'IQBAL HAMEED-UR-REHMAN, J.--- Through this writ petition, the petitioners pray that the impugned orders passed by respondent No,1 dated 20-6-2009 as well as illegal verbal stoppage of development schemes in Tehsil Sheikhupura may be declared as illegal, void, arbitrary, discriminatory, mala fide, without any lawful authority, against the public interest and of no legal effect qua the rights of the petitioners; that respondents Nos.2 to 6 may be directed to allow the petitioners to carry out the schemes, which have been allotted to them through a transparent process of open competition conducted by the representative of DCO/respondent No,4; that respondents Nos.2,3,5 and 6 may be directed to issue the formal work orders of those contracts, which have not yet been issued and that the respondents may be also be directed not to interferein execution of the Development Scheme of TMA Sheikhupura.
2. Brief facts, as narrated in this writ petition, are that respondent No,2 Tehsil Municipal Administration, Sheikhupura, prepared the annual budget for the year 2008-2009 including the allocation of funds for annual development programs to provide civic amenities to the Tehsil area comprising Union Councils. The said respondent approved 313 development schemes in its meeting held on 26-5-2009.
'The Administrative approval was granted by the competent authority on 10-6-2009. Respondents Nos.2 and 5 published public notice in the two National Dailies "Express" and "Pakistan" inviting tenders for 313 works of the local area within the sanctioned amounts of 15 crores. Respondent No,5 also wrote letters to concerned Departments i.e, DO (Roads) Sheikhupura, ADLG, Sheikhupura, DO (Buildings) and XEN Public Health for their NOG. Pursuant to the above public notice, 200 out of 215 total registered/ enlisted contracts submitted their tender forms for the said 313 works. About 2000 tender forms were obtained and in lieu thereof, an amount of rupees five lac fifty thousands was credited into local fund. The EDO(R) attended the meeting of Tenders Opening Committee himself received the tender from about 200 registered contractors including the petitioner's. The contractors offered lower rates in respect of all works. The development work was allotted on 26-6- 2009 by TMA Ferozewala as TMO (Roads and Buildings) issued 42 work orders. Similarly the District Government Sheikhupura i.e, the DO (Building) issued work orders of Development Schemes of its area on 30-6-2006. Thereafter, respondent No, 1 issued order bearing No, SOR(LG) 38-3-/ 2006 dated 20-6-2009, whereby he ordered to stop the development schemes noted above.
Respondent No,4 (DCO) Sheikhupura verbally stopped the TMA Administration from carrying out development schemes. The petitioners protested to respondents Nos.2 and 5 but their grievance was not redressed Therefore, the petitioners as representatives of all Registered Contractors have filed this writ petition for implementation of development schemes passed and duly approved in the annual Budget of 2008-2009.
3. Learned counsel for the petitioners has vehemently argued on behalf of the petitioners that there is no provision of law in the Constitution of Islamic Republic of Pakistan, 1973 as well as the Punjab Local Government Ordinance, 2001 of any interference or taking any action against the independent elected body comprising of the representatives of the pubic, in fact the impugned order has been passed in violation of Article 32 of the said Constitution, wherein it is stated that "the State shall encourage local Government institutions composed of elected representatives of the areas concerned". Learned counsel for the petitioners further asserts that the preamble of the Punjab Local Government Ordinance, 2001 also clearly states as under:--- "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 gross-root level".
'Learned counsel for the petitioners further argued that in view of section 49 of the Punjab Local Ordinance, 2001, the Tehsil Municipal Administration Sheikhupura is an independent institution fully empowered for the issuance of tenders, work orders and execution of agreements, whereby development work is to be carried out as well as under section 54 (1)(i) of the said Ordinance, it is fully empowered to prepare budget, long term and annual, municipal development programs in collaboration with the Union Councils, under the direction of Tehsil Nazim, as such, the budget for the year 2008-2009 had been papered and in this regard, a resolution dated 26-5-2009 (Annexure-A) had been passed by it for the approval of the annual development programs for the year 2008-2009 and 313 projects were approved on 9-6-2009 for the year 2008-2009 by the committee consisting of TMO, T.O. (I & S), T.O. (Finance) and T.O. (P&C), TMA Sheikhupura and thereafter administrative approval had been granted vide letter dated 10-6-2009 (Annexure-B1) in the following terms:--- "In exercise of the powers delegated vide Notification No,SOV (LG) 5-48/2002, Government of the Punjab LG & RD Department dated 14-4-2003 under Rule 15 of the Punjab Tehsil Municipal Administration (Works) Rules, 2003, administrative approval is hereby accorded for the ,implementation of the following schemes of ADP for the year 2008-2009 of Tehsil Municipal Administration, Sheikhupura as approved by the Chairman/Members the Development Committee, Tehsil Municipal Administration, Sheikhupura in its meeting held on 9-6-2009 at the cost mentioned against each subject to strict financial regularities and observance and other codal/legal procedural formalities."
'The same had also been approved in the meeting of District Development Committee held on 22- 6-2009 under the Chairmanship of DCO Sheikhupura, thereafter No Objection Certificate had been obtained from the District Officer (Roads), Sheikhupura, Assistant Engineer, Engineering Wing, LG&CD, Sheikhupura, District Officer (Buildings), Sheikhupura, and Project Engineer, Project Management Unit, Sheikhupura and on the completion of above codal formalities regarding the same, public notice had been issued in "Daily Express" dated 23-6-2009 as well as "Daily Ausaf" dated 24-6-2009 (Annexure D and D1) and thereafter corrigendum of tender notice had also been issued in "Daily Ausaf" dated 26-6-2009, thereafter, on 27-6-2009, a committee consisting of Shehryar Cheema, Naib Tehsil Nazim/ Member, Azhar Virk, Member, Tehsil Council/ Member, Fayyaz Virk, Member Tehsil Council/Member and Deputy Tehsil Officer (I&S) TMA, Sheikhupura/Member had been constituted for opening tenders and Tehsil Municipal Officer, Tehsil Municipal Administration, Sheikhupura, wrote a letter dated 27-6-2009 to DCO, Sheikhupura, wherein it was stated that "the TMA Sheikhupura has to issue tenders to the contractors on 29-6-2009 which will be received back and opened on 30-6-2009 as per advertisement notice published in Daily Express and on 30-6-2009; tenders were accepted and the said acceptance was conveyed to the various contractors, thereafter the issuance of the work orders, the impugned order dated 20-6- 2009 as well as verbal stoppage of development schemes in Tehsil Sheikhupura had been issued illegally and arbitrarily. It is further contended that after adopting very transparent procedure in a very lawful manner, where no illegality has been committed, the process has been completed under the supervision and approval of respondents Nos.1, 2, 3, 7,
4. It is further contended that the perusal of the impugned order pertains only to future development works but it cannot be made effective with retrospestive effect to the period approved and sanctioned development schemes, stoppage of which has deprived the petitioners from performing their functions without any fault of their and the duly action in pursuance of the impugned order dated 20-6-2009 is being taken only on account of political interference by the Government. It is further contended that respondent No,1 had no authority to pass the impugned order under section 64 of the Punjab Local Government Ordinance, 2001, which empowers the Zila Council to pass a resolution and on simple majority set aside an order or decision of general application taken by Tehsil Nazim, It is further contended that under sections 70-A and 70-B of the Punjab Local Government Ordinance, 2001, the resolution of the Tehsil Council could have been set aside by the Zila Council on a motion initiated by the District Government and thereafter the Chief Executive of the Province could suspend the said resolution and in view of the same, this writ petition be accepted and the formal work orders of contracts be restored and the funds be released.
4. On the other hand, the learned Additional Advocate-General, while supporting the comments and adverting to the impugned order, has stated that no budget for the year 2009-2010 had been approved and the work orders approved pertain to the fresh annual development program for the year 2009-2010 and according to Rule 40(2) of the Punjab Union Administration (Budget), Rules, 2003, "The annual Development Program shall indicate new development projects and ongoing development projects separately. Development projects on which no expenditure has been incurred previously shall be termed "New" development projects. Development Projects on which expenditure has been incurred in previous years shall be "On-going" and in this case, the development projects cannot be considered to be ongoing projects and it is definitely fresh annual development projects, which could be considered to be of the year 2009-2010, as such, no expenditures can be incurred. It is further contended that section 109(6) of the Punjab Local Government Ordinance, 2001 lays down a detailed mechanism for regulating expenditure of funds and commitment for expenditure during the election year and clearly debars the outgoing local Governments from making any expenditure commitment in excess of a limited and laid down percentage and as such, with such limited authority for making expenditure commitment, it will be unfair for any outgoing local government to develop Annual Development Program for whole of the next financial year and in view of the same, the annual development programs for the year 2009- 2010 could not have been undertaken by the outgoing local governments and as such, the impugned order has rightly been passed.
5. I have heard learned counsel for the petitioner as well as the learned Additional Advocate- General and have also perused the impugned order as well as other material available on record.
6. First of all, it is necessary to reproduce rule 40(2) of the Punjab Union Administration (Budget), Rules, 2003 and section 109(6) of the Punjab Local Government Ordinance, 2001, which are as under:--- 'Rule 40(2)
"The annual Development Program shall indicate new development projects and ongoing development projects separately. Development projects on which no expenditure has been incurred previously shall be termed "New' development projects. Development projects on which expenditure has been incurred in previous years shall be "On-going"
'Section 109(6)
"Where a new Local Government is to take over during a financial year as a result of fresh elections, the outgoing Local Government shall not spend funds or make commits for any expenditure, under any Demand for Grant of Appropriation, in excess of, eight percent per mensem of the budgeted- funds for the reminder in its term in office in that financial year"
From a bare reading of rule 40(2) of the Punjab Union Administration (Budget), Rules 2003 and section 109(6) of the Punjab Local Government Ordinance, 200, it appears that development projects on which no expenditure has been incurred previously shall be termed as "New' development projects and development projects on which expenditure has been incurred in previous years shall be ongoing. In this case, the annual development projects, which have been approved, and the work orders which have been issued, pertain to the fresh annual development program and the same will be undertaken in the year 2009-2010, as such, the same also cannot be considered to be ongoing projects of the year 2008-2009 as no expenditure has been incurred on these projects. In view of the same, respondent No,1 had rightly passed the impugned order.
7. In view of the above circumstances, this writ petition is dismissed.