LAHORE: The Lahore High Court has set aside the appointment of local government administrators in Punjab, all new development projects initiated by them and the allocation of funds to the members of the national and provincial assemblies.

“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,” Justice Shahid Jamil Khan observed in a 20-page judgment.

The judgment mainly examined the extent of statutory authority and constitutional validity of the appointment and powers of the administrators of local governments under a notification issued on Oct 20, 2022, to utilise local government’s development funds in the absence of the elected representatives and that, too, for carrying out development scheme proposed by the MNAs and MPAs.

The judge observed that it is misused in respective constituencies by the legislators to influence the voters, a necessary result of which is inequitable, unnecessary, and unlawful expending of development funds.

Says uplift works by administrators also illegal

He ruled, “Allocation and utilisation of development funds through pick and choose is in direct conflict with the equality clause under Article 25 of the Constitution, therefore, discriminate grant of development funds in an area or constituency, where the ruling party won elections is declared unconstitutional.”

The judge said 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 local governments.

He said in an interim setup, till a newly-elected local government is constituted, continuity of public service shall not include exercise of powers conferred upon the elected representatives particularly for identification, fixing of priority and expenditure of development funds.

Justice Khan explained that 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 per cent per month from the budget approved for a financial year, he added.

The judge noted that the existing Punjab Local Government Act, 2022, does not conceive development expenditures outside the approved budget in a financial year.

He observed that on maturity of elected representative’s term, the next elected LG must be constituted without a break, which is the spirit/scheme of the Act of 2022, in consonance with the command by Article 140-A of the Constitution.

The judge says under inevitable circumstances, if the next elected LG is delayed, provisions of sections 205 and 71 of the Act 2022 would come into play, which need to be construed narrowly for performance of function only and not exercise of power vested with elected representatives.

Justice Khan maintained that the powers are required to be exercised by the elected office-bearers within the LG structure and these powers could not, by any stretch of interpretation, be given to an administrator through a notification of appointment by the chief minister.

He said the mandate of the federal and provincial legislative bodies is legislation, by adhering to the principles of policies.

The judge held that any law or executive decision, allocating funds to any MNA or MPA for development in an area governed by the LG, either by federal or provincial government is an encroachment upon the powers and functions of an LG under the PLG Act 2022.

The judge declared appointment of the administrators in the absence of approval by the cabinet 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,” the judge ruled.

The judge explained that the functions, not powers to be exercised by elected LG, can be ratified and continued by the administrators appointed in accordance with law.

The judge declared all new development projects, not approved by the defunct LG, without lawful authority, saying the same can only be continued if ratified and approved, in accordance with law by the LG, to be constituted after forthcoming elections.

Justice Khan ruled that any executive order, allocating grants to MNAs and MPAs for development work within the domain of an LG, is illegal and any regulation or law permitting allocation of such grant shall be unenforceable in view of section 4 of PLG Act 2022.

The judge directed the Election Commission of Pakistan to hold the LG elections forthwith, on completion of delimitation as scheduled, in accordance with relevant provision of the law and in the light of the judgments by the Supreme Court.

Petitioner M/s Malik Mazhar Hussain Goraya had challenged a tender notice issued on Nov 13, 2022, by the district council of Dera Ghazi Khan being against the rules/policy and in absence of administrative approval of the LG secretary.

After the 2018 elections, the PTI government had disbanded local governments in Punjab. It disregarded an apex court ruling and did not restore them.

Published in Dawn, january 3th, 2023