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Petitioner: Akram Khan Durrani and others VS Respondent: Government of Khyber Pakhutnkhwa JUDGMENT
Court Name: Peshawar High Court Judge(s): Rooh-ul-Amin Khan, Ijaz Anwar, Syed Arshad Ali Title:Akram Khan Durrani and others vs Government of Khyber Pakhutnkhwa
JUDGMENT
Reported As: PLD 2022 Peshawar 171 Result: Order accordingly Judgment JUDGMENT SYED ARSHAD ALI, J.---Petitioners in this petition as well as in the connected. Petitions Nos. 3772-P and 5051-P/2019, the majority of whom are the public representatives and elected members of Provincial Assembly of Khyber Pakhtunkhwa, have unanimously challenged the constitutionality and legality of Khyber Pakhtunkhwa Local Government (Amendment) Act No. XXV of 2019 ("Amended Act") alleging therein that the Amended Act is ultra vires to the Constitution and more particularly to Article 140A of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). 2. Qazi Jawad Ehsanullah, the learned Advocate representing the petitioners in Writ Petition No. 3605-P/2019 has argued that the Amended Act is the brain child of the ruling political party, which has introduced drastic changes in the Khyber Pakhtunkhwa Local Government Act, 2013 ("Act of 2013") by compromising on the mandate of Article 140-A of the Constitution. Through 'the impugned Amended Act, not only the local governments have been deprived of their political, financial and administrative autonomy but the entire composition of the local governments envisaged through Act of 2013 has been changed. The main ground of attack of the learned counsel was on the deletion of Chapter-III and Chapter-IV of the Act of 2013, which has been done through Section 11 of the Amended Act. The learned counsel has maintained that the effect of the said deletion is that it has diminished and done away with the entire edifice of the representative and elected system of local governance at a district level. He further argued that if the said deletion is maintained then the district, being the basic administrative unit of the province, will have no government of its own and it will work directly under the Provincial Government. Thus, the concept of local self-government at tehsil level will never be achieved for the purpose of Article
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140-A of the Constitution. He also argued that the district level government being evolved since 1959 through various enactments has played a pivotal role in development of local self- governance, therefore, the introduction of the local self-governance only at Tehsil level has literally diminished the utility of local self-governance. Furthermore, section 12 of the Amended Act read with First Schedule has trimmed the number of devolved departments and, thus, for all practical purposes, the new local governments are toothless and cannot effectively meet the mandate provided under Article 140-A of the Constitution. Indeed, it has diminished the letter and spirit of the concept of the local government system. 3. The learned counsel has also referred to other provisions of the Amended Act including sections 55, 57 (ii) and (iii), 60, 64, and 70, whereby it has conferred authority on the Chief Minister of the Province to directly interfere in the local government and thus, the political administrative and financial autonomy of the local government would always remain at stake. The learned counsel for the petitioner has also argued that through section 27 of the Amended Act, the political parties have been deprived to participate in the grassroots political system i.e. local government, which thus, offends Article 17 of the Constitution. The learned counsel placed reliance upon the judgment of Hon'ble Lahore High Court in Awais Younas's case (PLD 2016 Lahore 1) and Pakistan People Party's case (PLD 2014 Lahore 330). 4. Mr. Khushdil Khan, the learned counsel representing the petitioner in Writ Petition No. 5051-P/2019, has argued that he is a public representative in the Provincial Assembly and belongs to Opposition bench, however, in the entire process of impugned legislation neither the house was taken into confidence nor the matter was allowed to be elaborately discussed by the house, therefore, the impugned Act was passed in disregard of the democratic norms besides being based on mala fide and discriminatory. He has also supported the arguments of Qazi Jawad Ehsanullah, Advocate, regarding the deletion of District Government. Mr. Zahid Sultan Khan Minhas, learned counsel `representing the petitioner has also supported the arguments of learned counsel representing the petitioners in Writ Petition No. 3605-P/2019. 5. Mr. Shumail Ahmad Butt, the learned Advocate General Khyber Pakhtunkhwa, while rebutting the arguments of learned counsel for the petitioners, has argued that the Constitution itself has not provided any form or structure of the local government and has left it at the wisdom of the Provincial Assembly of each Province to form and formulate the structure of the local government, therefore, it is the sole competence of the respective Provincial Assembly to frame a law relating to the local governments. He argued that once it is established that the Assembly was competent to legislate and the impugned legislation does not offend any provision of the Constitution then the same cannot be questioned on the test of reasonability. The learned Advocate General has also referred to the discussion of the parliamentarians in the making/drafting Constitution and argued that it never remained the will of the law makers to provide a structure to the local government in the Constitution, thus, the same has been left at the wisdom of the Provincial Assemblies. Even through Article 140-A of the Constitution the law makers have deliberately abstained from providing a particular structure or form of the local government. He next argued that the earlier dispensation of the local government, under the erstwhile statute regulating the local government including the Act of 2013, cannot be a bench mark to strike down the subsequent amendment in the relevant local government laws and it is an established law that a Provincial Assembly has no mandate to restrain future legislation. He has also argued that mere fact that a provision in law is capable of being used discriminately or whimsically is no ground to strike a provision of law. In support of this arguments, the learned Advocate General has placed reliance on Messrs Sterling Engineering Corporation v. The Collector of Customs and another (1984 CLC 2536), Muhammad Boota v. The State (1997 PCr.LJ 1974), Messrs Master Sons v. Messrs Ebrahim Enterprises and another (1999 CLC 403), Avari Hotels Limited throu h Controller v. De artment o Excise and
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Taxation Government of the Punjab, through Secretary and 5 others (2009 PTD 1868), Syed Mehmood Akhtar Nagvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 Supreme Court 1089), Nadeem Ahmed Advocate v. Federation of Pakistan (2013 SCMR 1062), Waheed Shahzad Butt v. Federation of Pakistan through Director Legal-II President (Appellate Authority) and another (PLD 2016 Lahore 872), Amjad Hussain Kokhar v. District. and Sessions Judge, Tando Allahyar and 3 others (2016 YLR 1401), Abdul Hag Khan and others v. Haji Ameerzada and others (PLD 2017 Supreme Court 105), Federal Government Employees Housing Foundation and others v. Malik Ghulam Mustafa and others (PLD 2019 Islamabad I) and Messrs Getz Pharma (Pvt.) Limited through Authorized Person and others v. Federation of Pakistan through Secre t a and others (2019 PTD 2209). 6. Arguments heard and record perused with the able assistance of the parties. 7. The respective pleadings of the parties and the arguments advanced by the learned counsel representing the parties, the following questions have cropped for adjudication in these petitions:-- i. What is the scope and impact of Articles 32 and 140-A of the Constitution on the power of a Provincial Assembly to legislate on creation and function of local government and whether there are any constitutional limitations /guarantees regarding the autonomy of local government in respect of its political, administrative and financial responsibilities, if so, its extent? ii. Whether the Constitution of Pakistan has prescribed any form or structure of local government and whether the deletion of district government through Amended Act is against the letter of Article 140-A of the Constitution and thus the Amending Act is ultra vices to the Constitution? in Whether once through Act of 2013, the number of departments were devolved to the local government, can it be subsequently revoked by amending the Act of 2013? iv. Whether the authority given to Chief Minister of the Province in sections 64, 67, 70 and 123 of the Amended Act is contrary to the autonomy of the local government in terms of its political, administrative and financial matters and thus, the impugned legislation is the result of excessive delegation? v. Whether section 27 of the Amended Act envisaging for non-party election offends Article 17 of the Constitution? We are conscious of the legal preposition; while dealing with the case where the vires of an Act has been challenged; the judicial clich has been that a legislative enactment could be struck down by the Court on two grounds; firstly, where the appropriate legislature did not have the competency to make the law. Secondly, where it (the enactment) abridged any of the fundamental rights enumerated in the Constitution or any other constitutional provisions ("State of Madhya Pradesh v. Rakesh Kohli and another" 2013 SCMR 34 and "Mcdowell and Co" AIR 1996 SC 1627). Our Constitution recognizes the concept of trichotomy where the function of Legislature is to legislate, the Executive is to execute and the Judiciary is to interpret the law. When the constitutional Court, which is itself a creature of Constitution, examines the vires of an Act its powers are limited to examining the legislative competence or to such other limitations as are in the Constitution. Therefore, when the Court declares a legislative instrument as void it is not because the judicial power of the Court is superior in degree or dignity to the legislative power of the Legislature but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the constitutional provisions so as to give effect to it or where the legislature fails to keep within the constitutional limits. ("Tariq Transport Co. v. Sargodha Bhera Bus Service" PLD 1958 SC 437, "Fauji Foundation and another v. Shamimur Rehman" PLD 1983 SC 457). 8. Now, we move on to discussing the questions that have been formulated earlier issue wise:-- Issue No i. What is the scope and impact of Articles 32 and 140-A of the Constitution on the power of a Provincial Assembly to legislate on creation and function of local government and whether
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there are any constitutional limitations/guarantees regarding the autonomy of local government in respect of its political, administrative and financial responsibilities, if so, its extent? Local Governments were given constitutional recognition for the first time in the Constitution of 1973, which too only to the extent of being a principle of policy of the State. We have before us the relevant portion of constitutional debate provided by the learned. Advocate General. The idea of establishing local government was introduced by one of the parliamentarians, namely, Begum Naseem Jehan where she proposed addition of a new Article after Article 31 envisaging for creation of local government. The said debate further shows that Mian Mehmood Ali Kasuri, the then parliamentarian, had proposed before the House that instead of introducing the local government in the principles of policy of the State there should a separate chapter dealing with the self local government, however, the said debate/arguments did not prevail before the House and ultimately only it was incorporated through Article 32 of the Constitution being part of the principles of policy. Similarly, Article 140-A was introduced in the Constitution through Eighteenth Amendment vide Act, 2010, commonly known as "Eighteenth Amendment", which envisages that:-- [140A. (1) Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments. (2) Elections to the local governments shall be held by the Election Commission of Pakistan.] The perusal of aforesaid Article would show that it only provides and mandates the establishment of local government which would have political, administrative and financial autonomy. The form A and structure of local government is not the subject-matter of the Constitution and it has been purposely left at the wisdom of each Provincial Assembly being a provincial subject to legislate on the same. 9. Article 137 of the Constitution envisages that the Executive Authority of the Province shall extend to the matter with respect which Provincial Assembly has been empowered under the Constitution to make laws. Political, administrative and financial matters in the province are thus exclusively provincial subject, however, the same have been subjected to limitations as imposed by the Constitution itself. Similarly, Article 140-A of the Constitution demands that every province shall, by law establish the local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments. What should be the limit of that autonomy has not been provided by the Constitution itself. The principle evolved for interpreting the Constitution is that the constitution is a living document and should be considered as an organic law of the State and one constitutional provision could not, unless it is specifically B provide, override the other constitutional provision and all the provisions in the Constitution must be meaningfully and harmoniously construed together. The Apex Court in the case of "Lahore Development Authority v. Ms. Imrana Tiwana and others (2015 SCMR 1739)" has laid certain principles relevant to the present controversy in respect of the concept of executive authority of the province emanating from Article 137 of the Constitution viz-a-viz the mandate of Article 140-A of the Constitution. We would, thus, seek guidance from the said judgment and for our own understanding reproduce certain paragraphs from the said judgment:-- "35. At the same time if Article 140A is not to be a merely hollow constitutional promise the Provincial Government is obliged to devolve, by law, some political, administrative and financial responsibility on the Local Government. This much is beyond doubt. This Court is not inclined to hold that Article 140A is an exercise in futility and the Provincial Government continues to retain the same wide legislative and executive authority that it did before its insertion. The question is whether to draw the line.
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58. This still leaves the question as to what is to be the scope of the political, administrative and financial authority to be conferred on the Loral Governments. It is obvious that the conferment of all such authority on the Local Government would completely efface the Provincial Government within a Province and would violate Articles 137 and 142 of the Constitution. On the other hand, a complete failure to devolve any such authority would violate Article 140A of the Constitution. It is therefore, clear that some meaningful political, administrative and financial authority must be devolved on the Local Governments. The extent of such devolution has to be between nothing and everything. The Constitution makers could have determined the scope of such devolution by enumerating Local Government powers within the Constitution itself. They chose, however, not to do so. 59. The omission by the Constitution makers to specifically enumerate such powers was deliberate. They left the scope of such powers to be determined by each Province in accordance with the prevailing circumstances and political realities of the day. They acknowledged that the process must be initiated, yet were conscious of the fact that it has to be gradual. As Local Governments, evolve, more and more powers would have to be devolved. Room was left for political experimentation, constitutional dialogue and growth. Instead of enumerating Local Government powers the Constitution makers left these to be worked out in harmony between the Provincial and Local Government. Why? Because they were conscious that political processes are evolutionary in nature. Institutions take root over time. They draw strength from a continuous constitutional dialogue between the people and their elected representatives. Implicit in this was also the recognition that the imposition of a ready-made model from the top often proves dysfunctional. It retards rather than accelerates political consensus. Much more stable is a model, which develops after mutual give and take over time. The progress of law, the development of political processes and the growth of institutions is often like the progress of a mountaineer: two steps forward, one step back. It may appear to be slow but patience is rewarded with stability. 80. It will also not be appropriate to enumerate the minimum or maximum political, administrative and financial powers which must be conferred upon the Local Government to satisfy the mandate of Article 140A of the Constitution. These have to be worked out by the Local and Provincial Governments in a constitutional dialogue over time. The contours will emerge and the content will be identified as the political process. continues and democracy takes root. It cannot be done wholesale and here and now. In this the Provincial Government, as the repository of all legislative and executive authority in the Province, must take the initiative. It is, therefore, for the Provincial Government to work constantly and tirelessly to fulfil the mandate of Article 140A and realize its ideas." 10. Thus, the Provincial Assembly while legislating in relation to the establishment of local government has to keep in consideration the command and mandate of Article 140-A of the Constitution in relation to its political, administrative and financial autonomy. Although, it is the discretion of the Provincial Assembly to devolve any function to which the executive authority of the province extends to the Local Government but once it decides to devolve certain political, administrative and financial responsibility to the local government through an Act of the provincial assembly, it should be devolved meaningfully without undue interference from the Provincial Government or the officer appointed by the Provincial Government in terms of Article 138 of the Constitution. Therefore, the question whether the Provincial legislature has delegated certain powers in relation to the Local Government to the officers of the Provincial Government is difficult to be answered academically unless the said issue is raised before this Court in reference to a particular matter. 11. The learned counsel for the petitioners while referring to section 45 of the Amending Act have maintained that earlier by virtue of section 45 and section 46 different powers in the collection of
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taxes etc, a particular local government was enjoying the authority to impose and collect the said taxes, whereas under the current dispensation such powers have now been given to an officer of the department as defined in definition Clause d(II) of section 2 of the Amending Act. Therefore, these conferments of powers are ultra vires the Constitution. However, the perusal of the afore said section cannot be read in isolation as the powers to impose local taxes has been conferred on the local government through a mechanism as provided in Chapter X of the Act of 2013, therefore an officer specified in sections 45 and 46 ibid while exercising the authority to collect the said taxes for the purpose of local government cannot be termed as illegal. However, this issue cannot be hypothetically decided, unless these powers of the relevant officers are challenged in reference to a particular matter. 12. Moving on to the next issue before us which is:- Issue No. ii Whether the Constitution of Pakistan has prescribed any form or structure of local government and whether the deletion of district government through Amended Act is against the letter of Article 140A of the Constitution and thus the Amending Act is ultra vires the Constitution? As stated in the preceding paras; neither the Local Governments have been explained nor defined in the Constitution nor does it provide the structure and form of the local government. Local Government is generic term for the lowest tiers of public administration within a particular sovereign state. This particular usage of the word "government" refers specifically to a level of administration that is both geographically-localised and has limited powers. Article 7 of the Constitution recognizes the local Government as the state which reads as under:-- "Article 7. In this part, unless the context otherwise requires, "the State" means the Federal Government, 1 [Majlis-e-Shoora (Parliament)], a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to Impose any tax or cess." The institution of Local Government vary greatly between countries and even where similar arrangements exist the terminology often varies. For example, there could be a different form of local government in a country where it has a unitary form of government as opposed to where there is a federal form of government. For example in Canada, where there is a federal government, the most important form of local government in is the municipal government which is a local council authority. The authority provides local services, facilities, safety and infrastructure for communities. Canada has three orders of government; federal, provincial and local/municipal. According to section 92(8) of the Constitution Act, 1867 of Canada which envisages that "In each Province the Legislature may exclusively make Laws in relation to Municipal Institutions in the Province." The form of local government and the constitutional command in Canada is almost similar to one which was envisaged by Article 140-A of the Constitution except that our Constitution ensures political, admirative and financial autonomy to such local government. Similarly, in the United States of America, the 10th Amendment to the United State Constitution makes the local government a matter of the states rather than the federal government, with a special case for territories and the District of Columbia. As a result, the states of the United States of America have adopted a wide variety of system of local government. The categories of the local government in the United States are as following:-- Country Governments. Township Governments. iii. Municipal Governments. iv. Special purpose Local Governments. 13. India is also a federal republic with three spheres of government i.e. central, state and local. However, through 73rd and 74th Constitutional amendments, recognition was given to the local
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governments and in addition thereto each State has its own local government legislation. Thus, the local governments in India have two distinct forms; urban localities that is covered in 74th amendment to the Constitution whereas the power of rural localities have formalized under the panchayati raj system through the 73rd amendment of the Constitution. Moreover, within the administrated setup of India, the democratically elected local self-governance bodies are called the municipalities in urban area and the panchayati raj institutes in rural areas. 14. The concept of local government in the subcontinent can be traced to Mughal period. The local government even had statutory protection in some part of British India. For example, The Conservancy Act No. X of 1842 was promulgated for Bengal as a first formal measure of municipal legislation other than the presidency towns. The said Act provided for constituting the town committees etc. Similarly, the Municipal Act XXVI of 1850, which, inter alia, provided for constituting the local government committees in British India to make better provisions for public utilities and amenities. Under this Act, the municipal functions included conservancy, road repairs and lighting, the framing of by laws and their enforcement by fines. (Sajid Mahmood Awan and Nemat-e-Uzam, Nature and Function of Local Government in British, published in Pakistan Annual Research Journal, Vol. 50, 2014.) 15. After partition, the comprehensive scheme of local government, which was then commonly known as…
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