JUDGMENT SHEET HIGH COURT, PESHAWAR JUDICIAL DEPARTMENT

Writ Petition No.189-P of 2017 With Interim Relief

JUDGMENT

Date of hearing……………..03-10-2017....…………

Petitioner: (Ziaullah Afridi) by Mr.Shumail Ahmad Butt, Advocate.

Respondents:(Government of Khyber Pakhtunkhwa and others) by Mr.Waqar Ahmad Khan, AAG and M/s F.M.Sabir and Sabah-ud-Din Khattak, Advocates.

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YAHYA AFRIDI, C.J.- Ziaullah Afridi, petitioner,

seeks the constitutional jurisdiction of this Court

praying that:-

“It is, therefore, very humbly prayed that on acceptance of this Writ petition, this Hon’ble Court may very magnanimously hold, declare and order that:-

i. The impugned dropping of the ADP Scheme No. 782(2015-16) “Integrated Development Package for Mahal Terai and surrounding areas of Peshawar” from the ADP 2016-17 and subsequent ADP is illegal, unlawful, without lawfully authority and liable to be reversed and set aside.

ii. The respondents are bound to allow funds be allocated for the aforesaid project and work be initiated in its true letter and spirit.

iii. Respondents shall restrain from issuing any further adverse action/ order against any of the project of 2

Peshawar in general and PK-1 in particular.”

2. In essence, the grievance of the petitioner is that the ADP Scheme No. 782 (2015-

16) “Integrated Development Package for Mahal

Terai and surrounding areas of Peshawar”

(“Scheme No.782”) , was illegally dropped and thus could not be executed as mandated under the law.

3. Respondents were put to notice. It would be pertinent to note that the initial stance of the respondents was illusive, as in its para-wise comments, respondent No. 1 averred;-

“The Scheme was dropped by Provincial Assembly while discussing the Provincial Budget for Financial Year 2016-17, which is the prerogative of the Provincial Assembly. The same has been duly passed by the Provincial Assembly”.

4. Since no documents were appended with the comments showing that the stated discussion actually ever took place before the

Provincial Assembly, respondent-Government was asked to submit ‘better statement’. After seeking a number of adjournments, Provincial Government later informed the Court that no such discussion ever took place in the Assembly, and submitted;-

“It was never dropped from the ADP 2015-16 till the last day of the validity of 3 the ADP 2015-16. Later on the same was not included in the ADP for the year 2016-17 as it was not included in the draft ADP submitted and duly approved by the Provincial Cabinet and the Provincial Assembly, respectively . The Provincial Government i.e Departments concerned propose development schemes each year, wherein the same are considered discussed and scrutinized. Meetings are held with the concerned department(s) wherein, proper justification is forwarded for new or ongoing schemes. The Provincial Government i.e Provincial Cabinet, keeping in view the resources available and requirements of expenditures for next year, develops proposal and approves its submission to the Provincial Assembly for approval and authorization. Developmental schemes are submitted to the Cabinet in the shape of draft ADP, upon approval of which, the same is then submitted to the Provincial Assembly where in it is discussed in detail . The ADP is normally approved along rest of the Budget Grants by the Provincial Assembly, only after the approval of the Assembly; the Provincial Government is authorized to incur expenditure. It is reiterated that Developed Plans are development for each year afresh and hence are called Annual Developmental Plan. The present scheme along with a few other schemes was not included in the ADP year 2016-17 and 2017-18, duly approved by the Cabinet and subsequently by the Provincial Assembly. It is further submitted that in light of the Judgment of the Hon’ble Supreme Court of in Civil Appeals No. 1428 to 1436 of 2016 (against the order dated 09.03.2016 of the High Court, Islamabad passed in ICAs No. 204,205, 2010/2014 and 793/2013, W.Ps NO. 3025 to 3027/2014 and ICAs NO. 201 and 202/2014) and the same has been duly affirmed by this Hon’ble Court in writ titled “Wali Muhammad Vs Government of Khyber Pakhtunkhwa, No. 4684- P/2016, it is the prerogatives of the Provincial Cabinet to consider and approve Finance Bills and matters related to expenditures before these are submitted and passed by the Provincial Assembly. Relevant para of the judgment 4

is reproduced below for perusal of the Honourable Court:- “84—iii. Neither a Secretary, nor a Minister and nor the Prime Minister are the Federal Government and the exercise, or purported exercise, of a statutory power exercisable by the Federal Government by any of them, especially in relation to fiscal matters, is constitutionally invalid and a nullity in the eyes of the law. Similarly budgetary expenditure, or discretionary Governmental expenditure can only be authorized by the Federal Government i.e the Cabinet, and not the Prime Minister on his own”.

The petitioner is a member of the Provincial Assembly and was present in the Budget sessions, if in case he felt aggrieved from non inclusion of the Scheme, at least in year 2017-18. He could have convinced the Provincial Assembly to include the subject scheme in the ADP which was a proper remedy conveniently available to him.” (emphasis provided)

5. When further confronted, whether the agenda for dropping Scheme No.782 was ever placed before the Cabinet, the answer of the

Provincial Government was again in the negative .

6. Valuable arguments of the worthy counsel for the parties heard and record perused carefully with their assistance.

7. The events relevant to the present petition, as they unfolded, in chronological order, were that;

Date Particulars of the event 22-Jun-15 Provincial Assembly passed ADP along with Budget for FY2015-16 wherein Scheme No. 782 “150758- Integrated Development Package for Mahal Terai and surrounding areas” was passed with a total 5

approved cost of Rs. 1000.00 Million while allocating Rs. 200 Million to be spent in FY2015-16 and a Throw Forward of Rs. 800 Million beyond FY2015-16 18-Aug-15 Municipal Corporation Peshawar prepared and submitted for approval the PC-II (A document for selection of consultants) of the ADP Project 782. 10-Sep-15 PC-II for ADP Scheme 782 was approved at cost of Rs. 30.75 Million 15-Sep-15 Administrative Approval of PC-II issued 27-Oct-15 Advertisement for selection of consultant made for feasibility, estimating, PC-1 and top- supervisory for Scheme 782 20-Nov-15 Technical and Financial Proposals of 04 Consultant firms for ADP Scheme 782 were opened and marked for evaluation 29-Jan-16 Work Order/Letter of Acceptance was issued to lowest bidding consulting firm for Bid amounting to Rs. 27.6 Million. 19-Feb-16 Advertisement Notice for seeking “Expression of Interest (EOI) for Pre-Qualification of Contractors” 02-Mar- Scheme 782/150758 Integrated 16 Development Package for Mahal Terai and surrounding areas was dropped from ADP 2015-16 in a Mid Year Review of ADP 21-Mar- Scheme 782 previously dropped in 16 CM Review Meeting was revived and ordered to be kept intact in the ADP 04-Apr-16 Draft PC-1 of the Scheme 782 amounting to Rs. 970 Million prepared and submitted to the Chief Infrastructure P&D Department for approval of competent forum 14-Apr-16 Pre-PDWP examined the Draft PC-1 of the Scheme 782 and certain observations were made which were accordingly conveyed to TMO, TMA Town – 1, Peshawar 25-Apr-16 Draft PC-1 revised in light of observations of Pre-PDWP and re- submitted for approval 05-May- Local Government and Rural 16 Development Department proposed to the Planning and 6

Development Department that scheme 782 may be included in the Draft ADP 2016-17 i.e. next fiscal year 06-Jun-16 An amount of Rs. 3.600 Million was re-appropriated as excess amount to Scheme 782.

10-Jun-16 Scheme 782 re-numbered as Scheme 1213 for ADP 2016-17 was dropped once again from current year ADP 2015-16 13-Jun-16 An amount of Rs. 3,312,000.00 through Contingent Bill was paid to Engineering Consultants for preparation for PC-1 pursuant to the work order.

8. The crucial facts, which emerge from the chronology of events described above are that;-

I. Scheme No.782 was placed in the ADP of 2015 and was duly approved by the Provincial Assembly in its Annual Budget of 2015-2016.

II. Substantial steps were taken by the Provincial Government in execution of Scheme No.782.

III. The Local Government and Rural Development recommended Scheme No.782 to the Planning and Development Department to be included in the ADP of 2016-2017.

IV. Scheme No.782 was dropped from the ADP on the instruction of the worthy Chief Minister, without the approval of the Cabinet.

9. The constitutional scheme of budget and spending of a Provincial Government, as propounded in the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”) has been dealt 7 with by an earlier decision of this Court in Wali

Muhammad’s case (W.P.No.4684-P/2016) , wherein, it was held that;-

“One of the fundamental themes engrained in the Constitution is the trichotomy of powers, whereby each organ of the State has been allocated its specific functions and duties to be performed within the legal contours specified therein. The Legislature is to legislate and enact laws, while the Judiciary is to interpret the enactments, and the Executive is to enforce the law, as enacted and interpreted by the Judiciary.

To further regulate the affairs of the Executive Authority of the Province, Article 129 of the Constitution mandates that the same are to be exercised in the name of the Governor by the Chief Minister and his cabinet members. In turn, the Executive Authority of the Province is regulated by rules framed under Article 139 of the Constitution, more commonly known as Rules of Business. These Rules form the foundation upon which the entire edifice of the Provincial Government is governed. It expressly provides, inter alia, the different departments, the distribution of business of the departments, and the attached departments. In relation to the case in hand, it would be important to note the Planning and Development Department (“P&D”) has been stated to be a department of the Provincial Government, which is, inter alia, to provide for; 1. Planning and Development including policy and procedure. Coordination work relating to the preparation of the Provincial Annual Development Programme and its review.

2. Processing of all development schemes, programmes and proposals submitted by other Departments including autonomous bodies and making recommendations to Government thereupon; Secretariat functions of the Provincial Development Working Party.

3. Maintaining liaison with the National Planning Agencies.

4. Dealing with Autonomous and Semi- Autonomous Bodies in regard to development planning programmes and projects in Khyber Pakhtunkhwa.

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5. Foreign Aid.

6. Coordination of technical assistance from abroad including training facilities; expert advisory services and equipment.

7. Coordination of training of Local Officers and private sector candidates in foreign countries. Secretariat functions of the Provincial Selection Committee for training abroad.

8. Arrangement of the services of foreign experts/advisors including Secretariat functions of the Provincial Screening Committee for the appointment of foreign expert/advisors.

9. Economic research and matters relating to the Board of Economics Enquiry.

10. Coordination of Provincial statistics in general and all matters relating to the Bureau of Statistics.

11. General Economic appraisal evaluation of progress and performance of Development Schemes and Programmes and their critical appraisal.

12. Initiation of measures for giving a suitable publicity to the Development plans and educating the public on the results achieved from time to time.

13. Matters relating to the Regional Development Projects, Khyber Pakhtunkhwa.

14. Price Stabilization Policy.

15. Protocol functions in connection with visits of foreign economics missions and delegations; etc.

16. Appropriation and re-appropriation of development grants provided in the budget. (emphasis provided)

From the above listed functions of the P&D Department, the most essential is the preparation of the Annual Development Plan, which forms part of the ‘other expenditures’ entailed in Annual Budget Statement of the Provincial Government, provided under Article 120 of the Constitution. The Annual Budget Statement separately expresses; Firstly, the sum required to meet the expenditure described by the Constitution under Article 121, which is charged upon the Provincial Consolidated Fund, and Secondly , the sum required to meet other expenditure purposed to be made. 9

It is this other expenditure, which includes the developmental projects prepared by the P&D Department, and placed as demands for grants seeking a vote of approval of the Provincial Assembly under sub-article (2) of Article 122 of the Constitution, which reads;- “122. Procedure relating to Annual Budget Statement.

(1) So much of the Annual Budget Statement as relates to expenditure charged upon the Provincial Consolidated Fund may be discussed in, but shall not be submitted to the vote of the Provincial Assembly.

(2) So much of the Annual Budget Statement as relates to other expenditure shall be submitted to the Provincial Assembly in the form of demands for grants, and that Assembly shall have power to assent to , or to refuse to assent to, any demand, or to assent to any demand subject to a reduction of the amount specified therein.” (emphasis provided)

What is crucial to note is the role of the Chief Minister of a Province in presenting the Annual Budget Statement of a Province. Sub-Article (3) of Article 122 and Article 123 of the Constitution, expressly vests in the Chief Minister of the Province, the authority to seek the same in terms;- “122. Procedure relating to Annual Budget Statement. 1. ………………………………………….. 2. ……………………………………………. 3. No demand for a grant shall be made except on the recommendation of the Provincial Government.”

123. Authentication of schedule of authorized expenditure . (1) The Chief Minister shall authenticate by his signature a schedule specifying- (a) The grants made or deemed to have been made by the Provincial Assembly under Article 122, and (b) The several sums required to meet the expenditure charged upon the Provincial Consolidated Fund but not exceeding, in the case of any sum, the sum shown in the statement previously laid before the Assembly. (2) The schedule so authenticated shall be laid before the Provincial Assembly, but shall not be open to discussion or vote thereon. (3) Subject to the Constitution, no expenditure from the Provincial Consolidated Fund shall be deemed to be duly authorized unless it is specified in the schedule so authenticated and such schedule is laid before the Provincial Assembly as required by clause (2).”

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This authority of the Chief Minister of a Province is further supplemented in Schedule VI of the Khyber Pakhtunkhwa Rules of Business, which reads;- “LIST OF CASES TO BE SUBMITTED TO THE CHIEF MINISTER FOR APPROVAL BEFORE ISSUE OF ORDER . 1 to 9------10. Annual Budget Statement to be laid before the Provincial Assembly . 11. Authentication of the Schedule of Authorized Expenditure.

The legal mandate vested in the Chief Minister under the Constitution, as discussed above, clearly reflects his sole authority to seek from the Provincial Assembly the approval of all the developmental schemes to be executed in the province in that financial year. ” (emphasis provided)

10. The constitutional scheme, as clearly described hereinabove, mandates;-

i. The planning and Development Department (“P&D”) is to receive from various departments of the Provincial Government requests for development schemes, which are to be scrutinized and if found suitable for execution, to be recommended for inclusion in the ADP of the next year.

ii. The recommendation of the P&D is placed before the Provincial Cabinet for its approval to form the ADP.

iii. The cabinet approved ADP is then placed before the Provincial Assembly by the worthy Chief Minister. The sole authority to place the ADP for seeking 11

the grant from the Provincial Assembly is that of the Chief Minister.

11. The Chief Minister of a Province in his personal capacity does not enjoy any authority to either allocate funds or scrap/drop a development scheme by denying funds for its execution. In this regard, the apex Court in case cited as “Action against distribution of development funds by Ex-

Prime Minister Raja Pervaiz Ashraf” (PLD 2014

SC 131) has very illustratively described the powers

of prime minister/chief ministers qua allocation of

funds and their scope of discretion discussed in

terms that;-

“40. With regard to question as to whether or not the Constitution permits the use/allocation of funds to MNAs/MPAs/Notables at the sole discretion of the Prime Minister or the Chief Minister? if yes, what has been or should be the procedure/criteria for governing allocation of such funds for this purpose? It is to be noted that under the Constitution there is no provision whatsoever that permits to use allocation of funds at the discretion of the prime Minster/Chief Minster. However, as discussed hereinabove, with regard to supplementary grants, the Federal Government, which includes the Prime Minister and the Ministers, has the power to authorized expenditure from the Federal Consolidated Fund.

44. As regards the question whether any such discretionary funds can be placed at the disposal of the Prime Minister/Chief Ministers for use of/allocation to the MNAs/MPAs/ Notables, neither the Constitution 12

provides for the same nor the Rules of Procedure indicate that such a course for demanding a grant from the National Assembly is open to the Prime Minister. In fact, if any discretionary funds are allowed to be placed at the disposal of the Prime Minister by the National Assembly in the Annual Budget Statement, it shall be ultra virus the provisions of the Constitution in the same manner as in the case of MNAs,/MPAs/Notables, discussed in the previous paragraph.”

Once again the Supreme Court, while faced with a similar proposition in Mustafa Impex case (PLD 2016 SC 808) reaffirmed the legal position in terms that;-

“……Furthermore, the Prime Minister is not constitutionally mandated to authorize expenditure on his own ………..

It follows from the above that any discretionary spending at the initiative of the Prime Minister alone is manifestly unconstitutional and contrary to law. This illegality will continue until such time when, at the very least, the procedure set out in paragraph 66 (actually 81) above is adopted and followed. Failure to do so would mean that the Prime Minister would remain personally responsible.” (emphasis provided)

12. Now, what we have before us is

Scheme No.782, which was duly approved by the

Cabinet, as part of the ADP of 2015-2016, and passed by the Provincial Assembly of Khyber

Pakhtunkhwa. This approved scheme was not allowed to be executed by the orders of the worthy 13

Chief Minister, and that too without the approval of the Provincial Cabinet. This decision of dropping

Scheme No.782 by the worthy Chief Minister cannot be regarded as the decision of the Provincial

Government, as it lacks the Cabinet’s approval.

13. 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. And, after Mustafa Impex cases (supra) , the decision of worthy Chief Minister, in his individual capacity, 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. Surely, the role of the worthy Chief Minister is clearly significant, as he is the pivotal force of the Provincial Cabinet, and in the instant case, it is the worthy Chief Minister, who carries the approved ADP of the Province and presents the same to the Provincial Assembly for its approval. 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 14 decision, if made, would surely expose the same to be without lawful authority warranting correction by a competent Court of law.

14. Accordingly, for the reasons stated above, this Court holds and directs that;-

I. 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 Plan, once the

same is approved and assented to by

the Provincial Legislature.

II. 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.

III. Discretion to drop or discontinue a

development scheme after its approval

by the Provincial Assembly shall vest

in the Cabinet. The Cabinet shall not

only be bound to assign reasons but 15

record plausible justification in writing

for dropping any such scheme.

IV. 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 re-consideration

shall be judicious and based on

objective judgment to be duly recorded

in writing.

This writ petition is disposed of, in the above terms.

Dt.03-10-2017. CHIEF JUSTICE

J U D G E

F.Jan/* (DB) Hon`ble Mr.Justice Yahya Afridi, Chief Justice. Hon`ble Mr.Justice Muhammad Ghazanfar Khan, Judge.