SHAHID JAMIL KHAN, J. This judgment examines the extent of statutory authority and constitutional validity of appointment and powers of Administrators of Local Governments (under Notification dated 20.10.2022) to utilize Local Government's Development Fund, in absence of Elected Representatives and that too for carrying out Development Scheme proposed by MNAs and MPAs.
2. Tender Notice dated 13.11.2022, by District Council Dera Ghazi Khan is challenged being against the rules/policy and in absence of administrative approval of Secretary Local Government. It is alleged to have been issued by the Deputy Commissioner and Chief Officer without TS-I to oblige MNA and MPAs of the area.
3. Secretary, Local Government and Community Development Department South Punjab, appeared along with other officials/ respondents and written comments/report was submitted. They claimed that the Development Schemes were prepared in accordance with Rule 5(2) of Punjab Local Government (Works) Rules, 2017 and approved under Rule 5(7) by Development Committee, constituted under Rule 5(8)(2)(i) consisting of: 1.Chairman/AdministratorConvener 2.Chief Officer Member 3.District Officer (Finance)Member 4.District Officer (I&S) Member/Secretary However, the allegation regarding MNA and MPAs' Development Schemes was not denied specifically, rather it was admitted, during arguments, that Development Schemes were recommended by respective MNA and MPAs on their letter pads.
On query about approval of Development Funds and priority of development projects, it was apprised that the Development Fund consists of budgetary grant by Government of Punjab and taxes/fees collected by the Local Government. Learned Additional Advocate General submitted that priority for development projects was fixed under Rule 3(b) of Punjab Local Government Budget Rules 2017, by the Administrator, exercising powers of Chairman, which is reproduced: - "3. Responsibility of the Mayor or Chairman.---The Mayor or Chairman shall:
(a) provide vision for long term development, identify needs of the local area and evaluate and set development priorities of the local government;
(b) interact with stakeholders to assess their needs and obtain their input on overall development outlay and revenue potential of the local area; Explanation. The expression "stakeholders" means the elected representatives, general public, women organizations, private sector, non-governmental organizations, community based organizations and includes minority and other relevant organizations."
[emphasis supplied] It is an admitted position that the Administrator exercised powers of Chairman, under the Rule 3 (Responsibility of Mayor or Chairman), without interacting with elected representatives as stakeholders, to identify and evaluating the needs of local area to set development priorities of the Local Government.
On another query about constitutional validity of exercising powers by Administrator of elected representatives after insertion of Article 140A in the Constitution of the Islamic Republic of Pakistan 1973 ("Constitution"), different provisions of the Local Government laws were referred. Explaining the delay in conducting elections, it was apprised that Election Commission of Pakistan has already issued delimitation schedule through Notification dated 08.12.2022, exercising powers under Sections 10, 11 and 12 of the Punjab Local Government Act 2022, which is reproduced: - "Election Commission of Pakistan NOTIFICATION Islamabad, the 8th December, 2022.
No.F.2(1)12022-LGE(P)-Voll-II;- In exercise of powers conferred upon it under Article 222 (b) of the Constitution of the Islamic Republic of Pakistan, Sections 17 and 221 of the Elections Act, 2017 Section 10 of the Punjab Local Government Act, 2022 the Election Commission of Pakistan hereby issues the timelines of following activities of carrying out Delimitation of Union Councils in the Punjab Province:- Sr.
No/EventsNo. of DaysProposed Timelines 1Completion of all the administrative arrangements including procurement of maps, fresh notifications of demarcations printing of various forms, appointment and training of the delimitations committees and delimitations authorities.10Till 2Preparation of Preliminary List of Constituencies by the Delimitations Committees2218.12.2022 to 06.01.2023 3Publication of Preliminary List of Constituencies by the Delimitation Committee for inviting Objections. 0107.01.2023 (Saturday)
4Filing of objections by the voter concerned before the delimitation authorities. 1509.01.2023 to 23.01.2023 5 Disposal of objections by the delimitations authorities. 2509.01.2003 to 03.02.2023 6Last date for communication of decisions of delimitations authorities to the delamination committees.06 09.02.2023 7Final publication of list of constituencies by the delimitations committees.0312.02.2023 (Sunday)
By order of the Election Commission of Pakistan."
The schedule shows that delimitation shall be completed, latest by 12.02.2023 for conduct of Local Government elections. Learned AAG assisted by the Secretary is confronted why process of development projects is being carried on without waiting for the elected representatives after the expected elections, they could not reply satisfactorily.
4. Heard, record perused:
5. There is confusion, existing due to several enactments after Punjab Local Government Act 2013 ("PLG Act 2013"), which needs to be discussed before formulation of legal points, requiring determination of lis through this judgment.
The existing Punjab Local Government Act, 2022 came into force w.e.f. 16.11.2022. During the interregnum period, Punjab Local Government ("PLG") laws were enacted and repealed in the years 2019, 2021 and in June 2022. The last elected Local Governments were constituted under PLG Act 2013 and on maturity of elected representatives. tenure, the Local Governments are being run through Administrators. The Administrators, currently in place, are appointed by the Chief Minister, through Notification dated 20.10.2022, to exercise powers and authority of the Defunct Local Government. The "Defunct Local Government" is defined under Section 2(1)(s), as "a local government constituted under any local government law existed prior to the commencement of this Act". Continuity of all offices, agencies and authorities of Defunct Local Government, is ensured under Section 205 and power to appoint the Administrator is conferred by Section 71 of the existing PLG Act 2022. Notification for appointment of Administrators dated 20.10.2022, being issued under repealed PLG Act 2022, is saved under Section 204(3)(a), which is reproduced: - "NOTIFICATION No. SOR(LG)1-11/1019. In exercise of powers conferred upon him under section 80 of Punjab Local Government Act, 2022, the Chief Minister of Punjab is pleased to appoint the following officers as Administrators of the defunct local governments constituted under Punjab Local Government Act, 2013, which, under section 211(1) of the Act ibid shall continue providing public service / their respective local areas without any interruption till such time new local government are constituted under the Act: ... ... ... ... ... ...
2. Every aforesaid Administrator shall perform all the duties and exercise all the powers of the respective Mayor and Deputy Mayor or, as the case may be, the Chairman or Vice Chairman, and the house till constitution and assumption of the office by the elected local governments."
[emphasis supplied]
6. Sections 80 and 211 of the repealed PLG Act 2022 are almost similar to the corresponding Sections 71 and 205 of existing Act of 2022. Under Section 71 the Chief Minister can appoint any of its officer (of Council or Local Government) as an Administrator on expiry of term of a Council or till the new local government or a Council is constituted, whereas under the Section 80 the officer, to be appointed as Administrator, could be of the Provincial Government. Both the Sections, repealed and existing, are placed in juxtaposition for comparison:- S.71. Power of the Chief Minister to appoint an administrator.- On expiry of the term of a Council, or otherwise pending the constitutionS.80. Power of the Chief Minister to appoint administrator.- On expiry of the term of a Council, or otherwise pending the constitution of a new of a new local government or a Council, the Chief Minister shall, by an order published in the official Gazette, appoint any of its officers to perform such functions and exercise such powers and authority of the 'respective local government as may be specified in that order.local government or a Council, the Chief Minister shall, by an order published in the official Gazette, appoint any of officers of the Government, as Administrators, to perform such functions and exercise such powers and authority of the respective local government as may be specified in that order. [emphasis supplied] The minor change in language of both the Sections, brings a major difference in powers of Chief Minister i.e., under Section 80 any officer of the Provincial Government could be appointed as Administrator, whereas under existing Section 71, only an officer of the Council or Local Government can be appointed as Administrator. Necessary question arises; Whether appointment of Provisional Government's Officers (Commissioners, Deputy Commissioners and Additional Deputy Commissioners) appointed under Section 80 can be validated or saved under Section 204(0)(a), when the appointments conflict with the existing provision?
Even if this aspect is ignored, by interpreting the saving provisions of the Section 204 over the provisions of Section 71 till next appointment, nevertheless, absence of Cabinets approval for appointments of Administrators would be an incurable defect. Appointment of an Administrator in a Council or Local Government comes within re-organization of Defunct Local Government, as envisaged in subsection (3) of both Sections 205 and 211, which can be done by the Provincial Government. The law is settled in Messrs Mustafa liupex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808) that powers of a government can be exercised only through Provincial Cabinet. Though Chief Minister is or was empowered to appoint an Administrator in accordance with respective provisions of both Sections, yet the appointment being an act of re-organizing, has to be of the Provincial Government.
Reference of Section 211(1) in the Notification dated 20.10.2022 is inconsequential because the subsection (1) of both the Sections 205 or 211, envisages only continuity of all offices, agencies and authorities of Defunct Local Government and not creation of or new appointment in an office, not in existence at the time when the Local Government became defunct. The purpose for appointment of an Administrator is to ensure continuity of public service only by performing functions to carry out the decision already made by the Defunct Government, exercising its powers in accordance with law.
Both the Sections 205 and 211, having little variation, are also placed together for a comparative reading:- S.205. Interim authorities and continuation of public services.--(1) All offices, agencies and authorities of the defunct local governments established under the Punjab Local Government Act, 2013 (XVIII of 2013) shall continue providing public services in their respective local areas without any interruption till such time new local governments are established under this Act.
(2) Subject to any other relevant law, all officers and servants of the defunct localS. 211. Interim authorities and continuation of public services.--(1) All defunct local governments and any other offices, agencies or authorities established under Punjab Local Government Act, 2013 (XVIII of 2013) and Punjab Local Government Act, 2019 (XIII of 2019) shall continue providing public services in their respective local areas without any interruption till such time new local governments are established under this Act.
(2) Subject to any other relevant law, all officers and servants of the defunct local governments governments shall continue to discharge their respective duties and exercise their powers with the successor local governments under this Act, till such time they are assigned or transferred to any other local government.
(3) Nothing in this section shall preclude the Government from appropriately re-organizing the defunct local governments or for the matter reorganizing or reassigning any other office or authority established under the Punjab Local Government Act 2013 (XVIII of 2013). shall continue to discharge their respective duties and exercise their powers with the successor local governments under the Act, till such time they are assigned or transferred to any other local government.
(3) Nothing in this section shall preclude the Government from appropriately re-organizing the defunct local governments or for that matter reorganizing or reassigning any other office or authority established under the Punjab Local Government Act 2013 (XVIII 2f 2013) and Punjab Local Government Act, 2019 (XIII of 2019). [emphasis supplied]
7. For what has been discussed, ibid, appointment of Administrators, through Notification dated 26th October 2022, in absence of approval by the Cabinet are declared without lawful authority. As a consequence, all decisions made and actions taken by the Administrators, so appointed, are also declared without lawful authority unless ratified by the duly appointed Administrators, to the extent of functions, in accordance with existing law.
8. Exercise of functions only, by the Administrators, and not powers to be exercised by elected Local Government, needs further elaboration. In an interim setup, till newly elected Local Government is constituted, continuity of public service shall not include exercise of powers conferred upon elected office bearers and representatives. Particularly for identification, fixing of priority and expenditure of Development Funds.
The Development Fund is expended from Local Fund established under Section 72. Under Section 75 (Application of Local Fund), the monies deposited in Fund shall be expended in accordance with annual or supplementary budget, fixing ratio between development and non-development expenditure, under its subsection (3), subject to budgetary constraints. Under its subsection (4), the development budget is required to be prioritized in accordance with the Bottom up Planning System, for announcement and laying down the Classification of Development Schemes, under Section 78. The scheme, so announced, shall be deemed approved only if it fulfils conditions under subsection (2). The Section 78, providing a detailed procedure and conditions, is reproduced: - "78. Bottom up planning and the community ownership incentive system..
(1) Before the beginning of the financial year the respective local government shall lay down and announce the classification of development schemes to be undertaken exclusively under the provisions of this section.
(2) A local government may grant to the Community Based Organization within its local areas, up to eighty percent of the budgeted amount of an approved development scheme in the manner prescribed: Provided that a scheme shall be deemed to be an approved scheme if:
(a) the prescribed departmental procedure for estimating the cost of the scheme has been followed;
(b) the estimating officer certifies that the scheme meets the requirements laid down by law;
(c) the Community Based Organization has deposited its share of the cost of the development scheme with the concerned local government; and
(d) the complete departmental estimates and the proof of deposit of the contribution of Community Based Organization are attached.
(3) The grant referred to in subsection (2) shall be spent from the reserved amount of the annual development budget as provided in section 75.
(4) A cut-off date for submission of all schemes proposed by the Community Based Organization shall be announced by the local government concerned before the presentation of its budget.
(5) The respective local government shall authorize an official to draw up a statement specifying the schemes submitted by the cut-off date specified in subsection (4) by classification including the total amount of contributions for a particular classification of schemes.
(6) A second statement shall determine contributions for a particular classification of schemes as a ratio of the total contributions for all schemes submitted with a particular local government for that year, and the statement shall be used to determine amounts of allocations for a classification of schemes from the budget reserved for the purpose.
(7) A third statement shall be drawn up which shall identify the number of schemes submitted in a particular classification, beginning with the scheme containing the highest contribution by the Community Based Organization in a classification until all the schemes in the classification are selected or the funds allocated for that particular classification in the amount determined in subsection (6) are exhausted.
(8) The funds for Community Based Organization under section 75 shall be communicated to the authorized officer under subsection (5).
(9) The identified schemes shall be included in the budget before submission to the concerned Council.
(10) The statement referred to in subsection (7) shall be approved by a simple majority of the members of the respective Council in a budget session to be held by the respective Council.
(11) The schemes approved by the respective Councils shall be carried out as prescribed.
(12) Subject to subsection (10), the Accounts Official of the respective local government shall release funds in the prescribed manner in accordance with the schedule of expenditure."
[emphasis supplied]
9. It was pleaded by respondents. side that procedure under Punjab Local Government (Works)
Rules, 2017 and Punjab Local Government Budget Rules, 2017 was followed but could not justify compliance of even these Rules. The Rules were already in place and have been saved under Section 204, however, would not override the requirements and conditions stipulated by the statutory provisions. The statutory requirements discussed above, being mandatory must be fulfilled for classification, identification, approval and release of the Development Funds.
It is reiterated that the Administrator is appointed only for continuation of public service, based on the powers exercised by Defunct Local Government. The Development Funds, if already identified, approved through budget and released in accordance with law, can be expended, to maintain continuity, by the Administrators. The Administrator, appointed in accordance with law, can expend only eight percent per month, from the budget approved for a financial year, under Section 75(7), which is reproduced for facility:- "(7) Where a new local government is to take over during a financial year as a result of fresh elections, the outgoing local government shall not spend funds or make commitments for any expenditure under any Demand for Grant or Appropriation in excess of eight percent per month of the budgeted funds for the remainder of its term in office in that financial year."
10. The existing PLG Act of 2022, does not conceive development expenditures outside the approved budget in a financial year, as is discernable from a collective reading of Sections 205 and 75. On maturity of elected representative's term, the next elected Local Government must be constituted without a break, which is the spirit/ scheme of the Act of 2022, in consonance with the command by Article 140A of the Constitution. Under inevitable circumstances, if the next elected' Local Government is delayed, provisions of Sections 205 and 71 would come into play, which need to be construed narrowly for performance of function only and not exercise of power vested in ejected Local Government.
The powers are required to be exercised by the elected office bearers within Local Government Structure, under Section 13. Chapter XI, Part 2 of the Act of 2022 provides the powers and duties of Local Government Functionaries. Section 33 prescribes the powers and duties of Head of Local Government, as defined by Section 2(1)(rr) are Lord Mayor, City Mayor, District Mayor and Chair Person of a union council. The Head of Local Government, under subsection (2) of Section 33, is answerable for exercise of powers to the House of elected representatives, by submitting a report.
In case of unsatisfactory performance, the House may send its recommendation to the Secretary Government of Punjab for appropriate action. These powers could not, by any stretch of interpretation, be given to an Administrator, in a Notification of appointment by the Chief Minister under Section 71 read with Section 205(1), which envisage only, "providing public services in their respective local areas without any interruption till such time new local governments are established under this Act". The function and powers, to maintain continuity, cannot be notified by the Chief Minister without prior approval of the Cabinet.
11. It is a general principle, laid down as law by constitutional courts, that in interim setup, function and exercise powers should be to carry out day-to-day affairs. August Supreme Court of Pakistan in judgment Fauji Sugar Mills v. Market Committee, Tando Muhammad Khan and another (1988 SCMR 155) held, "It is also manifest that the levy of a fee can only be in exercise of power and not exercise of functions". Exercise of powers- by Caretaker Government, in interim setup, was examined in Khawaja Muhammad Asif v. Federation of Pakistan and others (2013 SCMR 1205), when transfer posting and appointments were challenged under Article 184(3) of the Constitution.
It was pleaded that caretaker government has to confine itself to day to day. routine matters, a controversial decision, irreversible by the forthcoming elected government should be avoid. The August Court held.
"28. In light of discussion made hereinabove, we hold that:--
(a) The Caretaker Cabinet/Prime Minister appointed under Article 224(1)(2) or 224A, as the case may be, is empowered to carry out only day-to-day affairs of the State with the help of the available machinery/resources/ manpower and also to watch national interest against war or national calamity or disaster faced by the nation, including terrorism, etc.
(b) The civil servants who have already been appointed in accordance with the rules/regulations on the subject ought not to be posted/transferred, etc., except in extraordinary circumstances, that too, temporarily.
(c) Major policy decisions including making of appointments, transfers and postings of the Government servants should be left to be made by the incoming government in view of the provisions of Constitution that the affairs of the State are to be run by the chosen representatives of the people.
(d) As newly elected Government is mandated to perform its functions of achieving the object and purpose of welfare of the people for which it has been duly appointed, therefore, caretaker Cabinet / government / Prime Minister, having no mandate of public support, is only caretaker set up and due to this connotation should detach itself from making permanent policies having impact on future of the country."
[emphasis supplied]
12. The provisions of the PLG Act, 2022, in force, do not allow any interference by the Members of Federal or Provincial Legislatures (MNAs or MPAs). Mandate of the Federal and Provincial Legislative bodies is legislation, by adhering to the Principles of Policies, outlined in Chapter 2 Part II, as ordained by Article 29 of the Constitution, without offending the Fundamental Rights guaranteed by the Constitution in Chapter 1 Part II.
The practice of allocating Development Funds to ruling and other MNAs and MPAs is not only against the constitutional scheme, but detrimental to the norms and spirit of democracy itself. It is misused in respective constituencies by the Legislators to influence the voters, necessary result of which is inequitable, unnecessary, and unlawful expending of Development Funds. Allocation and utilization of Development Funds, by pick and choose is in direct conflict with equality clause under Article 25 of the Constitution, therefore, discriminate grant of Development Funds in an area or constituency, where ruling party won elections is declared unconstitutional and against the provisions of PLG Act 2022, in force.
For classification and to fix priority of Development Projects, the PLG Act, 2022 recognises the local community and locally elected representatives for their input. Any law or executive decision, allocating Funds to any MNA or MPA for development in an area governed by Local Governments, either by Federal or Provincial Government is encroachment upon the powers and functions of a Local Government under the PLG Act 2022. Such allocation of Fund, under any regulation or law is against spirit of the Constitution and unenforceable in view of Section 4, which says, "The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force.". Any grant by the Federal or Provincial Government, has to become part of Fund, under Section 72(1)(b) and the grant credited to Local Government Fund can be expended only in accordance with annual or supplementary budget under Section 75(1), prepared under Section 76 and approved under Section 77. The provincial grant; in a budget, shall be credited to the Local Fund, under Section 76(2), however, conditional grant shall be shown separately in the budget and shall be governed by the conditions on which the grant was made, under Section 76(5). The conditional grant, under this subsection cannot stipulate that any development be carried out on the projects proposed by any MNA or MPA, which would be directly in conflict with authority and responsibility of a Local Government ensured by Article 140A of the Constitution, which is reproduced: - "140A (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) Election to the local governments shall be held by the Election Commission of Pakistan "
[emphasis supplied] This Court in judgment Rasheed Ahmed Khan v. Pakistan through Secretary Ministry of Defence and others (2023 CLC 219) examined the constitutional position before and after insertion of the Article 140A in the Constitution, in light of the judgments by Apex Court:- "19. The constitutional courts, by referring to the provisions of the Constitution, have consistently been insisting and directing for establishing the Local Government System, but somehow, the constitutional intent was and is not being followed in letter and spirit of the constitutional provisions. Before insertion of Article 140A, the right to form government through participating and contesting elections was held as part or subsumed to the fundamental right to form or to be member of a political party' as guaranteed by Article 7 of the Constitution through judgments in Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Federation of Pakistan and others v. Haji Muhammad Saifiullah Khan and others (PLD 1989 SC 166) and Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473). Articles 2A, 32 and 37(i) were referred to expose the constitutional intent of decentralizing the Government administration, encouragement of local Government institutions composed of elected representatives of the area concerned, however, Article 30(2) was a fetter on exercise of judicial powers for calling in question the validity of an action or omission against this constitutional desire.
In the judgments, post Article 14A, every action or omission against the will Constitution was declared ultra vires. The Federal and Provincial Governments are consistently being directed for necessary legislation and devolution of powers, in letter and spirit, by highlight the importance of Local Bodies System. In one of the judgments, President Balochistan High Court Bar Association v.
Federation of Pakistan and others (2014 SCMR 1), the August Court held and directed in following words: - "...Provisions (of the Constitution) particularly those relating to empowering the general public politically, administratively and financially through their chosen representatives by establishing the system of local government in terms of Arts. 32 and 140A of the Constitution should be strictly observed."
"... As per provisions of Arts.32 and 140A of the Constitution, the Federal Government was duty bound to hold elections in the Federal Area and Provincial Governments in the Provinces, in order to ensure participation of the general public in the administrative, political and financial affairs of the Government by establishing local bodies system."
In Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739), while comparing the powers of Provincial Government and Local Government, after insertion of the Article 140A, ruled in favour of Provincial Government's power for enacting and amending statutes with regard to Local Government and local authorities for enlarging or diminishing its authority. But held specifically that the competence to make the Local Government powerless is no more available, which if exercised is to be struck down by the Courts. Relevant excerpt is reproduced: - "Even after the insertion of Art. 140A of the Constitution the Provincial Government would continue to have the authority to enact and amend statutes, make general or special laws with regard to Local Government and local authorities, enlarge or diminish the authority of Local Government and extend or curtail municipal boundaries- ... Such power of amendment, however, was subject to the fact that if the Provincial Government overstepped its legislative or executive authority to make the Local Government powerless, such exercise would fall foul of Art. 140A of the Constitution, and be struck down by the court."
[emphasis supplied]
13. Reluctance to solve power to the Local Governments and control of its affairs by the bureaucracy and MNAs and MPAs, is deprecated by August Court in Administrator Municipal Corporation, Peshawar and others v. Taimur Hussain Amin and others (2021 SCMR 714), relevant part is reproduced:- "11. A government servant's overt anxiousness to please politicians and project the political views of a political party must be frowned upon. A government servant's loyalty must always be to the Constitution, the law and the people, whose taxes pay his salary and who will also be paying for his pension. In any event, the said manifesto states that, 'We will transform Pakistan by devolving power and decision-making to the people through an empowered local government.' Since, in the instant case, the subsisting local governments were uprooted we cannot comprehend how power has been devolved and decision making transferred at the Iocal level nor how uprooting local governments has empowered local governments. The said manifesto goes on to state that, 'Local development in villages and small towns in Pakistan is controlled by MPAs and MNAs, or by the bureaucracy, who do not want to cede authority and relevance.' If we were to accept this view, the Government of Punjab, by sending home the elected local representatives of the people, did exactly what the manifesto proclaimed must never be done. The third tier of government, the local governments, and the local elected representatives of the people were removed and this vacuum remains."
[emphasis supplied] In Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739), the Hon'ble Court laid down the 'principle of spillover' for a development project spreading over more than one local government and held that consultation and approval of the local governments is mandatory. Highlighting the highly significant amendment in the Constitution by inserting Article 140A, it was held; - "(ii) Subject, inter alia, to the criteria of spill over, economies of scale, effectiveness as shall be determined in the detailed reasons by the Court, any new project falling within the domain of Lahore Metropolitan Corporation for approval or execution shall not be undertaken by the Provincial Government or its agency without prior consultation and consent, unless withheld without justified reasons, as the case may be, of the elected Lahore Metropolitan Corporation in respect of such project.
(iii) Article 140A of the Constitution of Islamic Republic of Pakistan casts a mandatory obligation on the Provinces to establish Local Governments possessing meaningful authority and responsibility in the political arena, administrative and financial matters. It is the duty of a Province through the Provincial Government and the Provincial Assembly to purposefully empower Local Governments in the Province so as to comply with their mandatory obligation under Article 140A of the Constitution."
[emphasis supplied] The law laid down in Imrana Tiwana's Case was endorsed in M.Q.M. (Pakistan) and others v.
Pakistan through Secretary Cabinet Division, Government of Pakistan and others (PLD 2022 SC 439). Relevant part is reproduced:- "46. This very operative part of the judgment, given by this Court in the Imrana Tawana's case (supra), in our view, with full force applies to the present case also. As the controversy in the present petition also substantially revolves around the same subject, as has been dealt with by this Court and the judgment being a law declared by a 3-Member Bench of this Court, in terms of Article 189 of the Constitution, is the operative law of the land. We tend to agree with the operative part of the judgment of this Court in Imrana Tiwana's case (supra) and thus, would dispose of this petition in the following terms:-
(i) Elected Local Governments are presently not in existence in the Province of Sindh. The Provincial Government through its agencies is performing their duties and functions. In the vacuum resulting from the absence of an elected Local Government in Sindh, the initiation, approval and execution of any of the duties and functions of the elected local government are allowed to be carried out by the provincial government and no new project following within the domain of the elected local government shall be undertaken by the provincial government or its agency without prior consultation and consent unless withheld without justified reasons, as the case may be of the elected local government in respect of such project.
(ii) Article 140A of the Constitution of Islamic Republic of Pakistan casts a mandatory obligation on the Provinces to establish Local Government possessing meaningful authority and responsibility in the political arena, administrative and financial matters. It is the duty of a province through the Provincial Government and the Provincial Assembly to purposefully empower Local Governments in the province so as to comply with their mandatory obligation under Article 140A of the Constitution.
(iii) The powers in relation to master plan and spatial planning which historically belongs to the elected local government have been superimposed with similar functions vesting in the provincial laws. To the extent of conflict in the exercise of their respective powers and functions by the elected local government and the statutory authorities or on account of legal provisions having overriding effect, Article 140A of the Constitution confers primacy upon the authority vesting in an elected local government over the powers conferred by law on the provincial government or agency thereof. Notwithstanding the above, the provincial government in any case is "under a duty to establish harmonious working relationship with an elected local government" wherein respect is accorded to the views and decisions of the latter."
[emphasis supplied] It is now the law of land declared by the Apex Court, in lmrana Tiwana case and endorsed by MQM case, supra, that a new project, falling within the domain of elected Local Government, without its consultation and consent, is without lawful authority. It is, therefore, held that new development projects, not approved by the Defunct Local Government, by the Administrator, on recommendation of MNAs and MPAs or otherwise are declared without lawful authority.
14. For what has been discussed, it is held that: i) Appointment of Administrators and assigning of functions and power under Notification dated 21.10.2022, by the Chief Minister Punjab, without approval of the Cabinet is without lawful authority.
However, the functions, not powers to be exercised by elected Local Government, can be ratified and continued by the Administrators appointed in accordance with law. ii) All new development projects, not approved by the Defunct Local Government, are declared without lawful authority, which can only be continued if ratified and approved, in accordance with law by the Local Government, to be constituted after forthcoming elections. iii) Any executive order, allocating grants to MNAs and MPAs for development work within the domain of a Local Government, is declared illegal and any regulation or law permitting allocation of such grant shall be unenforceable in view of Section 4 of PLG Act 2022, in force. iv) Election Commission is directed to hold elections forthwith, on completion of delimitation as scheduled, in accordance with relevant provision under PLG Act 2022, in force, read with the Constitution and in light of the judgments by Apex Court.