The Peshawar High Court recently validated certain amendments made in the Khyber Pakhtunkhwa Local Government Act, 2013, allowing commercial activities in an upscale residential area of Peshawar University Town for five years. While declaring the said amendments in accordance with the Constitution of Pakistan the court declared a notification issued in 1989 by the then provincial government, giving special status to University Town, contrary to these amendments.

A three-member bench heard detailed arguments in the case and pronounced its judgment on May 11. Two members of the bench, Justice Roohul Amin Khan Chamkani and Justice Lal Jan Khattak dismissed the petitions challenging the said amendments, whereas Justice Waqar Ahmad Seth, who was heading the bench, recorded his dissenting note by declaring the amendments unconstitutional.

Several residents of University Town including Dr Khusnood Ali Baz and others had challenged the KP Local Government (Amendment) Act, 2017, which was passed by the provincial assembly on Apr 11 and had received assent of the KP Governor on Apr 13.

With this judgment, the almost three-decade old notification regarding the special status of University Town has almost become redundant. The petitioners now intend to move the Supreme Court of Pakistan against the judgment of the high court as one of them told Dawn that growing commercialization has made their life miserable in University Town.

The amendments were made in the KP Local Government Act (KPLGA) in the wake of crackdown started against large number of commercial entities in University Town including educational institutions, health facilities, beauty parlors, restaurants, guest houses, NGOs offices, etc. The administration had sealed around 157 commercial entities in compliance with an earlier order of the high court.

The controversy of commercialization of the locality dates back to around two decades. Initially, a writ petition was filed in 1999 which was decided on Oct 30, 2003, whereby any sort of commercial activities in any form, whatsoever, in the residential area in the limits of University Town, was held to be illegal.

The same issue was again agitated in 2013 and afterwards and the high court had on Mar 10, 2015, dismissed several of those petitions and issued several directives to the administration for ensuring ending of commercial activities in the locality.

In that judgment, which was authored by Justice Waqar Ahmad Seth, the administration was directed that the schools/colleges and hospitals excluding medical clinics, be given four months’ time for shifting their businesses and exactly after four months law should be enforced, positively.

“Rest all the petitioners or premises against which the notices have been served and all the premises which are being used for any other purpose except residence be sealed, immediately,” the bench had ordered.

In its detailed main judgment, the bench had discussed the status of the 1989 notification in the presence of the recent amendments made in the law. The court observed that if it was agreed that the notification has been saved by the saving clause of the successive legislations including Local Government Ordinance, 2001, and lastly by the KPLGA, 2013, even then it shall not survive as it is in utter conflict and violation of the impugned legislation/ Act and thus would stand impliedly repealed as envisaged under section 120 of the Khyber Pakhtunkhwa Local Government Act, 2013.

It is added that on promulgation of Local Government Ordinance 2001 and repeal of Local Government Ordinance, 1979, the notification No. AO (LG)-2(3)/80-ll (B) of 1989, has died its natural death; lost its efficacy where after enactment of the Local Government Act, 2013, University Town has been declared as essential constituent and integral part of Town-III, Peshawar for election and administrative purpose.

The bench ruled that the law is clear on the subject that where there is a conflict between a primary piece of legislation such as an Act of the Federal/Provincial Assembly with secondary legislation i.e. notifications, rules, regulations, etc., the former shall prevail over the latter.

“Eventually the University Town being constituent of Town-III, Peshawar falls in the domain of the Local Government Act, 2013 and the Provincial Government under Article 140-A of the Constitution, is competent to legislate law for the Local Government,” the court maintained.

The court has also discussed the legislative competence of the provincial assembly in the instant case. “It is settled law that any law if validly enacted, cannot be struck down on the ground that it is against the whim of some individuals or a class of society. So long as the legislatures’ acts within the parameters of the constitution are concerned, there is no restriction or prohibition to legislate on any subject which falls in provincial legislative competence.”

Referring to different judgments of the superior courts the bench ruled that it is abundantly manifest that the wisdom of the Parliament in legislation is outside the scope of Judicial Review. “As long as the Legislature has the competence to legislate, the grounds or wisdom of legislation remains its exclusive prerogative.”

The court states: “By now it is settled law that once an Act enacted by the Provincial Assembly was found within legislative competence of the legislature, it is not for this Court to embark on any enquiry as to the motive or mala fide behind such legislation. The mala fide may be attributed to a person but not to the Legislature for the reason that the Legislature is competent to vary, amend, repeal or enact a law in the public interest under its legislative competence and mandate conferred on them by the Constitution.”

In his dissenting note, Justice Waqar Ahmad Seth ruled that the impugned legislation is mala fide, void, illegal and against the fundamental rights of the citizens/residents of the locality and as such, the writ petitions requires acceptance.

Justice Waqar observed: “Indeed, policy making is within the domain of Executive and Courts normally did not interfere in such matter, but when a policy is violative of fundamental rights of the individual, the Courts were obliged to examine such policy in judicial review. In the instant case, firstly there is no policy on record and secondly what to say of a policy which is made applicable to an area of two-kilometer radius and not even to a constituency or entire Town-III.”

Published in Dawn, June 13th, 2017