Judgment: Shahid Jamil Khan, J:- Petitioner seeks direction for decision on applications (Annex-B & C) for Preliminary Planning Permission of a Private Housing Scheme. The applications are addressed to Administrator, Town Municipal Administration Sargodha and Chief Officer, District Council Sargodha.
2. Learned AAG submits that Deputy Commissioners are working as Administrators for the Local Government and after promulgation of Punjab Local Government Act, 2022 ("PLG Act of 2022") the process of allowing a Private Housing Society is being finalized. However, he has produced copy of letter dated 17.08.2023 issued by the Election Commission of Pakistan, whereby the Provincial Government and respective Administrators of Local Government are restrained from taking any decision of permanent nature. Contends that through applications the approval sought is of permanent nature, which is exclusive domain of the Elected Body of Local Government.
3. This Court has already held in M/s Mallik Mazhar Hussain Goraya v. Govt. of Punjab, etc. (PLD 2023 Lahore 257) that Administrator can deal only with day-to-day affairs. Relevant part is reproduced:- "9. ....
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 elected 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]"
4. It is apprised that the judgment in Malik Mazhar Hussain's Case (supra) is suspended by learned Division Bench of this Court at Multan. Suspension of judgment has effect only to the extent of the case, i.e., in personum. The law or its interpretation, (the laid down law) cannot be suspended, being in rem, unless the law is otherwise interpreted and overruled by the Bench of higher strength. The principle that law cannot be suspended, unless declared ultra vires, is enshrined in Federation of Pakistan v. Aitzaz Ahsan and another (PLD 1989 Supreme Court 61).
The judgment in Malik Mazhar Hussain's Case (supra) interprets the PLG Act of 2022, by referring to various provisions, which are unambiguous. The judgments by Hon'ble Supreme Court, referred therein, are also an existing law of the land, therefore, the plea that judgment is suspended, cannot be taken as the law laid down is suspended, hence, is binding on the Administrators and other officials working in and for the interim setup. Any violation can lead to legal consequence against the delinquents.
5. So far the instant petition is concerned, the request for Preliminary Planning Permission by the petitioner falls under Part 9 of the PLG Act of 2022 having caption Planning and Development and its Chapter XXVIII, captioned Planning Development and Land Use in Metropolitan Corporation and District Council. Sections 166 to 169, under this Chapter envisage a procedure to be carried out by the Head of Local Government with other elected office bearers.
It is, therefore, held that the law laid down in Malik Mazhar Hussain's Case (supra) is applicable and respondent Local Government and other Local Governments, cannot exercise powers, meant to be exercised by the elected Local Government.
The permission for Preliminary Planning, being outside the powers of interim Local Government, cannot be directed, therefore, this petition is dismissed.