Mazhar Alam Khan. Miankhel, C.J.--The Petitioners, Sardar Hussain Babak and. Syed Jaffar Shah in the instant Writ Petition No, 100/2014, while Petitioner Abdul Jalil Khan in the connected Writ Petition No, 3343/2013 have challenged the vires of the Khyber Pakhtunkhwa Local Government Act, 2013 (Khyber Pakhtunkhwa Act No, XXVIII of 2013) on the ground that certain provisions of the Act are in conflict with the provisions of Article 140-A of the Constitution and in derogation of the fundamental rights enumerated in Chapter-I of Part-II of the Constitution. They have thus prayed for striking down the same in exercise of judicial review of this Court under Article-199 of the Constitution.
2. The main concern of the learned counsel for the petitioners is over the provisions of Section 27(2) of the Khyber Pakhtunkhwa, Local Government Act, 2013, (hereinafter called as the Act) with regard to conducting' the local Government election of the Village Council and Neighborhood Council on non-party basis. According to them, under Section 5 of the Act, there are various categories of local Governments such as District Governments, Tehsil Municipal Administration, Town Municipal Administration, Village Council and Neighbourhood Council. Except the Village and Neighbourhood Councils, the election of other local Governments, such as Tehsil and District Councils, is to be held on party basis; hence the provisions of Section 27(2) of the Act to the extent of election in the Village and Neighbourhood Councils on non-party basis are inconsistent with Article-17 Clause (2) of the Constitution and contrary to the provisions of Article-140-A of the Constitution, which provides to establish a Local Government system by law in each province and devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Governments.
3. It was further argued that under sub-section (3) of Section 27 of the Act only the general seats holders can be elected as Nazim and Naib Nazim by securing highest numbers of votes in the election and the holders of reserved seats are not eligible to become Nazim and. Naib Nazim, thus, the provisions are discriminatory.
4. The learned counsel also took exception to the special representation of Youth by allocating one seat to it, while no such provision exists in the Constitution in this regard. They also questioned the Constitution of the Local Government Commission for carrying out various functions mentioned in Section 55 of the Act. The Commission has been given wide powers including taking action against Nazim/Naib Nazim but under Section 56 o the Act, the Commission has been held responsible to the Chief Minister and, thus, it cannot function fairly, justly and in a proper manner. Over and above, Section 58 of the Act empowers the Chief Minister to issue certain directions to the local Governments but no parameters of such directions have been laid down in the section. Section 59 of the Act, according to the learned counsel, further empowers the Chief Minister to remove the Nazim/Naib Nazim and similar is the provisions of Section 60, which again empowers the Chief Minister to interfere in the matters of local Governments. The learned counsel also averred that the provisions of Section 63 of the Act, wherein certain powers have been given to the Tehsil Nazim is against the very spirit of the Act wherein every entity under the local Government shall be independent; thus all these Sections are against Article 140-A of the Constitution as well ,as the Fundamental Rights in Chapter-I, Part-II of the Constitution, The learned counsel relied upon the cases of Nawaz Sharif versus President of Pakistan (PLD 1993 SC 473), Civil Aviation Authority versus Union of Civil Aviation Employees (PLD 1997 SC 781, Arshad Mehmood versus Commissioner Delimitation Authority Gujranwala and others (PLD 2014 SC 221) and Pakistan Peoples Party vs. Government of Punjab (PLD 2014 Lahore 330).
5. The learned Advocate-General assisted by Qazi Muhammad Anwar, Advocate raised a preliminary objection regarding the maintainability of the writ petitions. According to them, the petitioners cannot come under Article-199 of the Constitution, questioning the vires of certain Sections of the Local Government Act, as there is a distinction in between the two Articles i,e, 184(3) and 199 of the Constitution. The former empowers the apex Court to examine the vires of an, enactment either on its own or on an application or petition filed by a party and the latter empowers the High Courts to issue writs of various kinds but subject to certain limitations. The instant writ petitions are of the kind wherein the petitioners will first show that they are aggrieved persons within the meaning of Article-199 of the Constitution. Except the case of Arshad Mehmood (PLD 2014 Lahore 221), wherein the Lahore High Court has entertained the writ petition: of the residents of the newly drawn Union Councils and Wards, there are no instances that such like nature writs have been entertained by the High Courts when the petitioners have nowhere stated that they have filed the writ petitions either as voters of the respective union councils or they have been permitted by the respective political parties to file the same, therefore, they in their capacity as Members of the Provincial Assembly or Information Secretary of a political party cannot competently file the writ petitions. In support of their argument, they referred to Article 3(2)(3) of the. Political Parties Order, 2002 where under a political party shall have a distinct identity and a distinct name.
6. In reply, the learned counsel for the petitioners submitted that the petitioners besides being members of the Provincial Assembly are also voters of their respective Union Councils, therefore, there was no need for them to have taken permission from their respective political parties for filing the writ petitions, as they themselves are aggrieved persons in individual capacity and could competently file the writ petitions.
7. On merits of the case it was argued by the learned Advocate-General that in Writ Petition No, 100 of 2014, the Election Commission has not been made a party. It was further submitted that Article-7 of the Constitution has, for the first time, recognized the local authority in the definition of the State.
Article-32 provides that the State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation be given to peasants, workers and women. The words "elected representatives" may not be a person from a political party because persons having no affiliation with a political party can also competently take part as the independent candidates. He also referred to Clause (i) of Article-37 of the Constitution and stated that for the purpose of social justice and eradication of social evils, decentralization of the Government administration has been made so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the Public. This Province has created Village Council and Neighborhood Council and the only difference in it is that earlier a Union Council consisted of so many villages but now each village has been given the status of an independent Union Council, in order to make them as one unit without bifurcating them under the.Umbrellas of various political parties for speedy business to meet the requirements of the Public .Because not less than 30% of the total developmental budget of the Province has been allocated to the local Governments under the Proviso to Section 53(1)(a) of the Act, therefore, to keep a check and balance over the local Governments, a Local Government Commission has been established to conduct annual and special inspections of local Governments and submit reports to the Government. Similarly the powers given to the Chief Minister is further for the purpose of supervision and smooth running of the business of the local Governments, which powers were even available to the Chief Minister in the earlier enacted, now repealed Local Government laws. Further submitted that on account of the above reasons, only the village and neighbourhood council members would be elected on non-party basis, whereas at the level of Tehsil and District the members would be elected on party basis. The case of the Lahore High Court (PLD 2014 Lahore 221) is distinguishable from the instant case, as in that case the whole local Government elections were to be held on non-party basis. The learned counsel while referring to the. Provisions of Article 140-A of the Constitution stated that the word "political" does not mean a political party as there is much difference in between the two words. The learned counsel further stated that though the petitioners have attributed mala fide to the legislature in the enactment of the Local Government Act and infringement of fundamental rights but as per settled proposition of law, no mala fide can be attributed to the legislature and that duty of the Court is to save the law and not to destroy it. The learned counsel in support of their arguments placed, reliance on the cases of Sh. Liaquat Hussain and others vs. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs (PLD 1999 SC 504), Federation of Pakistan through Secretary, Ministry of Finance vs. Haji Muhammad Sadiq and others (PLD 2007 SC 133), Dr. Mobashir Hassan and others vs. Federation of Pakistan and others (PLD 2010 SC 265) and Ali .Azhar Khan Baloch and others vs. Province of Sindh and others (2015 SCMR 456). The learned counsel concluded that no provisions of the Local Government Act are either ultra vires of the Constitution " or in violation of the fundamental rights and the only moto behind the writ petitions is to delay the process of the local Government elections, wherein even symbols to the candidates have been allotted and the elections are going to be held on 30th instant.
8. We have heard arguments of the learned counsel for the parties and have also perused the available record as well as the relevant law on the subject.
9. So far as the maintainability of the writ> petitions is concerned, the argument of the learned counsel for the respondents is not so forceful on the ground that petitioners though are the Members of the Provincial Assembly but being voters of their respective Union Councils, they can competently file the instant writ petitions in independent capacity without having any authority from their political parties because in countries with written Constitutions, fundamental rights form part of the written Constitution and any law or executive action which is inconsistent with fundamental rights, will come under judicial review of the Court. The petitioners, if feel themselves to be affected persons to cast their votes on non-party basis can be termed as aggrieved persons within the meaning of Article-199 of the Constitution, having been denied a right granted by the Constitution. Reliance can be placed on the case reported in Arshad Mehmood versus Commissioner Delimitation Authority Gujranwala and others (PLD 2014 Lahore 221), wherein the residents of the newly created Union Council and Wards challenged the vires of Section 18 of the Punjab Local Government Act, 2013 where under the whole election was to be held on non-party basis. The scope of "locus standi" of invoking the constitutional jurisdiction has been extended even to conscious citizens, who are alive to the illegalities and excesses done by executive authority of the Government. High Court can take cognizance of the matters agitated "pro bono publico", and the test for invoking the constitutional jurisdiction in such matters is that firstly, the matter is in public interest, and secondly the petitioner aims for a "public good" and for the welfare of the "general public" The words "on the application of any aggrieved party", as the same occur in Article- 199 of the Constitution of Islamic Republic of Pakistan, 1973 are clear redolent of the presence of the doctrine of Locus Standi in Pakistan. In the cases of Benazir Bhutto vs Federation of Pakistan (PLD 1988 SC 416), and Ardeshir Cowasjec vs Karachi Building Control Corporation (1999 SCMR 2883), it has been observed that the concept of locus standi has undergone material change in case of public interest litigation; and, indeed, there is a greater need to allow liberal cases "under a generous conception of locus standi".
' In view of the above position, we, therefore, hold that the writ petitions are maintainable and the preliminary objection raised by the learned counsel for the respondents is hereby repelled.
10. The learned counsel for the petitioners in support of their arguments have mainly relied upon the judgment of the Lahore High Court, wherein ,certain provisions of the Punjab Local Government Act, 2013 with regard to delimitation and election on non-party basis were declared ultra vires of the Constitution and fundamental rights. The view taken by the learned Lahore High Court in the case of Arshad Mehmood (supra) was "that parties are charged with the primary responsibility of organizing citizens into political groups for electoral purpose -- Democracy cannot function -- as a matter of principle -- if the parties are unable to enter an election campaign under the same legal circumstances". Here in these petitions the question of delimitation is not before the Court and the only concern of the petitioners is that the village council and neighbourhood council being the grass root of the local Governments, its election should also be on party basis; hence the provisions of Section 27(2) of the K.P.K. Local Government Act, 2013 to the extent of such election on nonparty basis, according to the learned counsel for the petitioners, are liable to be declared as ultra vires to the provisions of Article-140-A of the Constitution and against the fundamental rights.
11. Before adjudging the repugnancy or otherwise of the various provisions of the Local Government Act, we deem it necessary to reproduce Article 140-A of the Constitution as under:- "140-A. (1) Each Province shall, by law, establish a local Government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local Governments.
(2) Elections to the local Governments shall be held by the Election Commission of Pakistan."
' The stress of the learned counsel for the petitioners was on the word "political" and in their view the Provincial Government should have held the election on party basis. The word "political" as per Black's Law Dictionary means: "pertaining or relating to the policy or the administration of Government, ,state or national. Pertaining to, or incidental to, the exercise of the functions vested in those charged with the conduct of Government". Devolution of political, administrative and financial responsibility and authority to the elected representatives of the local Governments would not mean that such authority would be with the elected representatives of the political parties, as the meaning of 'political party' as per Black's Law Dictionary is; an association of individuals whose primary purposes are to promote or accomplish elections or appointments to public offices, positions, or jobs". The definitions of 'political' and 'political party' are thus, quite different from each others. Of course, the Provincial Government would devolve political, administrative and financial responsibility and authority to the elected representatives of the local Governments but such elected representatives, as for as village council or neighbourhood council is concerned, may not be necessary to be the members of a political party alone. In Section 27(1) of the Act, the Composition of Village Council and Neighbourhood Council have been given. The petitioners are not aggrieved of the composition of such councils; they are only aggrieved of the election to such councils on non-party basis. The functions of the village council and neighbourhood council have been enumerated in Section 29 of the Act, where under they would:--
(a) Monitor and supervise the performance of functionaries of all Government offices located in the area of the respective village council or neighbourhood council, including education, health, public health engineering, agriculture, livestock, police and revenue, and hold them accountable by making inquiries and reports to the tehsil municipal administration, district Government or, as the case may be, the Government for consideration and action;
(b) Provide effective forum for out of Court amicable settlement of disputes and, for this purpose, constitute panels of members as councilors;
(c) Register births, death and marriages;
(d) Implement and monitor village level development works;
(e) Improve water supply sources, maintain water supply distribution system and take measures to prevent contamination of water;
(f) Maintain village level infrastructure, footpaths, track, streets, prevent and abate nuisances and encroachments in public ways, public streets and public places;
(g) Maintain and improve collector property including playgrounds, graveyards, funeral places, eid-gah, parks, public open spaces and community centers;
(h) Identify development needs of the area for use by municipal administration and district Government in prioritizing development plans;
(i) Make arrangements for sanitation, cleanliness, disposal or garbage and carcasses, drainage and sewerage system;
(j) Display land, transactions in the area for public information;
(k) Mobilize community for maintaining public ways, public streets, culverts, bridges and public buildings, desilting of canals and other development activities;
(I) Develop sites for drinking and bathing of cattle;
(m) Organize cattle fairs and agriculture produce markets;
(n) Organize sports teams, cultural and recreational activities;
(o) Organize watch and ward in the area;
(p) Promote plantation of trees, landscaping and beautification of public places;
(q) Regulate grazing areas, establish cattle ponds and provide protection against stray animals and animal trespass;
(r) Consider the approve annual budget presented by the respective Nazim, village council or neighbourhood council;
(s) Facilitate formation of voluntary organizations for assistance infunctions assigned to it;
(t) Facilitate the formation of co-operatives for improving economic returns and reduction of poverty;
(u) Elect an Accounts Committee and review its recommendations on the annual statement of accounts and audit reports; and
(v) Report cases of handicapped, destitute and of-extreme poverty to district Government.
' From the above functions, it is evident that the idea behind election of the candidates on non- party basis is for the purpose of not changing the natural system of the villages, as argued by the learned Advocate-General. Each village in this Province consists of people, who are closely or distinctly related to each others. Therefore, the idea of letting them free from any influence of a political party for resolving their problems and other matters themselves cannot be said to be an alien idea not in conformity with the established norms of law and the Constitution.
12. Article-17 of Part-II of the fundamental rights is to the effect that:--
(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.
(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final
(3) Every political party shall account for the source of its funds in accordance with law."
' No doubt it is the fundamental right of every citizen under Article 17(2) to form or be a member of a political party but subject to any reasonable restrictions imposed by law. The legislature is thus empowered to impose any reasonable restrictions on such fundamental rights. For example, when the political associations formed in the educational institutions became worst for a peaceful atmosphere in such institutions, the apex Court imposed restrictions on such political associations in the interest of the educational institutions as well as of the sovereignty of the country, which restrictions are still in the field. Indeed, Article 17(2) of the Constitution includes a broad sweep of political rights like the right to participate in the political life of the nation, right to contest elections, right to votes, right to 'one man one vote', right to have a vote that was equal in weight as that of another citizen, right to fair representation, right to electoral equality, right to freely elect a leader, right to go to polls, etc. All these rights are available to the candidates and people of the village council and neighbourhood Councils as they would cast their votes in favour of their political parties at Tehsil and District level, therefore, it cannot be said that they have been totally excluded from the political array except at the level of villages, which provisions are not in conflict with Article-17(2) of the Constitution.
13. The appointment of Local Government Commission under Section 54 of the Act is again for the purpose to keep a check on the local Governments, as a huge amount of the provincial budget would go to them. If the Standing Committee on Public Accounts (PAC), can impart a clean and accountable image on all Public Bodies and Constitutional Institutions, then how the virus of formation of the Local Government Commission for the same purpose can be questioned without any valid reasons, which Commission has been further given under the supervision of the Chief Minister. Therefore, neither the provisions of Section 27(2), 54, 55, 56, 58, 59, 60 and 62 are ultra vires of the Constitution nor in conflict with the fundamental rights in Chapter-1 Part-II of the Constitution. The august Supreme Court of Pakistan in the case of Dr.Mubashir Hassan and others versus Federation of Pakistan and others (PLD 2010 Supreme Court 256) had laid down as under: "Duty is cast upon the Supreme Court that it should normally lean in favour of constitutionality of a statute and efforts should be made to save the same instead of destroying it. Principal is that law should be saved rather than be destroyed and the Court must lean in favour of upholding the constitutionality of legislation keeping in view that the rule of constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments, unless ex facie, it is violative of a constitutional provision."
' Similar view was also expressed in the case of Federation of Pakistan vs. Haji Muhammad Sadiq and others (PLD 2007 Supreme Court 133) that: "Law should be interpreted in such a manner, that same should be saved rather than destroyed." It is also an established principle of law that mala fide cannot be attributed to the legislature.
14. This Court is, therefore, of the view that the K.P.K. Local Government Act, 2013 has been enacted in a bona fide manner and no provision of the said Act is either in conflict with the provisions of the Constitution or the fundamental rights.
15. For the reasons stated above, we thus find no force in these two writ petitions, which are hereby dismissed with no order as to costs. Needless to say that that the said elections are going to be held on 30th instant, therefore, the office is directed to immediately send copies of this judgment to the concerned quarters for information.
(R.A) .