1. WAQAR AHMAD SETH, J.---Sahibzada Sanaullah, Member Provincial Assembly, PK-93 Upper Dir, hereinafter called the petitioner, has invoked the writ jurisdiction of this Court under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973 with the prayer to declare the discrimination in allocation of funds in the constituency of petitioner i,e, PK-93 in comparison to others as illegal, unconstitutional, void ab initio and direct the respondents to treat it at par / equal with others constituencies qua distribution of funds in all ADPs, in the interest of justice.
2. 2.Facts, in brief relevant for the disposal of this writ petition are that, petitioner who is a returned candidate hailing from PK-93 Dir Upper, alleges that in. General Election of 2013, one Behram Khan was declared as returned candidates and he remained as Member Provincial Assembly for sufficient time and being in alliance with the Government almost in all ADPs/developmental schemes/projects equal allocation of funds were granted/released to him/PK-93, which is evident from revised umbrella PC-1 ADP No, 732/150205 (2016-2017), however, after the decision of Election Tribunal as well as apex Court, when petitioner was declared as returned candidate, the existing projects/schemes standstill due to shortage of funds, besides other developmental schemes in all most all ADPs/other departments i,e, Irrigation and Communication of Works and Services Departments, funds have been distributed on discriminatory basis, depriving the locality/people of PK-93 from their due right as enshrined in Constitution by not treating them at par with other constituencies, hence the instant writ petition.
3. 3.Comments were called from respondents which they furnished by negating the stance of petitioner and stated that umbrella PC-I for the scheme under ADP No,732 (2016-2017) "Uplift of Rural Roads in Dir Upper and Dir Lower" was originally approved at cost of Rs,500.00 million by PDWP forum. The cost of said ADP scheme has been enhanced through Chief Minister's Directive and consequently original cost increased to Rs,1050.00 million and revised PC-I was submitted by field office on need basis and get approval from PDWP forum. The subject scheme only covering two district i,e, Dir Upper and Dir Lower and the funds are allocated to the areas on need basis of the same districts and not constituency wise whereas no funds have been allocated out of the districts. There is no mechanism to allocate funds to members of Provincial Assembly, Khyber Pakhtunkhwa. The funds are allocated for the District on the recommendation of MPA, the constituency of the petitioner falls in Dir Upper and his District has been given 630 million against 1050 million.. That petitioner has not yet identified schemes under allocation of Rs,20.00 million.
4. Furthermore, an amount of Rs,235.642 million has been allocated for developmental schemes of PK-93 in the last 40 years under ADP Nos, 730, 1316, 732 and RAHA programs, requested for dismissal of the writ petition.
5. 4.We have heard learned counsel for the parties aid available record gone through.
6. 5.The facts which are not denying are that petitioner is the Member of Provincial Assembly from PK-93 Upper Dir, elected in the General Election 2013 and before the General Election 2013 the constituency of PK-93 was treated equally and in almost all the ADPs proper/equal allocation of funds were made to all the projects in the area and after that the funds allocated to the said constituency are much much less. Even in the district Dir, upper and lower which includes PK-91 to PK-97 the allocation of funds for PK-93 are 1/4th of the other allocation in other constituencies. For example at page-20 of the writ petition a breakup for the schemes "uplift of rural roads in district Dir upper and lower, is a letter dated 20.12.2016, showing that PK-91 has been allocated 120 million, PK-92, 94, 95 and 96 are allocated 90 million each and PK-97 has been allocated 50 million while PK-93, are just with 20 million. Likewise in the first phase same was the position and in this respect documents attached at page-21 of the writ petition reflects the exact position. The obvious reasons mentioned by the petitioner that he belongs to opposition bench seems to be a correct allegation.
7. Learned AAG along with representative of respondents failed to convince the Court that why is the such difference, even in the same district.
8. 6.We have before us, the documents showing that petitioner time and again agitated the matter and finally vide letter dated 23.12.2016, Secretary Local Government was advised by the Worthy Chief Minister KPK to include in ADP scheme 732 to the constituency of PK-93, Upper Dir, but in spite of that nothing has been done as yet. The comparative statement placed on record clearly reflects that in the past, allocation of funds have been done discriminately, to the constituency of the petitioner in comparison to the members of ruling coalition partners. The allocation of funds to the Members of Provincial Assembly and their respective constituencies with different yardstick is not only discrimination of a particular member, but the public at large of a particular constituency have been deprived of their fundamental rights in all other departments as well.
7. This Court while deciding Writ Petition No, 4264-P of 2015, on 11.5.2016, while dealing with the royalty in reference to District Development Advisory Committee Act, 1989 and allocation of funds through the elected representatives has held as under:- "There is no denial to the fact that royalty from the income of Oil and Gas discovered in the southern area is given to the concerned MPA for carrying of developmental project, in the district of Karak, Hangu and Kohat from the very inception. We have before us letter dated 25th August, 2015 issued from the Chief Minister Secretariat, addressed to Deputy Commissioner, Hangu, with the subject "Identification of developmental schemes out of Oil and Gas Royalty, 2014-15". The directions given by the Competent Authority are that funds amounting to rupees 108.00 million be released for developmental schemes proposed/identified by the concerned MNA. Likewise there is a letter dated 26th September, 2014 from the office of Chief Minister Secretariat addressed to Deputy Commissioner with the direction of the competent authority that request / demand of the president PTI for developmental schemes may be entertained out of Oil and Gas Royalty funds.
9. Whereas the petitioner who is elected Member Provincial Assembly of Khyber 'Pakhtunkhwa, PK-43, Hangu-2 has been deprived of his legitimate right to identify his schemes.
10. Record is suggestive that when these funds were not released/ allocated for the identification of schemes of the petitioner's, petitioner agitated the matter at the floor of the house and the matter was referred to the standing committee No,10, wherein the stance taken by the petitioner was acceded to, subsequently the said report of the standing committee No,10 on question No, 2375 of the petitioner was also presented in the Provincial Assembly. Record is further suggestive that the respondents gave the assurance but 'no practical steps were taken in this respect, therefore, a privilege motion was moved on 27.2.2015, which was referred to privilege committee and privilege No,59 was taken and it was unanimously agreed upon in the meeting of the committee and according to the directive of Chief Minister half of the fund of rupees 10 caroor and 80 lakhs was assured to be released forthwith and as such the privilege motion was delayed till the release of entire fund. Record suggests that there are number of correspondence in between petitioner, Speaker Provincial Assembly and Chief Minister, except release of rupees 108.560 million out of 10% during the financial year 2014-15 were released to Tehsil Tall PK-43.
11. Record is suggestive that more than 30 million rupees were approved and released by the Chief Minister to the president, Pakistan Tehreek Insaf, District Hangu, vide letter dated 17.11.2014 and rupees 108 million for the schemes identified by the MNA who also belongs to the ruling party.
12. According to the law of land, the development funds are to be utilized through the elected representative of the constituency for provincial purposes and the MNA do not figure anywhere, what to say of office bearer/president of a ruling political party. If any funds as submitted by the petitioner, are released to the president Tehreek Insaf District Hangu, in the given circumstances amounts to a cognizable offence for the purpose of NAB Ordinance 1999 ,as well as Ehtesab Act, 2014 Although petitioner has not called in question the guidelines for the release and utilization of funds from 10% Oil and Gas royalty and the formation/composition of District Development Committee at District level, however, it is observed that the same is not legally and properly constituted committee, because the public funds can only be utilized after observing legal formalities required and made mandatory under the Khyber Pakhtunkhwa Establishment of District Development Advisory Committee Act, 1989, the relevant sections / clauses are as under:-- <u>Clause (e) of section 2 defines the committee as:</u> "Committee means the District Development Advisory Committee of the District concerned, established under section 3. <u>Section 3 of the Act provides as;</u> 3.(1) There shall be established, with immediate effect a committee to be known as the District Development Advisory Committee in each District, consisting of- (a)All the Members of the Provincial Assembly from the District concerned; (b)Such other elected representative as the government may specify to be taken on the committee as co-opted members; and (c)Such heads of Attached department at the district level as may be co-opted by the committee for their expert opinion.
13. (2)A co-opted member shall have no right of vote to exercise in any deliberation of the committee.
14. (3)The Chief Minister shall appoint one of the members to be the Chairman of the committee, who shall hold office during the pleasure of the Chief Minister.
15. (4)The committee shall take all decisions by consensus of opinion, but where such consensus is not achieved, the matter shall subject to the provision of subsection (2) be decided by majority of votes; Provided that in case of equality of votes, the chairman shall have a second or casting vote; Provided further that where a quota has been allocated to a Member in the development schemes of the province or the schemes approved are to be divided quota-wise, then there shall be no need for obtaining consensus of opinion regarding the allocation of projects or selection of sites, as the case may be, and it shall be the sole discretion of the member concerned to select sites or allocate projects, as the case may be, within his own quota.
16. (5)No act or proceedings of the committee shall be invalid by reason only of the existence of a vacancy in, or defect in the establishment of the Committee.
17. In view of above proceedings of the Provincial Assembly and assurance made and the discriminations so brought on record for the release of funds to another MPA from PK-42 of the same District, petitioner has made out a case of discrimination and victimization due to political differences and as such, this writ petition is allowed, as prayed for.
8. All the elected representatives have the equal right to the allocation of funds; especially the developmental funds and any deviation would be amounting to discrimination and against the fundamental and legal rights of the elected representatives and even the inhabitants of the constituency. In the comments so filed by respondent No,3 they have stated that there is no mechanism to allocate funds to Provincial Members, whereas in the comments of LG&RDD Department, it has been stated that umbrella PC-I of the scheme under ADP "uplift of rural roads and Dir Upper and Dir Lower" was originally approved at cost of Rs,500 million by PDWF forum and the said cost has been enhanced through Chief Minister directives by submitting revised PC-I, submitted by field offices on need basis and got approved from PDWF forum.
18. 9.Admittedly, the subject scheme is umbrella in nature covering only two districts i.e District Upper and Lower and as such funds are allocated to the particular area on need basis of the same district. It has also been stated in the comments para-3 as under; moreover, the concerned MPA PK-93 has not yet identified schemes under allocation of Rs,20.00 million. Furthermore, an amount of Rs,235.642 million has been allocated for developmental schemes of PK-93 in the last 4 years."
19. Confirming that identification of the concerned MPA is the requirement and as such the plea of the petitioner that he was not asked for any identification rather the ongoing schemes are on the identification of ruling party office bearers and future contesting candidates seems to be correct.
20. Even otherwise, the chart given in para-3 of the parawise comments, at page-2, clearly shows that in the constituencies PK-93 of petitioner and PK-97, which is also an opposition MPA, have been allocated less than hundred million while the constituencies i.e PK-91, 92, 94, 95, 96 are all having more than 150 million, clearly demonstrating the favoritism and nepotism. It is the bounden duty of the Government/public functionaries to function in good faith, honestly and within the parameter of its power so that person concerned should be treated in accordance with law as guaranteed by Article 4, of the constitution, which includes principles of natural justice, procedure fairness and procedure proprietary and any action, which was mala fide or colorable could not be regarded as action in accordance with law. In the case of Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan reported in 2015 SCM R 1257 (d), (e) & (t) it has been held as under:-- ----Art. 4 & Preamble---Socio-economic justice---Scope--Whole edifice of governance of the society had its genesis in the constitution and laws aimed at to establish an order, inter alia, ensuring the provisions of socio-economic justice, so that the people may have guarantee and sense of being treated in accordance with law, and that they were not being deprived of their due rights. ----Art. 4 and Public functionaries, duty of---Natural justice---Procedural fairness and propriety-- -Every public functionary was supposed to function in good faith, honestly and within the precincts of its power so that person concerned should be treated in accordance with law as guaranteed by Art. 4 of the Constitution, which included principles of natural justice, procedural fairness and procedural propriety--Any action which was mala tide or colourable was not regarded as action in accordance with law. ----Arts.4 & 25--Administration authorities, duty of--Good governance---Scope of good governance could not be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind---Such objective could be achieved by following the rules of justness, fairness and openness in consonance with the command of the Constitution enshrined in different articles including Arts. 4 & 25 of the Constitution---Obligation to act fairly on the part of the administrative authority had been evolved to ensure the rule of law and to prevent failure of the justice.
10. In view of the above this writ petition is allowed, as prayed for.