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Petitioner: M/s. Malik Mazhar Hussain Goraya VS Respondent: Govt. of Punjab, etc
Court Name: Lahore High Court Judge(s): Shahid Jamil Khan Title: M/s. Malik Mazhar Hussain Goraya vs Govt. of Punjab, etc Case No.: Writ Petition No.18004 of 2022 Date of Judgment:2022-12-23 Reported As: 2022 LHC 8584 Result: Order accordingly
JUDGMENT
JUDGMENT Shahid Jamil Khan, J. This judgment examines the extent of statutory authority and constitutional validity of appointment and powers of Administrators of Local Governments (under Notification dated 20.10.2022) to utilize Local Government's Development Fund, in absence of Elected Representatives and that too for carrying out Development Scheme proposed by MNAs and MPAs. 2. Tender Notice dated 13.11.2022, by District Council Dera Ghazi Khan is challenged being against the rules/policy and in absence of administrative approval of Secretary Local Government. It is alleged to have been issued by the Deputy Commissioner and Chief Officer without TS-I to oblige MNA and MPAs of the area. 3. Secretary, Local Government & Community Development Department South Punjab, appeared along with other officials/respondents and written comments/report was submitted. They claimed that the Development Schemes were prepared in accordance with Rule 5(2) of Punjab Local Government (Works) Rules, 2017 and approved under Rule 5(7) by Development Committee, constituted under Rule 5(8)(2)(i) consisting of: 1.Chairman/AdministratorConvener 2.Chief Officer Member 3.District Officer (Finance)Member 4.District Officer (I&S) Member/Secretary However, the allegation regarding MNA and MPAs Development Schemes was not denied specifically, rather it was admitted, during arguments, that Development Schemes were recommended by respective MNA and MPAs on their letter pads.
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On query about approval of Development Funds and priority of development projects, it was apprised that the Development Fund consists of budgetary grant by Government of Punjab and taxes/fees collected by the Local Government. Learned Additional Advocate General submitted that priority for development projects was fixed under Rule 3(b) of Punjab Local Government Budget Rules 2017, by the Administrator, exercising powers of Chairman, which is reproduced: - "3. Responsibility of the Mayor or Chairman._ The Mayor or Chairman shall: (a) provide vision for long term development, identify needs of the local area and evaluate and set development priorities of the local government; (b) interact with stakeholders to assess their needs and obtain their input on overall development outlay and revenue potential of the local area; Explanation. The expression "stakeholders" means the elected representatives, general public, women organizations, private sector, non-governmental organizations, community based organizations and includes minority and other relevant organizations." [emphasis supplied] It is an admitted position that the Administrator exercised powers of Chairman, under the Rule 3 (Responsibility of Mayor or Chairman), without interacting with elected representatives as stakeholders, to identify and evaluating the needs of local area to set development priorities of the Local Government. On another query about constitutional validity of exercising powers by Administrator of elected representatives after insertion of Article 140A in the Constitution of the Islamic Republic of Pakistan 1973 ("Constitution"), different provisions of the Local Government laws were referred. Explaining the delay in conducting elections, it was apprised that Election Commission of Pakistan has already issued delimitation schedule through Notification dated 08.12.2022, exercising powers under Sections 10, 11 and 12 of the Punjab Local Government Act 2022, which is reproduced: - "Election Commission of Pakistan NOTIFICATION Islamabad, the 8th December, 2022. No.F.2(1)/2022-LGE(P)-Voll-II;- In exercise of powers conferred upon it under Article 222 (b) of the Constitution of the Islamic Republic of Pakistan, Sections 17 & 221 of the Election Act, 2017 Section 10 of the Punjab Local Government Act, 2022 the Election Commission of Pakistan hereby issues the timelines of following activities of carrying out Delimitation of Union Councils in the Punjab Province:- Sr. No.EventsNo. of Days.Proposed Timelines 1Completion of all the administrative arrangements including procurement of maps, fresh notifications of demarcations printing of various forms, appointment & training of the delimitations committees & delimitations authorities.10 Till 15.12.2022 2Preparation of Preliminary List of Constituencies by the Delimitations Committees. 2218.12.2022 to 06.01.2023 3Publication of Preliminary List of Constituencies by the Delimitation Committee for inviting Objections.0107.01.2023 (Saturday) 4Filing of objections by the voter concerned before the delimitation authorities.1509.01.2023 to 23.01.2023 5 Disposal of objections by the delimitations authorities. 25 09.01.2023 to 03.02.2023
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6Last date for communication of decisions of delimitations authorities the delamination committees.06 09.02.2023 7Final publication of list of constituencies by the delimitations committees. 0312.02.2023 (Sunday) By order of the Election Commission of Pakistan." The schedule shows that delimitation shall be completed, latest by 12.02.2023 for conduct of Local Government elections. Learned AAG assisted by the Secretary is confronted why process of development projects is being carried on without waiting for the elected representatives after the expected elections, they could not reply satisfactorily. 4. Heard, record perused: 5. There is confusion, existing due to several enactments after Punjab Local Government Act 2013 ("PLG Act 2013"), which needs to be discussed before formulation of legal points, requiring determination of lis through this judgment. The existing Punjab Local Government Act 2022 came into force w.e.f. 16.11.2022. During the interregnum period, Punjab Local Government ("PLG") laws were enacted and repealed in the years 2019, 2021 and in June 2022. The last elected Local Governments were constituted under PLG Act 2013 and on maturity of elected representatives' tenure, the Local Governments are being run through Administrators. The Administrators, currently in place, are appointed by the Chief Minister, through Notification dated 20.10.2022, to exercise powers and authority of the Defunct Local Government. The "Defunct Local Government" is defined under Section 2(1)(s), as "a local government constituted under any local government law existed prior to the commencement of this Act". Continuity of all offices, agencies and authorities of Defunct Local Government, is ensured under Section 205 and power to appoint the Administrator is conferred by Section 71 of the existing PLG Act 2022. Notification for appointment of Administrators dated 20.10.2022, being issued under repealed PLG Act 2022, is saved under Section 204(3)(a), which is reproduced: - "NOTIFICATION No. SOR(LG)1-11/1019. In exercise of powers conferred upon him under section 80 of Punjab Local Government Act, 2022, the Chief Minister of Punjab is pleased to appoint the following officers as Administrators of the defunct local governments constituted under Punjab Local Government Act, 2013, which, under section 211(1) of the Act ibid shall continue providing public service I their respective local areas without any interruption till such time new local government are constituted under the Act: ... ... ... ... ... ... 2. Every aforesaid Administrator shall perform all the duties and exercise all the powers of the respective Mayor and Deputy Mayor or, as the case may be, the Chairman or Vice Chairman, and the house till constitution and assumption of the office by the elected local governments." [emphasis supplied] 6. Sections 80 and 211 of the repealed PLG Act 2022 are almost similar to the corresponding Sections 71 and 205 of existing Act of 2022. Under Section 71 the Chief Minister can appoint any of its officer (of Council or Local Government) as an Administrator on expiry of term of a Council or till the new local government or a Council is constituted, whereas under the Section 80 the officer, to be appointed as Administrator, could be of the Provincial Government. Both the Sections, repealed and existing, are placed in juxtaposition for comparison:- S.71. Power of the Chief Minister to appoint an administrator.- On expiry of the term of aS.80. Power of the Chief Minister to appoint administrator.- On expiry of the term of a
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Council, or otherwise pending the constitution of a new local government or a Council, the Chief Minister shall, by an order published in the official Gazette, appoint any of its officers to perform such functions and exercise such powers and authority of the respective local government as may be specified in that order. Council, or otherwise pending the constitution of a new local government or a Council, the Chief Minister shall, by an order published in the official Gazette, appoint any of officers of the Government, as Administrators, to perform such functions and exercise such powers and authority of the respective local government as may be specified in that order. [emphasis supplied] The minor change in language of both the Sections, brings a major difference in powers of Chief Minister i.e., under Section 80 any officer of the Provincial Government could be appointed as Administrator, whereas under existing Section 71, only an officer of the Council or Local Government can be appointed as Administrator. Necessary question arises; Whether appointment of Provisional Government's officers (Commissioners, Deputy Commissioners and Additional Deputy Commissioners) appointed under Section 80 can be validated or saved under Section 204(3)(a), when the appointments conflict with the existing provision? Even if this aspect is ignored, by interpreting the saving provisions of the Section 204 over the provisions of Section 71 till next appointment, nevertheless, absence of Cabinet's approval for appointments of Administrators would be an incurable defect. Appointment of an Administrator in a Council or Local Government comes within re-organization of Defunct Local Government, as envisaged in subsection (3) of both Sections 205 and 211, which can be done by the Provincial Government. The law is settled in Messrs Mustafa Impex, Karachi and others v. the Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808) that powers of a government can be exercised only through Provincial Cabinet. Though Chief Minister is or was empowered to appoint an Administrator in accordance with respective provisions of both Sections, yet the appointment being an act of re-organizing, has to be of the Provincial Government. Reference of Section 211(1) in the Notification dated 20.10.2022 is inconsequential because the subsection (1) of both the Sections 205 or 211, envisages only continuity of all offices, agencies and authorities of Defunct Local Government and not creation of or new appointment in an office, not in existence at the time when the Local Government became defunct. The purpose for appointment of an Administrator is to ensure continuity of public service only by performing functions to carry out the decision already made by the Defunct Government, exercising its powers in accordance with law. Both the Sections 205 and 211, having little variation, are also placed together for a comparative reading:- S.205. Interim authorities and continuation of public services.-(1) All offices, agencies and authorities of the defunct local governments established under the Punjab Local Government Act, 2013 (XVIII of 2013) shall continue providing public services in their respective local areas without any interruption till such time new local governments are established under this Act.
(2) Subject to any other relevant law, all officers and servants of the defunct localS.211. Interim authorities and continuation of public services.- (1) All defunct local governments and any other offices, agencies or authorities established under Punjab Local Government Act, 2013 (XVIII of 2013) and Punjab Local Government Act, 2019 (XIII of 2019) shall continue providing public services in their respective local areas without any interruption till such time new local government are established under this Act.
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governments shall continue to discharge their respective duties and exercise their powers with the successor local governments under this Act, till such time they are assigned or transferred to any other local government.
(3) Nothing in this section shall preclude the Government from appropriately re-organizing the defunct local governments or for the matter reorganizing or reassigning any other office or authority established under the Punjab Local Government Act 2013 (XVIII of 2013).(2) Subject to any other relevant law, all officers and servants of the defunct local governments shall continue to discharge their respective duties and exercise their powers with the successor local governments under the Act, till such time they are assigned or transferred to any other local government.
(3) Nothing in this section shall preclude the Government from appropriately re-organizing the defunct local governments or for that matter reorganizing or reassigning any other office or authority established under the Punjab Local Government Act 2013 (XVIII of 2013) and Punjab Local Government Act, 2019 (XIII of 2019). [emphasis supplied] 7. For what has been discussed, ibid, appointment of Administrators, through Notification dated 26th October 2022, in absence of approval by the Cabinet are declared without lawful authority. As a consequence, all decisions made and actions taken by the Administrators, so appointed, are also declared without lawful authority unless ratified by the duly appointed Administrators, to the extent of functions, in accordance with existing law. 8. Exercise of functions only, by the Administrators, and not powers to be exercised by elected Local Government, needs further elaboration. In an interim setup, till newly elected Local Government is constituted, continuity of public service shall not include exercise of powers conferred upon elected office bearers and representatives. Particularly for identification, fixing of priority and expenditure of Development Funds. The Development Fund is expended from Local Fund established under Section 72. Under Section 75 (Application of Local Fund), the monies deposited in Fund shall be expended in accordance with annual or supplementary budget, fixing ratio between development and non-development expenditure, under its subsection (3), subject to budgetary constraints. Under its subsection (4), the development budget is required to be prioritized in accordance with the Bottom up Planning System, for announcement and laying down the Classification of Development Schemes, under Section 78. The scheme, so announced, shall be deemed approved only if it fulfils conditions under subsection (2). The Section 78, providing a detailed procedure and conditions, is reproduced: - "78. Bottom up planning and the community ownership incentive system.- (1) Before the beginning of the financial year the respective local government shall lay down and announce the classification of development schemes to be undertaken exclusively under the provisions of this section. (2) A local government may grant to the Community Based Organization within its local areas, up to eighty percent of the budgeted amount of an approved development scheme in the manner prescribed: Provided that a scheme shall be deemed to be an approved scheme if: (a) the prescribed departmental procedure for estimating the cost of the scheme has been followed; (b) the estimating officer certifies that the scheme meets the requirements laid down by law; (c) the Community Based Organization has deposited its share of the cost of the development scheme with the concerned local government; and
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(d) the complete departmental estimates and the proof of deposit of the contribution of Community Based Organization are attached. (3) The grant referred to in subsection (2) shall be spent from the reserved amount of the annual development budget as provided in section 75. (4) A cut-off date for submission of all schemes proposed by the Community Based Organization shall be announced by the local government concerned before the presentation of its budget. (5) The respective local government shall authorize an official to draw up a statement specifying the schemes submitted by the cut-off date specified in subsection (4) by classification including the total amount of contributions for a particular classification of schemes. (6) A second statement shall determine contributions for a particular classification of schemes as a ratio of the total contributions for all schemes submitted with a particular local government for that year, and the statement shall be used to determine amounts of allocations for a classification of schemes from the budget reserved for the purpose. (7) A third statement shall be drawn up which shall identify the number of schemes submitted in a particular classification, beginning with the scheme containing the highest contribution by the Community Based Organization in a classification until all the schemes in the classification are selected or the funds allocated for that particular classification in the amount determined in subsection (6) are exhausted. (8) The funds for Community Based Organization under section 75 shall be communicated to the authorized officer under subsection (5). (9) The identified schemes shall be included in the budget before submission to the concerned Council. 41 (10) The statement referred to in subsection (7) shall be approved by a simple majority of the members of the respective Council in a budget session to be held by the respective Council. (11) The schemes approved by the respective Councils shall be carried out as prescribed. (12) Subject to subsection (10), the Accounts Official of the respective local government shall release funds in the prescribed manner in accordance with the schedule of expenditure." [emphasis supplied] 9. It was pleaded by respondents side that procedure under Punjab Local Government (Works) Rules, 2017 and Punjab Local Government Budget Rules 2017 was followed but could not justify compliance of even these Rules. The Rules were already in place and have been saved under Section 204, however, would not override the requirements and conditions stipulated by the statutory provisions. The statutory requirements discussed above, being mandatory must be fulfilled for classification, identification, approval and release of the Development Funds. It is reiterated that the Administrator is appointed only for continuation of public service, based on the powers exercised by Defunct Local Government. The Development Funds, if already identified, approved through budget and released in accordance with law, can be expended, to maintain continuity, by the Administrators. The Administrator, appointed in accordance with law, can expend only eight percent per month, from the budget approved for a financial year, under Section 75(7), which is reproduced for facility:- "(7) Where a new local government is to take over during a financial year as a result of fresh elections, the outgoing local government shall not spend funds or make commitments for any expenditure under any Demand for Grant or Appropriation in excess of eight percent per month of the budgeted funds for the remainder of its term in office in that financial year." 10. The existing PLG Act of 2022, does not conceive development expenditures outside the approved budget in a financial year, as is discernable from a collective reading of Sections 205 and 75. On maturity of elected representative's term, the next elected Local Government must be constituted without a break, which is the spirit/scheme of the Act of 2022, in consonance with the command by
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Article 140A of the Constitution. Under inevitable circumstances, if the next elected Local Government is delayed, provisions of Sections 205 and 71 would come into play, which need to be construed narrowly for performance of function only and not exercise of power vested in elected Local Government. The powers are required to be exercised by the elected office bearers within Local Government Structure, under Section 13. Chapter XI Part 2 of the Act of 2022 provides the powers and duties of Local Government Functionaries. Section 33 prescribes the powers and duties of Head of Local Government, as defined by Section 2(1)(rr) are Lord Mayor, City Mayor, District Mayor and Chair Person of a union council. The Head of Local Government, under subsection (2) of Section 33, is answerable for exercise of powers to the House of elected representatives, by submitting a report. In case of unsatisfactory performance, the House may send its recommendation to the Secretary Government of Punjab for appropriate action. These powers could not, by any stretch of interpretation, be given to an Administrator, in a Notification of appointment by the Chief Minister under Section 71 read with Section 205(1), which envisage only, "providing public services in their respective local areas without any interruption till such time new local governments are established under this Act". The function and powers, to maintain continuity, cannot be notified by the Chief Minister without prior approval of the Cabinet. 11. It is a general principle, laid down as law by constitutional courts, that in interim setup, function and exercise powers should be to carry out day-to-day affairs. August Supreme Court of Pakistan in judgment Fauji Sugar Mills v. Market Committee, Tando Muhammad Khan and another (1988 SCMR 155) held, "It is also manifest that the levy of a fee can only be in exercise of power and not exercise of functions". Exercise of powers by Caretaker Government, in interim setup, was examined in Khawaja Muhammad Asif v. Federation of Pakistan and others (2013 SCMR 1205), when transfer posting and appointments were challenged under Article 184(3) of the Constitution. It was pleaded that caretaker government has to confine itself to day to day routine matters, a controversial decision, irreversible by the forthcoming elected government should be avoid. The August Court held. "28. In light of discussion made hereinabove, we hold that:-- (a) The Caretaker Cabinet/Prime Minister appointed under Article 224(1)(2) or 224A, as the case may be, is empowered to carry out only day-to-day affairs of the State with the help of the available machinery/resources/ manpower and also to watch national interest against war or national calamity or disaster faced by the nation, including terrorism, etc. (b) The civil servants who have already been appointed in accordance with the rules/regulations on the subject ought not to be posted/transferred, etc., except in extraordinary circumstances, that too, temporarily. (c) Major policy decisions including making of appointments, transfers and postings of the Government servants should be left to be made by the incoming government in view of the provisions of Constitution that the affairs of the State are to be run by the chosen representatives of the people. (d) As newly elected Government is mandated to perform its functions of achieving the object and purpose of welfare of the people for which it has been duly appointed, therefore, caretaker Cabinet/government/Prime Minister, having no mandate of public support, is only caretaker set up and due to this connotation should detach itself from making permanent policies having impact on future of the country. [emphasis supplied] 12. The provisions of the PLG Act, 2022, in force, do not allow any interference by the Members of Federal or Provincial Legislatures (MNAs or MPAs). Mandate of the Federal and Provincial Legislative bodies is legislation, by adhering to the Principles of Policies, outlined in Chapter 2 Part II, as
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ordained by Article 29 of the Constitution, without offending the Fundamental Rights guaranteed by the Constitution in Chapter 1 Part II. The practice of allocating Development Funds to ruling and other MNAs and MPAs is not only against the constitutional scheme, but detrimental to the norms and spirit of democracy itself. It is misused in respective constituencies by the Legislators to influence the voters, necessary result of which is inequitable, unnecessary, and unlawful expending of Development Funds. Allocation and utilization of Development Funds, by pick and choose is in direct conflict with equality clause under Article 25 of the Constitution, therefore, discriminate grant of Development Funds in an area or constituency, where ruling party won…
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