1989 PLP 1387 (CLC)

(i) Minister for Local Government and Rural Development ...Chairman (ii) Secretary, Ministry of Local Government and Rural Development...Vice Chairman. (iii) Joint Secretary, Minister of Education . ...Member. (iv) Joint Secretary, Ministry of Health . ....Member. (v) Joint Secretary (RDLP), Planning and Development Division Members. (vi) Provincial Chief‑Economists Planning and Development Departments ....Members (vii) Provincial Secretaries, Local Government and Rural Development Departments . ...Members. (viii) Four persons of eminence recognised for their contribution to public service (to be appointed by the Prime Minister on the recommendation of the Minister for Local Government and Rural Development....Members. (ix) Director General/Joint Secretary Ministry of Local Government and Rural Development ....Member Procedure for Release of Funds:

6. Funds will be released by the Ministry of Finance in favour of Ministry of Losal Government and Rural Development which will, in turn make allocation to each Province (i.e. the Additional Director General in the Province). The Additional Director General will, on receipt of administrative approval, have the financial sanction issued for the specific project in favour of its designated executing agency. Executive Agencies:

7. It could be a department of the Federal Government or Provincial Government or a Local Council or those NGO's who would fulfill the requirements of proper organisation and would also undertake the maintenance and operation of the schemes (after completion). Organization and management

8. Headed by a Director General at Federal level, it will have Additional Director General in each province and Administrators (with technical and secretariat staff) in every district to help local committees in identifying and formulating the schemes. Progress reporting and monitoring

9. For overall monitoring of the programme, the District Committees and the respective executing agencies will send reports, on quarterly basis, to the Ministry of Local Government and Rural Development. The Ministry will then prepare quarterly report which would be reviewed by the committee at the Federal level. (b) In the Parliamentary system of the Government legislators' views as expressed in their debate in the Parliament are taken into account. The MNAs. and other elected representatives will be closely consulted/associated, with the District Committees.

3. It is submitted by the petitioner on the basis of the afore quoted reply that the programme in question is to concentrate mainly on Education, Health and Sanitation, Water Supply and Rural Roads which subjects, it is stated, do not fall within the jurisdiction of the Federal Government. It is contended by the learned counsel that according to the Constitution of Islamic Republic of Pakistan, Executive authority of the Federal Government extends only to such matters as are enumerated in the federal legislative list and/or the concurrent legislative list in respect whereof the Majlis‑e‑Shoora (Parliament) is empowered to make laws. Learned counsel submits that none of the afore noted components of the programme in ,question is included in either of the two lists contained in the Fourth Schedule of the Constitution and, therefore, the launching of the programme by the Federal Government concerning the subjects aforementioned is ultra vires the Constitution. Learned counsel has taken us through various entries of both the legislative lists and pointed out that in the matter of Education, Health and Roads, jurisdiction of the Federal Government is restricted only to the following fields:‑ EDUCATION: (i) Federal Agencies and Institutes for research, for professional or technical training, or for the promotion of special studies (vide entry No.16 of the federal legislative list). (ii) Education as respects Pakistani students in foreign countries and foreign students in Pakistan (vide entry No.17 of the federal legislative list (iii) Curriculum, syllabus, planning, policy, centres of excellence and standards of education (vide entry No.38 of the concurrent legislative list). (iv) Islamic education (vide entry No.39 of the concurrent legislative list). HEALTH: Drugs and medicines; poisons and dangerous drugs; prevention of the extension from one Province to another of infectious or contagious diseases or pests affecting men, animals or plants; mental illness and mental retardation, including places for the reception or treatment of the mentally ill and mentally retarded; Environmental pollution and ecology; population planning and social welfare; and health insurance of the labour (vide entries Nos. 20 to 26 of the concurrent legislative list). ROADS: National highways and strategic roads (vide entry No.34 of the federal legislative list). Precise submission of the learned counsel is that except for the aforenoted specified fields, the subjects of Education, Health and Sanitation, Rural Roads and Water Supply fall within the ambit of Provincial Governments because in respect of all such matters which are not enumerated in either the Federal or the Concurrent Legislative List, Provincial Assemblies have exclusive powers to make laws as provided in Article 142(c) of the Constitution. Proceeding on these premises, learned counsel has argued that the Federal Government by launching the impugned programme in the fields of Education, Health and Sanitation, Water Supply and Rural Roads have encroached upon the provincial sphere.

4. We have asked the learned counsel how is the petitioner an 'aggrieved party' within the meaning of Article 199 of the Constitution so as to maintain the present Constitutional petition. He has submitted that being an elected President of the District Bar Association petitioner is bound to protect the Constitution and 1 since, according to him the impugned programme is violative of the Constitution, he feels aggrieved. Learned counsel has, however, quite frankly admitted that the petitioner has not otherwise suffered any personal loss or injury as a result of the launching of the impugned programme. As to who is an 'aggrieved person',, reference may usefully be made to the following observations of the Supreme Court of Pakistan in case of Tariq Transport Company, Lahore v. The Sargodha ?Bhera Bus Service PLD 1958 SC (Pak.) 437:‑ "In a petition for a writ, the first question that the Court has to consider is whether the petitioner has the locus stand to invoke the extraordinary jurisdiction of the Court, and I consider it to be a basic principle that a person seeking judicial review of administrative or quasi‑judicial action must sho? that he has a direct personal interest in the act which he challenges before his prayer for review is entertained. 'A petitioner' says Mr. Justice Frankfurt in his concurrent opinion in Giant Anti‑Fascist Refugee Committee v. Mc‑Grath 341 US 123. 151, `does not have standing to sue unless he is interested in and affected adversely by the decision of which he seeks review. His interest must be of a personal and not of an official nature'. An application .for an order of certiorari can only be made. by an aggrieved party and not merely by one of the public, R. v. Nicholson (1899) 2 OB

455. Again, in Mistri Muhammad Ismail v. Mirza Muhammad Chiragh and others PLD 1967 Lah. 184. it was held: " a party cannot be said to be aggrieved if his rights or interests are not adversely affected or if he suffers no loss or injury by a particular order. The petitioner cannot be said to have suffered in any way by the transfer of the premises to the respondents Nos.l and

2. In Reg. v. Nicholson, it was held that assuming certiorari to be the fitting remedy, as a matter of discretion, certiorari ought not to go firstly on the ground of delay and secondly because the applicants had not shown, as they should have shown, that they had peculiar grievance of their own, beyond some inconvenience suffered by them in common with the rest of the public. What is necessary, therefore, to prove for a party who comes to this Court is that he has a peculiar grievance of his own and not merely an? inconvenience which he has suffered in common with the rest of the public."

5. Learned counsel for the petitioner has relied upon Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 and some other cases which need not be referred to because they are of no help to the petitioner. In the case of Fazal Din, their Lordships of the Supreme Court held that "the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty C which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise." It may pertinently be observed that the learned counsel has failed to show that the petitioner has suffered the loss of any personal benefit or advantage or curtailment of any of his privileges by reason of the launching of the impugned programme. In the circumstances, we are constrained to hold that the petitioner is not an aggrieved party within the meaning of Article 199 of the Constitution and, as such, has no locus stand to bring this petition.

6. Apart from what has been said above, the grievance agitated by the petitioner essentially raises a dispute of the nature envisaged in Article 184 of the Constitution i.e. a dispute between the Federal Government on the one hand and the Provincial Governments on the other. Such a dispute is determinable by the Supreme Court of Pakistan which has exclusive jurisdiction under Article 184 of the Constitution which in its relevant aspect reads as under:‑ "

184. Original jurisdiction of Supreme Court.‑ (1) The Supreme Court shall, to the exclusion of every other Court; have original jurisdiction in any dispute between any two or more Governments. Explanation.‑In this clause, "Governments" means the Federal Government and the Provincial Governments. (2) In the exercise of the jurisdiction conferred on it by clause (1), the? Supreme Court shall pronounce. declaratory judgments only. The word 'dispute' in the afore quoted provision though not defined is wide enough to' include all the disputes, jurisdictional, administrative and fiscal. The word "to the exclusion of every other Court" place it beyond doubt that the Supreme Court has exclusive jurisdiction to determine a dispute between the Federal Government and the Provincial Governments and the jurisdiction of every other Court including this Court is expressly ousted. Needless to observe that the jurisdiction of this Court under Article 199 is subject to the Constitution and, therefore the jurisdiction‑ousting provision of Article 184 must prevail. It may also pertinently be observed that if the grievance/dispute sought to be agitated by the petitioner had been brought before us by an aggrieved Province, we would certainly have no jurisdiction to entertain it in view of the express provision of Article 184 of the Constitution. That being so, the dispute which necessarily falls within the exclusive jurisdiction of the Supreme Court cannot be allowed to be raised by a private party in proceedings under Article 199 of the Constitution because the principle is well settled that a thing which cannot be done directly can also not be allowed to be done indirectly.

7. In .the aforesaid view of the matter, we hold that the writ petition is not maintainable and the same is dismissed in limine. M.B.A./M‑1313/L Petition dismissed.