2008 PLP 81 (CLC)

SYED SHABBAR RAZA RIZVI, J.

The petitioner is a District Nazim, of District Kasur. He presented annual budget for year 2007-08 for the approval of the Council as required under rule 57 of Budget Rules, 2003. The budget was duly approved by the Zila Council on the basis of proposals made by him on 28-6-2007.

2. The meeting of the council to approve the budget was presided by respondent No.4 but during the course of proceedings, some members objected that respondent No.4 was removed from office by a decision of this Court, therefore, he could not preside budget meeting of the Zila Council in capacity of Naib Zila Nazim. Whereupon respondent No.4 left the chair. In his absence senior most member on the panel of the presiding officers i.e. Ch. Muhammad Ali, presided the meeting, as provided in section 42 of the Punjab Local Government Ordinance, 2001. The proposals in the budget were discussed and the same were approved by majority of the Council. In this regard proceedings are attached herewith vide Annexure "X". The petitioner wrote a letter to the District Coordination Officer, Kasur, etc. asking him to incorporate the amendments in the current development budget books as per proceedings of the house, and submit the same to the petitioner for authentication, as required under section 112(8) of the Local Government Ordinance and Rule 59 of the District Government and Tehsil Municipal Administration (Budget) Rules, 2003. However, no action was taken by the District Coordination Officer etc. 3: Another meeting of the Council was called on 30-6-2007. In the said meeting demands for grant which were rejected by the petitioner were also included, whereas', no demand for grant can be submitted to the council unless approved by the petitioner/Nazim as required under section 111(4) of the Ordinance to be read with Rule 58(3) of the Budget Rules, 2003. The respondents were noticed.

4. The learned Additional Advocate-General, Punjab assisted by Qazi Mubeen-ud-Din, Advocate submits that the dispute is pending before the Provincial Local Government Commission, therefore, this writ petition is not maintainable.

5. I have heard the learned counsel for the petitioner and learned Additional Advocate-General, Punjab assisted by Qazi Mubeen-ud-Din, Advocate at length. I have also examined the documents referred to by both the parties as well as relevant provisions of the Punjab Local Government Ordinance, 2001/Rules, 2003. As far as interpretation and requirement of section 112(8) and section 111(4) are concerned, the learned Additional Advocate-General Punjab has not disputed with the contention of the learned counsel for the petitioner. Even otherwise, the provisions are expressly worded. These provision are, also of mandatory nature. No institution of Local Government or Federal/Provincial Government can function unless it has financial independence and sovereignty. The Local Government Ordinance, 2001 is unequivocal in its language as far as these powers of the Local Government Institution are concerned.

6. The budget which was approved by the Council on 28-6-2007, was never challenged before any. forum nor the proceedings of the Council dated 28-6-2007 were declared void or incompetent by any authority, thus in the presence of approval of the Zila Council proceeding dated 28-6-2007, the subsequent proceedings on the same subject dated 30-6-2007 could not have legally taken place. Moreover, the record as well as 86 affidavits submitted by learned Additional Advocate-General, Punjab show that session of the Council dated 30-6-2007 was called or adjourned on 28-6-2007 to 30-6-2007 by respondent No.4, as Naib. Nazim. How could he act, in that capacity after decision of the Court dated 27-3-2005 in Writ Petition No.16703 of 2005? It is strange that respondent No.4 is acting in a manner which might make him liable to facie some legal proceedings.

7. The record, particularly the letter of the petitioner dated 3-7-2007 addressed to the D.C.O, shows that he approached on behalf of the Council for authentication but the same remained unheard. Instead the respondents have tried to frustrate the proceedings dated 28-6-2007 by placing the matter before the Provincial Local Government Commission which amounts a devious device. Functions of the Provincial Local Government Commission are given in section 132 of the Punjab Local Government Ordinance, 2001 which are of general nature and do not include to decide issues relating to annual budget. To approve a budget or to have budgetary powers reflects sovereignty of an institution. The whole scheme of the Punjab Local Government Ordinance, 2001 is based on devolution powers which include' financial powers, from the Provincial Government to the District Government. The conduct of the respondents obviously impinges upon the above idea or run counter the while philosophy of the Punjab Local Government Ordinance, 2001.

8. Preamble of the Punjab Local Government Ordinance, 2001 reads:

"Whereas it is expedient to devolve political power and decentralize administrative and financial authority to accountable Local Governments for good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at grass-roots level." In section 2(vii) of the Ordinance "Decentralize" means conferment by the Government under this Ordinance of its administrative and financial authority for the management of specified offices of the Provincial Government to the Local Governments. In view of the above legal position how can the subject issue be placed before the Provincial Local Government Commission?

9. To Make it further clear the provisions of section 132 are reproduced as under:

"(1) The function of the Provincial Local Government Commission shall be as provided in this Ordinance and, in particular, it shall

(a) conduct annual and special inspections of the local governments and submit reports to the Chief Executive of the Province; (b) conduct, on its own initiative or whenever, so directed by the Chief Executive of the Province, an inquiry by itself or through District Government into any matter concerning' a Local Government; (c) cause, on its own initiative or, whenever, so directed by the Chief Executive of the Province, a special audit by itself or direct a District Government to arrange a special audit, of any local government; (d) resolve disputes between any Department of the Government and District Government or between two District Governments: Provided that if the Local Government Commission fails to settle the dispute, the aggrieved party may move the Chief Executive of the Province of resolution thereof; (e) enquire into the matters referred to it by the District Coordination Officer under the provisions of subsection (3) of section 28 and by the Government under subsection (4) of section 30 and give its decision thereon or, as the case may be, submit report to the competent authority; (f) submit to the Chief Executive of the Province an annual report on the over-all performance of the District and Tehsil level local governments; (g) take cognization of violation of laws and rules by a local government in performance of its functions; (h) organize consultative planning meetings of National and Provincial legislators, Zila, Tehsil or Town Nazims of a district on a periodic basis to provide their participation in development activities of the district with regard to the (i) consultative process of the Annual development Plan of the District; (ii) formulating procedure for utilization of the Legislators development grant; (iii) assessing implementation of decision of these meetings; and (iv) carrying out review of development schemes; and (i) facilitate the performance of Provincial departmental functions of the decentralized offices relating to policy analysis, oversight, checks and balances, capacity-building and coordination through the Commission; and (2) the directions and orders of the Provincial Local Government Commission arising out of its inspections and inquiries under clauses (a), (b) and (c) of subsection (1) shall be binding on the concerned local government failing which the commission shall report the matter with specific recommendations to the Chief Executive of the Province for decision and appropriate action. (3) Where the Provincial Local Government Commission is of opinion that suspension of a Nazim is necessary for the fair conduct of the enquiry under clause (b) of subsection (1) or preventing the Nazim from continuing with any unlawful activity during the pendency of enquiry, it may recommend to the Chief Executive of the Province for making appropriate order for suspension of such Nazim for a maximum period of ninety days. (4) Where, on an inquiry under Clause (b) of subsection (1), a Nazim, Naib Nazim or a member of a Council is found guilty of misconduct by the Provincial Local Government Commission; it shall recommend appropriate action, including his removal, to the Chief Executive of the Province. (5) The Provincial Local Government Commission shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following matters, namely:

(a) summoning and enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents; (c) receiving the production of documents; (d) issuing commission for the examination of witnesses."

10. Provisions of section 112(8) of the, Punjab Local Government Ordinance and Rule 59 of the District Government and Tehsilo Municipal Administration (Budget) Rules, 2003 are pari materia to provisions of Articles 83 and 143 of the Constitution of Pakistan, 1973, which require authentication of budget from the Prime Minister and the Chief Minister. The spirit behind these provisions does not admit any interference.

11. Consequent to the above discussion and grounds, the proceedings of Zila Council, Kasur whereby budget was approved for year 2007-08 on 28-6-2007, are declared valid. The proceedings of Zila Council, dated 30-6-2007 are declared void and set aside. Proceedings dated 30-6-2007 took place in a meeting of Council convened by respondent No.4 as a Naib Nazim, Zila Council, Kasur, whereas he was not holding the said office on 30-6-2007 in view of order of this Court dated 27-3-2005 in Writ Petition No.16703 of 2005 and order of the Honourable Supreme Court of Pakistan dated 4-5-2007 in Civil Petition No.340 of 2007. Proceedings pending before the Provincial Local Government Commission, if any, are also declared unlawful and repugnant to the provisions of sections 111 and 112 of the Punjab Local Government Ordinance, 2001. The respondent No.2 is directed to place the proceedings of the Zila Council, dated 28-6-2007/the approved budget, before the petitioner for the authentication. This writ petition is allowed in the above terms. S.A.K./Z-51/L Petition accepted.