IN THE HIGH COURT OF SINDH, KARACHI

                   Const. Petition No.D-2337 of 2007

                                                  

   Present

                                                    Mr. Justice Mushir Alam.

    Mr. Justice Aqeel Ahmed Abbasi.

 

Date of hearing              :                  18.11.2009

Date of judgment           :                   19.01.2010

Petitioners                                 :                       Zahid Saeed & others ,through

                                                                        Mr. Raja Qasit Nawaz and Mr. Saifuddin, Advocates.

 

Versus

 

Respondents                                                     CDGK & others through Mr. Manzoor Ahmed, Advocate alongwith Mr. Willayat, Addl. Distt. Officer of CDGK                                                                                                                                           

                                                                       

JUDGMENT

Aqeel Ahmed Abbasi, J.     This petition is filed by five U.C. Nazims of U.C.No.7, Jamshed Town, Karachi, U.C.No.6, Jamshed Town, (PECHS), Karachi, U.C.No.1, (DMS) Gulshan-e-Iqbal, Tipu Sultan Road, Karachi, U.C.No.6, North Nazimabad Town, Karachi and U.C.No.11, Kehkeshan, Saddar Town, Karachi, against the City District Government and other respondents  seeking declaration to the following effect:-

 

"(a)     Declare that the petitioners are entitled to share of 37.5% of the receipts obtained from change of land use/commercialization to be spent with their consultation for development of the concerned areas as per Clause 8-4 of the CHANGE OF LAND AND MASTER PLANNING BYE LAWS, 2003 as well as 20% under Clause 6-5 of the said Bye Laws.

 

(b)      Declare that impugned act/decisions of non-utilization of the 37.5% funds received on account of commercialization on other projects depriving the rights of the area residents of the respective areas of the Petitioner's is illegal, void ab-initio, unjust, unreasonable, harsh, discriminatory, against all norms, fair play, bye laws besides being violative of principles of promissory estoppel as well as legitimate expectation.

 

(c)      Declare that impugned act/decisions of non-utilization of the 37.5% funds received on account of commercialization on other projects depriving the rights of the area residents of the respective areas of the Petitioner's are violative of the fundamental rights guaranteed as enshrined in Article 2-A, 4, 8, 9 & 25 of the Constitutional of Pakistan.

 

(d)      Direct the Respondents to obey and implement clauses of CHANGE OF LAND USE AND MASTER PLANNING BYE LAWS, 2003 and spent 37.5% of the receipts from the change of land use under Clause 8-4 since their entitlement under bye laws in the Union Councils of the Petitioners according to their respective entitlements as well as 20% under Clause 6-5.

 

(e)      Permanently restrain the Respondents, its officers, sub-ordinates, employees and any other person concerning them from use of the funds from the account of commercialization fees to any other use deviating the procedure prescribed in the bye-laws for change of land use till the entire entitlement of the Petitioners areas due have been met and also cease the account maintain for Change of land use and Master Planning and further restrain the respondents 1 to 3 for approving change of land use/commercialization till the amount is deposited with concerned Union Councils against their entitlements pending decision of the Petition.

 

(f)       To suspend forthwith the approval of building plan and restrain construction of the building on commercialized plots unless the civic amenities are upgraded and developed by spending the said funds received on account of commercialization as per U/C's entitlements.

 

(g)      Direct the Respondent No.1 to allocate the share in the budget of the City District Government Karachi in respect of the Petitioners concerned Union Councils in the development program.

 

(h)     To declare that the Petitioners are within their rights not to give N.O.C for the change of land use till such time the 37.5% is spend in their respective areas (Union Councils) as per bye laws.

 

(i)       To grant any other/further/additional relief which this Hon'ble Court deems fit and proper under the facts and circumstances of the case.

 

(j)       Grant costs of this Petition."

 

 

2.       Brief facts leading to the instant petition are that the petitioners are the successful U.C. Nazims of their respective Union Councils. According to the learned counsel for the petitioners, the petitioners do not belong to the party ruling in City District Government Karachi and almost 90% commercialization work has been undertaken in the Union Councils from where the petitioners have been elected. The petitioners claim that they have direct interest in their respective areas, and consider themselves responsible for the development of their respective constituencies. It is contended that the City District Government has passed Bye Laws regarding change of land use vide Resolution No.383 dated 06.01.2004, which was later on Gazetted vide Notification published in the Sindh Government Gazette dated 12.02.2005, with the registered No.324. The respondent No.1 and 4 declared various roads as commercial and besides that scheme has been provided under laws of CDGK for conversion of various plots into commercial. CDGK has published Change of land use and Master Planning Bye-Laws, 2003 by virtue of Section 192(2) Vth Schedule Part-II Clause (3) of Sindh Local Government Ordinance, 2001. It was approved vide Resolution No.383 dated 06.01.2004 of City District Council duly notified by Notification No.CDGK/MPGO/2004/142 in Extraordinary Gazette the Government of Sindh dated 12.2.2004 in Part 1A, whereby after calling objections from the public Union Council who is responsible to hear the objection and issue NOC and on the basis of such NOC Master Planning Department of the CDGK allows  conversion of land use. It is argued by the learned counsel for the petitioners that the procedure for change of land use is  prescribed in Clause (3) of the Change of Land Use and Master Planning Bye Laws, 2003. It has been, inter-alia, contended that most of the roads which have been commercialized during their tenure, fall within the area situated in the Union Councils of the petitioners and such conversion is causing great inconvenience to the residents of the vicinity due to increase of traffic, over loading on water and sewerage system and other incidental problems due to such commercialization. It has been argued that the City District Government has received million of rupees on account of commercialization, whereas 37.5% of such increase has not been paid to the petitioners for their utilization. It has been pleaded by the learned counsel for the petitioners that the petitioners are not aware as to whether any direct approvals were given by the respondents for such commercialization, whereas the NOC given by the petitioners was subject to the condition that CDGK shall pay 37.5% of the receipts on account of commercialization to the petitioners to be spent in their respective Union Councils. It was also argued that since the petitioners do not belong to the ruling party in the City District Government, therefore, they are being discriminated and their respective share for the development work in their Union Councils is neither being given to them nor the same is spent with their consultation as per bye-laws. Learned counsel for the petitioners stated that there is no other efficacious remedy available for redress of their grievance. The attention of the counsel for petitioners was invited to the detailed mechanism provided in the City District Government Ordinance, 2001 and Bye-Laws there under which regulate the entire working of UCs and District Councils including provisions relating to accounts and budgets. Learned counsel required that since they are in minority they do not have any say. Their attention was also invited to the fact that they being the U.C Nazims are part and parcels of the Union Councils and the City District Government  has got every right to raise any objection including objection raised through the instant petition what prevented them for adopting such recourse as provided in law. Learned counsel for the petitioners could not response to the said query of the Court satisfactorily. Their attention was also drawn to the legal provisions and Bye-Laws relating to the Meetings of Union Councils, District Councils presentation of budget discussion, debt and objections by all the members and it was inquired as to how many times the petitioners objected to the commercialization of the respective area and the allocation of funds for the development of the area by the City District Government. Learned counsel for the petitioners could not respond to the said query of the Court and stated that such exercise was not undertaken as no useful result could have been achieved. Learned counsel for the petitioners was also inquired as to whether they have ever objected to the budget proposals, grants, allocation of City District Government or as to whether they have filed any objection on the yearly audited accounts of the City District Government including the objection relating to their entitlement to a share of 37.5% of the receipts obtained from change of land use/commercialization to be spent with their consultation for development of the concerned areas. The petitioners once again could not respond to such query.

3.       Conversely, respondents have opposed the instant petition and filed their respective counter affidavits/objections in this regard. Respondent No.2, DDO(MPGO) Master Plan CDGK, Karachi has submitted counter affidavit and has filed objection with regard to the maintainability of the petition on the ground that the petitioners instead of filing letter of grievance or departmental appeal have directly approached this Hon'ble Court in its constitutional jurisdiction. It was further contended that the entire commercialization process has been undertaken in accordance with the provisions of CDGK Land Use Conversion Policy-2004 approved vide City Council Resolution No.386 dated 06.01.2004. It is submitted that as per Change of Land use and Master Planning Bye Laws 2003 vide Tajveez No.3, CDGK is authorized to declare any road which is exceeding 100 feet in width, subsequent to approval of Committee and City Council. It is further stated that since the petitioners are the bonafide members of City Council, therefore, it is possible that a Resolution is passed by the City Council without consent of the UC Nazim concerned. The respondent No.2 has also placed on record a letter dated 5.5.2006, addressed to the worthy City Nazim and two other officers of City District Government, which is reproduced hereunder:

 

"1.     The City Nazim,

City District Government

Karachi.

 

 

2.       The Naib Nazim

City District Government

Karachi.

 

 

 

3.       The District Government Officer,

City District Government

Karachi.

 

 

SUBJECT:            DISTRIBUTION OF REVENUE FROM CONVERSION OF LAND USE UPDATED POSITION AS ON 30TH  JUNE 2004

         

 

In continuation of the office letter No.CDGK/ MPGO/ 2004/ 743 dt. 10.06-2004 enclosed is a statement showing updated position (till 30th June 2004) of the cases of Change of Land Use and Revenue generated from conversion of land use approved & finalized by MPGO-CDGK.

 

 

The distribution of the resources has been worked out in the manner prescribed in terms of Article No.8.4 of the Change of Land Use Policy duly approved by the City Council vide its Resolution No.383 dt. 06.01.2004, which is as under:-

 

37.5%-        To be given to the UC concerned for development

27.5%-        To the remaining UCs for development

10.0%-        City Councilors on reserved Schemes

25.0%-        Development of Master Plan Group of Offices

 

 

Encl:04 pages (showing Revenue Generated and its Distribution)

 

          Sd/-

Syed Zaigham S. Jaffery,

Executive District Officer

MPGO-CDGK."

 

 

4.       Gazette Notification dated 12.2.2004, whereby Change of land use and Master Planning Bye-Laws 2003 read with Resolution No.383 dated 06.01.2004 were referred. Policy of Commercialization was also placed on record. Similarly, City District Government also filed counter affidavit to the petition and besides objecting on the maintainability of the petition, stated that the commercialization of different roads/plots has been done strictly in accordance with law and the regulations. It was argued that the City District Government has incurred huge amount of money in the development of the area of UC Nazims i.e. the petitioners in this case. The City District Government has also filed summary of such expenditure showing the list of commercialization cases and the amount received in this regard. Summary of such expenditure incurred by CDGK on various development works is as follows:

 

                      

Summary Showing Expenditure by CDGK on Various Development Works

                    In concerned Following UCS/Town & Share of UC Nazims

 

 

 

 

UC/Town

Amount incurred in Million

Share Money of UC Nazims

Works & Services

 

KWSB

Parks

Total Amount

A

B

C

D

E

 

 

 

UC-6Jamshed Town

164.41

8.574

1.801

 

 

 

34.01

 

213.50

 

499.92

25.455

UC-7Jamshed Town

60.44

8.977

8.212

 

 

182.255

UC-1Gulshan Town

1394.045

9.5

2.5

 

 

N.A

209.77

1,824.23

51.265

UC-6N'Nazimbad Town

23.49

25.537

 

 

 

3.39

156

1,961.86

23.964

UC-11Saddar Town

493.55

8.732

 

 

 

 

 

204.16

 

 

1047

 

 

2,001.65

 

 

5.92

UC-11Saddar Town

 

 

178.054

 

UC-11Saddar Town

 

 

 

70.151

Grand Total

2,135.94

61.32

12.513

178.05

70.15

241.56

1626.27

4325.80

288.859

 

 

Monetary share of UCs Rs.288.859     (In Words Rupees Twenty eight crore eighty eight lac & fifty nine thousand Only)

Expenditure incurred by CDGK   Rs.4,325.80 (In Words Rupees Four Billion Thirty Two Crore & Fifty Eight Lac Only)

 

5.       The CDGK has also filed detail statements showing expenditure incurred by it on various development works carried out in the areas of UC 6 & 7, Jamshed Town, UC-11, Saddar Town, UC-6, North Nazimabad Town and UC-1, Gulshan-e-Iqbal Town, as annexure "A", annexure "B" and annexure "C" alongwith its additional affidavit dated 27.1.2001, which are reproduced as under:

 

Statement Showing Expenditure Incurred by CDGK on various Development works carried out till date with areas of UC 6 & 7 Jamshed Town, UC 11- Saddar Town, UC 6 – Nazimabad Town and UC-1 – Gulshan-e-Iqbal Town under:-

 

 

UC/Town

S.NO.

                  Work

Amount

UC 6 Jamshed Town

1.

Improvement of Ghulam Ali Memon Road from GOR Flats via Mehran Hospital to PSO Petrol Pump.

37.92 M

 

2.

Improvement of Waris Ali Shah Road PECHS Block-6.

110.05 M

 

3.

Repair/Reconstruction of road i/c footpath around Jheel Park PECHS

16.44 M

 

 

                                       Total

164.41 M

UC 7 Jamshed Town

1.

Rehabilitation of Kashmir Road from Shaheed-e-Millat Road to Shrah-e-Quaideen

59.77 M

 

2.

Construction / Repairing of CC flooring at UC-07, 09 & 10, in PS-116, Jamshed Town.

0.67 M

 

 

                                      Total

60.44 M

U.C. 11 Saddar Town

1.

Improvement & Rehabilitation of Shahrah-e-Ghalib from Bilawal Chowrangi to Keamari Intersection.

302 M

 

2.

Construction of service road from Beach Park Shahrah-e-Saadi along Seawall

29.40 M

 

3.

Construction of service road from Shahrah-e-Saadi Chowrangi to KPT Wall

36.20 M

 

4.

Construction of parking area No.1 adjacent to Beach View Park Clifton

32.80 M

 

5.

Construction of parking area No.2 at Shahrah-e-Saadi Chowrangi along Seawall

20.12 M

 

6.

Construction of parking area No.4 opp Sea Rock Apartment right side

20.12 M

 

7.

Construction of parking area No.2 left side at Shahrah-e-Saadi Chowrangi along sea wall.

19.72 M

 

8.

Construction of parking area No.4 opp Sea Rock Apartment left side

20.10 M

 

9.

Improvement of road work along Shahrah-e-Attar Services road & internal roads of Block-4 Scheme-5, Clifton.

3.30 M

 

10.

Improvement of SWD in Block-3, Scheme-5, Clifton.

1.51 M

 

11.

Improvement of road work 70' wide road and internal roads in Block-3.

1.92

 

12.

Improvement of road work along oil reservation line in Block-2, Scheme-5, Clifton.

1.81 M

 

13.

Construction of carpeting of 100 ft. wide road from Shahrah-e-Ghalib to Marine Drive Block-1, Clifton.

3.82 M

 

14.

Improvement of roads work from commercial 2/3 to F1-4, in Block-1, Scheme-5, Clifton.

0.73 M

 

 

                                        Total

493.55 M

U.C.6 North Nazimabad

1.

Overlaying/Re-carpeting of road from Ship-owner College to Five Star Chowrangi/Signal.

2.100

 

2.

Overlaying/Re-carpeting of service road from Farooq-e-Azam Masjid to Anjum Complex (Sakhi Hassan)

1.900

 

3.

Improvement/Rehabilitation of road from Taqi Centre to Bhind of Farooq-e-Azam Masjid.

19.500

 

 

                                  Total

23.495 M

U.C. 1 Gulshan-e-Iqbal

1.

Improvement of Main University Road from Mazar-e-Quaid to Hassan Square, Gulshan-e-Iqbal Town (Part area of UC-01).

481.045

 

2.

Improvement of H.I.R. Road, Karachi

450.000

 

3.

Improvement of Jamal Afghani Road, Karachi.

15.000

 

4.

Construction Flyover at Junction Time Square.

448.000

 

 

                                         Total

1394.045 M

 

 

                                       G. Total

2135.94 M

 

 

Statement Showing Expenditure Incurred by CDGK on various Development works carried out in the areas of UC 6 & 7 Jamshed Town, UC 11- Saddar Town, UC 6 – Nazimabad Town and UC-1 – Gulshan-e-Iqbal Town under Union Council Development Programme implemented under the direct administrative control of concerned UC Nazims according to their own priorities:-

 

 

S.No. UC/Town

S.NO.

Name of Work

Amount

UC 6 Jamshed Town

1.

Improvement of Road in Block-6 P.E.C.H.S., U.C.6 Jamshed Town.

2.073,352

 

2.

P/L 2" thick CC flooring in P.E.C.H.S. Block-6 near P.E.C.H.S. Girls College near Harmain Masjid U.C-6 Jamshed Town.

1,995,769

 

3.

Construction of RCC dustbin near UC office Nursery Area, Ambala Bakery and Market UC-6 Jamshed Town and repair of Waris Shah Nallah Wall, Block-6 P.E.C.H.S. UC-6 Jamshed Town.

1,870,109

 

4.

P/L RCC pipeline in Block 2 near UC office and Block-6 near Ambala Bakery UC-6 Jamshed Town

1,798,421

 

5.

P/L water line near GOR-II flats and Sector-8-C & Block-6, PECHS near Chishtia Mosque UC-6, Jamshed Town .

836,588

 

 

                                        Total

8,574.239

8.574 M

U.C. 7 Jamshed Town

1.

Construction of road KCH Society area in UC-7 Jamshed Town

2,009,060

 

2.

Carpeting/Patch PECHS Block 2 & 3 in UC-7 Jamshed Town

1,687,613

 

3.

P/L, Sewerage line 12" & 8" dia in Block-3 PECHS & KCUHS in UC-7 Jamshed Town.

1,691,085

 

4.

P/L CC flooring in PECHS back lane in Block 2 & 3 in UC-7 Jamshed Town

2,089,978

 

5.

Installation of pole, lights and other electrical accessories in UC-7 Jamshed Town.

1,500,000

 

 

                                        Total

8,977,736

8.977 M

U.C. 11 Saddar Town

1.

Construction of RCC underground water tank at Gizri Playground UC-11 Kahkashan Saddar Town.

4,669,920

 

2.

Improvement of water supply system in different places of UC-11 Kahkashan Saddar Town.

668,812

 

3.

Cleaning of 24" dia sewer in UC-11 Kahkashan Saddar Town.

1,029,161

 

4.

Improvement of road at different places of UC-11 Kahkashan Saddar Town.

1,396,305

 

5.

Improvement of sewerage system in different places of Kahkashan UC-11 Saddar Town.

967,920

 

 

                                     Total

8,732,118

U.C. 1 Gulshan-e-Iqbal Town

1.

Improvement/Carpeting of road in various places in (DMC) UC-1 Gulshan-e-Iqbal Town.

5,555,098

 

2.

Improvement of lighting arrangement in UC-1 Gulshan-e-Iqbal Town

477,310

 

3.

Lighting system in UC-1 Gulshan-e-Iqbal Town.

2,223,400

 

4.

Improvement of sewerage system 12" dia 8" dia pipeline in several Blocks in UC-1 Gulshan-e-Iqbal Town

1,244,248

 

 

                                        Total

9,500,056

(9.500 M)

U.C. 6 North Nazimabad Town

1.

Supply of Hydraulic Typping Trolley.

0.118

 

2.

Supply of Ladder for Electric Van

0.150

 

3.

Supply of Tractor 240, UC-6

0.395

 

4.

Supply of Shahzoor Truck for Elect. Van

0.589

 

5.

Supply of Chowks 125 W for S/Light

0.098

 

6.

Supply of 125 W Philips Bulbs.

0.102

 

7.

Providing casting RCC Ring Slab

0.129

 

8.

Improvement/Repair of Trenches in UC-6.

9.988

 

9.

Repair of 12" dia damaged sewerage line

0.795

 

10.

Improvement of park in UC-6

1.667

 

11.

Improvement of Electric Works.

1.335

 

12.

Supply of Garbage Cycle

0.158

 

13.

Manufacture/supply of R.C.C. manhole cover.

0.170

 

14.

Repair of CC street in Block-D, I & J at UC-6 North Nazimabad Town.

1.726

 

15.

Replacement of Sewerage by laying 12" dia pipe in Block-D, I & J UC-6 North Nazimabad Town.

4.843

 

16.

RIM of 3 cm carpet hand laying & 4 cm paver laying carpet for trench at UC-6 Block-D, I & J North Nazimabad.

3.274

 

 

                                       Total

25.537 M

                                    61.32 million

 

Statement Showing Expenditure Incurred by CDGK on Improvement of Street Lights in the areas of UC 6 & 7 Jamshed Town, UC 6 – Nazimabad Town, UC 11- Saddar Town and UC-1 – Gulshan-e-Iqbal Town.

 

 

U C / Town

Work

Amount

Remarks

UC 6 Jamshed Town

Improvement and Rehabilitation of street lighting system at Shahrah-e-Faisal CDGK (Main road and Service road) from FTC  flyover to Capt. Farid Bukhari Road) Work in progress.

10,80,131/-

 

 

 

 

 

            Apart from development work, maintenance work is carried out through out the year regularly to keep all the street lights in proper working order at all the main roads of CDGK passing through different UCs.

 

UC 7 Jamshed Town

(i) Rehabilitation of Kashmir Road from Shaheed-e-Millat Road to Shahrah-e-Quaideen.

 

(ii)   Improvement of street light at Shaheed-e-Millat Road.

 

(iii)   Improvement of street lights at Tariq Road.

5815300/-

 

 

 

 

21,70,270/-

 

 

 

2,26,099/-

82,11,669

U.C. 6 North Nazimabad Town

Nil

 

U.C. 11 Kahkeshan Saddar Town

Nil

 

U.C. 1 Gulshan-e-Iqbal Town.

Improvement of street lights at H.I.R. Road.

25,00,000/-

 

 

6.       The City District Government in compliance of Court's directions dated 28.5.2009 has also filed statement showing that all the UC Nazims at Karachi including the present petitioners are paid two lac rupees per month. It is further stated that Rs.10,000/- per month is paid as honoraria to every U.C. Nazim. Every Nazim has been given Rs.96,00,000/- only one time and Rs.15,00,000/- are paid to Ladies Members of City District Council. It was stated that approximately Rs.1 Crore 25 Lac and 20,000/- is being spent by the CDGK on every UC per annum. It was further pointed out that each and every project is sanctioned and approved by CDGK as well as the Annual Budget is also approved on the recommendation of the member  of the City Council including UC Nazim and General Member of the City Council. It was, therefore, contended that there is no substance in the allegations of the petitioners as they are part and parcel of the City District Government themselves and participated all the meetings including the Budget Session in which every expenditure and its allocation is approved.

 

7.       In view of the facts stated above and the summary of statement of accounts submitted by the respondent, the learned counsel for CDGK vehemently opposed the maintainability of the instant petition on the ground that the same, besides being misconceived in facts and law, is also based on malafides just to gain political mileage. It has been argued that the entire working of the City Government is based on transparent system in which every minute detail has been provided for the smooth functioning of the City District Government. It has been argued that not a single penny can be approved or utilized other than in accordance with law, rules and regulations. All the U.C Nazims, Town Nazims etc participate in the meetings where budgets are approved. All the Nazims are given their respective shares in the budget and no one in this regard can be discriminated as alleged by the petitioners. It has been further argued that the petitioners could not point out a single instance where any such discrimination or violation by the respondent is manifest. Learned counsel for CDGK filed statements which show that the detail of the amounts paid to all the U.C Nazims including the petitioners from time to time. The detail of the development projects in the area of the petitioners and the amount spent thereon has also been placed on record, which shows that substantial amounts have been spent in the development of the area pertaining to the UCs of the petitioners.

8.       We have heard both the learned counsel and perused the record as well as the law, rules, regulations and bye-laws relating to administration of City District Government. In terms of Section 2(xvi) of the Sindh Local Government Ordinance, 2001, the Local Government has been defined as under:

 

"(xvi)  "local government" includes-

(a)      a District Government or a City District Government and Zila Council;

 

(b)      a Taluka Municipal Administration and Taluka Council;

 

(c)      a Town Municipal Administration and Town Council; and

 

(d)      a Union Administration and Union Council."

 

 

9.       Similarly, Section 13 of SLGO, 2001 defines the District Government shall consist of Zila Nazim and District Administration.

10.     Section 37 of SLGO, 2001 defines that Zila Council shall consist of all Union Nazims in the district and members elected on the reserved seats.

11.     Section 39 of SLGO, 2001 defines Functions and powers of Zila Council are defined, which include approval of bye-laws proposed by the District Government, approval of proposed taxes by the District Government, approval of long term and short term development plans annual and supplementary budgetary proposals of the District Government and, where required, intra-district fiscal transfers, approval of annual budget of the Zila Council, review the audit reports of the Zila Accounts Committee etc.

12.     Section 40 of the SLGO, 2001 defines Functions of Zila Council in a City District:- In addition to the functions specified in section 39 are enumerated, which include approval of master plans, zoning  land use plans, including classification and reclassification of land and approval of development of scheme etc.

13.     In terms of Section 45 of SLGO, 2001. Any resolution of Zila Council which is not in conformity with law or against the interest of the people can be set aside by the Chief Executive of the Province. On receipt of report of the enquiry conducted by the Provincial Local Government.

14.     In terms of Section 47 of SLGO, 2001. No confidence motion against Naib Zila Nazim can be moved if in the opinion of a member of Zila Council, there is any reason to believe that the Naib Nazim is not performing his duties in accordance with law or acting against the public policy.

15.     Chapter-XII of SLGO, 2001, deals with local Government Finance.

16.     Section 107 of SLGO, 2001, defines establishment of funds and public accounts in respect of District Fund, Taluka Local Fund, Town Local Fund and Union Local Fund. All revenues received by a Local Government shall form part of the respective Local Government Fund received on various heads including grants, proceeds of taxes and charges received by Local Government, grants and profits income accruing from markets or fairs regulated by a Local Government, fine etc, which are credited to the public account of the respective Local Government.

17.     Section 109 of SLGO, 2001, relates to application of funds and mandates. That all monies credited to a fund shall be expended by Local Government in accordance with the annual budget and Supplementary Budget approved by its Council. Under this section the entire mechanism of expending  such fund has been defined elaborately.

18.     Section 112 of SLGO, 2001, provides for the mechanism of approval of budget.    

19.     Sub-section 4 of Section 112 of SLGO, 2001, provides that 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 fund contrary to the budget rules, may require the concerned local government to rectify it. 

20.     Section 115 of SLGO, 2001, provides the mechanism for the audit by the Auditor General of Pakistan of the account of City District including audit of account of Taluka, Town and Union Administration.

21.     Section 115-A of SLGO,2001, provides mechanism for Internal Audit.  

22.     Section 132 of the SLGO, 2001, provides for functions of the Provincial Government Commission in respect of the conduct and working of the local government. It also provides remedy for resolution of any grievance or dispute between any department of the Government and District Government or between two District Governments and also caters to the resolution of dispute in respect of audit by arranging a special audit of the accounts. It also provides for taking cognizance of accounts & violation of law and rules by local government in performance of its functions.

23.     Reference to above provisions is made to show that the petitioners being the Nazims of various UCs are part and parcel of the City District Government. They participate in various meetings including meetings relating to financial proposals, approvals etc. They are also part and parcel of the entire process of budgeting through which every single expenditure and allocation, including the budget and allocation for development programs in respect of Union Councils is approved. On perusal of the provisions of SLGO, 2001, particularly provisions referred to hereinabove it emerges that it is a self-contained code in itself which provides for the entire mechanism for the smooth functioning of the City Government including the finance, accounts and audit. An exhaustive mechanism is also provided for participating in preparation of budget proposals, raising objections and seeking remedy against grievance for non-observance of legal provisions and rules thereunder.

 

24.     On the face of the record it appears that the petitioners have never objected or resorted to any remedy for the redress of their grievance relating to their entitlement to share of 37.5% of the receipts obtained from change of land use/commercialization at the relevant point of time and before the relevant forum available in this regard. Moreover, it is also manifest in view of the summary of statements of receipts and expenditure filed by the respondents that huge amounts have been spent on the development of the area which are under the respective UCs of the petitioners, which fact has not been denied by the petitioners. Even otherwise, if we examine the provisions of clause 8-4 of Change of Land Use & Master Planning Bye-Laws 2003, which reads as follows:

 

 

 

which shows that the percentage of share as claimed by the petitioners 37.5% is required to be spent after consultation with Management of Union Council, preferably and not compulsorily, as wrongfully stated in the petition by petitioners. The claim on this account is also misconceived.      

25.     From the pleadings of the petition it appears that at the one hand the petitioners are critical on change of land use/commercialization of the respective areas falling within the UCs and on the other hand claiming the purported share of 37.5 of the receipts obtained from such conversion/commercialization. It further emerges from the facts of the case that the substantial development work has been undertaken in the area of the petitioners, whereas the grievance of the petitioners appears to be that the same development should have been made by the petitioners to earn goodwill of the residents of the area of their respective U.Cs. We are afraid that no substantial ground has been made out by the petitioners requiring cognizance by this Court in its constitutional jurisdiction nor any such violation of any constitutional or statutory provision has been pointed out which could be rectified without entering into the detail of the disputed facts or examining the entire record or accounts of the City District Government in this regard. Moreover, alternate remedy is available to the petitioner under Sindh Local Government Ordinance, 2001 which has not been availed by the petitioner nor the petitioner has been able to make out any case of intervention of this Court in its extraordinary constitutional jurisdiction. Under the circumstances of the case, we find no merits in the instant petition, which is dismissed in limine alongwith listed applications with no order as to cost.

 

                                                                                          JUDGE

                                                                 JUDGE