamental Rights under the Constitution. That the third tier of Government is responsible for decision making in policy areas, which have direct impact on the life of citizens' health, art, culture and sports, local transport, water and energy, regional planning, education, social services and improving law and order. The petitioner have made reference to the Fundamental Rights contained in Articles, 14, 17 and 25 of the Constitution and have alleged that the Sindh Government has let loose a complete rule of loot and plunder, virtually spending nothing upon Urban areas of the Province of Sindh and funds means for the Rural Sindh, have been looted with impunity. Making reference to Urban Sindh, in particular to Karachi so also Rural Sindh areas such as Larkana and Ghotki of untreated garbage and sewage piled up and hardly any provision of drinking water or useable water is made. Water is polluted and unhygienic living conditions prevail in the Province of Sindh and there is epidemic of Chikungunya and other fatal diseases. No municipal service is available. That the Health Department and the Government Hospitals are in deplorable state, where medicines are also not available and employment is mostly sold out and no appointment on Brit is made. Schools and colleges run by the Sindh Government are in state of complete shambles. Most of the schools have ghost teachers, ghost students and no…
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