Petition against Dissolution of Local Governments in Punjab



BEFORE THE LAHORE HIGH COURT, LAHORE
(Constitutional Jurisdiction)

W.P . 28066/2019

Ahmad Iqbal Chaudhary  s/o Ahsan Iqbal, r/o Mushtaq Bagh, Village Sehlowali, Tehzil Zafarwal, District Narowal
… Petitioner
VERSUS
1.      Province of Punjab through its Chief Secretary, Punjab Civil Secretariat, Lahore

2.     Secretary, Local Government & Community Development Department, Government of Punjab, Punjab Civil Secretariat, Lahore

3.     Secretary, Law Department, Government of Punjab, Punjab Civil Secretariat, Lahore

4.     Election Commission of Pakistan through its Secretary, ECP, Constitution Avenue, Islamabad

5.     Dr. Muhammad Waheed Asghar, Deputy Commissioner, Administrator, District Council, Narowal.
… Respondents

PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973
Respectfully sheweth:
I.
PARTIES
  1. That the Petitioner, Ahmad Iqbal Chaudhary, is a citizen of Pakistan, a graduate of Public Administration from the Fels Institute of Government, University of Pennsylvania (USA) and Lahore School of Economics and an expert in the fields of local governance and public finance. At present, he holds the office of Chairman, District Council, Narowal. He was officially notified as the returned candidate to this office vide Notification No. F.4(20)/2016-LGE(P) dated 28th December, 2016 issued by Respondent No. 4. This notification states it has been issued “[i]n pursuance of the provision of Article 140A of the Constitution of Islamic Republic of Pakistan, provisions of Section 37 of the Punjab Local Government Act, 2013 read with Rule 53 of Punjab Local Government (Conduct of Elections) Rules, 2013.” The Narowal District Council which he heads is a constitutionally protected local government whose composition is elaborated in Table 1 below. His address stated in this petition is sufficient for the purposes of service.
(A copy of ECP Notification No. F.4(20)/2016-LGE(P)
dated 28th December, 2016 is ANNEX A)


TABLE 1: Summary of Elected Representatives of District Council Narowal and Union Councils falling under its jurisdiction
Local Government Name
Description
Number of Elected Members
District Council, Narowal
      98 Chairmen UCs
      25 reserved seats for special groups (15 women, 5 minorities, 3 peasant/farmer, 1 youth, 1 technocrat)
123
Union Councils under the jurisdiction of District Council, Narowal
      98 Chairmen UCs
      98 Vice Chairmen UCs
      588 directly elected general UC councilors representing one ward each (1 UC = 6 wards)
      490 UC councilors elected on special seats for women, minorities, peasant/farmers & youth
1,187


  1. That Respondent 1 is the Government of Punjab. It is one of the three tiers of government envisaged in the Constitution of Pakistan, 1973 as amended by the Constitution (Eighteenth) Amendment Act, 2010. It has been impleaded through the Secretary of its Law Department which is responsible for introducing legislation in the Punjab Assembly.

  1.  That Respondent No. 2 is Secretary, Local Government & Community Development Department, Government of Punjab.
  2. That Respondent No. 3 is Secretary, Law Department, Government of Punjab.
  3. That Respondent No. 4, the Election Commission of Pakistan, is a body established under Article 218 of the Constitution of Pakistan 1973 (the “1973 Constitution”). It has been made responsible for conducting local government elections by sub-article (2) of Article 140A of the Constitution.

  1. That Respondent No. 5, Dr. Muhammad Waheed Asghar, is Deputy Commissioner of Narowal. Vide notification No. DC/NWL/1755 dated 04.05.2019, he purports to have assumed charge of the office of Administrator, District Council on 04.05.2019.

II.
FACTS

A - THE ROAD TO CONSTITUTIONAL PROTECTION OF LOCAL GOVERNMENTS

  1. That one of the basic objectives behind the independence movement and the creation of Pakistan was to devolve powers from a centralized state to a federal state comprising of elected governments at the local, provincial and federal levels. This is why the Objective Resolution, also the Preamble of our Constitution promises that Pakistan shall be an “order” where the “State shall exercise powers and authority through the chosen representatives of the people”.

  1. That the framers of the 1973 Constitution duly recognized this objective  – i.e., shifting power to elected governments at the federal, provincial and local levels – while framing the Constitution. Recognition was given to local government institutions in the chapter of Principles of Policy in the form of Article 32:

32. Promotion of local Government institutions. 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.

  1. That the significance of Article 32  of the 1973 Constitution can be gathered from the fact that the Chapter on Directive Principles of State Policy of the 1956 Constitution (Articles 23 to 32) made no mention of local government institutions. This Article was especially added by the framer of the 1973 Constitution.

  1. That unfortunately, Article 32, on its own, did not prove adequate to the task. Between the period 1973 to 2001, the State of Pakistan was unable to “encourage local governments” despite the promulgation of Article 32. The principal problem faced by local governments in this initial period was that their tenure was repeatedly cut short and their institutional framework was frequently altered through provincial legislation. Table 2 below illustrates the problem faced by local government institutions on account of provincial legislation which has frequently altered their basic framework and, at times, totally dissolved them.

TABLE 2 – THE FREQUENT ALTERNATION AND DISSOLUTION OF LOCAL GOVERMENTS IN THE PUNJAB
Period
Parent Statute
Dissolution/Alteration statute
Duration
1972 to 1975
Punjab People’s Act, 1972
Punjab Local Government Act, 1975
3 Years
1975 to 1979
Punjab Local Government Act, 1975
Punjab Local Government Ordinance, 1979
4 Years
1979 to 1996
Punjab Local Government Ordinance, 1979
Punjab Local Government Act, 1996
17 Years
1996 to 1997
Punjab Local Government Act, 1996
Punjab Local Government (Revival of Law) Act, 1997
1 Year
1997 to 2001
Punjab Local Government (Revival of Law) Act, 1997
Punjab Local Government Ordinance, 2001
4 Years
2001 to 2005
Punjab Local Government Ordinance, 2001
Punjab Local Government   (Amendment) Act, 2005
(introducing S.179-A)
4 Years
2005 to 2010
Punjab Local Government   (Amendment) Act, 2005
(introducing S.179-A)
Punjab Local Government   ( Amendment) Act, 2010
(re-introducing S.179-A)
5 Years
2010 to 2013
Punjab Local Government   (Amendment) Act, 2010(re-introducing S.179-A)
Punjab Local Government Act, 2013
3 Years
2013 to 2019
Punjab Local Government Act, 2013
Punjab Local Government Act, 2019
(Section 3 and 312)
6 Years
2019 – not know
 Punjab Local Government Act, 2019
 Not known
Not known


11.           That in 2001, Article 140A was inserted into the Constitution to resolve this problem which become evident from a bare perusal of Table 2 – i.e., the vulnerability of local governments to the shifting currents of provincial legislation.  In 2005, the leaders of Pakistan’s democratic parties also gave due recognition to this problem.. This is why Item 10 of the Charter of Democracy promised to provide local governments with “constitutional protection”. Item 10 reads:
“…Constitutional protection will be given to the local bodies to make them autonomous and answerable to their respective assemblies as well as to the people.”

  1. That it was this promise made to the people of Pakistan in Item 10 of the Charter of Democracy which was fulfilled by the framers of Constitution (Eighteenth) Amendment Act, 2010. Article 140A regarding Local Governments which had been introduced in 2001 was retained in the Constitution. In addition, a sub-article(2) regarding conduct of local government elections by Election Commission of Pakistan was introduced. Article 140A, as it presently stands, may be quoted below for convenience:

140A.  Local Government: (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) Elections to the local governments shall be held by the Election Commission of Pakistan. (emphasis supplied)

  1. That there are five (5) important points about  Article 140A which must be appreciated:

a)    Firstly, it must be noted that Article 140A uses the phrase “Province shall, by law, establish”. This mean that the only object for which the Province can exercise its legislative power under Article 140A is for “establishing” local governments and devolving powers to them; the Province’s legislative power under Article 140A cannot be used for the opposive purpose: “dissolving” local governments and usurping their power. A provincial legislation that purports to dissolve existing local governments and usurps their powers would be clearly ultra vires Article 140A.

b)    Secondly, it must be noted that Article 140A uses the term “local governments” not “local bodies” or “local authorities”. The usage of the term “government” instead of “bodies” makes it clear that local governments have been elevated to the status of a third-tier of government, and are not subordinates of provincial governments. The government mentioned in Article 140A must now be considered analogous to the two other tiers governments mentioned in the Constitution: Federal Government defined in Article 90 and Provincial Governments defined in Article 129. It follows that the relationship between local governments and provinces would be analogous to the relationship between provinces and the center.

It may be recalled that the distinction between the terms “government” and “local authority” has a long history in our law and can be traced all the way back to General Clauses Act, 1898. Section 2 of the said Act defines the term "Government" as referring exclusively to the two sovereign entities of the time: the Central Government of British India and various princely States which had allied themselves with British India. “Local authority”, on the other hand, was defined as including the likes of municipal committees and district boards, i.e bodies which were subordinate to one government or another and were enjoying only such powers as the relevant government had entrusted to them. In the context of this history, the use of the term “government” to describe “local governments” in Article 140A cannot be deemed not a trivial matter. It implies nothing less than a legislative intent to add a third tier to our federation.

Thirdly, Article 140A uses the term “devolve” instead of the well-known phrase “confer functions upon” used in Articles 98 and 138 of the Constitution. Article 138 states:

Article 138. Conferring of functions on subordinate authorities. On the recommendation of the Provincial Government, the Provincial Assembly may by law confer functions upon officers or authorities subordinate to the Provincial Government.
                       
Before Article 140A came in, Provincial Assemblies used to set up local governments through legislation under Article 138. This implied the provincial governments were conferring some of their own functions and powers upon the local governments. Since this was an exercise in the nature of delegation, the delegated functions and powers could be withdrawn by the principal through subsequent legislation at any time. The very object of inserting Article 140A and using the term “devolve” in it was to  change this situation.

There term “devolution”, however, implies no such principal-agent relationship. It implies an irrevocable transfer. A provincial government function conferred by the Provincial Assembly upon a subordinate authority can be re-claimed anytime. But a power devolved by  one government to another government cannot be reclaimed, except with consent of both parties.

This interpretation of the term “devolution” is strengthened by the manner in which this term has been used elsewhere in the text of the Constitution. In Article 63(1)(i) , we find the phrase: “where the share or interest in the contract devolves on  him by inheritance or succession or as a legatee, executor or administrator…”. It uses the term “devolve” for rights which accrue to a successor after the death of the predecessor. Article 274(3)(a) uses the phrase for any rights which have been transferred from provinces to the federation on account of the coming into force of the 1973 Constitution. In both articles, the term “devolve” has been used for an irreversible transfer of rights, and not for a reversible delegation of powers.

c)     Fourthly, attention must be paid to the reason why the framers of the 18th Amendment took away the responsibility for conducting local government elections from the provinces and instead vested it with Election Commission of Pakistan. The ostensible reason is that they intended to reduce provincial leverage over local governments.

d)    Finally, attention must be paid to Item 10 of the Charter of Democracy, which provides us with a key for deciphering legislative intent behind Article 140A. It clearly states that “constitutional protection will be given to the local bodies to make them autonomous.”

THE ROLE OF THE SUPREME COURT OF PAKISTAN IN ESTABLISHING LOCAL GOVERNMENTS
(DIRECTIONS FOR ENFORCEMENT OF ARTICLE 140A READ WITH ARTICLE 17 AND ARTICLE 32)

  1. That it is a matter of record that despite the promulgation of Article 140A, Respondent No. 1, the Province of Punjab, and other provinces of the country were initially reluctant to devolve their political, administrative and financial responsibility and authority to the elected representatives of the local governments. This finally happened as a result of repeated orders of the Supreme Court of Pakistan in the following cases: Raja Rab Nawaz v. Federation of Pakistan (2013 SCMR 1629) and a series of order in Constitution Petition No. 77 of 2010 and Human Rights cases No. 13124-P/2011, 40303-P/2011, 40220-G/2011 and 43103-B/2011and other related petitions . It was the directions issued by Supreme Court of Pakistan in these cases which finally made the Respondent and other provincial governments comply with Article 140A.

  1. In para 16 of Raja Rab Nawaz v. Federation of Pakistan (2013 SCMR 1629), the Supreme Court recognized that local government is “a third tier of government. It also recognized that enforcement of local government law is intrinsically linked with Fundamental Rights. The said para is reproduced:

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... 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)

16.In para 18 of the Rab Nawaz case (supra), the Supreme Court further reinforced the imperative nature of the duty to set up local governments:

18. Thus, in the light of the above, it is imperative upon the Government to ensure that the local government bodies elections as envisaged under the law must be held from time to time so that the representatives of the people are enabled to participate in managing their affairs at the gross root levels and the Fundamental Rights guaranteed under the Constitution are protected and enforced.
  1. That since local government elections were not conducted despite earlier directions in the Rab Nawaz case, the Supreme Court was pleased to issue a series of subsequent orders in Constitution Petition No. 77 of 2010 and Human Rights cases No. 13124-P/2011, 40303-P/2011, 40220-G/2011 and 43103-B/2011. These orders have been reproduced by the High Court of Sindh in its unreported judgment dated 18.05.2019 in Constitutional Petition No. D – 3463 of 2010 titled Raheela Magsi v. Province of Sindh. Some of the Supreme Court’s relevant directions are reproduced below:

Order  dated  05.04.2012 :
           “ 18.   … [H]olding  the election of the local bodies, which otherwise is the obligation of the Government in term of Article 32 of the Constitution… [W]e are of the opinion that after passing of 18th Amendment in the Constitution, under Article 140-A, each provincial government is bound by law to establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments.

            (Emphasis added)           

            Order  dated  06.04.2012 :
           “ 19.   [T]he Chief Secretaries … should appear, in person, under instructions to make the statement as to why provisions of the Constitution in terms of Articles 32 and 140-A are not being complied with, on the next date of hearing.”
         (Emphasis added)           
          
  Order  dated  12.04.2012 :
    “ 13.   [H]olding local government elections [is]the command of  the Constitution in terms of Articles 32 and 140-A (latter incorporated in pursuance of 18th Amendment of the Constitution).
        (Emphasis added)                       
               
                    Order dated  05.11.2013           

[I]t is the duty of the Provincial and Federal Governments to ensure holding of Local Bodies system and devolve political, administrative and financial responsibility and the authority to the elected representatives of the local bodies, thus no departure is possible from constitutional provisions nor any concession can be extended for its enforcement. Therefore, adherence of constitutional provisions has to be made as early as could be possible.

18.                    That in Raheela Magsi v. Province of Sindh, (Constitutional Petition No. D – 3463 of 2010), the petitioner had impugned a series of 5 provinical Acts and Ordinances whereby the Sindh Local Government Ordinance, 2001 has been amended. The impugned legislation included the Sindh Local Government (Amendment) Act, 2010, dated 17.02.2010, whereby a new Section 179-A was inserted in the SLGO providing for dissolution of Local Governments, appointment of Administrators in place of elected representatives, and postponement of elections for a period of 120 days. Vide order dated 18.05.2012 and subsequent detailed judgment, the High Court of Sindh was pleased to strike down all the impugned laws. The Court struck the provincial law down on the touchstone of Article 140A. The present case is on all fours with that case. The Court held:

“Respondents 1 and 2 had no power or authority to amend the basic structure and provisions of the SLGO by dissolving Local Governments and by substituting / appointing non-elected and handpicked bureaucrats as Administrators in place of elected representatives of the people.

The impugned amendments are liable to be struck down also in view of the authority, namely, 2005 SCMR 186 (supra)  wherein it was held by the Hon’ble Supreme Court that the impugned Notification could not have been issued because the main object of the Punjab Local Government Ordinance, 2001, (which is pari materia with the SLGO) was  to devolve political power and decentralize administrative and financial authority to accountable local governments for good governance, effective delivery of service and transparent decision making through institutionalized participating of the people at grass-roots level  ;  and that Government could not nominate any bureaucrat to perform such functions which were required to be performed by an elected person.

(A Copy of the High Court of Sindh’s order in case titled Raheela Magsi v. Province of Sindh - Constitutional Petition No. D – 3463 of 2010 - is attached as ANNEX F. It can also be accessed at the official website of the High Court of Sind on the following address: http://202.61.43.40:8056/caselaw/view-file/NzM2MzljZm1zLWRjODM= )


B - THE CONSTITUTIONAL TENURE OF THE PETITIONER AND ALL EXISTING LOCAL GOVERNMENTS

  1. That on 23rd August,  2013, the Provincial Assembly of Respondent No. 1 finally adopted The Punjab Local Government Act, 2013 (hereinafter the “PLGA 2013”). Since PLGA 2013 has been promulgated directly in pursuance of Respondent No. 1’s obligation under Article 140A, the said statute must be read along with the Constitution.

  1. That Section 30 of PLGA 2013 explicitly promises a 5-year term to all offices of local government. The said provisions is reproduced below:

30. Term of office.– (1) Subject to the this Act, the term of office of a local government shall be five years commencing on the date on which it holds its first meeting.

  1. That the Petitioner, as an office-holder of a local government, has developed legitimate expectation under Section 30 of PLGA 2013 read with Article 140A  that he would be allowed to continue in office until the completion of his 5-year term of office.

  1. That the District Council of Narowal held its first meeting on 2nd January, 2017. Accordingly, the Petition has a legitimate expectation drawn from Article 140A read with Section 30 PLGA 2013 that he would be allowed to continue in office till 1st January, 2022.

CAUSE OF ACTION
  1. That on 30th April, 2019, the Punjab Assembly passed Punjab Local Government Bill, 2019. The Bill received the assent of the Governor on 3rd May, 2019 and, by virtue of Section 1(3), purportedly came into force at once. Section 3 of the Punjab Local Government Act, 2019 (“PLGA 2019”) purports to dissolve all existing local governments including the Narowal District Council in which the Petition holds the office of Chairman. It states:

3. Dissolution of existing local governments.(1). All local governments constituted or continued under the Punjab Local Government Act, 2013 (Act XVIII of 2013) are hereby dissolved.
(2). As soon as may be but not later than one year of the commencement of this Act, the Government shall constitute succeeding local governments in accordance with the provisions of section 15 of this Act.
           
( A copy of the Act published in the official Gazette is attached as ANNEX  “B”.)

  1. That going even further, Section 312 of PLGA 2019 purports to repeal the entire PLGA 2013. It states:

312. Repeal and Savings.– (1). The Punjab Local Government Act, 2013 (XVIII of 2013), is hereby repealed.

  1. That while dissolving existing local governments, PLGA 2019 does not provide a definite date on which elections for local governments are to be held. Instead, it envisages an indefinite period of “hiatus” between the dissolution of existing local governments and the setting up on new local governments.
  2. That on 3rd May, 2019,  PLGA 2019 received the assent of the Governor and thereby purportedly came into force. The very next day, ie. on 4th May, 2019, the Local Government and Community Development Department of Respondent No. 1 issued Notification No. SOR(LG)38-34/2018 dated 04.05.2019  announcing the purported dissolution of all local governments constituted under PLGA 2013. This notification may, for ease of reference, be referred to as “Dissolution Notification”)
(A copy of Dissolution Notification is ANNEX C)

  1. That subsequently, Local Government and Community Development Department of Respondent No. 1 issued Notification No. SOR(LG)1-11/2019 dated 04.05.2019 announcing the Chief Minister’s decision to exercise powers under Section 121 of PLGA 2019 to appoint various officers of the provincial government as “Administrators” of various local governments. This notification may, for ease of reference, be referred to as “Administrator Appointment Notification”.
(A copy of Administrator Appointment Notification is ANNEX D)

  1.  That, subsequent to the Chief Minister’s decision, Respondent No. 5, Dr. Muhammad Waheed Asghar, who happened to Deputy Commissioner of Narowal at the time, issued Notification No. DC/NWL/1755 dated 04.05.2019, whereby he purports to have assumed charge of the office of Administrator, District Council on 04.05.2019. This notification may, for ease of reference, be referred to as the “Charge Assumption Notification”.
(A copy of the Charge Assumption Notification is ANNEX E)
  1. That as a result of these unconstitutional acts, elected representatives like the Petitioner have purportedly been toppled whereas Respondent No. 5, an unelected ruler, has been made the solo decision-maker of the Narowal District Council.
  2. That aggrieved of Sections 3 and 312 of PLGA 2019, the Government’s exercise of powers under Section 121 of PLGA 2019, the Petitioner is left with no other opportunity to file the present petition, on account of, inter alia, the following:

III
GROUNDS:
A.   That under Sections 3 and 312 of PLGA 2019, the Respondent No. 1 purports to dissolve sitting local governments. After the coming into effect of Article 140A, the Respondent no longer has authority to do so. After Article 140A, local bodies have been elevated to the status of government. Just as the Federal Government cannot be allowed to summarily dissolve the Provincial Governments, a Provincial Government cannot be allowed to summarily dissolve Local Governments.  Any law or executive order which purports to dissolve a sitting local government is violative of letter and spirit of Article 140A of the Constitution is therefore a nullity.

B.   That under Sections 3 and 312  of PLGA 2019, Respondent No. 1 promises to revert all powers to a new set of local governments once they have been set up – a process which is envisaged to take another one year. During this period, Respondent No. 1 purports to have re-claimed for itself all “political, administrative and financial responsibility and authority” which had been devolved to local governments. Respondent No. 1 further. As argued above, after Article 140A, this reversal of powers, even a temporary one, cannot be done.  As argued above, devolution is not “delegation”; it is an irreversible process. If Respondent No. 1 is granted the authority to dissolve local governments, usurp their authority, and re-constitute local government whenever it pleases, there can be no meaningful devolution.

C.   That it is admitted Respondent No. 1 has the power to amend the local government system through legislation, if it is elected to office with this mandate. However, the amendment powers can only be exercised for the objectives stated in Articles 140A and Article 32, i.e., establishing and strengthening local governments. This object cannot possibly be achieved by repeatedly de-seating the sitting, elected local governments. A new local government system can only be introduced through legislation once sitting local governments have completed their legal-cum-constitutional term in office. Any interference with local government before that time constitutes and assault on the autonomy of local governments.

D.  That the development planning of Narowal District Council and all other local governments of the Province of Punjab has been taking place in line with the legitimate expectation that their term would extend till 2017. A sudden de-seating of the exiting local government will wreak havoc in development planning. Many projects which are mid-way would be stalled.

E.   That a review of Table 2 shows that the political crisis which has given rise to PLGA 2019 is likely to keep repeating itself. This is why an effective intervention by this Hon’ble Court is called. It may be recalled that during 2015 and 2017 when local government elections were taking place, one political party, PML-N, was able to sweep the polls. In 2018, when the time for elections to Provincial Assembly of Respondent No. 1 came, a different political party, PTI, was able to win a majority of provincial assembly seats. Now the party which is in control of the Provincial Assembly of Respondent No. 1 is trying to launch a legislative coup against the other party’s majority in the third tier government. This situation has arisen many times earlier and is likely to keep arising in the future. This is precisely the mischief which the framers of Article 140A were trying to address. They introduced Article 140A in order to protect local governments from hostile provincial legislatures. Therefore, the intervention of this Court is warranted.

F.    That reliance is placed upon the well-reasoned judgment of this Hon’ble Court reported as Imran Tiwana v. Punjab (PLD 2015 Lahore 522) which was authored by honourable Justice Mansoor Ali Shah. The following excerpt makes the point amply clear:

“Prior to Article 140A local governments lacked any constitutional protection in Pakistan and their basic design was at the discretion of the provincial legislature…  [L]ocal governments were seen as agents of the provinces…. The enactment of Article 140A through the 18th Amendment has radically altered the constitutional status of local governments in Pakistan…”
(para 57)

“[Local Governments] are not envisioned by Article 140A to be an agent or an underling of provincial governments but a distinct and empowered third tier of elected governance…”
(para 59)

“Any interference in the political, administrative and financial space of the Local Government System, would be undemocratic and not in step with the constitutional vision.”
(para 71)

“[W]hile local government legislation comes under the purview of the provincial legislature, this does not make provincial governments the “controlling authority” of local governments.”
(para 79)


G.   That reliance is further placed upon the judgment of the Supreme Court in LDA V. IMRANA TIWANA 2015 SCMR 1739. The following excerpt make the point amply clear:

“Article 140A is not to be a merely hollow constitutional promise…”

(para 35 )

“This Court is not inclined to hold that Article 140A is an exercise in futility and the Provincial Government continues to retain the same wide legislative and executive authority that it did before its insertion.”
(para 35 )

Even after the insertion of Article 140A 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.”
(para 56 )

“The power of amendment has to be informed by the fact that if the Provincial Government oversteps its legislative or executive authority to make the Local Government powerless such exercise would fall foul of Article 140A of the Constitution. An excessive or abusive exercise of such authority would not be countenanced by this Court. It would be struck down.”
(para 56)

H.  That under S. 156 read with S. 121 of PLGA 2019, the Respondent has been given the power to determine the rate and scope of local taxes. This is prima facie contrary to the most basic principle of any democratic constitution: no taxation without representation. By replacing a council of elected representatives with a single unelected Administrator, Section 121 of PLGA 2019 has violated the letter and spirit of Article 77 of the Constitution which enshrines the above-mentioned democratic principle regarding determination of taxes.

I.     That the Petitioner seeks the leave of this Court to press further grounds at the stage of oral arguments.


IV.
PRAYER:

That in view of the legal and factual submissions made above, and in the interest of justice and equity, it is humbly prayed that that Hon’ble Court may be pleased to:

   (i)          Declare that Sections 1(3), 3, 121 and 312 of the Punjab Local Government Act, 2019 are unconstitutional and void ab initio;

 (ii)          Set aside Notification No. SOR(LG)38-34/2018 dated 04.05.2019 (“Dissolution Notification”),  Notification No. SOR(LG)1-11/2019 dated 04.05.2019  (“Administrator Appointment Notification”) and Notification No. DC/NWL/1755 dated 04.05.2019 (“Charge Assumption Notification”) and all other notifications issued by Respondents and officers subordinate to them in pursuance of Punjab Local Government Act, 2019

(iii)          Declare that Petitioner who was elected to office under the Punjab Local Government Act, 2013 is entitled to continue in office  until the expiry of his term of office stated under Section 30 of the said Act;

                                                  OR

(iv)          In the alternative, declare that the Petitioner who was elected to  office under the Punjab Local Government Act, 2013 is entitled to continue in office till the time succeeding elected representatives are notified by Respondent No. 4 under Section 18 of the Punjab Local Government Act, 2019 and set aside all notifications issued by Respondents No. 1, 2 and 3 and officers subordinate to them in pursuance of Section 121 of the Punjab Local Government Act, 2019

AND

 (v)          Such other relief as may be warranted under the law and equity.

                                                   

PETITIONER
through
COUNSELS:


______________
USAMA KHAWAR,
BA-LLB (LUMS),
LL.M (Columbia)
Advocate High Courts
Cell # 0321 289 4404

_________________
HAFIZ REHMAN AZIZ,
LLB (Hons.)
Advocate High Courts
______________
UMER GILANI,
BA-LLB (LUMS),
LLM (UW)
Advocate High Court
0301-5011 568