' This writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The background of filing this petition is that the petitioner provides certain amusements at different fairs (Mela). He wanted to exhibit amusements by holding a fair known as Awami Tafreehi Mela at the occasion of annual Urs of Hazrat Data Gunj Bakhsh Sahib for a period commencing from 23-2-2005 to 21-4-2005. For the said purpose, the petitioner applied to Nazim of Union Council No,29, City Government, Lahore. The permission was granted by the said Nazim.
2. Despite permission as stated above, respondent No,1/S.H.O. Interfered with petitioner and did not allow him to hold Awami Tafreehi Mela. The petitioner filed Writ Petition No,4523 of 2005 before this Court. The Court summoned respondent No,1, who undertook that he would allow holding of Mela if permission letter duly issued from the Nazim Union Counsel is produced to him. On this assurance, the above mentioned writ petition was disposed of.
3. That petitioner started his Awami Tafreehi Mela, but again respondent No,1 stopped him, allegedly his furniture and other articles were also damaged or taken away, Hence the present petition (second) has been filed.
4. The respondents were noticed and they have appeared accordingly.
5. The learned counsel appearing for the Union Council No,29, Lahore submits that section 48 of the Punjab Local Government Ordinance, 2001 read with rule 5 of the Punjab District Government Rules of Business, 2001 do not provide clearly power to grant permission of fair (Mela) to the District Government. He has also referred rule 12 of the Punjab Local Council Property Rules, which also does not confer such powers on the District Government.
6. The learned counsel appearing for the Town Administration submits that section 31 empowers the Provincial Government to make rules for business of the District Government. He also refers rule 5(2) of the Punjab Tehsil/Town Municipal Administration Rules of Business, 2002. Sub-rule (2) of rule 5 reads that no order shall be issued without approval of the Tehsil/Town Nazim in cases enumerated in Schedule 2. Schedule 2, part-III at Serial No,7 provides fee for fairs. Agricultural Shows, Cattle Fairs, Industrial Exhibitions, Tournaments and other public events. He also refers section 54-A(k) which empowers Town Municipal Administration to organize Local Sports, Cultural and Recreational Events, Fairs and Shows, therefore, he contends that the Nazim Union Council was not competent to issue such permission as power to allow holding of such Fairs vests with the Town Municipal Administration. He further contends that in any case, the Chairman, Union Council has withdrawn permission which he granted to the petitioner.
7. The learned Additional Advocate-General, Punjab contends that a letter was issued by Government of the Punjab, Home Department, whereby District Nazims were empowered to properly regulate such fairs, therefore, he was also made responsible for the grant of N.O.C. For Fairs, Festivals and public functions in consultation with all concerned agencies, etc. The learned Additional Advocate-General also referred section 76(g) and urged that it empowers Union Administration to organize Inter-village or Neighbourhood Sports, Tournaments, Fairs, Shows and other Cultural and Recreational activities. He means that Union Administration can only allow holding of fairs in villages or in Neighbourhoods.
8. The learned counsel appearing for the petitioner contends that letter referred by the learned Additional Advocate-General is general in nature. It does not affect specific power of Union Administration. He submits that under section 76(g), Union Administration is fully competent to grant such permission which was duly granted to the petitioner and the same could not be withdrawn or cancelled by any authority.
9. I have heard the learned counsel for the parties. The reading of different sections of Punjab Local Government Ordinance, 2001, and Rules thereunder, it seems that power to hold or to allow holding of Fairs vests simultaneously in Union Administration, Tehsil Municipal Administration and Town Municipal Administration under sections 76(g), 54(k), and under section 54(n). In the instant case, the District Nazim has also been given such power by the Provincial Government though it is not mentioned in section 18 of Punjab Local Government Ordinance, 2001, which deals with functions and powers of the District Nazim.
10. Under the present scenario, the Union Council issued a permission to the petitioner to hold a fair, but subsequently, the Town Administration has interfered on the ground that such power vests in the Town Administration Council. The office of District Nazim has also claimed the same power, detail of which has already been given in the preceding para. Therefore, the main question to be determined is, whose permission should be considered valid and consistent with provisions and spirit of the Punjab Local Government Ordinance, 2001. On the above question, I have asked the learned counsel for the parties, but I did not get a clear answer from them. Therefore, to find exact or probable answer, it is needed that the whole Ordinance must be examined. Preamble of the Ordinance starts with these words, "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". The reading of the above para. Of the preamble makes it clear that the underlying purpose of the present Local Government System is devolving political power and decentralizing administration and financial authority.
11. Similarly, section 2 defines different words and expressions used frequently in the Ordinance. The inclusion of these words in section 2 and their definitions ascribed to them also indicate that the intention of the Punjab Local Government Ordinance, 2001 is to devolve political power downwards.
Word "Council" means a Zila Council, Tehsil Council, Town Council, Union Council, Village Council and Neighbourhood Council, as given in section 2(vi). Similarly, in subsection (vii) of section 2, word decentralized means conferment by the Government under this Ordinance of its administrative and financial authority for the operation, functioning and management of specified offices of the Provincial Government to the Local Governments. In subsection (xvi) of section 2 (Local Government) includes a District Government or a City District Government of Zila Council; a Tehsil Municipal Administration and Tehsil Council; a Town Municipal Administration and Town Council; and Union Administration and Union Council. Section 12 provides for each Local area. A District Government and a Zila Council in a District or a City District; Tehsil Municipal Administration and Tehsil. Council in a Tehsil; Town Municipal Administration and Town Council in a Town; and Union Administration and Union Council in a Union. A combined reading of the above mentioned sections leads to a conclusion that devolution and decentralization of power is intended by the. Ordinance and seeking the same different Councils and Administrations have been provided for each Local Areas. And under the relevant sections already mentioned above, all of them are assigned different functions and vested with different powers.
12. In the present case concerned Union Council No,29 had given permission to the petitioner before any order was passed by the Town Administration for a Fair which is intended to be held within local area of that Union Council. Town Administration and District Nazim intervened subsequently, and may be for mala fide reasons. This Court has been informed that an F.I.R. No,224 of 2005 has been registered against Nazim of the Union Council at Police Station Tibbi on 29-3- 2005 on the complaint of Malik Zubair, Town Officer (Regulation) Ravi Town, Lahore, for giving illegal permission to hold fair. According to the contents of the F.I.R. Union Council is not competent to issue such permission. This attitude cannot be appreciated. This will damage the new Local Government System. The learned Additional Advocate-General contended that under section 76(a) the Union Council could only allow fair in villages. The argument of the learned Additional Advocate-General is not tenable, section 76(g) reads as under:-- "To organize inter-village or neighbourhood sports, tournaments, fairs, shows and other cultural and recreational activities."
' It may be noted that after expression inter-village "or" is used by which the remaining part of the sentence has been separated and the separated part starts with word "neighbourhood". Therefore, neighbourhood sports or neighbourhood fairs mean fair in a Mohallah, in a group of street, lanes, or roads designated by Tehsil Municipal Administration, Town Municipal Administration to be the neighbourhood. The expression neighbourhood has been defined in section 2(xxp).
13. In Writ Petition. No,1809 of 2005, Jamshed Jami v. D.P.O. The A.S.P., Kot Lakhpat and S.H.O. Police Station Kot Lakhpat were directed by my learned brother Sh. Abdul Rashid, J. Not to interfere in holding of fair (Mela) by the petitioner which was permitted by Nazim Union Council No,137, Farid Colony, Lahore.
14. As far as the letter of Government of the Punjab is concerned, whereby District Nazims have been empowered to regulate fairs, the said letter cannot deprive petitioner of his right which has been duly granted to him by a Nazim Union Council No,29 under section 76(g) of the Ordinance.
Even otherwise, as observed above, the District Government or Nazim have not been empowered to enjoy power of granting permission to hold fairs, etc. As the same power has been expressly conferred upon Tehsil/District Administration and Union Administration. A power which is not granted by the statute how can it be conferred by the Home Department, Government of the Punjab?
15. Therefore, in view of the above detailed discussion, the permission which was given by the Nazim Union Council No,29, City Government, Lahore (respondent No,1) is declared to be valid and competently/duly granted. It is also declared to be consistent with provisions of the Local Government Ordinance, 2001. All the respondents are ordered not to interfere in the execution of order of Nazim of Union Council No,29, City Government, Lahore which was original issued by him.
As far as damage to the property i,e, furniture, etc. Caused by the respondents is concerned, the petitioner may file a suit or damages, the concerned Court will decide the matter in accordance with law. This writ petition is allowed in the above terms.