SHAHID JAMIL KHAN, J. The proposition examined in this judgment relates to Section 14 of the Cantonments Act, 1924 ("Act of 1924"), which appears to be a special provision in scheme of this Act, with the caption "Power to Vary Constitution of Boards in Special Circumstances".
The Act of 1924, as preamble shows, relates to Administration of Cantonments. The Federal Government can declare (through notification in Official Gazette) any place or places (or its vicinity) as Cantonment, where regular Forces of Pakistan are quartered, limits of which are to be defined (Section 3). For every Cantonment there is a "Cantonment Board" and "Executive Officer" (Section 10). The Cantonment Board is a 'Body Corporate', having perpetual succession and common seal with power to acquire and hold property, which can sue or be sued by its name (Section 11). Constitution of the Cantonment Boards (Classified as Class I, II and III) is prescribed by Section 13-A, which provides different number of Elected Members for each class, besides nominee and designated members. Section 15-E deals with Term of Member and its proviso postulates that despite expiry of the term, mentioned in this Section, such members shall continue to function as a member until election or nomination of his successor is notified under subsection (5) of Section 13- A.
Now comes the Section 14, which gives power to the Federal Government, notwithstanding anything contained in Section 13-A, to vary the Constitution of Boards, in the following special circumstances, if Federal Government is satisfied;
(a) that, by reason of military operation, is necessary, or
(b) that for administration of Cantonment, it is desirable, to vary the Constitution of the Board in any Cantonment by making a declaration notified in official gazette.
[emphasis supplied]
2. Through this and connected petitions (Writ Petitions Nos. 2282, 2283, 2493 and 2841 of 2020), nomination of members under the Section 14 are questioned, by assailing respective notifications of nomination for respondent Cantonment Boards, including letter dated 23.12.2020, which is reproduced; "To All Regional Directors Military Lands and Cantts Deptt Subject:- DECLARATION OF VARIED CONSTITUTION FOR CANTONMENT BOARDS Reference Ministry of Defence O.M F.No.4/2/D-6 (A-VI)/2000 dated 15.09.2020 on the subject.
2. The undersigned has been directed to state that meeting of the Federal Cabinet on the subject was held on 22.09.2020 at Islamabad to consider and approve summary on the subject forwarded vide Ministry of Defence O.M under reference. Decision taken in the aforesaid meeting will be received in HQ ML&C shortly.
3. The undersigned has been further instructed, to ask CEOs under your respective jurisdiction to proceed further in the subject matter in the light of Section 14 of the Cantt Act, 1924 (II of 1924) and forward to this HQ nominations of (01 x Military Officer and 01 x member not being a person in the service of the Government) as per Section 14 (2)(b)(c) of the Cantt Act, 1924, immediately, for publication of the same in the official gazette, please.
4. This may please be accorded TOP PRIORITY."
3. Petitioners side has relied upon the judgment Cantonment Board, Rawalpindi and another v.
Ghulam Habib Rana and others (1997 SCMR 1) to submit that provision of Section 14 could not be invoked on expiry of an election tenure, which is not a ground sustainable in law to dislodge the elected member who are to continue under Section 15-E till next elections. Reliance is also placed on judgments in Ghulam Habib Rana and another v. Pakistan and others (1996 CLC 293), Cantonment Board, Rawalpindi through its Executive Officer and another v. Ghulam Habib Rana and 12 others (1997 CLC 374) and Haji Muhammad Ijaz v. Government of Pakistan through Secretary, Ministry of Defence and others (2004 YLR 782).
4. Upon notices, learned Assistant Attorney General, as well as, learned counsel for Cantonment Board appeared and apprised that the tenure of elected representatives expired in the year 2019 and due to prevailing COVID-19 pandemic, elections could not be conducted, therefore, provisions of the Section 14 of the Act of 1924 were invoked. It is argued that the judgments, ibid, are not applicable on all fours on the facts and circumstances of this case.
On this reply, report was sought from Election Commission of Pakistan ("Election Commission"). Mr. Amjad Ali, Advocate appeared on its behalf and categorically stated that Election Commission is ready and willing to conduct the elections under prevailing circumstances if a formal request, under Section 58 of the Act of 1924, is received. He submitted complete correspondence with the Federal Government and details of steps taken for conduct of the elections.
Being confronted with Election Commission's stance, learned Assistant Attorney General stated on instructions that no elected member has so far been removed or restrained from working, therefore, the Section 15-E is not violated, he explained that the impugned notifications shall be implemented only when Election Schedule is issued, as the notifications are meant to ensure transparency during elections, therefore, Federal Government is competent to take measures for interim administration of the Cantonment Board during the conduct of elections because the elected members sitting in Cantonment Board are likely to influence the election. He apprised that the formal request for elections is pending approval from the Federal Cabinet, in terms of the law laid down in Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808).
5. Learned counsel for the Election Commission, assisted by Mr. Zafar Iqbal Hussain, Special Secretary and Muhammad Arshad, Director General Law, for Election Commission, was asked specifically "whether Election Commission has any power to suspend or restrain the elected members from taking any administrative decision after issuance of election schedule", the answer was in negative. It was explained that in General Elections, such power is derived from the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), whereas the elections laws are silent about it. It is also apprised that elections under the laws like Act of 1924 and Punjab Local Government Act, 2019 do not give such power to Election Commission for controlling administrative decisions while conducting elections. On Court's question, Special Secretary for Election Commission, has assured that election of the Cantonment Boards shall be conducted, whenever formal request is received.
6. In this backdrop; the question arises: "whether, under the facts and circumstances of this case, the impugned notifications for appointment of nominee members under Section 14 of the Act of 1924, is in accordance with law".
To examine this question, provisions of Section 14 are reproduced: "14. Power to vary constitution of Boards in special circumstances;
(1) Notwithstanding anything contained in Section 13A, if the Federal Government is satisfied--
(a) that, by reason of military operations it is necessary or
(b) that, for the administration of the cantonment, it is desirable, to vary the constitution of the Board in any cantonment under this section, the Federal Government may, by notification in the official Gazette, make a declaration to that effect.
(2) Upon the making of a declaration under subsection (1), the Board in the cantonment shall consist of the following members, namely:-
(a) the Officer Commanding the station;
(b) one military officer nominated by name by the Officer Commanding the station by order in writing;
(c) one member, not being a person in the service of the Government, nominated by the Officer Commanding the station.
Provided that in its application to the Wah Cantonment this subsection shall be read as if in clause (a), at the end thereof, the words "or, if the Federal Government so directs, any civil or military officer nominated by the Competent Authority were added, and in clause (b) for the words "military officer" the words "civil or military officer" were substituted.
(3) Every nomination of a member of a Board constituted under this section, and every vacancy in the membership thereof, shall be notified by the Federal Government in the official Gazette.
(4) The term of office of a Board constituted by a declaration under subsection (1) shall not ordinarily extend beyond one year: Provided that the Federal Government may from time to time, by a like declaration, extend the term of office of such a Board by any period not exceeding one year at a time.
Provided also that the Federal Government shall forthwith direct that the term of office of such a Board shall cease if, in the opinion of the Federal Government, the reasons stated in the declaration whereby such Board was constituted, or its term of office was extended, have ceased to exist.
(5) When the term of office of a Board constituted under this section has expired or ceased, the Board shall be replaced by the former Board which, but for the declaration under subsection (1), would have continued to hold office, or, if the term of office of such former Board has expired, by a Board constituted under section 13A."
[emphasis supplied] The tenor of this Section, if read conjunctively, would show that it is to be invoked temporarily, under extraordinary circumstances, till their existence. As is evident from the expression in this Section like 'replacement with original Board under Section 13A on expiry of one year's period and "if reasons for such declaration cease to exist".
The reason of "military operations", under the clause (a), ibid, admittedly was or is not in existence.
However, the stated reason of COVID-19 pandemic (not pressed latter) and the substituted reason of interim administrative control after announcement of election schedule, need to be examined, i.e. whether Federal Government could desire, under the clause (b), to vary constitution of the Boards for any of these reasons.
7. The parameters to invoke the provisions of Section 14(1)(b) were laid down by august Supreme Court in judgment Ghulam Habib Rana's Case (1997 SCMR 1), while refusing leave to appeal against judgment by a Division Bench of this Court (Cantonment Board Rawalpindi v. Ghulam Habib Rana 1997 CLC 374). Learned Division Bench had dismissed Intra Court Appeal against a judgment by a Single Bench (Ghulam Habib Rana v. Pakistan and another 1996 CLC 293). Learned Single Bench of this Court had accepted petitions against notification to vary constitution of the Board, under the Section 14, which was declared void ab initio by discarding the reason that atmosphere of the Board had become highly politicized. The facts leading to this reason were that certain members of the Cantonment Board, moved a resolution expressing lack of confidence in the Vice-President of the Board. The resolution was carried in a special meeting. The Vice-President moved an application under Section 15-BB before Station Commander asking to disqualify another on ground of having affiliation with a political party. The application was dismissed on a technical ground but these incidents were cited before the Court to justify issuance of impugned notification.
The relevant excerpts of learned Single Bench's judgment are as under: ".....Station Commander incidentally is ex-officio member and President of the Cantonment Board.
Anyhow, apart from these two instances where members had exercised their statutory rights and can hardly be termed as political activity, there is not a single word on the file which showed that the environment of Board had become baneful to its administration, or the atmosphere had become politically charged making it difficult to carry on the daily business by the Cantonment Board, or that the wrangling amongst the members had resulted in work of the Board to be brought to a stand still. The file is bereft of any material whatsoever relating to the charge now being levelled against the members of the Board. If anybody had failed to perform his duties according to the provisions of the Cantonments Act during the period, it was the President of the Board, and not the members. The only circumstances pleaded by respondents as warranting action by the Federal Government under section 14 of the Act was that environment had become politicized, but this circumstance has not been shown to exist and even otherwise was not a valid ground for invoking provisions of section 14 of the Cantonments Act, 1924. There was absolutely no material before the Federal Government to have based its satisfaction on, as required by law.
Desirability of the declaration for the administration of the Board was not determined and no reason whatsoever was given in the impugned notifications nor any reason has been found to exist."
[emphasis supplied] Learned Division Bench dismissed Intra Court Appeal with following reasons: "12. The political affiliation of any member is not a rare phenomena. They are the local leaders of the political parties. They may not contest the election on political basis but their political affiliation cannot be ruled out. Elected representative of people have been deprived of their rights and privileges in relation to administration of affairs of their constituencies on the basis of above said action. The action has been taken an extraneous consideration and in a mala fide manner. It has also been brought to our notice during hearing of appeal that operation of the impugned notification has been extended for another year. The result of action taken by the appellant amounts to defranchise the constituencies of the elected members. Such a punitive action cannot be allowed in the absence of justiciable material. Since there was no material whatsoever for variation of Board, the issuance of impugned notification is unjustified and unlawful.
13. In this view of the matter, it is observed that the above said material is neither sufficient nor satisfactory for issuance of the notification referred above. The action taken by the appellant is unwarranted. There is no material at all justifying the variation of the Board. The order passed by the learned Judge in Chamber is not open to any exception. We accordingly dismissed this anneal with no order as to costs."
[emphasis supplied]
8. August Supreme Court refused leave, against order by the learned Division Bench. Besides agreeing with reasons of both the Courts, also declared the Cantonment Board as a local authority as envisaged in Article 7 of the Constitution and emphasized the need of elected members, referring to Articles 29 and 32 of the Constitution. Relevant excerpts from the judgment reproduced for facility of reference: 7..... In other words, the Board as contemplated in aforesaid section 13-A which comprises 25 members as above is substituted by three personnel mentioned in aforesaid subsection (2). It may be observed that though subsection (1) of section 14 uses the expression "to vary the constitution of the Board" but the consequence provided in subsection (2) is in fact a substitution and not variation as is evident. Be that as it may, the other subsections need not be dilated upon in detail.
However, it will suffice to observe that subsection (4) lays down that the term of office of the Board constituted by a declaration under above subsection (1) shall not ordinarily extend beyond one year subject to the two provisos contained in the aforesaid subsection, which envisage the extension of the above period of one year by the Central Government from time to time not exceeding one year at a time. ..............
11. The above three judgments of this Court support the view which found favour with the Courts below. We are inclined to hold that it was open to the Courts below to have examined the question, whether the satisfaction of the Central Government referred to in subsection (1) of section 14 of the Act was founded on the grounds having nexus with objects mentioned in the above quoted clauses (a) and (b) of aforesaid subsection (1) of section 14. Admittedly, clause (a) is not attracted to the case in hand as it has not been contended by the petitioners that the impugned notifications were issued because they were necessary by reason of military operations. The question, therefore, arises, as to whether above clause (b) of subsection (1) of section 14 of the Act could have been pressed into service which provides that "that for the administration of the cantonment it is desirable". The aforesaid clause can be invoked if it can be shown that the act of variation of the constitution of the Board in terms thereof will eliminate the obstruction in the smooth functioning of the cantonment. In the present case, nothing has been brought on record to indicate that the conduct of the elected members was such which imperilled/hampered the smooth functioning of the Board. The only facts which have been brought on record are that a vote of no-confidence was successfully moved against the Vice- President, Hafiz Hussain Ahmed, and that the latter had filed an application before the President of the Board against respondent No.7, Ch. Tanvir Khan, for getting him disqualified. This has also been stated that the elected members were grouped into two factions, namely, Muslim League (N) and Pakistan People's Party. Simpliciter the above facts, without having nexus with the smooth working of the administration of the Board, in our view, are not sufficient to dislodge the elected members of the Board. At this juncture, it will not be out of context to point out that Article 7 of the Constitution gives the definition of the term 'State' by providing that "In this Pan, unless the context otherwise requires, 'the State' means the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess.
The above definition apparently would include local and other authorities in Pakistan which are empowered by law to impose any tax or cess. Since admittedly the Board has power to levy tax, it is covered by the aforesaid definition of the term "State".
12. It may further be observed that Article 29 of the Constitution, (which is the first Article provided in Chapter II relating to Principles of Policy), enjoins that the Principles set out in the above. Chapter shall be known as the Principles of Policy and that it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the Sate, to act in accordance with those Principles in so far as they relate to the functions of the organ or authority.
The above Article 29 is to be read in conjunction with Article 32 of the Constitution which provides that "The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women".
13. The construction which we are inclined to place on subsection (1) of section 14 of the Act is in consonance with the spirit of the above Articles of the Constitution. ..............
It is true that even now the paramount duty of a Cantonment Board or in other words the very raison d'etre for a Cantonment Board is the quartering or the requirements in the vicinity concerning the quartering of regular forces and, therefore, cannot be equated with a municipal corporation/committee/ council, but since Cantonment Boards have taken upon themselves the municipal functions in respect of the areas in which civilians also reside and/or which are mostly populated by civilians, the law-makers provided representation to the civilian population under above section 13-A of the Act so that they may protect their interests and may have sense of participation in the discharge of the municipal functions of the boards. The above provision of the Act is in line with above Article 32 of the Constitution, which enjoins that the State shall encourage Local Government institutions composed of elected representatives of the areas concerned. The provision of section 14(1) is to be construed keeping in view the above Article of the Constitution. The elected members cannot be dislodged on a ground not sustainable in law."
[emphasis supplied]
9. August Supreme Court, though noticed that nomination of new members under Section 14(2), after declaration under Section 14(1), does not commensurate with the caption of the Section 14, because it is substitution and not the variation of the Board. Nevertheless, vires of the-subsection
(2) were neither considered nor decided, been not a lis before it. The vires or the conflict, ibid is not in question before this Court also therefore is left unattended.
10. All three judgments, supra, have disapproved mere political affiliation as a reason for a declaration under the Section 14(1), unless Federal Government is satisfied that it has become impossible to carry on the business or administration of. Board because of the pleaded reasons: Learned Division Bench termed removal of elected members as disfranchising the constituencies.
August Supreme Court endorsed the reasons by both benches, single and appellate, while holding that 'The elected members cannot be dislodged on a ground not sustainable in law'.
11. As deduced from the analysis, above; it is necessary for Federal Government to be satisfied before desiring to invoke the provisions of Section 14(1)(b), to show that the reason is:- a) obstructing smooth functioning and hampering, administrative decisions of the Cantonment Board, b) making it difficult to carry on daily business by the Cantonment Board, and c) Resulting the working of the Cantonment Board to a standstill.
12. The reasons pleaded, in this case, for issuance of impugned notifications do not satisfy the laid down conditions, which are endorsed and further explained through ibis judgment.
Expiry of elected members term can hardly be a reason for invoking the Section 14(1), because the consequence of expiry of a tenure has expressly been taken care of under proviso to the Section 15(E) of the Act of 1924, which is reproduced for facility:- "Provided that, notwithstanding the expiry of his term, such member shall continue to function as a member until the election or as the case may be, nomination of his successor is notified under subsection (5) of Section 13A."
13. The alternate reason of undue influence by elected members on the conduct of elections is also not convincing. No such provision exists in the Act of 1924, as assisted by Election Commission, nor could it be a reason under the principles already laid down for invoking provisions of the Section 14.
Legislative intent, under the Act of 1924, is to continue with the existing elected members, unless new elected members are notified.
14, August Supreme Court, in Ghulam Habib Rana's Case, supra, went a step further to emphasize for existence of elected members in a Cantonment Board, after declaring it a Local Authority within the definition of "State" under Article 7 of 'the Constitution, read with Articles 29 and 32.
It was, though, acknowledged that the raison d'etre for a Cantonment Board is quartering the Regular Forces in notified territory and regulation of its vicinity. Nevertheless, legislative intent of having elected member in the Cantonment Board was examined to hold that the Cantonment Boards had assumed municipal functions for the civilians residing in or by allowing them to reside in the housing societies established by it, hence the law-makers provided representation to the civilian population, under Section 13-A of the Act of 1924, enabling them to protect their interests and have a sense of participation in discharge of the municipal functions by the Boards. Since the Cantonment Boards, in discharge of their municipal functions, have power to impose tax or cess, therefore, were termed as a Local Authority, within the definition of State under Article 7 of the Constitution. By referring to the Articles 29 and 32 of the Constitution, it was observed that the State is obligated, under constitutional policy, to encourage participation of people in local Government institutions through elected representatives, with special representation to peasants, workers and women. The provision of the Act of 1924, relating to elected members from civilians were held in line with the Article 32 of the Constitution, which enjoins that the State shall encourage Local Government institutions composed of elected representatives of the areas concerned.
15. After insertion of Article 140A through 18th Amendment in the Constitution, the obligation under constitutional policy has turned into an inalienable Constitutional duty. The Article 140A 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."
16. The constitutional command, apparently, is to the Provinces but its extension to the Federation has been declared in Raja Rab Nawaz v. Federation of Pakistan and others (2014 SCMR 101), while holding that residents of Islamabad Capital Territory cannot be deprived from participating in governance at grass root level. The constitutional duty to establish local bodies system and devolving political, administrative and financial responsibility to elected representatives declared inalienable in following words; "Provincial and Federal Governments had the duty to ensure holding of local bodies system and devolve political, administrative and financial responsibility and the authority to elected representatives of local bodies, thus no departure was possible from constitutional provisions nor any concession could be extended for its enforcement.'
[emphasis supplied]
17. In this judgment, a direction, to hold local bodies election, including of Cantonment Board, on 27th November, 2013 or on 7th December, 2013, was given, on a direct petition, under Article 184(3) of the Constitution, for enforcement of constitutional command under the Article 140A. An application for extension of time by Federal Government through Secretary Ministry of Defense was moved on the grounds of change in law as the Act of 1924 had been replaced by Cantonments Ordinance, 2002 and that certain objection relating to delimitation were raised by Election Commission of Pakistan. The application for extension was allowed on an undertaking by Secretary Ministry of Defense, through judgment reported as Raja Rab Nawaz v. Federation of Pakistan through Secretary, Defence and others (2013 SCMR 1629), wherein the tendency of not establishing local bodies system was deprecated besides highlight its importance in following words; "16. It is important to bear in mind that local government is the most vital element in a democracy, though not generally recognized as such. Existence of local bodies is important for strengthening the process of democracy. In the recent years, local self-government has been playing a vital role in the establishment of good governance and community development. The local bodies, at one end, provide services to the local community and, on the other, act as an instrument of democratic self-government. The existence of local self-government provides mechanism for the enforcement of Fundamental Rights of the people. Such government bodies are helpful for development including education, health, social services as well as in improving, law and order situation. In short, the local self-government is necessary not only for strengthening democracy in country but also for securing good governance, which is essential to ensure the welfare of the citizens. This tier of government is always appreciated by the general public because it remains within their approach, as such they get involved in the decision making process."
[emphasis supplied]
18. The grounds for extension of time i.e., change in law and power of delimitation etc. has since been settled.
The Cantonments Ordinance 2002 did not become operational, being not notified by the Federal Government, in terms of its Section 1(3), as was conceded by the then Attorney General of Pakistan before Supreme Court during hearing of case Hyderabad Cantonment Board v. Raj Kumar and others (2015 SCMR 1385), while defending a challenge to charging of parking fee. This legal position is confirmed from the fact that impugned notices are issued under Section 14 of the Act of 1924.
Power of delimitation and allied/ancillary matters necessary for holding elections of Local Bodies has been held within competence of the Election Commission of Pakistan through judgment in Election Commission of Pakistan through Secretary v. Province of Punjab through Chief Secretary and others (PLD 2014 SC 668), relevant portion is reproduced:- "8. Following the same view as in Province of Sindh through Chief Secretary etc v. MQM through its Deputy Convener (Civil Appeal Nos.38 to 45 of 2014 and Civil Petitions Nos. 26-K to 34-K, 163 and 164 of 2014), referred to above, we partly allow this appeal, modify the impugned judgment and direct the Federal Government to make necessary enactments to empower the Election Commission of Pakistan to carry out the delimitation of constituencies of Local Government. The Government of Punjab is also directed to make corresponding amendments in the Punjab Local Government Act, 2013. The Election Commission shall thereafter proceed to carry out the delimitation of constituencies in Punjab afresh. These are the detailed reasons for our short order dated 19-3-2014 which is reproduced herein below:- "We have heard learned counsel for the appellant, for 'the respondents, learned Advocate General Punjab and learned Attorney General for Pakistan.
2. For reasons to be recorded later in the detailed judgment, we hold, declare and direct as under:- i) that the power to hold elections of the Local Government stand vested in the Election Commission of Pakistan in terms of Article 140A of the Constitution of Islamic Republic of Pakistan. The Election Commission of Pakistan has been mandated to "organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against" (Article 218(3) of the Constitution); ii) that Sections 8 to 10 of the Punjab Local Government Act, 2013 and the relevant Rules framed there-under are ultra wires of the Constitution in so far as they empower the Provincial Government to carry out the delimitation of the constituencies for the Local Government; iii) that since the delimitation of constituencies of the Local Government is part of the process of organizing and holding elections honestly, justly and fairly which is the Constitutional mandate of the Election Commission of Pakistan, the power to carry out such delimitation should vest with the Election Commission of Pakistan; iv) that since the holding of election of Local Government has been delayed for more than nine years, which is violative of the Constitutional command, we are persuaded to direct the Governments, Federal and Provincial (of Punjab) to carry out appropriate amendments/legislation to empower the Election Commission of Pakistan to initiate and carry out the process of delimitation of constituencies for the Local Government Elections. This exercise should be completed within a period of five months from today and the Election Commission of Pakistan shall thereafter take requisite measures to carry out the process of delimitation of constituencies for the Local Government expeditiously so as to complete the same within a period of 45 days of the enactment/ amendments in laws in terms of this order. The Election Commission of Pakistan shall further ensure that the announcement of election schedule and the process of holding it is complete by or before 15th of November, 2014."
[emphasis supplied]
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 17 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 Saifullah 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 & 140A of the Constitution should be strictly observed."
".....As per provisions of Arts.32 & 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."
[emphasis supplied] 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 An. 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] The power once devolved under Article 140A and assumed by elected representatives cannot be withdrawn through any administrative or legislative action, unless the tenure for which they are elected is over.
20. Besides holding, hereinabove, that the reasons pleaded before this Court, in support of impugned notifications, are not valid, being not in consonance of the principles and condition laid down.
It is also held that, after insertion of the Article 140A, the elected members, as envisaged in the Section 13A of the Act 1924, can only be replaced by the members to be nominated under the Section 14, if Federal Government is satisfied that the reason or circumstances exist, which are prejudicial to or are hampering the basic purpose of the statute to quarter the Regular Forces.
21. For the reasons and discussion in this judgment the captioned and connected petitions are allowed. The notifications under Section 14, impugned through the petitions, are declared to have been issued without lawful authority, necessary corollary of which is that the members, already notified under Section 13A, shall continue to hold their respective offices, under the proviso to Section 15-E(1).
The Federal Government is directed to ensure that Elections of the Cantonment Boards, throughout the country, are conducted at the earliest, by forwarding the formal request for this purpose to Election Commission of Pakistan, expeditiously. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.