P L D 2007 Lahore 61 (PLP)

SYED ZAHID HUSSAIN, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner who is Member Provincial Assembly Punjab from PP-212 Khanewal seeks certain declarations and directions. It is his grievance that scheme for "Widening (20ft) and provincialization of road from Pull Bagar Maltan Road to Chopirhatta via Sarai Sidhu" which was duly approved and was in the process of execution should be implemented and cannot be "dropped" or substituted. From the reply filed by the Government of Punjab, Communication & Works Department, it stands out clearly that almost all assertions made in the petition have remained uncontroverted. The contents of Paras. 7 and 8 of the petition and reply thereto, due to their relevance, are reproduced hereunder:--

7. Writ Petition

7. Reply The SCHEME was placed before the Provincial Assembly for approval in Budget Session June, 2006 which got assent of the Assembly and was duly reflected in the Annual Development Program 2006-2007 book published by the Government of Punjab at page No.371 vide G-S-15021 and S-S-No.318 under the head "Roads" in Social Sector Development whereas the "SCHEME 2" does not find any such mention (copy of the Bill presented before the Parliament is attached as Annex F and Copy of the Approval Annual Development Program Book including the SCHEME is attached as Annex G). Admitted to the extent that the scheme is included in MTDF 2006-2007 at G.S. No.1521.

8. Writ Petition

8. Reply That the Honourable Governor of Punjab vide order dated 6-7-2006 was pleased to accord administrative Approval for the SCHEME at an estimated cost of Rs.64.677 million (Copy of the above order is attached as Annex H). Admitted to the extent that administrative Approval stands issued vide order No.SOH-1(C&W) 1-31/2005 (Khanewal) dated 6-7-2006. Several documents on the record such as order of Chief Minister, Punjab dated 24-9-2005, letter of Government of Punjab dated 30-9-2005, order of Governor, Punjab dated 6-7-2006, inclusion of scheme in the Annual Development Programme, allotment of funds and initiation of its implementation all go to show that such a scheme was indeed approved and put in operation. On such premises the learned counsel for the petitioner contends that at such a late stage of the approval of the scheme it could neither be dropped nor substituted. The learned Additional Advocate General Punjab, however, contends that Chief Executive of the Province can approve and annul any scheme at any time, as there is no embargo on his exercise of such a power. On consideration of the matter I am persuaded to countenance the contention of the learned counsel for the petitioner inasmuch as that a scheme having been approved at such a high level i.e. Chief Minister and the Governor of the Province, included in the Annual Development Programme, budget allocation made and orders issued could not be cancelled, dropped or substituted, It had received due approval and necessary order had become effective. It is too late for the Authorities to cancel or substitute the same. It is neither permissible under the law nor consistent with the good governance rule. The convenience, public good and welfare of the people being the main objective of the democratic set-up, any such scheme aimed at the development of the area should be implemented and carried out. Any other proposal meant for the local development could undoubtedly be considered and approved in addition to but not in derogation or substitution of already approved scheme. There can possibly be no cavil, as is being adumbrated by the learned Additional Advocate-General Punjab, about the power of Chief Executive of the Province but it cannot be lost sight that approval having been given to a scheme, which was in the process of execution, its annulment/dropping was not permissible at such a late stage. Annual Development Programme, Government of Punjab 2006-2007 (P.371-item 1521) shows not only its approval but also budgetary allocation. Even any remote reference to the principle of locus poenitentiae embodied in S.21 of the General Clauses Act, 1857 would not permit the cancellation/substitution of such an approved scheme after the decisive steps had been taken by the highest functionaries of the Province. Another aspect of the matter is that the act of approving the scheme must have given rise to hopes and expectations not only to the petitioner but the local population about its implementation. Reference in this context may be made to "Judicial Review of Public Actions" by Justice (Retd.) Fazl Karim Volume-2 Page- 1365, where the doctrine of "legitimate expectation" and "promissory estoppel" is stated to have roots in "fairness". The relevant passage reads like this: "The justification for treating `legitimate expectation' and `promissory estoppel' together as grounds for judicial review is, one, that they both fall under the general head `fairness'; and too, that `legitimate expectation' is akin to an estoppel. As was explained by Simon' Brown LJ in R v. Devon CC,' the various authorities show "that the claimant's right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or the other body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it". The relationship between them is more clearly brought out by what Bingham LJ stated in R v. IRC ex p IMK. " "If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness". The reasonableness, fairness and justness all demand the implementation and execution of the first scheme duly approved and put in operation. Since the petitioner does not seek now the annulment of any other scheme and seeks implementation of the scheme already approved, the petition is accepted to the extent that the scheme which was approved by the Chief Minister Punjab on 24-9.2005/30-9-2005 and Governor of the Province on 6-7-2006 will remain operative and will be executed. It is however clarified that it does not in any way stop or impede the Government to launch any other development scheme in the area. S.M.B./M-523/L Petition accepted.