2005 PLP 935 (CLC)

The petitioner through the instant writ petition has challenged the vires of the notification dated 21-1-2002, issued by respondent No.1.

2. Report and parawise comments from the respondents were called for, which have been received and perused. Therefore, after hearing the learned counsel for the parties I have decided to dispose of this petition as notice case.

3. The learned counsel for the petitioner contended that respondent No.1 had issued a notification dated 21-1-2002, making amendment in the schedule and altered the local limits of the officer mentioned in Column No.2, for the exercise of the powers under section 68 of the Canal and Drainage Act (VIII of 1873). The impugned notification is reproduced hereunder:-- Government of the Punjab Irrigation and Power Department Dated Lahore the 21st January, 2002. Notification No. S.O.(Rev.)(I&P)3-93/2001.

In exercise of the power conferred on him by section 4 of the Canal and Drainage Act, 1873 (VIII of 1873), (Amended 1975) read with Government of the Punjab Irrigation and Power Department Notification No.SO(Rev.)(I&P)3-93/86, dated 11-8-1987. The following amendment is made to fix local limits as shown in Column 3 of the Schedule in respect of the officer mentioned in Column 2 thereof for the exercise of powers as Sub-Division Canal Officer under section 68 of the said Act. S.No. Name of the Deputy Collector/ Sub-Divisional Canal Officer Local Limits Zilladari section

1. Deputy Collector Balloki Division.

1. Kalsan Section

2. Sub-Divisional Canal Officer Akhtarabad Sub-Division

2. Khokhar Section (Sd.) Secretary, Irrigation and Power Department Lahore.

4. The learned counsel for the petitioner contended that respondent No.1, has exercised the authority in issuing the notification in dispute without lawful authority, the powers under section 4 of the Canal and Drainage Act, is conferred on the Governer of the Punjab.

5. On the other hand, the learned Additional Advocate-General, vehemently opposed the arguments of the learned counsel for the petitioner, contending that the respondent was competent/authorized to issue the said notification under Article 139(3) of the Constitution of Islamic Republic of Pakistan, 1973, in accordance with the allocation and transaction of the Rules of Business of the Provincial Government.

6. I have heard the learned counsel for the parties and perused the record. On 11-10-1987, the Governor of the Punjab issued a Notification No.S.O.(Rev) (I&P) 3-93/86 and determined the local limits as shown in the column of the schedule in respect of the officer mentioned in Column No.2, for the exercise of the powers as Sub-Divisional Canal Officer, under section 68 of the Act.

7. Section 4 of the Canal and Drainage Act envisaged as under:-- . Powers to appoint officers.

The Provincial Government may from time to time declare, by notification in the official Gazette the officers by whom, and the local limits within which all or any of the powers or duties hereinafter conferred or imposed shall be exercised or performed. All officers mentioned in section 3, clause (2) shall be respectively subject to the orders of such officers as the Provincial Government from time to time directs.

8. The question that boils down for the determination by this Court is the interpretation of the word Government provided in section 4 of the Canal and Drainage Act, to the extent whether the powers of the Government shall be exercised by the Governor or any other functionary of the State like respondent No.1. In this context, it would be beneficial to reproduce Article 129 of the Constitution of Pakistan, 1973 . Exercise of executive authority of the Province.

The executive authority of the Province shall vest in the Governor and shall be exercised by him, either directly or through subordinate to him, in accordance with the Constitution. Article 139 of the Constitution emerges as under:-- Conduct of business of Provincial Government.

(1) All executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor. (2) The Governor shall by rules specify the manner in which orders and other instruments made and executed in his name shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the Governor. (3) The Governor shall also make rules for the allocation and transaction of the business of the Provincial Government.

9. From the plain reading of the above referred provisions of the Article of the Constitution of Islamic Republic of Pakistan, 1973, it reveals that it is the Governor who can exercise the authority or all executive actions shall be taken in his name. Reference can be made in case of Messrs Al-Noor Textile Mills Limited and another v. Additional Chief Secretary, Housing Town Planning Local Government and Rural Development Department, Government of Sindh and 3 others 1992 MLD

654. Reference can also be made to Sh. Akbar Hussain v. Government of the Punjab NLR 1986 Civil Case 565 and Salimullah Khan and 10 others v. Raqib Khan and 15 others 1989 SCMR 1879. It has been laid down by the Honourable Supreme Court which is apex Court of the Country. In the said case it has been laid that the only authority was to be exercised in the name of the Governor and not necessarily by the Governor himself. From the perusal of the Notification impugned, it has transpired that no authority has been exercised under section 4 of the Canal and Drainage Act, in the name of the Governor. This notification directly issued by the Secretary, Irrigation and Power Development, Government of the Punjab, this notification was neither issued by the Governor nor in the name of the Governor of the Province of Punjab. In this regard the guidance can also be sought from a judgment of the Division Bench of Karachi High Court in case of Abdul Haq and others v. Province of Sindh and others PLD 2000 Kar.

224. The Honourable Judges have settled in this case that executive authority of Province vests in the Provincial Government under Article 129 of the Constitution of Islamic Republic of Pakistan, 1973. Such authorities exercised by him directly or through other officers or under the Constitution and further observed that all the functionaries in a Constitutional set up derived before and from the Constitution itself or from the law as may be framed by the Legislature. The rules of business cannot be equated with the statute law. Same are subordinate legislation tending to facilitate expeditious disposal of Government business to meet the convenience and requirements of public in a democratic set up. Respondent have placed no proof of the fact that the Governor has vested any authority under section 4 of the Canal and Drainage Act (VIII of 1873) to the respondent No.1, Secretary of the Department.

10. For the foregoing reasons there is no option but to declare the impugned notification dated 21-1-2002, to have been issued illegally and without lawful authority. Resultantly this writ petition is accepted as prayed for. S.A.K./M-978/L Petition accepted.