' MUHAMMAD JEHANGIR ARSHAD, J.---Abdul Qayyum Khan, Zila Nazim, Muzaffargarh/petitioner has filed this writ petition with the following relief:-- ' "Under the above circumstances, it is therefore, most respectfully prayed that this writ petition may graciously be accepted and the act of respondent No,5 regarding the cancellation/ postponement of special budget session on 13-7-2006 regarding the approval of budget for the year 2006-07 District/Zila Government, Muzaffargarh, vide a letter dated 1.1-7-2006 and subsequent act of respondents Nos.3 and 4 under the direction of respondent No,2 for not implementing the duly approved budget for the year 2006-07 vide letters {Annex J&H) and subsequent thereto the preparation and forwarding of self-style budget to the Government of Punjab on the premises that the budget has not been presented and approved by the house merits to be declared illegal, ultra vires of the law and rules on the subject, void ab initio without jurisdiction and without lawful authority consequent whereupon respondents may be directed to implement the budget duly approved in a special budget session by the members of the Zilla Council dated 13-7-2006 under the Chairmanship of the senior most members of the panel of Chairman in letter and spirit and they may be directed to release the funds according to law and intimate the concerned quarters accordingly for its execution."
2. The facts in brief are that Budget Session of Zila Concil, Muzaffargarh for the year 2006-07 was summoned by the Convener/Naib Nazim, Muzaffargarh/ respondent No,5 through a notice (Annex- C) dated 8-7-2006 for 13-7-2006 at 10-00 p.m. At District Council Hall, Muzaffargarh. However, the same was cancelled on 11-7-2006 vide Annex-D by the Convener-respondent No,5 on the ground of non-availability of agenda. The said cancellation of Budget Session was not accepted by the petitioner being Zila Nazim, Muzaffargarh who vide letter dated 12th July, 2006 Annex-F addressed to respondent No,5 informed him that as the said. Session had been cancelled without his consultation, therefore,. The said Budget Session as conveyed earlier for 13-7-2006 would be held per schedule given on 11-7-2006 an in case, respondent No,2 refused to preside over the said Session one of the senior Member of the Presiding Officer's Panel as approved by the House in its Session dated 22-2-2006 vide Resolution No,4 would preside over the same. Resultantly, the said Session was held on 13-7-2006 which was presided over by Jamshaid Ahmad Dasti, being member of the Presiding Officer Panel on the date, time and place already notified i.e, 13-7-2006 in the office of Zila Council, Muzaffargarh at 10-00 a.m. And the budget prepared earlier by the Zila Nazim was passed vide Annex-F and sent to the Zila Nazim for his approval. However, as the E.D,O. (Finance) refused to implement the budget on the ground that Session was earlier cancelled by the Naib Nazim, therefore, he was not bound to implement the budget, hence, the present writ petition was filed with the above prayer.
3. Report and parawise comments were called for from the respondent and on receipt of the same, this writ petition was admitted to regular hearing on 1-12-2006. The case was partly heard on 1-2- 2007 when Mian Abbas Ahmad, Advocate learned counsel for the petitioner addressed his arguments. It was submitted by learned counsel that firstly the Naib Nazim/ respondent No,5 could only postpone the Session and not cancel the same; and secondly the said postponement could also be not for more than one month it terms of section 42(2) of the Punjab Local Government Ordinance, 2001; further that as the cancellation of session by the Naib Nazim/respondent No,5 was without any justification, therefore, the said session was rightly convened and held by senior member of Panel of Presiding Officers duly elected under section 42(5) of the Punjab Local Government Ordinance, 2001 and in the said session budget was rightly and lawfully approved and thut the E.D.O. (Finance) had no jurisdiction to refuse to act upon the same. It has further been argued by learned counsel for the petitioner that unless Zila Council fails to pass and approve the budget as provided under section 112 (4) and (7) of the Punjab Local Government Ordinance, 2001, neither the Government could give its own budget nor any budget, if so given by the Govermnent could be considered as a legal document, except for a period of thirty days as provided in subsection (6) of section 112 of Punjab Local Government Ordinance, 2001. Learned counsel for the petitioner, concludes that the writ sought be issued and budget so approved by the Zila Council on 13-7-2006 in a session presided over by senior member of Panel of Presiding Officers, be declared as a legal document and respondent be directed to release the funds for its implementation.
4. On the other hand, learned Law Officer appearing on behalf of respondent Nos.1 to 4 has opposed this writ petition by arguing that it was the petitioner himself who made the holding of budget meeting after its cancellation by respondent No,5 impossible, firstly by holding the session on 13-7-2006 without any legal authority after cancellation by respondent No,5 and approving the budget in an unauthorized manner and without notice to all the members of the Zila Council and secondly by filing the present writ petition and also obtaining interim order from this Court on 4-8- 2006 which runs as follows:- ' "Subject to notice in the meanwhile, contingency expenses shall be released for the smooth running of the Council However, disbursement of the budget grants shall be held in abeyance."
' Learned counsel for the respondents has further argued that said interim relief granted by this Court was considered by the respondents as a restraint order for holding the Budget Session after its cancellation by respondent No,5. Learned counsel for the respondents has frankly conceded that no Budget Session was either summoned or convened by respondent No,5 after its cancellation and that the Government did not give its own budget within the meaning of section 112(7) of the said Ordinance, however, budget has been prepared by the Government on 26-1-2007 but the same is not being implemented/acted upon due to the pendency of the present writ petition. Since the role of Zila ,Naib Nazim/respondent No,4 about cancelling and non-convening of budget session was very much relevant, therefore, this Court on 1-2-20Q7 directed. The respondent No,5 to appear in person today. The Zila Naib Nazim/respondent No,5 along with his counsel Mr. Muhammad Arif Alvi, Advocate appeared today and reiterated the stand as taken by the Gov ernment/respondent mentioned above.
5. 1 have considered the arguments of learned counsel for the parties and have also gone through the entire material available on the record.
6. The following points for determination emerge from the pleadings as well as above mentioned arguments of learned counsel for the parties:--
(i) Whether Zila Naib Nazim/ respondent No,5 validly cancelled the Budget Session called for 13-7- 2006;
(ii) Whether the Budget Session after its cancellation by Zila Naib Nazim/respondent No,5 was validly held on 13-7-2006 and the budget approved in the said session is a valid document;
(iii) Whether the budget so prepared by the Government on 26-1-2007 is a valid document; and lastly;
(iv) What is the role of Zila Naib Nazim/respondent No,5 in cancelling the Budget Session on 13-7- 2006 and not convening any session till date.
7. So far as the first point is concerned, it has been argued by. Learned counsel for the petitioner with reference to Bylaw-23 of Zila Council, Muzaffargarh (Conduct of Meetings Bylaws), 2000 that a meeting once called could not be cancelled and could only be postponed on a request in writing by majority of the total members of the Zila Council or with the prior permission in writing of the Government and that there is no material on record that either majority of the total members of the Zila Council requested for such cancellation or for that matter prior permission was obtained from the Government, therefore, the alleged cancellation of the budget meeting by the Zila Naib Nazim through the letter dated 8-7-2006 is without lawful authority. Relevant Bylaw No,23 is reproduced below:- "23. Postponment of meeting.-No meeting shall be postponed except on a request in writing by a majority of the total number of members of Zila Council or with the prior permission in writing of the Government: ' Provided that no meeting shall be postponed on more than two consecutive occasions without the prior ( approval of the Government."
The contention of learned counsel for the petitioner prima facie is supported with the language of said Rule and as the respondents have failed to produce on record any material to establish that said meeting was cancelled at the request of majority of members of the Zila Council or with the prior approval of the Government and further the evasive reply to para.4 of the writ petition by the respondent leads me to conclude that same was cancelled without any request by the majority members of the house or with the prior permission of the Provincial Government, in clear violation of rule 23 ibid and thus cancellation of the budget meeting by Zila Naib/Nazim respondent No,5 scheduled for 13-7-2006 cannot be graced with any legal sanctity.
' However, it does not mean that the petitioner or for that matter any person had acquired a right to summon the meeting suo motu or even without notice to the members of the. Zila Council or to any Government functionary informing that despite cancellation of meeting by Zila Naib Nazim/respondent No,5, the meeting would be held and budget would be presented. Therefore, the alleged holding of Budget Session under the chairmanship of Presiding Officer's panel on 13-7-2006 and also passing the budget in consequence thereof, could neither be declared as a legal document nor is binding on the Government. This answers the first two points noted above.
8. It has been argued by learned Law Officer that as the Zila Council, Muzaffargarh failed to give budget, therefore, the Government in exercise of powers conferred in it under section 112(7) of the Punjab Local Government Ordinance, 2001 has prepared, approved and authenticated the annual budget of the district for the year 2006-07 on 26-1-2007 but as disbursement of the budget grants (development/new) Was held in abeyance by this Court on 4-8-2006, therefore, same has not been enforced so far. To this effect the learned Law Officer has placed on record the written reply submitted by the Secretary, Local Government and Rural Development, Government of Punjab dated 31-1-2007. I am afraid the contention of the learned Law Officer as well as the reply so submitted by the Secretary, Local Government and Rural Development have any legal, footing.
Subsections (6) and (7) of section 112 of the Punjab Local Government Ordinance, 2001 are worth mentioning here for ready reference:-- "112. Approval of Budge......
(6) In case a budget is not approved by a Council before the commencement of the financial year to which it relates, the concerned Local Government shall spend money under various heads in accordance with the budgetary provisions of the preceding financial year for a period not exceeding thirty days on pro-rata basis: ' Provided that a Local Government shall not spend funds or make commitments for any expenditure, under any demand for grant of appropriation, in excess of eight per cent of the amount budgeted in the preceding year within thirty days.
(7) In case the budget is not passed within the extended period as specified in subsection (6), the budget shall be prepared, approved and authenticated by the Government for the full year."
Per subsection (6)-quoted above, if the budget is not approved by the Council before commencement of financial year to which it relates the concerned Local Government can spend certain amount under various heads in accordance with the budgetary provisions of the preceding financial year for a period not exceeding thirty days on pro rata basis, whereas, in terms of subsection (7) reproduced above, in case the budget is not passed within the extended period as specified in subsection (6), the budget shall be prepared, approved and authenticated by the Government for the full year. A bare reading of above reproduced provisions leave no doubt that unless concerned Government fails to approve or pass the budget, Local Government or the Provincial Government does not figure for the purposes of approving or passing the budget.
Admittedly, after cancellation of Budget Session by Zila Naib Nazim/respondent No,5 scheduled for 13-7-2006 no Session for this purpose was called either by the Zila Naib Nazim or by any member of the Presiding Officer's panel in accordance with law. The Session so summoned by the Presiding Officer's panel as mentioned above was not only without notice but also an arbitrary exercise of jurisdiction, hence it cannot be said that either Zila Council, Muzaffargarh failed to approve the budget or passed the budget within the extended period as specified in subsection (6), above, therefore, the Provincial Government could not prepare, approve and authenticate the budget for the full year. It is an established principle of law that when the law requires a thing to be done in a particular manner the same must be done in that manner and D anything done or act committed in violation of the legal requirement, is nothing but an exercise in futility and of no legal effect.
Reliance is placed on "Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd." (PLD 1965 (W.P.) Lahore 82), "Mst. Sardar Begum v. Lahore Improvement Trust Lahore and 3 others" (PLD 1972 Lahore 458) and "Muhammad Yagoob v. The State" (PLD 1978 Karachi 723). Since it is established from the record and also is admitted position that after cancellation of Budget Session by Zila Naib E Nazim/respondent No,5 scheduled for 13-7-2006, till date no attempt was made either by said Zila Naib Nazim or by any competent person to summon the Budget Session of Zila Council, Muzaffargarh in a lawful manner, therefore, I cannot agree with the learned Law Officer that the Government has rightly entered into the arena by preparing, approving and authenticating the budget for the full year on 26-1-2007, in terms of subsections (6) and (7) of section .112 of the Punjab Local Government Ordinance, 2001, therefore, the budget so prepared and approved by the Government is neither a lawful document nor has any legal effect so far as it relates to financial affairs of Zila Council, Muzaffargarh. I am also unable to understand the reason for not allowing Zila Council, Muzaffargarh to prepare and approve its budget being the competent authority to exercise such powers as provided by section 112 of the said Ordinance, which confers powers on the Zila Nazim to present the budget for approval before beginning of financial year. I am also shocked to hold that till date the entire budgetary machinery of Zila Council, Muzaffargarh is being run either by the District Coordination Officer, Muzaffargarh or the Executive District Officer (Finance) who have no such powers to interfere in such like matters and are only to ensure that budgetary scheme of the Zila Council is regulated and carried out strictly in accordance with law and also for the betterment of the people of the area. It is also shocking to point out that till date no development project has either been started or allowed to be implemented within the area of Zila Council, Muzaffargarh and the people of the area are being deprived of the same just for nothing and due to attitude of the Naib Zila Nazim who instead of performing his responsibility kept the matter in abeyance for one reason or the other. I am, therefore, satisfied that but for the uncalled for and delinquent act of Zila Naib Nazim/respondent No,5 the above mentioned situation would not have arisen. Even before this Court he failed to give any satisfactory explanation for not summoning the Budget Session of the Zila Council till date.
9. Before- the close of arguments, learned counsel for respondent No,5 took the plea that Budget Session could not be convened due to prohibitory order of this Court dated 4-8-2006 holding disbursement of budget grants in abeyance, but I do not feel that the stance so taken by the Counsel for respondent No,5 is either justified or is supported by the record. A perusal of the above mentioned order of this Court dated 4-8-2006 does not even indicate a remotest reference to stop the respondent No,5 from summoning the Budget Session after its cancellation and secondly such a stance was never taken by the other respondents in the written statement or in the reply and only the plea was that as budget proposals along with agenda were not filed in the Zila Nazim Secretariat, therefore, in the absence of such budget proposal, the Budget Session could not be held. The respondent No,5 instead of cancelling the Budget Session on this score could postpone the session in terms of Bylaw No,23 mentioned above, and could have asked the Zila Nazim for providing budget proposals within a specified time and could also fix a new date for the same. He, however, instead of acting in the above manner opted to turn the table by cancelling the Budget Session in an arbitrary manner and without fixing any fresh date or making any attempt to summon the Budget Session for the reasons best known to him. He, therefore, in my view has acted in clear violation of the Punjab Local Government Ordinance, 2001 as well as the above mentioned bylaws of Zila Council, Muzaffargarh, for which he is liable to be penalized within the mechanism provided through section 132(g) of the Punjab Local Government Ordinance, 2001.
10. The upshot of above discussion is that this writ petition is allowed with the following directions:--
(A) No Budget Session of Zila Council, Muzaffargarh within the meanings of Punjab Local Government Ordinance till date was held and in case if any such session was held in . The meanwhile or Budget was approved, the same- is without lawful authority and of no legal effect;
(B) The Budget Session shall immediately be held within a period of ten days from the receipt of this order and said sessions shall be presided over by the learned District and Sessions Judge, Muzaffargarh after notice to all the Members of the Zila Council. The learned District and Sessions Judge, shall present the budget so prepared by the Zila Nazim, Muzaffargarh for presentatiop before the Zila Council on 13-7-2006; and shall conduct the business of the House in terms of section 42 of the Punjab Local Government Ordinance, 2001. The D.C.O., Muzaffargarh being administrative head of the District is directed to immediately establish contact with the learned District and Sessions Judge, Muzaffargarh and make all necessary arrangements for the holding of said session. Further the District Police Officer, Muzaffargarh shall also ensure that the said session is held in orderly and peaceful manner;
(C) The Budget allegedly prepared by the Government on 31-1-2007 is also declared as without lawful authority having been prepared in violation of section 112(6) and (7) of the said Ordinance;
(D) Non-summoning of Budget Sessions after its cancellation by the Naib Zila'Nazim, Muzaffargarh is. Also declared as. An act of mala fide, without lawful authority and also in violation' of provisions of Punjab Local Government Ordinance, therefore, his case shall be referred to the Punjab Local Government Commission, in terms of section 132(g) of the Punjab Local Government Ordinance, 2001 and till his matter is disposed of, he is restrained from acting as Naib Zila Nazim, Muzaffargarh.
11. Before parting with this judgment, 1 would like to observe that the system of Local Government in Punjab was originally founded by the British Rulers through Punjab Municipal Act, 1867 and it was the first law of the Local Government enforced in Punjab for the main object of providing amenities and other municipal facilities at the grass root level and it worked successfully till Pakistan was created, but thereafter, every successive Government whether political or not made all out efforts to deprive the people of the country from the fruits of the said system one way or the other.
Although through the system of basic democracy two important laws i.e, Basic Democracies Ordinance, 1959 and Municipal Adihinistration Ordinance, 1960 were enforced but as the main object of both these laws was nothing except to provide political support to the Government of the time, therefore, With the fall of creator of these two Ordinances, the said system of basic democracy also fell on the ground in the year 1968 and till 1972 when Punjab Peoples Local Government Ordinance was passed there was no representative system of Local Government in Punjab and other parts of the country. Even under the Punjab Peoples Local Government Ordinance, 1972 no elections were held and the entire system-remained at the mercy of the ruling Governments and consequently the said Ordinance was repealed by another law known as Punjab Local Government Act, 1975 but the people of the Province were also not allowed to elect their representatives at the grass root level and the structure of Local Government introduced under this Act was controller; managed and governed by the real Rulers of the Province known as bureaucracy. However, a slight change took place when under the military regime of General Zia- ul-Haq, Punjab Local Government Ordinance, 1979 was promulgated and election of various wings of Local Government system were held and elected people were allowed to run the system at Union Council, Municipal Committee and District Council level. But again this system received a serious set back at the hands of then the Chief Minister of the Punjab who with some ulterior political object diss'olved the Local Councils through Notification dated 15-8-1993 under section 26(a) of the Punjab Local Government Ordinance, 1979. The said act of the Government was challenged through a writ petition titled "Zulfiqar Ali Babu v. Government of Punjab" before this Court and was allowed by this Court in the terms that Government would hold elections of Local Councils within two months, failing which the Local Councils dissolved through Notification dated 15-8-1993 would automatically stand restored. The judgment of this Court was however, challenged through I.C.A. But during pendency of the said I.C.A. Through legislative amendment in the Punjab Local Government Ordinance, the effect of the judgment of the learned single Judge was nullified, resultantly the H.C.A. Was dismissed by a learned Division Bench of this Court in the light of new development. However, the Honorable Supreme Court set aside the judgment of the learned Division Bench on 12-4-1994 and remanded the matter to this Court with a direction to decide the same after allowing amendment. After remand ,the I.C.A. Was disposed of through judgment dated 19-2-1995 whereby the Government was again given three months' time to hold fresh elections of the Local Councils subject to the condition that in case of failure on the part of the Government, the Local Councils shall stand restored. This judgment was further challenged before the apex Court and appeal was allowed with a direction to the Government to restore all the Local Bodies/Councils in the Province of Punjab to enable them to complete their term up to 9-2- 1997 as. Contemplated under section 26 of the Local Government Ordinance, 1979. Before the said order could have its effect the then political Government in power washed away the whole system of Local Government by even repealing the Local Government Ordinance, 1979 through Punjab Local Government (Repeal) Act, 1996, with the result that on the commencement of the said Act all the members of Local Councils ceased to hold the office. Although said Act of 1996 was challenged before the Honorable Supreme Court but C.P. Was dismissed through judgment reported as "Zulfiqar Ali Babu v. Government of the Punjab" (PLD 1997 SC 11). Thereafter, the Local Council system of Punjab remained ineffective although subsequently the said repeal Act of 1996 was also repealed through subsequent legislation and fresh elections were also held but the entire system again collapsed on the eve of 12-10-1999 with the removal of the then Government of Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan. Subsequently, the Government of President Pervaiz Musharaf promulgated Punjab Local Government Election Ordinance, 2000 whereby the present system of local government was introduced on the recommendation of the National Reconstruction Bureau and first elections were held under the said Ordinance. The said Ordinance was further repealed by the present Punjab Local Government Ordinance, 2001, which is now in force and under which latest Local Bodies elections were held in the year 2004. The object of tracing out the history of Local Governments in Punjab is to point out that every successive government in power used the system of Local Governments for its political objects and the system is tried to be run by riding over the horse of bureaucracy but under the name of people of the country who are never allowed to run the system according to their wishes. The important of Local Government system was highlighted by the Honorable Supreme Court of Pakistan in the above cited judgment in the following words :- "However, before concluding the above discussion, we may observe that the local councils are the first tier of the democratic process and since generally they perform municipal functions, the general public is vitally interested in their existence and performance. They are sine qua non for strengthening the democratic process. They are the training ground for future political leaders of the national stature. We feel that the people have been denied said institutions for quite long period i.e, since August, 1993, the various dates fixed for their elections during the last about three years on one ground or the other were not honoured" (PLD 1997 SC 11).
' The desire so expressed by the apex Court still remains unquenched and people are being deprived of their legitimate rights given to them under the law i.e, Punjab Local Government Ordinance and each time attempt is made either by the political sovereigns of the country or through agencies to deprive them of their exercise of such rights knowingly that obedience to the Constitution and law is ordained by the Constitution of Islamic Republic of Pakistan, 1973. The Honourable Supreme Court of Pakistan in "Zahoor Elahi's case (PLD 1975 SC 383) in unequivocal terms held that "every body is bound to obey the command of the Constitution as well as law and public functionaries are also duty bound to act in accordance with law i.e, with the framework of law and the Constitution and all organs of the state are under statutory duty to act in aid of law."
Therefore, in the present case it was the fundamental duty of the Naib Zila Nazim/respondent No,5 to have ensured that Budget Session was held before the commencement of the financial year 2006-07 and was approved well within time but he miserably failed to perform his duty in accordance with law. I have also no hesitation in holding that State functionaries including the District Coordination Officer as well as Executive District Officer ^ (Finance), Muzaffargarh also failed to perform their respective duties under the law and instead of maintaining the rule of law they also acted as privy to respondent No,5 and by their act and conduct they impliedly made the holding of Budget Session impossible and for that reason their act and conduct also cannot be graced with any legal sanctity.
12. Lastly, I would also like to make it clear that I am fully cognizant of the legal position that District and Session Judge does not figure anywhere in the framework of Local Government for deciding such like matter, but as the Zila Nazim, Naib Zila Nazim and the members of the Presiding Officer's Panel are at daggers drawn, it would not be in the interest of justice and in the fitness of things to ask either the Zila Nazim, Naib Zila Nazim or any member of the Presiding Officer Panel, so elected J under section 42 of the above Act, to preside over the said meeting, therefore, I have directed the learned District and Sessions Judgfc, Muzaffargarh to preside over the said meeting and being the head of the judiciary in the District he is supposed to act fairly, honestly, and in a transparent manner. Copies of the order be immediately sent to the learned District and Sessions Judge, Muzaffargarh, District Coordination Officer, Muzaffargarh and the District Police Officer, Muzaffargarh, for compliance.