Salahuddin Panhwar, J.--Petitioner has invoked the constitutional jurisdiction of this Court by challenging the powers of Respondent No, 4 (Transition Officer) Taluka Municipal Administration (Defunct) Kandiaro in respect of NITs.
2. The facts as set-out in this petition are that the petitioner, being social worker, and in the interest of locality, emphasis that by Notification No, SO(CIV) SGA&CD/4-43/2008 dated 23.10.2008 Sindh Peoples Development Committee was constituted with the following assignments:-
(a) To review the progress of development scheme reflected in the Provincial Annual Development Program (ADP).
(b) To identify the development portfolio for the next financial year and make' recommendations to the Executing Agency/Administrative Departments for preparation of the new ADPs.
(c) To review of the feasibility of the on going schemes.
(d) The committee while making its recommendation to consider and abide by various instructions/circulars issued by P&D and Finance Department in respect of development portfolio.
3. It is also pleaded in the petition that ever since the constitution of Committee (SPDC) , the responsibility shifted upon the Committee for recommendation of the feasibility scheme of different. TMAs of District Naushahro Feroze; due to repeal of SLGO, 2001, the . Respondent No, 1 appointed Additional Deputy Commissioner Sikander Ali Khushk as Transition Officer, Taluka Kandiaro; the. Respondent No,1, Secretary Local Government, in collusion with Respondent No, 4 (Transition Officer) misappropriated and embezzled the huge amount of public money in different development schemes of Taluka Kandiaro, under the head of Taluka Kandiaro Development Package; discrimination was made by the Respondent No, 1 while distributing the schemes for different areas. The Chairman SPDC Naushahro Feroze had also made such complaint to the higher authorities, similarly resolution was also passed; even calling the NIT of Development Schemes worth of Rs, 70.00 million without approval of SPDC, is illegal, unlawful and without jurisdiction.
4. Notices of the proceedings were issued. Respondents have filed their comments. Respondent No, 1, secretary local government in its comments have taken plea that tenders of all 99, schemes have been invited after seeking permission from the competent authority and SPDC has not been given such authority to sit over the decision. Respondent No, 4 has filed counter affidavit, stating therein that, petitioner cannot be termed as aggrieved person; SPDC is not a body or legal entity as same has not been constituted in terms of any lawful promulgation, therefore its resolution or interference in working of Taluka Municipal Administration is illegal development committee has no mandate to carry out the development schemes of local government and its mandate is embodied in the. notification. While Respondent No, 03 (Deputy Commissioner), has stated in his comments that it is settled practice in district Naushero Feroz to get the notice inviting tenders of different TMAs of district Naushero Feroz approved from the Sindh people's development committee, since its formation by the government of Sindh services, general administration and coordination department.
5. Learned counsel for the petitioner while arguing reiterated the grounds taken in petition and has relied upon the case law reported as Khurram Khan, Advocate v. Government of Punjab through Chief Secretary and 6 others (PLD 2009 Lahore 22), Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 Supreme Court 482), State v. M.D. Wasa and others (2000 CLC 471), and Ardeshir Cowasjee and 11 others v. Sindh Province and others (2004 CLC 11353).
6. Conversely, learned counsel for the Respondent No,1 has argued that the Notification, referred to above, has no concern with the subject matter of the same pertains to Annual Development Program Scheme; 99 schemes, prepared by the Respondent No, 1, are legal and properly approved by Respondent No,4; SPDC is not a body or legal entity as the same has not been constituted in terms of any lawful promulgation, therefore its interference in Taluka Municipal administration work is not permissible under the law. The petitioner is not aggrieved person to file this petition. Counsel for Respondent No,4 has relied upon Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 SC 644) and Saiyid Abul A'la Maudoodi and others v. The Government of West Pakistan, through Secretary to Government of West Pakistan, Home Department, Lahore (PLD 1964 (W.P) Karachi 478) and PLJ 2011 Kar. 131.
7. Learned Addl.A.G has argued that since there is no elected members of Council, therefore, SPDC has been authorized to supervise identify and recommend the development work of the respective Districts, including the TMAs; Transition Officer without any mandate of the law and without any authority on its own got published as many as 99 unidentified Development Schemes without approval of SPDC.
8. Heard the arguments of the learned counsel appearing for the respective parties and perused material available on record.
9. The main controversy in this petition revolves around the NITS of public schemes, initiated by transition officer, and the powers of Transition Officer in absence of Council and Notification as referred to above regarding the constitution of SPDC. Since there has been raised a question of maintainability of the petition therefore, before examining the, issue involved in the matter, it would be proper to address the objection of maintainability of this petition and locus standi of the petitioner first, being a question of root, on this point counsel for the petitioner has relied upon case of Khuram Khan Advocate (supra), in which it is held that:- "Public interest is not that type of litigation which is meant to satisfy the curiosity of the people, but it is a litigation which is instituted with a desire that the Court would be able to give effective relief to the whole or section of the society".
10. We may endorse here that there can be no cavil to deny the legally established position that dispensation of justice is not alone the function of the Court but public functionaries are equally responsible to act fairly and keeping in view the law, relevant rules, regulations, notification or the policy e.t.c in view because the public functionaries are the trustees of the public power hence are required to act accordingly. It is not always that each and every affected person has the courage and resources to approach the Court challenging the vires, implication or ramification of law, rule e.t.c by an authority. These have been back grounds because of which in the interest of administration of justice some of the old and well established procedural rules and practices have been altered. Public interest litigation can now be initiated not only by filing formal petition in Court but even by writing letters or applications. Further it is also settled proposition of law that a person can invoke jurisdiction of superior Courts as probono publico provided he shows that he has approached the Court in the public interest and for the public good or for the welfare of the general public. In Javed Ibrahim Paracha's case (supra), it is held that;-- "the constitutional jurisdiction of superior Courts can be invoked by a person as probono publico petitioner in public interest litigation can agitate relief on his behalf and also on behalf of general public against various public functionaries as their failure to perform their duties relating to welfare of public at large which they are bound to provide under relevant laws"
In Ardeshir Cowasjee's case (supra), it is held by their Lordships that:-- "A term aggrieved person would not confine a person having strict legal right, but would extent to any person having a legitimate interest in performance of a public duty"
The Honourable Supreme Court of Pakistan in the case of "M/s Al-Raharh Travels & tours (Pvt) Ltd. & others Vs. Ministry of Religious affairs", reported in 2011 SCMR 1621, in paragraph 33, has held that :-- "Constitution is a living organism and has to be interpreted to keep alive the traditions of past blended in the happening of present and keeping an eye on the future as well-Constitution must be interpreted keeping in view the entire canvas of national fabric, be it political, social, economic or religious". In paragraph 34: "Constitution is to interpreted liberally and saved from cosmetic circumscription and construction- Constitution is not a document of past or present, so it is to be interpreted in a manner to meet the changing conditions of socio-religio and economic dynamics of the State".
In the same case, at paragraph 50, it was further held that:-- "If policy is in conflict with any provision of law or is violative of fundamental rights of a citizen the same can be called in question before High Court in writ jurisdiction".
Bare perusal of case law it is clear that even a policy can be called in question in writ jurisdiction if the same is either in conflict with any provision of law or same is in violation of fundamental rights of a citizen.
11. After examining the case law, it is apparent that ratio of the judgments is that any person can bring any issue before the Court, which is related to the public functionaries and its work affecting general public. Since the issue involved is with regarding to illegal exercise of the powers by Transition Officer and Notification in approval of schemes, which were meant for the benefit and welfare of the general public, therefore, this Court, being the custodian and guardian of the fundamental rights of every single individual cannot be hoped to shut its eyes and let illegal and malafide exercise of powers and jurisdiction by an authority go unchecked more particularly where the same is alleged to have been at the cost of rules, procedure, regulations and notification. Thus it would suffice to say that objection towards maintainability of instant petition is devoid of substance and carries no weight at all.
12.Now we dilate upon the formation of the committee and process of NITs initiated by Transition Officer. To answer this issue we have examined such Notification. According to that Notification almost in all Districts of Sindh SPDC, was constituted and criteria of members follow as under:--
(i) All MNAs (District constituency)Member
(ii) All MPAs (District constituency)Member
(iii) Trader Member
(iv) Grower Member
(v) Lawyer Member
(vi) One lady Member
(vii) District Coordination OfficerMember
(viii) All Executive District OfficersMember
(xi) Head of Provincial Departments based in DistrictMember
(x) The Committee may co- opt any member/membersMember
13. Further it is apparent in Notification that Committee under said Notification will identify the Development portfolio for the next financial year, to review the feasibility of, on going schemes.
Admittedly, Councils of local bodies are not in existence and only public servants, working as Transition Officers, are the controlling bodies, therefore, the Transition Officer, at all material times, was required to act strictly in accordance with rules, procedure and policy. The record shows that the-Secretary (I & C) (SGA&AD), in his comments at para-7, stated that the concept behind submitted proposal to establish "Sindh Peoples Development Committee" SDPC at district level was to involve pubic representatives and civil society in development process. The committees have been established through notifications therefore, in all development schemes their recommendations should be given due weights". In para.-8 of his comments stated that f prior to approval of schemes it was responsibility of defunct District Government and Local Government Department to consult SDPC. Further, maintained in comments that SPDC is not a statutory body however it has been notified by the Government of Sindh with the approval of Chief Executive. The Administrative Department as approving authority and executing authority i,e, transitional officer are to follow the orders / policy of Government of Sindh. Per comments of Secretary (I & C)
(SGA&AD), it is clear that the SDPC is not a statutory body, but since it was notified by the Government of Sindh with the approval of Chief Executive appears, therefore, it was pleaded that same ought to have been followed.
14.Be that as it may, the record further shows that Respondent No, 3, the Deputy Commissioner, in' his comments, has categorically mentioned in his comments that it is settled practice in district Nausheru Feroz to get the notice inviting tenders of different TMAs of district Naushero feroz approved from the Sindh peoples development committee since its formation by the government of Sindh services, general administration and coordination department (under lining' is ours). This leaves nothing to doubt that status of the SDPC and its objective were being followed by the TMAS of District Naushero Feroz yet there has been placed no legal justification by the Respondents, in particularly the Transition Officer, for departing from such settled practice in District.
15.Without prejudice to above, we have examined the Letter No, TMA/D/KDRO/392 of 2012, dated 24.2.2012 sent by Transition Officer to the Secretary Local Government regarding the permission for inviting tenders for execution of new development schemes for the year 2011-12. Such letters reflect that permission was sought by Transition Officer but detail and feasibility of said schemes are not visible in that letter. Surprisingly without waiting for completion of such formalities and verification, the Respondent No, 1, Secretary Local Government accorded permission by letter dated 3.3.2012.
Not only this but it also appears from the record that even before approval by quarter concerned, the Transition Officer initiated process of publication of tenders in respect of various schemes of about Rs, 70.00 millions which is evident from the letter dated 28.2.2012, issued by the Transition Officer addressing to the Director Information (Advertisement). Such exercise was completed within 9 days in a haste manner and even without completing the codel and legal formalities. The position, being so, makes it evident that things have not been done in the prescribed and transparent manner as were required to be done by the authorities concern which is also in violation of well known principle of law "that if a thing is to be done in a particular manner it must be done in that way and not otherwise", reference can be made through the case of Lt. General
(Retd) Muhammed Afzal Muneeb v. Javed Sadiq reported, as 2010 SCMR 1437.
16.So far as to the contentions that the Notification is invalid and not properly issued as the Government cannot issue Notification. On this point counsel has relied upon PLD 2006 Kar.536, in which it is held that:-- "Under the scheme of 1973 Constitution source of all power, authority and duties exercisable by the State and its executive functionaries emanates from Constitution itself or the law that may be framed thereunder by the competent legislature. Such power, authority or jurisdiction could only be exercised within parameters defined under the Constitution or statutory instrument. Article 4 of the Constitution of 1973, mandates that, no person could be prevented from or be hindered in doing that which is not prohibited by law. State and its executive functionaries have no inherent powers to permit or otherwise prohibit doing of that, which law does not prohibit'.
17.We are in complete agreement with the principle, held in the above case law and are also conscious of the fact that to give effect to a notification two points are essential i.e authority issuing the notification must have power to issue notification under Act, Ordinance, Regulation, Rule, Order or by law within the meaning of S.3(37b) of General Clauses Act, 1896 and the notification must be published in the official Gazette, as laid down in case of Mir Ghulam Sarwar and 2 others v. Provincial Government through Chief Secretary and others, reported in 2009 CLC 72.
18.Without prejudice to legality of the Notification in question in this matter, it has, prima facie, been found on record that the Transition Officer and the Secretary, Local Government have not resorted to required procedure to attach plea of bona fide to the approval of 99 schemes rather seems to have acted arbitrarily and in deviation of the required procedure and even there has been placed no justification for not following the settled practice in District Naushero Feroz for approval of such schemes. Such act and attitude of the public functionaries cannot be allowed to hold the field as one cannot be permitted to use his power, jurisdiction and authority in any other manner except as required by law, procedure, policy and natural justice more particularly when there is apprehension of infringement of rights, F interests and claims of the people at large because the development schemes which involved huge public exchequer are always meant and processed for the benefit of people at large hence exercise of power by a public functionaries causing prejudice to rights, interests and claims cannot be allowed to go unchecked.
19.In view of what has been discussed above the calling of NITs for the schemes under the head of Taluka Kandiaro Development Package in questions, are hereby declared to be illegal hence of no legal effect and all the official respondents are hereby directed to ensure that all development schemes shall be without discrimination and approval of the schemes must be strictly in accordance with rules, procedure, policy and regulations couple with interest of the people at large. Accordingly, the petition in hand is hereby allowed in above terms.