WIQAR AHMAD, J.---Through this singed judgment, we intend to dispose of W.P. No. 378-M/2020 and W.P. No. 736-M/2020 filed by respective petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution"), as a common question of law and facts are involved in both these connected petitions.
2. Petitioners in Writ Petition No. 378-M of 2020 have contended that Tehsil Council Alpuri District Shangla had given approval for IA Annual Developm ent Program (hereinafter referred to as "ADP ") for the financial year 2018/2019. In pursuance to such authorization meeting of the District Development Committee had also taken place as required under the P&D guidelines, whereafter tenders had also been published in IB daily newspapers for the approved works through a proclamation issued in newspapers on 26.09.2019. The dates for opening tenders had subsequently been extended from 17.10.2019 to 05.11.2019. Deputy Commissioner Shangla had however cancelled all such tenders vide his letter dated 01.11.2019 (impugned herein). The petitioners feeling aggrieved from order dated 01.11.2019 of Deputy Commissioner Shangla as well as contents of letter dated 31.10.2019 of Assistant to Commissioner Malakand Division at Saidu Sharif Swat (respondent No.6) have invoked the constitutional jurisdiction of this Court by filing the instant writ petition with the following prayer; "It is, therefore, humbly prayed that on acceptance of the instant writ petition an appropriate writ may kindly be issued and;
(a) The impugned order dated 01.11.2019 letter No. 13898-907/DC/ SH/F/W ing/ADP passed/issued by the Deputy Commissioner Shangla and letter No. 17865/4/ADP/V ol:X/Dev issued by the Assis tant to Commissioner Malakand Division may kindly be declared illegal, unconstitutional, without lawful authority and may graciously be set aside.
(b) The respondents may also graciously be restrained from ceasing and transferring the said developmental funds to any other project etc.
(c) That the respondents may also kindly be directed to complete all the said appro ved schemes within reasonable time and release the said funds etc to the concerned quarters for the completion of schemes/projects mentioned above.
(d) Any other remedy , which is just, appro priate and efficacious may also be awarded, if not prayed, but the interest of justice demands so."
3. In connected Writ Petition No. 736-M of 2020 petitioners have been aggrieved of subsequent actions of the respondents whereby they had granted administrative approval No. 661-65 DDC/DC/Shangla dated 19.06.2020 for advertising the schemes mentioned therein and invited D bids for said schemes through proclamation dated 20.08.2019. Feeling aggrieved from said acts of respondents, petitioners have filed the writ petition with the following relief; It is therefore, humbly prayed that on acceptance of the instant writ petition;
(a) The administrative approval bearing No. 661-65 DDC/DC/ Shangla dated 19.06.2020 be declared as illegal, discriminatory , malafidely against the law , rules, regulations, unconstitutionally and politically motivated.
(b) To declare that respondents are not legally and constitutionally authorized to invite the tenders in consequence of the administrative approval bearing No. 661-65 DDC/DC/Shangla dated 1.9.06.2020 by depriving the petitioners from their due legal constitutional right.
(c) Respondents be directed not cancelled the administrative approval bearing No. 569- 76/DDC/DC/Shangla dated 21.06.2019.
Any other remedy which this august Court deems appropriate may kindly be awarded to meet the ends of justice.
4. Learned counsel for petitioners submit ted during the course of their arguments that a validly approved ADP has been cancelled by the Deputy Commissio ner Shangla without having any lawful authority . He also added that the Deputy Commissioner had advertised his own schemes, called for tenders from the persons interested in execution of said works and he had thus acquired to himself the role of a Tehsil Council which had in-fact been beyond the scope of powers vested in him. The learn ed counsel added that section 120-A of the Khyber Pakhtunkhwa Local Government Act, 2013 (hereinafter referred to as "the. Act") had only given an authority to the administrative officers to perform day to day administrative functions of the local government but said cannot be construed to be clothing the Deputy Commissioner with the authority to pass annual budget and authorize the annual development program. In order to bolster his submissions, he placed reliance on the judgments reported as PLD 2018 Supreme Court 97, 2018 CLC 134 as well as PLD 2018 Peshawar 83 .
5. Learned Astt: A.G while appearing on behalf of respondents submitted in rebuttal that section 120-A inserted in the Act by way of First Amendment Act of 2019 had further been amended by the Second Amendment Act empowering all the authorized officers to perform functions of the respective council as well. He added that the Deputy Commissioner and Tehsil Municipal Officer had been having full spectrum of powers and authority which have been vested in the Tehsil or District Council by and under the provisions of the Act. He also argued that it had fully been within the lawful powers of the Deputy Commissioner to cancel the annual ADP passed by Tehsil Council, when certain irregularities had been found therein as a result of the inquiry and that approval for the subsequent schemes of annual development program had been obtained from District Development Committee.
He also added that administrative approval for the subsequent schemes had also been granted and objections of the petitioners have therefore been having no force.
6. We have heard arguments of learned counsel for petitioners, learned Astt: A.G. appearing on behalf of respondents and perused the record.
7. Perusal of record reveals that Tehsil Annual Development Program had been approved for the year 2018/2019 by the Tehsil Council on 11.07.2019. Subsequently tenders had also been invited for the development program by publishing a proclamation in newspapers on 26.09.2019. The process was rolled back by Deputy Commissioner Shangla on 01.11.2019. Respondents have stated in their comments that certain complaints of illegalities or irregularities had been received, on the basis of which an inquiry had been ordered by the Deputy Commissioner Shangla vide his order dated 01.11.2019. The inquiry committee submitted its repor t. Resultantly the ADP approved by the former Tehsil Council during the currency of its tenure was rolled back, giving a cause of grievance to the petitioners.
8. Petitioners in the connected Writ Petition No. 736-M of 2020 have challenged the approval of new schemes vide Administrative Approval No. 661-65 DDC/DC/ Shangla dated 19.06.2020 of Deputy Commissioner Shangla wherein new schemes have been approv ed along with its allocations provided therein. A grand total of which had been to the tune of Rs. 54.500 million. It is also provided therein that the new schemes so provided had already been approved by District Development Committee District Shangla in its meeting held on 15.06.2020.
Respondents in their comments thereto have stated that the respective administrative officers had been authorized under section 120-A of the Act to exercise the powers of Tehsil as well as District councils and as such under the same authority the new schemes had been approved. It is thus claimed by respo ndonts that the earlier schemes had been cancelled, in effect, and new schemes had been approved on the orders of Deputy Commissioner Shangla under the exercise of authority vested in him by insertion of section 120-A in the Act, by way of the First Amendment of the year 2019. Said section has also been further amended by way of the Second Amendment brought in the Act, in same year i.e. 2019. The newly inserted section as well as the amendments brought therein are reproduced hereunder for ready reference; Insertion of section 120-A by way. of Khyber Pakhtunkhwa Local Government (Amendment) Act, 2019 ( the first amendment); 120-A Dissolution of Local Government
(1) ..................................................................
(2) The Department shall authorize officers to perform administrative functions of respective Nazimeen till the installation of local government under this Act.
(3) All Administrative actions required for giving effect to the provisions of this Act and transition to the local government system set up thereunder shall be completed within six months of the commencement of the Khyber Pakhtunkhwa Local Government (Amendment) Act, 2019.
Amendments brought by way of Khyber Pakhtunkhwa Local Government (Seco nd Amendment) Act, 2019 (The Second Amendment); Amendment of section 120-A of the Khyber Pakhtunkhwa Act No. XXVIII of 2013. ... In the said Act, in section 120- A, in sub-section (2), after the words "respective Nazimeen" the words and commas "and also to exercise the powers of their respective councils and Naib Nazimeen, respectively , under this Act and rules" shall be inserted."
Vires of the second Amendment Act 2019 had not been challenged in the instant writ petitions, but interpretation of said provision is required for disposal of the two petitions.
9. The learned Astt: A.G. while appearing on behalf of respondents has mainly relied upon the newly amended subsection (2) of section 120-A of the Act, which have had the following ef fects; The Department shall authorize officers to perform administrative functions of respective council and Naib Nazimeen till the installation of local government under this Act.
It had first been provided that the depa rtment would authorize officers to perform administrative functions of respective Nazimeen till installation of the local government but later on further amendment was brought vide the Second Amendment of 2019 to the above mentioned effect. It was thus added that authorized officers would also exercise the powers of their respective councils and Naib Nazimeen. Such powers have only been given to them for running the day to day affairs, till the transition is fully effected. These powers cannot be construed to the effect of substitution of Tehsil Council occurring in the Act and fully empowering such officers to act as the Tehsil Council.
Such an interpretation would not only be against other provisions of the Act, but against the mandate of Article 140- A of the Constitution. The purpose of enactment of the Act has been given in its preamble in the following words; WHEREAS it is expedient to encourage local government institutions composed of elected representatives and having special representation of peasants, workers, women, minorities and youth; AND WHEREAS clause (i) of Article 37 of the Constitution of the Islamic Republ ic of Pakistan, as a principle of policy , requires decentralization of government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the public; AND WHEREAS clause (1) of Article 140A of the Constitution of the Islamic Republic of Pakistan, provides for establishment of a local government system and devolution of political, administr ative and financial responsibility and authority to the elected representatives of the local governments; AND WHEREAS for the purposes aforesaid it is necessary to re. organize the local government system in the province of the Khyber Pakhtunkhwa and consolidate laws relating to these institutions; Vesting of administrative powers in officers with the powers of Tehsil or District Councils with full authority to perform its functions and discharge duties of such representative bodies would go against the very purpose of enactment of the Act. It would also go in contrast with mandate of Article 140-A of the Constitution. A provision of an Act inserted through an amendment cannot be construed in a way so as to wipe out the entire Act, unless the legislature by express words or necessary intendment intends to give such an effect to the newly provided law. For empowering the administrative officers to perform functions of the elected and representative bodies of Tehsil and District Councils all the respective sections of the Act providing for the authority , establishment, functions and composition would be required to be amended suitably for the purpose. Even then it would be seen whether such amendments may be brought during existence of the mandate of Article 140-A of the Constitution or not. Without bringing such amendments merely adding the words "also to exercise the power of their respective councils and Naib Nazimeen " by way of the amending Act cannot be construed to be having an effect of substitution of all the elected bodies with the respective authorized officers by deeming such officers substituted for such council in all the relevant provisions of the Act. Section 120-A was inserted by way of the First Amendment brought in the Local Government Act 2013. Said section was further amended vide the Second Amendment of same year i.e. 201.9 by the legislature with a particular purpos e. The purpose had not been more than authorizing the worthy administrative officers to perform day to day affairs of the local government. While construing said provision of law the literal construction would not solve the riddle but a purposive construction would have to be adopted. While adopting the purposive construction the newly inserted provisions had to be read with the whole scheme, purpose and objects of the Local Government Act 2013. Hon'ble Supreme Court of Pakis tan while giving its judgment in the case of "Rana Aamer Raza v. Doctor Minhaj Ahmad Khan " reported as 2012 SCMR 6 has held that the Supreme Court had to place a purposive construction on the provisions of the Constitution so as to make it a living document. It was also observed that while construing a statute a court has to keep in mind the statement of reasons and objects given therein, the statement of objects given in other laws, in pari materia to the one under consideration as well as the mandate of the relevant constitutional provisions. Relevant part of observations of the Hon'ble Court is reproduced hereunder for ready reference; Here we are seized of giving effect to a Statute which incorporates a Constitut ional provision by reference. In construing such a piece of legislation, the Court has to examine and keep in mind three things: (i) the Statement of Reasons and Objects given therein; (ii) the statement of objects given in other laws in pari materia to the one under consideration; and (iii) the mandate of the Constitutional provision which stands adopted by way of reference.
14. A bare perusal of the statement of objects of the similar amending provisions in various Universities of Punjab, a detail of which has been given in the table above, reflects that the legislative intent was that "the principles of good government as enunciated in the Constitution should be made applicable".
The Law Commission in England while giving its report in 1969 had not approved use of the word "mischief" and had instead preferred a purposive approach to construction of statutes. Mr. S.M. Zafar a renowned author on the subject, while explaining purposive interpretation of a statute had relied upon observations of Lord Diplock given in the case of "Carter v. Brad Beer" [(1975) 3 All ER 158, 16] as well as his lordship observations rendered in the case of "Jones v. Wrothem Park Settled Estates" [(1979) 1 ER 286, 289] and had reproduced parts of such observations in his book "Understanding Statutes", which parts also merits a reproduction here; "Adopting this new term of purposive construction Lord Diplock said in 1975; If one looks back to the actual decisions of the House of Lord on question of Statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions.
Lord Diplock had another chance of expressing his views on purposive constructio n in 1979. 1 find his enunciation of the term, illuminating which can provide the judidary with an effective tool for providing substantial justice. He said; 7 am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purpose of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it."
Mr. S.M. Zafar had also reproduced a para from Cross on Statutory Interpretation 3rd Edition, for elucidating the concept of purposive approach in the following words; "Cross commented on this new approach as under; "Under the purposive approach, the judge may look beyond the four corners of the statute to find a reason for giving a particular interpretation to its words, and his role is one of active cooperation with the policy of statute."
For construing section 120-A of the Act reference is therefore made to the mandate of Article 140-A of the Constitution as well as preamble to the Act. Reading section 120-A, in isolation, by adopting the literal construction only, would amount to implied repeal of the whole of Local Government Act, during the period of transition from one local government to another local governm ent. Repeal by implication is seldom approved. A para from Maxwell on the Interpretation of Statutes (Twelfth Edition by P.St. J. Langan), is reproduced hereunder being relevant to our present discourse; "A later statute may repeal an earlier one either expressly or by implication. But repeal by implication is not favour by the courts. "Foramuch," said Coke, as Acts of Parliaments are established with such gravity , wisdom and universal consent of the whole realm, for the advancement of the commonwealth, they ought not by any constrained construction out of the general and ambiguous words of a subsequent Act, to be abrogated. If, therefore, earlier and later statutes can reasonably be construed in such a way that both can be given effect to, this must be done. If as with all modern statutes, the later Act contains a list of earlier enactments which it expressly repeals, an omission of a particular statute from the list will be a strong indication of an intention not to repeal that statute. And when the later Act is worded in purely affirmative language, without any negative expressed or implied, it becomes even less likely that it was intended to repeal the earlier law ."
The construction as suggested by learne d Astt: A.G, if placed on the provisions of section 120-A would not only have the effect of implied repeal of other provisions of the Local Government Act, but it would also go in contrast with the mandate of Article 140-A of the Constitution. Vesting powers of the administrative officers under section 120-A, cannot be construed to be for any other purpose than running the day to day affairs, at the time of transition from one local government to another . Their role may be compared with and found analogous to the functionaries of a caretaker government, about whom Hon'ble. Supreme Court of Pakistan had laid down the law that their mandate cannot be construed beyond running of the day to day affairs of the gover nment, while giving its judgment in the case of "Khawaia Muhammad Asif v. Federation of Pakistan and others" reported as 2013 SCMR 1205 .
Relevant part of observations of the august Court is reproduced hereunder for ready reference; "Essentially , according to the settled and accepted norms/ practice, the Caretaker Government (Prime Minister and Cabinet) is required to perform its functions to attend to the day-to-day matters, which are necessary to run the affairs of the State and also to watch the national interests, etc., in any eventuality in absence of an elected Government, and such Government is not authorized to make decisions/appointments having effect on the working/policies of the future Government, which is likely to take over after the elections. Apart from providing assistance to the Election Commission in organizing free, fair, honest and just elections in the country , it is not vested with the authority to take decisions concerning the affairs of the Government, which are bound to pre-empt the scope and sphere of activity , powers and jurisdiction of an elected Government. A Caretaker Government possesses limited powers and authority particularly in view of the fact that when it is appointed, there is no National Assembly in place and thus the all impor tant aspect of accountability is absent. Further , the exercise of complete powers by the Caretaker Government goes against the doctrine of separation of powers which is the lifeline of any vibrant democracy . As noted earlier , the absence of legislature results in lack of checks and balances. The Caretaker Government also lacks the mandate of the majority of people, which is to be acquired by elected government through the general elections. Therefore, if a Caretaker Government is allowed to exercise complete powers available to an elected Government, it may make an attempt to continue to remain in office for a longer period of time or may take such decisions which may cause problems for the future elected government."
We are therefore not impressed by the arguments of learned Astt: A.G appearing on behalf of respondents that the authorized of ficers would have full spectrum of powers of the Tehsil and District councils.
10. Taking notice of irregularities had even otherwise been job of the Local Government Commission (hereinafter referred to as "the Commission ") established under section 54 of the Act. It is provided in clause (e) of subsection
(1) of section 55 of the Act that taking cognizance of violations of laws and rules by a local government would be the domain of Local Government Comm ission constituted under-section 54 of the Act. Under subsection (2) of section 55 of the Act further powers of the Commission for holding an inquiry into such allegations had been provided. We do not find any such powe rs vested in Deputy Commissioner of District Shangla to hold an inquiry into allegations of violations of laws and rules by the Tehsil Council. 0 Impugned actions of the Deputy Commissioner had totally been without jurisdiction and divested, of any lawful authority .. Same are accordingly declared as null, void and inef fective upon the rights of the petitioners.
11. Approval of new budget of schemes or granting of authorization for new schemes from the local government fund, during the time when the local gove rnment had not been existing, has also been provided under subsection
(12) of section 35 of the Act. Said provision being relevant is reproduced hereunder for ready reference; (12). In the absence of local council, whatsoever the reason may be, the respective principal accounting officer shall prepare the budget, and submit it to the Local Government Commission through the Department, for consideration and approval."
Perusal of record reveals that the Deputy Commissioner concerned had got the schemes approved through the District Development Committee Shangl a in its meeting held on 15.06.2020 and had then himself given the administrative approval for such schemes. The appropriate forum in the given situation for approval of the schemes had been Local P Government Commission established under section 54 of the Act, rather than District Development Committee or the Deputy Commissioner . District Development Committee, its functions and roles had been explained in an earlier judgment of this Court rendered in the case of "Wali Muhammad v. Government of Khyber Pakhtunkhwa through Chief Secretary and 5 others " reported as 2018 CLC 134. Relevant part of observation of the Court is reproduced hereunder for ready reference; "The enactment of the LGA 2013, mandates allocation of 30% of the Provincial Development Budget to the Local Governments comprising three tiers i-e District Council, Tehsil Council, Village Council/Neighborhood Council. After approval of the district ADP from the District Council, the schemes are placed before District Development Committee for approval. Similarly , at Tehsil level there is Tehsil Development Committee. Consequently , DDAC has no role to play in the utilization of 30% development grant to local governments." "emphasis supplied"
Role of the District Development Commit tee only comes after schemes are approved in the Annual Development Program and necessary budget is allocate d thereto. Without authorization of annua l budget, a District Development Committee cannot grant approval for developmental schemes. Administrative approval or such schemes would also be entirely unlawful and totally inef fective upon the rights of petitioners.
12. Coming to the second part of relief as prayed for by the petitioners in Writ Petition No. 378-M of 2020 regarding ordering the respondents to continue the process on the basis of which earlier ADP of the year 2018/2019 had been approved, it is important to be noted that ADP is basically Annual Development Program approved by Tehsil Council under section 33 of the Act. Subsection (1) of section 33 provides that money credited to the Tehsil fund of a local government shall be expended in accordance with Annual Budget approved by the respective local councils.
Similarly , section 34 of the Act also starts with the words the annual budget for each local government shall contain estimates, grants-in-aid-from government, amounts available in the respective fund, receipt for the next year and expenditures to be incurred for the year. Subsection (5) of section 34 of the Act provides that before the commencement of a financial year, each local government shall, for its fund, prepare in the prescribed manner , a budget for that year. Likewise, subsection (1) of section 35 also provides that within thirty days of the commencement of a financial year, each chairman shall present the budget of that year for consideration and approval of the respective councils. Subsection (2) thereof provides that the budget shall be approved by simple majority of the local council. It is thus very much clear that by way of an annual development program or annual budget the respective local councils give authorization for spending money from its, fund for one year. Authorization of spending money cannot be granted for a period of more than one year. The financial year for which authorization had been granted by way of passing of budget and annual development program for the year 2018/2019 had come to an end on 30th June 2019.The autho rization for spending money from the schemes approved by the Tehsil Council for financial year 2018/2019 cannot be stretched to the financial year 2019/2020 or 2020/2021. The relief regarding further processing of the tenders for the works approved in said ADP, cannot therefore be ordered without lawful authorization from the respective council. For the current financial year, we do not find any such authorization available on record.
Second part of the relief as prayed for in the instant writ petition cannot therefore be granted and the petition to the extent of such a relief shall be deemed dismissed.
13. In light of what has been discussed above, we allow the instant writ petitions partially by declaring the impugned acts of Deputy Commissioner Shangla wherein he had appointed an inquiry committee and taken further steps on its report as unlawful, void and have been taken without lawful authority and resultantly of no legal effect.
Rest of the relief regarding carrying on works on the basis of schemes approved in ADP 2018/2019 is however dismissed. Likewise, approval of the new schemes by District Development Committee in. its meeting held on 15.06.2020 as well as the administrative approval granted vide order dated 19.06.2020 of Deputy Commissioner Shangla and invitation of tenders in pursuance thereof are also declared to have been done without lawful authority and of no legal ef fect.