PESHAWAR: A Peshawar High Court bench has declared illegal the dropping of an approved scheme from the Annual Development Programme (ADP) by the Khyber Pakhtunkhwa chief minister, declaring that the chief minister has no authority to individually drop a scheme approved by the provincial assembly.

Chief Justice Yahya Afridi and Justice Mohammad Ghazanfar Khan ruled, “The worthy chief minister has no authority or discretion vested in him to individually disapprove, discontinue or drop a development scheme from the Annual Development Programme, once the same is approved and assented to by the Provincial Legislature.”

The ruling was given by the bench in its detailed judgment on a petition filed by MPA Ziaullah Afridi, who had challenged the dropping of a multimillion rupees ADP Scheme No 782 approved for PK-1, Peshawar-I, constituency of the provincial assembly in the 2015-16 provincial budget.

The petitioner had requested the court to declare illegal and unconstitutional the dropping of the ADP scheme titled ‘Integrated Development Package for Mahal Terai and surrounding areas of Peshawar from the ADPs 2015-16 and 2016-17.

The bench had announced its short order to dispose of the petition on Oct 3.

Rules CM not authorised to drop a scheme okayed by assembly

The chief Minister had first ordered the dropping of the said scheme on Mar 2, 2016, and subsequently on June 10, 2016.

The bench ruled: “Decisions of the Chief Minister dated 02.03.2016 and 10.06.2016 whereby he ordered the ADP Scheme 782 to be dropped from ADP 2015-16 were without lawful authority and thus of no legal effect.”

It added that the discretion to drop or discontinue a development scheme after its approval by the provincial assembly vested in the cabinet but the cabinet was not only bound to assign reasons for it but was also to record plausible justification in writing.

“The ADP Scheme 782 is deemed as restored and part of ADP recommended for FY 2017-18 to be placed for approval before the Cabinet of the Government of Khyber Pakhtunkhwa. Such reconsideration shall be judicious and based on objective judgment to be duly recorded in writing,” it ruled.

The court observed: “When the Constitution mandates the Provincial Government to decide, which schemes are to be placed as part of the ADP, then it is for the same authority, to decide if any of the approved schemes are to be dropped or carried through.”

Referring to a judgment of the Supreme Court of Pakistan popularly called as Mustapha Impex Case, the bench observed that the decision of the chief minister in his individual capacioty without the approval of the provincial cabinet would not constitute the decision of the provincial government, so as to drop an approved development scheme, as in the present case.

“Any scheme, which has been approved by the Provincial Cabinet and the Provincial Assembly, cannot be recalled or dropped without the prior approval of the Provincial cabinet. Any such decision, if made, would surely expose the same to be without lawful authority warranting correction by a competent court of law,” the bench ruled.

The bench has referred to different judgments of the superior courts related to same issue including case related to distribution of development funds by then prime minister Raja Pervez Ashraf (PLD 2014 SC 131) and Mustafa Impex case (PLD 2016 SC 808).

Advocate Shumail Ahmad Butt had represented the petitioner and had contended that the provincial assembly had passed ADP along with budget for financial year 2015-16 wherein Scheme No 782 was passed with an approved cost of Rs1,000 million while allocating Rs200 million to be spent in FY 2015-16 and a throw forward of Rs800 million beyond FY 2015-16.

He had stated that the chief minister without having any authority dropped the said ADP scheme with a single stroke of the pen through an executive order during a ‘so-called’ mid-year review meeting in Mar 2016 and subsequently another order was issued on June 10, 2016.

He added that the ADP scheme consisted of a number of pro-poor social service delivery activities comprising roads, sanitation projects, water supply schemes, school buildings, rehabilitation of streets and roads, which were in deplorable conditions and other services to be identified by the representatives of the said area.

The petitioner was elected MPA on ticket of Pakistan Tehreek-e-Insaf in 2013 general elections. However, differences developed between him and the chief minister after he was arrested by the KP Ehtesab Commission in Jul 2015 and he had accused the chief minister of being instrumental in implicating him in a concocted case. Afterward, he was expelled from the party and recently he announced joining the PPP.

Published in Dawn, December 23rd, 2017