SYED ARSHAD ALI, J:- The petitioner seeks the constitutional jurisdiction of this Court praying that: "In the wake of above it is, therefore, very humbly prayed that the directives of Chief Minister for distribution of Provincial Disaster Management Authority (PDMA) Fund to MPAs be declared null and void, and the process of approval/ recommendation of the said proposals/ schemes by District Development Advisory Committee (DDAC) and MPAs may also be declared illegal and without force of law and in consequence whereof the advertisement for invitation of tenders by respondent No,4 be also struck down being made incompetent authority on illegal orders.
Furthermore, the respondent No,3 may graciously be directed to conduct survey of damaged public infrastructure for proper reconstruction and rehabilitation under the law on the subject. Any other relief in the attending circumstances may also be allowed".
2. In essence the grievance of petitioner is that neither the Chief Minister nor Member of Provincial Assembly from District Kohistan has any authority to issue direction for distribution of funds allocated to the Provincial Disaster Management Authority (PDMA). It is averred in the petition that vide letter No,SOIV/CMS/ KPK/CMD(DCs)/2017/6674-76 dated 26.5.2017, the Chief Minister has issued direction to the Deputy Commissioner, Kohistan for equal distribution of PDMA Funds to three MPAs of PK-61, PK-62 and PK-63. It is further averred in the petition that the said funds were allocated for emergency response restoration and rehabilitation of damaged public infrastructure of flood affected areas of Kohistan. Contrary to the purpose for which the funds were allocated, the same were proposed to be distributed on the desire of MPAs hailing from District Kohistan and consequent to the proposal of the local MPAs for utilization of the fund tenders were invited for carrying out the said schemes.
3. The respondents were put on notice, who submitted their para-wise comments, wherein they have stated that the present petition filed by the petitioner is based on mala fide and is aimed to stop the lawful use of public funds for the restoration/rehabilitation of damaged infrastructures of affected areas of District Kohistan. They have further stated that the impugned funds were released for restoration and construction of affected areas of Kohistan and the Chief Minister of Khyber Pakhtunkhwa being Chief Executive of the Province has issued the quoted directives in the best interest of the public for better coordination, so that the damaged infrastructures of Kohistan may be restored/rehabilitated. They have annexed with the comments letter dated 28.10.2017, wherein it has been directed that all Administratiye Secretaries to Government of Khyber Pakhtunkhwa and other departments of the province to examine the directives of the Chief Minister in the light of prevailing laws, rules and regulations notified by the Government before implementation and in case a directive is inconsistent with the prevailing laws, rules and regulations/policy the departments/offices are required to refer back such directives to the Chief Minister Secretariat for reconsideration of the Chief Minister/Competent Authority.
4. Arguments heard and record perused.
5. The issue relates to utilization of funds which was earmarked for rehabilitation of disaster affected area of District Kohistan. The said funds as evident from the record were allocated through Provincial Disaster Management Commission. For regulating the disaster management system in the country, Parliament, pursuant to unanimous resolutions of the Provincial Assemblies of Balochistan, Khyber Pakhtunkhwa and the Punjab in terms of Article 144 of the Constitution of Islamic Republic of Pakistan (Constitution) enacted National Disaster Management Act, 2010 (hereinafter referred to as the Act). Under the Act Disaster Management Commission/Authority/Unites have been established at Federal, Provincial and District levels.
6. Chapter-II of the Act deals with the establishment of National Disaster Management Commission, which is a Federal entity headed by Prime Minister having members comprised of Leader of Opposition in the Senate, Leader of Opposition in the National Assembly, Minister of Defence, Minister of health, Minister of Foreign Affairs and other members including Chief Minister of the Provinces. Function of the commission inter, alia includes preparation of National Plan and polices relating to Disaster Management.
7. Chapter-III of the Act provides for establishment of Provincial Disaster Management Commission (PDMC). Section 13 of the Act provides for composition of PMDC. The function of PDMC, inter alia, includes laying down the disaster management policy, provincial disaster management plans prepared by the departments of the Provincial Government, oversee provision of funds for mitigating and preparedness measures and to direct the Provincial Authority to undertake any project under its administrative control for the purpose of expedient recovery including relief, rehabilitation, reconstruction and settlement etc of the affected people. Under Section 14(3) of the Act, the Chairperson (Chief Minister of the Provinces) of PDMC has the Authority in case of emergency to exercise all or any of the powers of PDMC but subject to ex post facto approval of the PDMC. For affective implementations of the policy and plans for disaster management in the province, the Government of Khyber Pakhtunkhwa has established an authority under section 15 of the Act known as Provincial Disaster Management Authority (PDMA).
8. The functions of MPDA has been provided and enumerated in section 16 of the Act, which reads:- "16. Powers and Functions of Provincial Authority.-(I) Subject to the provisions of this Act, a Provincial Authority shall be responsible for implementing policies and plans for disaster management in the Province.
(2) Without prejudice to the generality of the foregoing provisions, the Provincial Authority may,---
(a) formulate the provincial disaster management policy obtaining the approval of the Provincial Commission;
(b) coordinate and monitor the implementation of the National Policy, National Plan and Provincial Plan;
(c) examine the vulnerability of different parts of the Province to different disasters and specify, prevention or mitigation measures;
(d) lay down guidelines to be followed for preparation of disaster management plans by the Provincial Departments and District Authorities;
(e) evaluate preparedness at all governmental or non-governmental levels to respond to disaster and to enhance preparedness;
(f) coordinate response in the event of disaster;
(g) give directions to any Provincial department or authority regarding actions to be taken in response to disaster;
(h) promote general education, awareness and community training in this regard;
(i) Provide necessary technical assistance or give advice to district authorities and local authorities for conveying out their functions effectively;
(j) advise the Provincial Government regarding all financial matters in relation to disaster management;
(k) examine the construction in the area and if it is of the opinion that the standards laid down have not been followed and it may direct the following same to secure compliance of such standards;
(1) ensure that communication systems are in order and disaster management drills are being carried out regularly; and
(m) perform such other functions as may be assigned to it by the National or Provincial Authority."
9. At the grassroots level i,e, District under Chapter-IV of the Act, a District Disaster Management Unit (DDMU) is established. Under section 18 of the Act, DDMU consists of such members as may be prescribed by the Provincial Government, which reads:- "18. Constitution of District Disaster Management Authority. -
(1) Each Provincial Government shall, as soon as may be after issue of notification under subsection (1) of section 13, by notification in the Official Gazette, establish, a District Disaster Management Authority for every district.
(2) The District Authority shall consist of such number of members, as may be prescribed by the Provincial Government, and unless the rules otherwise provide, it shall consist of the following members, namely:--
(a) head of the local council at the district level (by whatever name called) who shall be Chairperson, ex-officio;
(b) the District Coordination Officer;
(c) the District Police Officer, ex-officio;
(d) the Executive District Officer Health; and
(e) such other district level officers, to be appointed by the District Government."
10. The general powers and functions of DDMU are provided in section 20 of the Act. However, to be precise and relevant to the present issue the DDMU has been bestowed upon additional powers as provided in section 22 of the Act. The section 22 of the Act, which reads:- "22. Additional Powers of District Authority.-For the purpose of assisting, protecting or providing relief to the community, in response to any disaster, the District. Authority may,---
(a) give directioas for the release and use of resources available with any department of the Government and the local authority in the district;
(b) control and restrict vehicular traffic to, from and within, the vulnerable or affected area;
(c) control and restrict the entry of any person into, his movement within and departure from, a vulnerable or affected area;
(d) remove debris, conduct search and carry out rescue operations;
(e) provide shelter, food, drinking water and essential provisions, healthcare and services;
(f) establish emergency communication systems in the affected area;
(g) make arrangements for the disposal of the unclaimed dead bodies;
(h) direct any Department of the Government of the Province or any authority or body under that Government at the district level to take such measures as are necessary in its opinion, - (i) require experts and consultants in the relevant fields to advise and assist as it may deem necessary;
(j) procure exclusive or preferential use of amenities from any authority or person;
(k) construct temporary bridges or other necessary structures and demolish structures which may be hazardous to public or aggravate the effects of the disaster;
(1) ensure that the non-governmental organizations carry out their activities in an equitable and non-discriminatory manner; and
(m) take such other steps as may be required or warranted to be taken in such a situation".
11. The Act itself has taken care of establishment of fund and its utilization under section 30 of the Act, which is reproduced as under:-
30. Establishment of funds by Provincial Governments. -
(1) The Provincial Governments shall, immediately after notifications issued for constituting the Provincial Authority and the District Units, establish for the purposes of this Act a fund to be called the Provincial Disaster Management Fund.
(2) The Provincial Disaster Management Fund shall be financed from the following sources, namely: -
(a) grants made by the Federal Government or Provincial Governments; and
(b) loans, aid and donations from the national or international agencies provided in accordance with prescribed procedure.
(3) The Provincial Disaster Management Fund shall be kept in one or more accounts maintained by the Provincial Authority, in local or foreign currency, in any scheduled bank in Pakistan and shall be operated in accordance with the directions of the Provincial Authority.
(4) The Provincial Disaster Management Fund shall be administered by the Provincial Authority towards meeting the expenses fot its establishment and operation, emergency preparedness, response, mitigation, relief and reconstruction in the Province.
(5) The Provincial Director General shall, in respect of each fiscal year, submit for approval of the Provincial Authority, by such date and in such manner as may be prescribed, a statement showing the estimated receipts, the current and development expenditures and the sums required as grant-in-aid from the Federal Government and Provincial Government.
(6) The Provincial Authority shall maintain proper accounts and other relevant records and prepare annual statement of accounts in such manner as may be prescribed.
(7) The accounts of the Provincial Authority shall be audited annually by duly qualified auditors appointed by the Provincial Authority in addition to the internal audit."
12. The aforesaid provisions from the Act have been reproduced for the purpose of retrieving the role of MPAs and the Chief Minister in the scheme of rehabilitation of disaster affected areas/people and utilization of the fund. The close perusal of the Act clearly reveals that the member of Provincial Assembly does not figure anywhere in the working of rehabilitation of the affectees of disaster management in any District or Province except as provided under the Act i,e, being members of PMDC. Similarly, Chief Minister alone has no authority under the Act to interfere in the distribution of funds allocated for the disaster management under the enabling provisions of the Act. The Chief Minister can only exercise the powers of PMDC, which too only in emergency and subject to ex post facto approval of the PDMC. The Chief Minister has no power to interfere in the funds of rehabilitation of affectees/disaster management in any particular District.
13. Now moving to the arguments of learned Assistant Advocate General that the Chief Minister being the Chief Executive of the Province is otherwise competent to issue appropriate directions for utilization of any fund in the province. In this regard we have to trace the genesis of the executive authority of the province. Under Article 129 of the Constitution of Islamic Republic of Pakistan, the executive authority of the Province is exercisable by Provincial Government consisting of Chief Minister and the Provincial Ministers. However, in financial matters the powers of Provincial Assembly as well as that of Chief Minister have been streamlined by the Constitution itself. Under the scheme of Constitution relating to the financial expenditure, the legal mandate vested with the Chief Minister as provided under Articles 120 and 123 of the Constitution, to seek approval from the Provincial Assembly of all developmental schemes to the executed in the Province in any financial year. For ready reference Articles 122 and 123 read as under:- "122. Procedure relating to Annual Budget Statement.-- (1)So much of the Annual Budget Statement as relates to expenditure charged upon the Provincial Consolidated Fund may be discussed in, but shall not be submitted "to the vote of the Provincial Assembly.
(2)So much of the Annual Budget Statement as relates to other expenditure shall be submitted to the Provincial Assembly in the Lam of demands for grants, and that Ass embl shall have power to assent to, or to refuse to assent to, any demand, or to assent to any demand subject to a reduction of the amount specified therein.
123. Authentication of schedule of authorized expenditure.
(1) The Chief Minister shall authenticate by his signature a schedule specifying- (a)The grants made or deemed to have been made by the Provincial Assembly under Article 122, and (b)The several sums required to meet the expenditure charged upon the Provincial Consolidated Fund but not exceeding, in the case of any sum, the sum shown in the statement previously laid before the Assembly.
(2) The schedule so authenticated shall be laid before the Provincial Assembly, but shall not be open to discussion or vote thereon.
(3) Subject to the Constitution, no expenditure from the Provincial Consolidated Fund shall be deemed to be duly authorized unless it is specified in the schedule so authenticated and such schedule is laid before the Provincial Assembly as required by clause (2)."
14. Hence, the authority of the Chief Minister is to be placed before the provincial assembly all the schemes intended by the Provincial Government to be executed in a financial year and once it is approved in the budget then he is left with no prerogative to interfere in the utilization of the funds.
Indeed Chief Minister has no discretionary authority relating to utilization of the funds. The august Supreme Court of Pakistan in Action against Distribution of Development Funds by Ex-Prime Minister Raja Parvaiz Ashraf: In the matter of Constitutional Petition No,20 of 2013, Human Rights Case No,11504-G of 2013 and Civil Miscellaneous Applications Nos,2960, 3566, 3579, 3649, 3865, 4022, 4135, 4208 and 4498 of 2013 (PLD 2014 Supreme Court 131) has held that:- "The Article 97 of the Constitution deals with the extent of executive authority of the Federation. It provides that subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan, provided that the said authority shall not extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws. Similarly, Article 129 ibid stipulates that the executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the Chief Minister and the Provincial Minister which shall act through the Chief Minister. Reference may also be made to Article 164 ibid, which apparently extends the executive authority of the Federation or a Province to make grants for a purpose which may not be one with respect to which Majlis-e-Shoora (Parliament) or as the case may be, the Provincial Assembly may make laws. However, this provision is to be read with Article 97 ibid insofar as executive authority vested in the Federation or the Province is concerned. Be that as it may, it is noteworthy that, here too, it is the Federation or the Province, which is authorized to make the grants referred to therein and not the Prime Minister or the Chief Minister, as the case may be, on his own."
In case Iqbal Hussain v. Province of Sindh through Secretary, Housing and Town Planning, Karachi and others (2008 SCM R 105) has held that:-- "We are in complete agreement with the view taken by the Division Bench of the High Court when it says that public functionaries including the Chief Minister can deal with the public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Even if such order was passed by the Chief Minister in favour of the petitioner, authorities concerned would not be bound to follow such illegal and void order of a superior authority. It would rather be in the exigencies of good order of administration and their duty to point out to the high-ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law. Reference in this behalf may be made to decision of this Court in Abdul Haq Indhar v. Province of Sindh 2000 SCMR 907 and (ii) Taj Muhammad v.
Town Committee 1994 CLC 2214."
Similarly, in case American International School System v. Mian Muhammad Ramzan and others (2015 SCM R 1449) has reaffirmed the above view:- "We are in complete agreement with the view taken by the Division Bench of the High Court when it says that public functionaries including the Chief Minister can deal with the public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Even if such order was passed by the Chief Minister in favour of the petitioner, authorities concerned would not be bound to follow such illegal and void order of a superior authority. It would rather be in the exigencies of good order of administration and their duty to point out to the high-ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law. Reference in this behalf may be made to decision of this Court in Abdul Haq Indhar v.. Province of Sindh 2000 SCMR 907 and (ii) Taj Muhammad v.
Town Committee 1994 CLC 2214."
15. Now coming to the facts of the case, admittedly District Kohistan is naturally calamity affected area and rehabilitating all inhabitants and disaster management of that area is the sole responsibility of the authority established under the Act (PDMA). Similarly, the funds established for the rehabilitation under section 30 of the Act can only be utilized in the manner and mode as provided under the Act. It is evident from the record that in disregard of the provisions of the Act, the local MPAs have been tasked to identify the schemes for rehabilitation in District Kohistan instead of DDMU. The said schemes identified by the local MPAs have been endorsed by the Chief Minister through the impugned letter dated 26.5.2017, which is obviously without lawful authority and against the expressed provision of the Act. It is by now settled that when law requires a thing to be done in a particular manner it should be done and executed in the manner as provided under the Act or law alone. The departure from law would obviously lead to anomaly and anarchy much less corruption in the society.
16. Consequently, by accepting this writ petition we hold that:-
(i) That Members of Provincial Assembly have no authority to interfere in the rehabilitation of disaster affected area.
(ii) The Chief Minister of the Province has no authority to bypass the mandatory provisions of the Act and to approve the schemes identified by a Member of Provincial Assembly for the utilization of the funds established under section 30 of the Act.
(iii) The rehabilitation of disaster affected area and approving plans for disaster management in a District and in the Province is the sole mandate of the Authorities established under the Act.
(iv) The impugned directions of the Chief Minister in his letter No,SOIV/CMS/ KPK/CMD(DCs)/2017/6674-76 dated 26.5.2017 and the tenders floated pursuant to the aforesaid directions of the Chief Minister are declared as without lawful authority.
(v) We direct the respondent No,3 to identify and execute the schemes for disaster management/rehabilitation work strictly in accordance with Act and through its District Agency established under section 18 of the Act.