The petitioners being the Union Nazims are the members of Zila Council, Kasur ("the Council' ); they are aggrieved of the budget of the Council for the year 2008-2009, prepared, approved and authenticated by the Government of Punjab while exercising its power under the provisions of Section 112(7) of the Punjab Local Government Ordinance, 2001 ("the Ordinance"). It is their case that the budget in the above manner has been enforced in violation of various prescribed rules of the Punjab District Government & TMA (Budget) Rules, 2003 ("the Rules"); the exercise of authority in this behalf is mala fide; the object behind is to thwart the ongoing development projects duly undertaken by the Council since 2007-2008, besides, to deprive the members of the Council and the respective Union Councils from the future development works; and in the garb of impugned 'budget, with ulterior object and motive the MNAs and MPAs belonging to Pakistan Muslim League
(N) have been accommodated, who otherwise have their own independent allocation for development programmes, and are not entitled under the law to utilize the funds of the Council.
2. In elaboration of his submissions, Dr. M. Mohy-ud-Din Qazi, the learned counsel for the petitioners, has made reference to the provisions of Artieles 32, 140(A) of the Constitution of Islamic Republic of Pakistan. 1973 ("the Constitution") and the preamble of the Ordinance to argue that according to the spirit of the law, the local governments at the gross root level must be encouraged, promoted, effectively installed and enabled to solve the problems of the people; but due to the impugned action, the above purpose has been flagrantly violated. It is also submitted that one of the key functions and powers of the Council as enunciated by Section 39 of the Ordinance is to approve long term and short term development plans; the supplementary budgetary proposals of the district government and approve the annual budget of the Council, for the purposes of which, a complete procedure has been prescribed by Sections 111, 112 of the Ordinance and the Rules, as to how the budget shall be prepared by the Local Government ("LG") and approved by the Council, but in the instant case, such mandatory procedure has been ignored and bypassed, which amounts to frustrating the law and is the usurpation of the power of the LG/Council; further by reference to proviso to Section 22 and Section 42(5), it is argued that where the Nazim or the Naib Nazim are dysfunctional for any reasons, the members on the panel of the Council elected there- under (under Section 42(5) shall performs their duties and functions respectively, therefore, in the circumstances of the present case the preparation and approval of the budget should have been allowed to be passed in ordinary course and the members of the panel could have accordingly acted for the Nazim and Naib Nazim. Without prejudice to the above, it is stated that the members of the Council on 08.09.2008 tabled a motion for the revision of the budget in terms of Section 112(11) of the Ordinance, which was carried by the house on 25.09.2008 being presided over by the Naib Zila Nazim, who by that time was restored by the Honourable Supreme Court vide order dated 21.08.2008, thus in any case, as the budget was revised to the extent of the development schemes, which accordingly were reallocated to the members who were genuinely entitled thereto, resultantly the Government was bound to give effect to the revision and, therefore, the advertisement issued by Respondents No, 3 to 6 for award of development works on the basis of the impugned budget is without jurisdiction and lawful authority; the noted resolution has not so far been annulled by the Chief Executive of the Province as provided by Section 45 of the Ordinance, and still holds the field; he has further argued that for the year 2007-2008, the budget was duly approved by the Council and the matter came under litigation before this Honourable Court in W.P.No, 8000/2007, in which the said approval was endorsed, therefore, such budget has to be necessarily given effect in the subsequent year 2008-2009, as the works which remained incomplete during last financial year requires to be accomplished; that if the projects as per the Government budget are allowed to be undertaken, it shall complicate the matter vis-a-vis the payments to be made, because the amounts allocated for development schemes are part of the local funds and cannot be allocated to the MNAs and MPAs, who have their own independent development funds.
3. Conversely, Mr. Muhammad Hanif Khatana, learned Additional Advocate General, and Ch. Aamer Rehman, advocate, submit that the Government has rightly and lawfully invoked and applied the provisions of Section 112(7) of the Ordinance because in the peculiar circumstances of the case, it had become imperative to do so, as the preparation and the passing of the budget by the LG/Council was impossible for the reason that the election of both the Nazim and Naib Nazim had been annulled by this Court; both the posts were vacant and because of an ongoing dispute between the two groups of the Council, no panel of the members was elected or notified under Section 42(5), to perform the functions under proviso to Section 22; the Naib Nazim was restored by the Honourable Supreme Court of Pakistan on 21.08.2008 i,e, after the period in which the budget has to be passed by the Council, therefore, the Government in order to safe a chaotic situation necessarily had to step in and perform its statutory obligation; when the Naib Nazim was restored, he was duty bound to call/convene the session of the house within ten. days for the purposes of electing an officiating Nazim, but he miserably tailed to do so, which constitutes a misconduct on his part; it is also submitted that in view of Rule 56(2) of the Rules, the revisional or the supplementary budget had to undergo the same process and procedure prescribed for the annual budget, which was 'not followed while passing of the resolution dated 25.09.20.08, which otherwise could not be passed as the house was not legally convened and presided over, therefore, no valid revision in the budget was ever made; the budget was enforced by the Government for full year, thus it cannot be revised by the Council.
4. Heard. When specifically questioned; the learned counsel for the petitioners has conceded that the budget was neither prepared by the LG nor was approved by the Council within the statutory period provided under Section 112(6); it further conceded that the petitioners are not challenging the vires of Section 112(7) of the Ordinance and/or the authority of the Government to pass the budget, but according to him, that could only be done in appropriate cases squarely falling, within the scope and ambit thereof and this is not such a case. In the light of above, the key propositions which arises for consideration and determination are:
(i) Whether the instant case falls within the purview of the sub-section (7) of Section 112 of the Ordinance;
(ii) Whether while preparing the budget, the Government was required to follow the prescribed procedure and has failed to do so;
(iii) Whether the resolution dated 25.09.2008 is valid and if so, its effect;
(iv) Whether the budget has been passed with mala fides.
5. Taking up first two questions together, it may be stated that Section 111 in general enunciates the principles to be followed while preparing the budget of the LG, whereas sub-section (6) thereof specifies that before the commencement of a financial year each local Government shall, from its funds, prepare in the "prescribed manner" a budget in conformity with the provisions of Section 119, obviously meaning thereby that by strictly adhering to the Ordinance and the Rules. The mechanism of the presentation of the budget and its approval or otherwise by the Council (except sub-section (7)) and its authentication by the Nazim is given in Sections 111 and 112. From the object and the spirit of the constitutional provisions and the Ordinance mentioned above, a considerable autonomy and authority should be construed to have been conferred upon the LG and the Council in preparing and approving the annual budget, and this in my view is the "ordinary course" for the budget. However, Section 112(7) is an exception to this "ordinary course" and shall automatically come into play, when for whatever reasons the Council fails to approve its budget within the prescribed time. The Government under this authority, which can be termed analogous to its statutory duty, with a view to meet an emergency situation caused and created due to the default of the Council itself in approving the budget, comes into motion, and under the command of the law steps in to prevent the catastrophe, financial impasse and the standstill of the Council; this undoubtedly is a rescuing measure, which the Government imperatively is required to take in order to bail out the Council for a chaos. When the Government undertakes the responsibility of enforcing the budget under the provision ibid, it is an "extraordinary course" envisaged by law and thus it is omnipotent to "prepare", "approve" and "authenticate" the budget. And while doing so, is not bound to follow the "prescribed procedure", as required to be adhered to by the LG in terms of sub- section (6) of Section 111, which reads "before the commencement of a financial year each local council shall, from its funds, prepare in the prescribed manner a budget for that year in conformity with the provisions of sub Section 119". The condition of the "prescribed manner", is conspicuously missing in the sub-section (7) ibid, which clearly depicts the intention of the legislature that the Government has been absolved of all the restrictions/requirements, which are essential for the making of the budget in "ordinary course". Therefore, it is a clear case where due to the failure of the Council to pass the budget within the time provided by law, the situation warranted the exercise of authority by the Government in terms of Section 112(7) and while adopting the extraordinary course, it was not required to follow the prescribed procedure The above provides the answers to propositions No, (i) and (ii).
6. Attending to proposition No, (iii), suffice it to say that admittedly the election of both the Nazim and Naib Nazim of the Council had been annulled by this Court. The Naib Nazim was restored by the Honourable Supreme Court on 21.08.2008 and according to Section 22, he automatically has to 'act as the Nazim till an officiating Nazim or new Nazim was elected. There is no discord between the parties that till the date the Nazim as per Section 156 of the Ordinance has not been elected.
Thus, for all intents and purposes the Naib Nazim remains to act as the Nazim and ceased to be the Naib Zila Nazim and under the law was precluded to hold two offices simultaneously by wearing two caps on one head, therefore, in terms of Section 42-A of the Ordinance, he could neither convene the meeting nor could preside over the same, but it was so done. Resultantly, the meetings of the Council dated 08.09.2008, 09.09.2008 and 25.09.2008, even if requisitioned by the members (which is not clear from the record), were not legally convened and chaired and thus, any proceedings conducted thereby or the resolution passed i,e, 25.09.2008 is unauthorized, illegal, having no sanctity and existence in the eye of law. Therefore, the. question of the annulment of such a resolution by the Chief Executive does not arise. Even otherwise, Rule 56 sub-rule (2) of the Rules provides that a supplementary budget shall be presented in the same form and manner as prescribed for the annual budget. According to Section 112(1), it is the Nazim of a Council, who has to present the budget for the approval, but in this case, the revision of the budget has been attempted through a table resolution, which is not in accord with the above. It is not established from the law, if the revision in the annual budget could be done in the noted manner. However, it may be pertinent to observe here that I am not convinced by the argument of Mr. Aamer Rehman, the learned counsel for Respondents No, 3 to 5, that as the Government in terms of Section 112(7) is empowered to enforce the budget for full year, therefore, it cannot be revised by the Council at all; in my view, such a bar shall not only be against the spirit and object of the law for which the LG is created, but shall also reflect upon financial autonomy of the Council as mentioned above; moreover, it shall amount to reading into the Section ibid a prohibition which is not specifically there. The above discussion answers the relevant proposition.
7. As far as the proposition No, (iv) is concerned, it may be mentioned that bald allegations of mala fides have been made in the petition without any proof on the record. Only for the reason that some new projects have been undertaken in the budget and other ongoing projects have been left out, as alleged, by itself cannot be considered a sole factor to impute mala fides to the Government; from the record or the impugned budget itself, it is not established if with a dishonesty of purpose, any MPA or MNA of Muslim League (N) has been accommodated. Besides, the submission that this Court in an earlier judgment had approved the budget for the year 2007- 2008 which included the ongoing projects and thus those should have been kept intact in the present budget, has no force, as the judgment in no way has commanded that in the next budget made in "ordinary" or "extraordinary course", the ongoing projects should be kept intact and allowed to be accomplished.
8. Before parting it may be observed that out of 155 members, only three have come forward to challenge the budget and they in the petition have not been able to specifically pinpoint and show any personal loss to themselves or to their union councils. Therefore, when the entire house has not agitated against the budget of the Government, only three would not have a sufficient locus standi to impugn the same.
In the light of above, I do not find any merit in this petition, which is hereby dismissed.