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P L D 2007 LAHORE 544

NADEEM ASGHAR KAIRA
V/S
GOVERNMENT OF PUNJAB THROUGH S ECRETARY, LOCAL GOVERNMENT

Constitution of Pakistan (1973) Arts. 19 & 32-

The undisputed position is that the Budget of the Council for the year 2006-2007 could not be approved as contemplated by law. In such a situation the provisions of section 112 of the Punjab Local Government Ordinance, 2001, come into play, which are as follows : –
112. Approval of budge.-(1) Following the presentation of the provincial budge, but before the commencement of the next financial year, each Nazim shall, present the budget for approval by the respective Council before the beginning of such financial year:

Provided that the charged expenditure may be discussed by shall not be voted upon by the Council.

(2) When a Local Government assumes office for the first time, it may within ten weeks present to the respective council, a budget for remaining part of the financial year for approval.

(3) The budget of a Local Government, shall be approved by simple majority of the total membership of the respective Council :

Provided that the Government may review approved budget of a local government and if found contrary to the budget rules, may require the concerned local government to rectify it.

(4) A budget shall not be approved if–

(a) the su7ms required to meet estimated expenditures exceed the estimated receipts; and

(b) the constraints specified in section 119 have not been complied with.

(5) No other business shall be taken up by a Council during the budget session.

(6) In case a budge is not approved by a Council before the commencement of the financial year to which it relates, the concerned Local Government shall spend money under various heads in accordance with the budgetary provisions of the preceding financial year for a period not exceeding thirty days on pro rata basis :

Provided that a local government shall not spend funds or make commitments for any expenditure, under any demand for grant or appropriation, in excess of eight per cent of the amount budgeted in the preceding year within thirty days.

(8) After approval by the Council, the respective Nazim shall authenticate by his signature a Schedule specifying the –

(a) grants made or deemed to have been made by the District Council, Tehsil Council, Town Council or Union Council; and

(b) the several sums required to meet the expenditure charged upon the District Fund, tehsil Fund. Town Fund or Union Local Fund.

(9) The Schedule so authenticated shall be laid before the Council, but shall not be open to discussion or vote thereon.

(10) The Schedule so authenticated shall be communicated to the respective Accounts Officials as specified in section 114 of this Ordinance.

(11) At any time before the expiry of the financial year to which a budget relates, a revised budget for the year shall be prepared by a Local Government and approved by its Council.”

It may be mentioned that initially the Council and then the Government failed to prepare, approve and authenticate the Budget as envisaged by the above mentioned statutory provisions. The Council has indeed remained dormant due to such failure, resulting in deprivation of the local population of the developmental activities and programmes. The financial year is about to be over but the Budget ahs not yet been prepared or approved upon which the whole developmental work was dependent. If the Council had failed in preparation and approval of the Budget the respondent Government was obliged to act under subsection (7) of S. 112 of the Punjab Local Government Ordinance, 2001, who also failed to perform its legal obligation and duty.

The contention of the learned Law Officer that there was alternate remedy for the petitioner to approach the Provincial Local Government Commission, appointed by the Government, pursuant to the provisions of sections 131 and 132 of the Punjab Local Government Ordinance, 2001, cannot be countenanced, particularly when only few days are left in the expiry of financial year. Such a remedy even if regarded as alternative cannot be considered as efficacious or speedy in the peculiar circumstances of this case.

The perusal of provisions of S. 112, particularly of subsection (7) thereof, of the Punjab Local Government Ordinance, 2001 makes it absolutely clear that on failure of the Council to approve the Budget, it had become the duty of the Government to prepare, approve and authenticate the Budget, which statutory duty it has failed to perform throughout the current financial year, which is now likely to be over. It is thus that petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been filed seeking a direction in terms of Article 199(1)(a)(i), which is to the effect :–

“199.(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,–

(a) on the application of any aggrieved party, make on order –

(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do , or to do anything he is required by law to do:

It clearly confers jurisdiction upon the High Court to make an order directing a person to do something he is required by law to do; this is comparable to the English writ or order of mandamus.

Being conscious of the scope and limitations about exercise of writ jurisdiction in particular mandamus, reference is made to Shifa Laboratories, Lahore v. Government of Pakistan through Secretary, Health, Ministry of Health and Population Planning and Health Division, Islamabad and another PLD 1978 Lah. 1040 wherein with reference to standard text books the view expressed by A.S. Salam, J. (as his Lordship then was) that though ordinarily the court could not issue a direction of absolute and a particular nature (grant of registration of drugs) yet a direction could be issued to the authorities concerned, to act in accordance with law and perform the statutory duty within specified time. Even this Court had recently in Makhdoom Muhammad Mukhtar, Member Provincial Assembly, Punjab v. Province of Punjab through Principal Secretary to Chief Minister Punjab, Lahore and 2 others PLD 2007 Lahore 61, issued a direction for the implementation of an approved developmental scheme.

It needs no emphasis that one of the Principles of Policy contained in the Constitution i.e. Article 32 is that the “State shall encourage local Government Institutions composed of elected representatives of the area concerned…” Thus it is the responsibility of the State itself to observe and implement such Principles of Policy as are laid down by the Constitution.

I, therefore, consider this an appropriate case for a direction to the respondent to perform its legal duty and obligations as envisaged by the Punjab Local Government Ordinance, 2001, to prepare, approve and authenticate the Budget and also to approve such developmental scheme as may be in accordance with law and the rules. This maybe done with a fortnight. [p. 546, 547, 548, 549, 550] A,B,C,D,E,F,G,H & I

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