SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Guizar Ahmed, CJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Mazhar Alam Khan Miankhel
CONSTITUTION PETITIONS NO.24 OF 2017
[Petition under Article 184(3) of the Constitution of the Islamic
Republic of Pakistan, 1973]
Const.P.24 of 2017
For the Petitioner (s)
(in Const.P.No.24)
For the Federation
(Respondents No. 1-2)
MQM (Pakistan) and others Vs. Pakistan
through Secretary Cabinet Division,
Government of Pakistan and others.
Mr. Salahuddin Ahmed, ASC
(via video link from Karachi)
Mr. Mehmood A. Sheikh, AOR at
Islamabad
Mr. Khalid Jawed Khan, Attorney
General for Pakistan
Mr. Sohail Mehmood, Additional
Attorney General
For the Government of Sindh : Mr. Salman Talib ud Din,
(Respondents No.3-7) Advocate General, Sindh
(via video link from Karachi)
For Respondent No.8 
Sardar Shahbaz Ali Khosa, ASC
Along with Sardar Muhammad
Latif Khan Khosa, Sr.ASC
Date of Hearing 
26.10.2020
ORDER
Gulzar Ahmed, CJ:- This petition has been filed under
Article 184(3) of the Constitution of the Islamic Republic of
Pakistan, 1973 (hereinafter called "the Constitution") in which the
following prayers have been made:-
"It is accordingly prayed that this Honbie
Court may kindly be pleased:-
a. Declare section 3 of the KDA (Revival and
Amending) Act, 2016 and similar dispensations
in other statues to be completely without
jurisdiction, illegal, unconstitutional, void ab
initio and of no legal effect, while striking down
the same:
ii Declare sections 74 and 75 of the Sindh
Local Government Act, 2013 and section 18 of
the Sindh Buildings Control Ordinance, 1979 to
be completely without jurisdiction, illegal,
unconstitutional, void ab initio and of no legal
effect, while striking down the same:
C. Declare that "Authority" under section 4 of
the Sindh Buildings Control Ordinance, 1979,
for each territorial jurisdiction falling under the
local government institutions, shall be the Mayor
or the Chairman as the case may be, of such
local government institutions, while annulling all
dispensations, statues, notifications, rules,
delegated legislations or executive orders in
derogation to such declaration as ultra vires to
law and the constitution;
d. Direct the respondents to suitably amend
the Sindh Building Control Ordinance, 1979, the
KDA Order No.5 of 1957, the Malir Development
Authority Act, 1993, the Liyari Development
Authority Act, 1993, Karachi Water and
Sewerage Board Act, 1996, the Hyderabad
Development Authority Act, 1976, Sehwan
Development Authority Act, 1993, the Larkana
•1
 
Development Authority Act, 1994 ) any
P 
CONSTITUTIONPETJI1ONS No.24 OF 2017 ETC. 
3
dispensation pertaining to the Board of Revenue
or the Master Plan Departments of any Body or
any other Development Authority in Sindh, the
Sindh Mass Transit Authority Act, 2014, the
Sindh Food Authority Act, 2016, the Sindh
Environmental Protection Agency Act, 2014, all
delegated legislations or executive orders
thereunder, so that the powers, functions and
authorities under the said dispensations devolve
to the local government institutions in
consonance with Article 140-A of the
Constitution;
e.
Order that the employees of the all boards,
authorities or bodies liable to be devolved to the
local government institutions, are to be
transferred to the said local government
institutions, who would function under their
service rules and structures;
f.
Permanently and pending disposal of the
main petition pass such interim orders for the
purposes of devolution of powers to the local
government institutions, as are deemed fit by
this Hon'ble Court so as to make compliance of
Article 140-Al-
9. Direct the Respondents to release
Rs.29.366 Billion to the Karachi Metropolitan
Corporation, pertaining to its share of
Octroi/Zila Tax (OZT) alongwith mark up and
additional mark up;
h. Direct the Respondents to suitably amend
the Sindh Local Government Act, 1913, and any
delegated legislation or executive order issued
thereunder so that all functions and powers of
I 
CONSTITUTION PETITIONS NO.24 OF 2011 LIt. 
4
subjects falling under Article 140-A of the
Constitution, presently usurped by the
Respondent No.3, are devolved to the local
government institutions, at least in a manner
similar to the dispensation available under the
erstwhile Sindh Local Government Ordinance,
2001;
i.
Alternatively the Sindh Local Government
Act, 2013 may be annulled and directions be
issued to the Respondents to revive the Sindh
Local Government Ordinance, 2001;
j.
Direct the respondents to release all the
due share of the funds to the local governments
of Sindh, in particular the KMC for the period
from 2008 till date along-with mark
up/additional mark up, so also the due share
of the Annual Development Programmes (ADPs)
pertaining to the latter period;
k.
For future also direct the Respondents to
keep on releasing the due share of funds to the
local governments of Sindh, so also funds for
any devolved departments;
1. 
Award costs and special costs;
m. 
Award any other relief, deemed fit in the
circumstances of the case."
2. Comments have been filed by Respondent No.7-
Government of Sindh through Secretary Finance by way of
CMA No.5627 of 2020. Concise statement being CMA
No.10 101 of 2018 is filed on behalf of the Secretary, Cabinet
Division, Government of Pakistan.
I 
5
3.
We have heard the learned counsel appearing for
the parties and have also gone through the record of the case.
4.
Mr. Salahuddin Ahmed, learned counsel for the
petitioners has also filed written synopsis/ arguments by way
of CMA No.6728 of 2020. Additional written synopsis have
also been filed by the learned counsel for the petitioners.
5.
Mr. Khalid Javed Khan, learned Attorney General
for Pakistan has also filed written synopsis/ arguments.
6.
Mr. Salman Talib-ud-Din, learned Advocate
General, Sindh has also filed written synopsis/ arguments.
7.
Sardar Shahbaz Ali Khoso, learned counsel
appearing for Respondent No.8-Pakistan Peoples' Party
Parliamentarian has also filed written synopsis/ arguments.
8.
Learned counsel for the petitioners has argued
about the history of Local Government in Sindh. He has
contended that in the democratic system of governance, the
Local Government empowers people at grassroots level and
gives them authority over their day to day issues. He
contended that globally the empowerment of people at
grassroots level has improved interaction between the public
and their elected representatives, politically educated the
people and given the people sense of participation in the
governance and also improved accountability of political
parties. He contended that the Local Government System
CONSTIDJTION PETmONS NO.24 OF 2017y
works as nurseries for future Provincial and National level
leadership.
9. Relying Upon Article 32 of the Constitution, the
learned counsel contended that as a Principle of Policy, the
State is under command to encourage local Government
institutions, while Article 37(i) of the Constitution provides for
decentralization of the Government administration to enhance
public convenience. Learned counsel for the petitioners
further contended that the Local Governments were already
functioning in whole of Pakistan when Article 140A was
added to the Constitution by the Legal Framework Order,
2002 (LPo of 2002) This Article was omitted from the
Constitution by the Constitution (Eighteenth Amendment)
Act, 2010 and by the same Act of 2010, new Article 140A was
inserted in the Constitution. He contended that the inherent
functions of the Local Government includes, Building Control
and Town Planning, Water Supply, Sewerage and Waste
Disposal, Local/public Transport and Civic Facilities like
Parks, Playground,Libraries, Mosques, Graveyards, Parking
Facilities etc. He contended that in terms of existing Article
140A of the Constitution, the Provincial Government is
under-command to establish a Local Government System and
devolve political, administrative and financial responsibility
and authority to the elected representatives of the Local
Governments.
CONSTITUTION PETITIONS NO.24 OF 2017 ETC.
/
10. He further contended that Article 140A of the
Constitution does not provide any measure and extent the
Province shall establish a Local Government System, devolve
political, administrative and financial responsibility and
authority to the elected representatives of the Local
Governments, rather this Article provides establishment of a
Local Government System and to devolve political,
administrative and financial responsibility and authority to
the elected representatives of the Local Governments in full,
in that, the province has no power to allow certain functions
of the Local Governments to the Local Governments and not
to allow certain other functions of the Local Governments to
the Local Governments. He contended that Article 140A ibid
is being clearly violated in the Province of Sindh, where the
Province of Sindh, though has established Local Government
System but has not actually devolved political, administrative
and financial responsibility and authority to the elected
representatives of the Local Governments has usurped many
functions of the Local Governments by making amendments
in the very Act of 2013 so also by enacting the provisions of
Sections 74 and 75 in the Act of 2013 and also Sections 4
and 18 of the Sindh Building Control Ordinance, 1979 as well
as the Karachi Development Authority (Revival and Amending
Act) 2016, specially Section 3, which may be declared
unconstitutional. He has also contended that the Sindh
CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 
S
Building Control Authority Ordinance, 1979, the KDA Order
No.5 of 1957, the Malir Development Authority Act,1973,..the
Liyari Development Authority Act, 1993, the Hyderabad
Development Authority Act, 1976, the Sehwan Development
Authority Act, 1993, the Larkana Development Authority Act,
1994, the Karachi Water and Sewerage Board Act, 1996, the
Sindh Solid Waste Management Board Act, 2014, the Sindh
Mass Transit Authority Act, 2014, the Sindh Food Authority
Act, 2016, the Sindh Environment Protection Agency Act,
2014, the Board of Revenue Master Plan Developments may
be amended suitably to ensure that the functions contained
under the laws are devolved to the Local Governments in
consonance with Article 140A of the Constitution.
11. He further contended that the Provincial Financial
Commission, constituted under Section 112 of the Act of
2013, should also workout financial implications of such
devolution and make appropriate recommendation of fund
allocations from the Provincial Consolidated Funds (PCF) to
each Local Council and such be implemented by the Sindh
Government. He further contended that the Local
Government law should contain appropriate legislation to
ensure that the Local Government is able to levy sufficient
tax/fee to achieve maximum financial autonomy. He referred
to the collection of Octroi/Zila Tax by the Local Governments
ONS11TU11ON FETI11ONS NO.24 OF 2017 ETC. 
9
in Karachi, which was abolished and the National Finance
Commission recommended that 0.66% of provincial share in
- -.
the net proceed of divisible pool be reserved and the same was
incorporated by Section 7 of the President's Order No.5 of
2010. He contended that the Sindh Government has failed to
provide to Karachi Metropolitan Corporation (KMC) with its
due share from this allocation and there are arrears in this
regard for the years 2008-09 to 2015-16, amounting to
Rs.29.366 billion. He contended that the arrears may be paid
to KMC by the Sindh Government to enable better provision
of municipal services to the citizens of Karachi and future
share be also paid promptly. He finally contended that the
Sindh Government be directed to frame and ensure passage
of appropriate legislation to provide for meaningful
enforcement of Article 140A of the Constitution. He also relied
upon the framework and functions of the Local Government
in other jurisdictions of Canada, UK, India, US, Brazil and
Bangladesh and in this respect filed CMA No.5622 of 2020.
He has relied upon the cases of Raia Rab Nawaz vs.
Federation of Pakistan through Secretarq, Defence and others
(2013 SCMR 1629), Province of Sindh through Chief Secretarq
and others vs. M.Q.M. through Deputy Convener and others
(PLD 2014 Supreme Court 531), Government of Balochistan
through Additional Chief Secretanj vs. Azizullah Memon and
16 others (PLD 1993 SC 341), SharafFaridi and 3 others vs.
CONSTITUTION PETITIONS N014 OF 2017 ETC. 
IU
The Federation of Islamic Republic of Pakistan through Prime
Minister of Pakistan and another (PLD 1989 Karachi 404),
Government of Sindh through Chief Secretaru to Government of
Slndh, Karachi and others vs. Sharaf Faridi and others (PLD
1994 SC 105), AiJehad Trust through Habibul Wahab Al-
Khairi Advocate and 9 others vs. Federation of Pakistan
through Secretary, Ministrq of Kashmir Affairs, Islambaad and
3 others (1999 SCMR 1379), Election Commission of Pakistan
through Secretaru vs. Province of Puniab through Chief
Secretaru and others (PLD 2014 Supreme Court 668), Khan
Asfanduar Wali and others v vs. Federation of Pakistan
through Cabinet Division, Islamabad and others (PLD 2001
Supreme Court 607), Mehram Ali and others vs. Federation of
Pakistan and others (PLD 1998 Supreme Court 1445) and
Awais Y ounas vs. Federation of Pakistan and others (PLD
2016 Lahore 1).
12. Learned Attorney General for Pakistan, on the
other hand, contended that as the Local Governments are
empowered to impose tax or cess or fee by virtue of Article 7
of the Constitution, it has a status that of a State. He
contended that by Article 140A of the Constitution, Provinces
are mandated to establish Local Government System by law
and devolve political, administrative and financial
responsibility and authority to the elected representatives of
the local governments and such mandate has to be complied
CONSTITUTION PETITIONS NO.240? 2017 ETC. 
11
with by the provincial government to ensure and good
governance at grassroots level for effective delivery of
municipal/ public services. He contended that the power of
such devolution rests with the provincial legislature and it
has to ensure establishment of an effective Local Government
System by law. While relying upon the case of Lahore
Development Authority through D. G. and others vs. Ms. Imrana
Tiwana and others (2015 SCMR 1739), the learned Attorney
General contended that instead of declaring the statutory
provisions as invalid or ultra vires to Article 140A of the
Constitution, as prayed for by the petitioners, the Court may
give certain guidelines on issues, which are as follows: -
i) 
What is the essence of Local Government.
ii) 
Relationship between Provincial and Local
Government.
iii) 
Essence of Local Government (Functional
test! structure):
(a)
Local 
Government-Representative 
of
people,
(b)
Mayor-Elected Directly,
(c)
Devolution at District Level,
(d)
All Civil Agencies performing functions in
the area should be made accountable to
Provincial Assembly.
iv) 
What functions are inherently local and can be
performed by Local Government only. Such as:
(a)
Sewerage.
(b)
Water Supply.
(c)
Garbage Collection/ Solid Waste.
(d)
Town Planning/ Building Control.
CON.ThPJI1ON PETITIONS NO24 OF 20j7 ETC
12
(e) 
Intra City Transport.
(I) 
Civic Facilities i.e. 
parks, parking
facilities, mosques and graveyards.
v)
Provincial 
Financial 
Commission 
(Local
Government Autonomy Strong Accountability to
Provincial Government).
vi)
No concept of suspension and or dissolution of
Local Government.
vii)
Accountability (Audit by Account General for
Pakistan-Provincial Accountability Committee.
viii) The Honourable Court may, if deem appropriate
make it mandatory that 2/3rd majority is
required for amending any Local Government
Laws.
13. 
Referring to the Constitution of India, learned
Attorney General contended that by 73rd and 74th
Constitutional Amendments adopted in 1992, Articles 243-G
and 243-w, were added to the Indian Constitution, which laid
down that the State legislature will endow on Municipalities
and Panchayats with such powers and authority necessary to
enable them to function as institutions of
and devolution of Powers and responsibilities Upon the
Municipalities. He relied upon the cases of K. Krishna MzqLhy
&Qth.g s vs, jUnion Q India f(201o) 7 SCC 2021, UP Gram
vs. Qgygq,isr0 ((2007) 2 SCC 138)],
11
8Cc 783)] and Shanti G 
vs. $jgjgp
Maharashtra & Others 
f
Patel & others
((2005) INSC 48)]. He also gave
CONSTITUTION PETUrIONS NO 24 OFZOI7EM. 
13
comparative table of Local Governments of Bangladesh,
Malaysia and United Kingdom.
14. Learned Advocate General, Sindh has con€éffdêd
that no sufficient measure has been brought on record by the
petitioners to invoke the jurisdiction of Article 184(3) of the
Constitution and such jurisdiction should not be exercised by
this Court and the petitioners be asked to approach the High
Court in the first instance. He contended that the Sindh
Government has fully complied with Article 140A of the
Constitution by promulgation of the Act of 2013. He
contended that Article 140A ibid only requires a province by
law to establish a system within which a Local Government
shall function and keeping in view the said system, devolve
corresponding political, administrative and financial
responsibility and authority to the elected representatives of
the Local Governments. He contended that the Act of 2013
has complied with the mandate of Article 140A ibid. He
further contended that the petitioners by this petition have
sought a change in the system established by the Act of 2013,
which objective can best be achieved through political means
and not through judicial intervention. He has contended that
this Court and the High Court have consistently declined to
exercise jurisdiction in the matters, where the political
questions are involved and the laws sought to be amended by
this petition by the petitioners, have been legitimately enacted
D
CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 
14
reflecting the will of the people. He contended that the learned
Attorney General in his submission has already contended
that none of the provisions of various laws be struck' downas
prayed for by the petitioners but the Court may give some
directions or observations regarding the import of Article
140A ibid and as to what it required. Learned Advocate
General contended that he supports the submission of the
learned Attorney General that none of the provisions of law,
as prayed for by the petitioners, be struck down.
15. As regard the submission of learned Attorney
General for issuing of direction regarding the import of Article
140A ibid, learned Advocate General contended that he does
not support the same and gave reason that any direction or
observation made by the Court will be binding upon all
provinces and it should not be done without affording
opportunity of hearing to them. He further contended that the
compliance of Article 140A ibid is completed when a province
enacts law as is done by the Province of Sindh by Act of 2013,
devolving some political, administrative and financial
responsibility on the Local Governments and in doing so, the
Provincial Government has striped itself of those political,
administrative and financial responsibilities. He contended
that the silence of Article 140A ibid about the extent of
political, administrative and financial responsibility and
authority to be devolved on the Local Government is not
CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 
15
without reason. He contended that Article 140A's silence on
these aspects is explained by the fact that the dynamics
each province are not only different but are prone to change
from time to time and these changes are addressed by the
provincial legislature in the manner that best serves the
populous and thus, it is not a case of one size fits all solution.
He contended that such silence in Article 140A ibid of the
Constitution be not regarded as a flaw and remedy by judicial
intervention and such has been recognized by this Court in
Imrana Tiwana's case (supra).
16. Sardar Shahbaz All Khosa, learned counsel
appearing for Respondent No.8 has raised question of locus
standi of the petitioners to file the petition after the expiry of
its tenure and has contended that the petition is liable to be
dismissed or declared as infructuous. He has further
contended that the petition before this Court is not
maintainable, for the reason that the petitioners have not
approached the High Court in the first place. He has
contended that every province has its own sources to set up
the Local Governments and that their problems and solutions
are also distinct and the judgment passed by this Court will
have an impact on all the provinces. He contended that in
Imrana Tiwwta's case (supra), this Court has exercised
caution for the reason that it will have application on other
provinces. He contended that rolling back powers from the
local government to the provincial government is not illegal
and ultra vires and such has been dealt with by this Court in
..
Imrana Tiwana's case (supra).
17. On merits, he contended that the petitioners have
miserably failed to discharge their powers/duties for the
welfare of the public at large and shows their incapability
despite enjoying full tenure of office at Karachi. He contended
that the prayer made in the petition is in fact to usurp the
power of the legislature of the Province of Sindh and also the
executive power of the Province of Sindh. He contended that
under Article 140A of the Constitution as interpreted by this
Court, devolution is to take place as a process and no extent
in this regard has been mentioned in Article 140A of the
Constitution, and such has been intentionally left so as to
ascertain the strength of bargaining power of Local
Government vis-d-vis Provincial Government. Learned counsel
in support of his submissions also relied upon the cases of
the Province of East Pakistan and others vs. Sirajul Hug
Patwari and others (1966 Supreme Court 854), Mehreen
Zaibun Nisa vs. Land Commissioner, Multan and others (PLD
1975 Supreme Court 397), Mst. Kaneez Fatima vs. Wali
Muhammad and another (PLD 1993 Supreme Court 901),
Multiline Associates vs. Ardeshir Cowasjee and other (1995
SCMR 362), Messrs Elahi Cotton Mills Ltd. and others vs.
Federation of Pakistan through Secretary, Ministry of Finance.
I
CONSTITUTION PETmONS NO 24 OF 1017 ETC, 
17
Islamabad and 6 others (PLO 1997 Supreme Court 582), Pu,'
Tang Nawaz and another vs. Government of Pakistan through
the Secretanj, Ministrq of Health. Government oftàkistatt,
Islamabad and another (2000 SCMR 1956), Mian Asif Islam
vs. Mian Muhammad Asif and others (PLO 2001 Supreme
Court 499), Pakistan Muslim League (Q) and others vs. Chief
Executive of Islamic Republic of Pakistan and others (PLO 2002
Supreme Court 994), Pakistan Lawuers Forum and others vs.
Federation of Pakistan and others (PLO 2005 Supreme Court
719), Messrs Master Foam (Pvt.) Ltd. And 7 others vs.
Government of Pakistan throu gh Secretarz.c. Ministry of Finance
S
and others (2005 PTD 1537), Wattan Party through President
vs. Federation of Pakistan through Cabinet Committee of
Privatization. Islamabad and others (PLO 2006 Supreme Court
697), Federation of Pakistan through Secretary, Ministry of
Finance and others vs. Haji Muhammad Sadig and others
(PLO 2007 Supreme Court 133), Dr. Mobashir Hassan and
others vs. Federation of Pakistan and others (PLO 2010 SC
265) and Engineer Igbal Zafar Jhagra and another vs.
Federation of Pakistan and others (2013 SCMR 1337). Learned
counsel further contended that one provincial legislature
could not bind the future legislature in making of Local
Government law, for the provincial legislature in existence is
only the competent forum who can decide as to what matters
CONSTITUTION PETITIONS NO .24 OF 2017 ETC.
are to be devolved and to what extent to the Local
Government.
18.
First of all we propose to take up the question of
very maintainability of the petition under Article 184(3) of the
Constitution filed by the petitioners, as to whether the same
is at all maintainable.
19.
The case of the petitioners is that in terms of
Article 140A of the Constitution, there has to be a full-fledge
third tier of Government with devolution of political,
administrative and financial responsibility and authority. The
Sindh Government, by denying such devolution to the Local
Government, is infringing upon the rights of the people as
envisaged in Article 2A, the Objectives Resolution, Article 4
and the Fundamental Rights under the Constitution. That the
third tier of Government is responsible for decision making in
policy areas, which have direct impact on the life of citizens'
health, art, culture and sports, local transport, water and
energy, regional planning, education, social services and
improving law and order. The petitioners have made reference
to the Fundamental Rights contained in Articles 9, 14, 17 and
25 of the Constitution and have alleged that the Sindh
Government has let loose a complete rule of loot and plunder,
virtually spending nothing upon Urban areas of the Province
of Sindh and funds meant for the Rural Sindh, have been
looted with impunity. Making reference to Urban Sindh, in
CONSTITUTION PETITIONSNa24 OF2OIIETC, 
19
particular to Karachi so also Rural Sindh areas such as
Larkana and Ghotki of untreated garbage and sewage piled
up and hardly any provision of drinking water or useable
water is made. Water is polluted and unhygienic living
conditions prevail in the Province of Sindh and there is
epidemic of Chikungunya and other fatal diseases. No
municipal service is available. That the Health Department
and the Government Hospitals are in deplorable state, where
medicines are also not available and employment is mostly
sold out and no appointment on merit is made. Schools and
colleges run by the Sindh Government are in state of
complete shambles. Most of the schools have ghost teachers,
ghost students and no furniture. School premises are used
for keeping of cattle and animals. That since 2008 till-date,
an amount of Rs.1227 billion was allocated by the
Government of Sindh for Annual Development Programme
but hardly any budget was allocated to or spent on Urban
Sindh and the allocated amount of Rural Sindh has also been
eaten away. That the third tier of Government provided in
Article 7 read with Article 140A of the Constitution, has direct
nexus with the people at grassroots level, if allowed to
function with devolution of political, administrative and
financial authority, as required by Article 140A of the
Constitution, the day to day inflection on the people and
20
cossTrnm' PETITIONS NO.24 OF 2017 ETC.
depriving them of their Fundamental Rights could be
addressed.
concise statement has been filed by the
20. No 
Province of Sindh disputing the facts alleged in the Memo of
Petition. The Secretary Finance, Government of Sindh has
filed comments by way of CMA No.5627 of 2020 in which
stand taken is that Finance Department Governm
ent of
Sindh is releasing OZT share according to PFC Award on the
basis of actual receipts from Federal Governm ent- current
distribution of OZT share is tentative. The KMC is being
released Rs.806.532 million on monthly basis and claim of
KMC of Rs.29.366 billion is baseless. The learned Advocate
General, Sindh in his oral submission so also in his written
synopsis has argued that the petitioners have not provided
sufficient measures, where this Court could exercise
jurisdiction under Article 184(3) of the Constitution. It is
pertinent to consider Article 184(3) of the Constitution, which
is as follows:
ithout prejudice to the
"184. (3) w 
provisions of Article 199, the Supreme
Court shall, if it considers that a question
of public importance with reference to the
enforcement of any of the Fundamental
Rights conferred by Chapter 1 of Part II is
involved, have the power to make an order
of the nature mentioned in the said
Article."
21
This Article provides that, without prejudice to the
provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with reference
to the enforcement of any of the Fundamental Rights
conferred by Chapter 1 of Part II is involved, has the power to
make an order of the nature mentioned in the said Article.
21.
Reference to Article 17 of the Constitution,
apparently, has become redundant, for the reason, that
during the pendency of the petition, the tenure of the Local
Government, formed by Petitioner No.1 in some Urban areas
of Sindh has come to an end and now there is no elected local
government in the Province of Sindh. The petition to the
extent of Petitioner No.1 has become infructuous and is
dismissed. However, the remaining Articles of the
Constitution in Chapter 1, Part II of the Constitution, as
pleaded and argued from the side of remaining individual
petitioners, need to be considered and examined.
22.
In Al-Jehad Trust's case (supra), while dealing
with the question with regard to maintainability of petition
under Article 184(3) of the Constitution, this Court
considered the issues being faced by the people of the
Northern Areas of Pakistan by which they were being denied
the Fundamental Rights enshrined in the Constitution and
observed as follows:
11
22
"10. Adverting to Ch. Muhammad Frooqs
second contention that this Court has no
jurisdiction to entertain the above Constitution
Petitions, it may be observed that the grievance
of the petitioners is that the Federation is not
discharging its Constitutional duty by denying
the Fundamental Rights to the people of
Northern Areas. In our view, since the Federal
Government is situated within the territory over
which this Court admittedly has jurisdiction, the
above Constitution Petitions are maintainable. It
cannot be denied that the question as to,
whether the people of Northern Areas have the
right to invoke Fundamental Rights under the
Constitution, is a question of public importance
relating to the enforcement of Fundamental
Rights contained in Chapter 1 of Part II of the
Constitution and hence this Court has
competently entertained the above Constitution
Petitions under Article 184(3) of the
Constitution."
In the case of Ms. Shehia Zia and others vs. WAPDA
(PLD 1994 Supreme Court 693), the Court observed as
follows:-
"Article 9 of the Constitution provides that no
person shall be deprived of life or liberty save in
accordance with law. The word 'life' is very
significant as it covers all facts of human
existence. The word 'life' has not been defined in
the Constitution but it does not mean nor can it
be restricted only to the vegetative or animal life
or mere existence from conception to death. Life
includes all such amenities and facilities which
a person born in a free country is entitled to
CONSTITUTION PEI1TIONS NO.24 OF 2017 ETC. 
23
p
enjoy with dignity, legally and constitutionally.
For the purposes of present controversy suffice
to say that a person is entitled to protection of
law from being exposed to hazards of
electromagnetic fields or any other such hazards
which may be due to installation and
construction of any grid station, any factory,
power station or such like installations. Under
the common law a person whose right of
easement, property or health is adversely
affected by any act of omission or commission of
a third person in the neighbourhood or at a far
off place, he is entitled to seek an injunction and
also claim damages, but the constitutional
rights are higher than the legal rights conferred
by law be it municipal law or the common law.
Such a danger as depicted, the possibility of
which cannot be excluded, is bound to affect a
large number of people who may suffer from it
unknowingly because of lack of awareness,
information and education and also because
such sufferance is silent and fatal and most of
the people who would be residing near, under or
at a dangerous distance of the grid station or
such installation do not know that they are
facing any risk or are likely to suffer by such
risk. Therefore, Article 184(3) can be invoked
because a large number of citizens throughout
the country cannot make such representation
and may not like to make it due to ignorance,
poverty and disability. Only some conscientious
citizens aware of their rights and the possibility
of danger come forward and this has happened
so in the present case."
- 
CONSTITtTI1ON PETITIONS NO.24 OF 2017 ETC. 
24
In the case of Bank of Punjab and another vs. 
Steel Industries (Put.) Ltd., and others (PLD 2010 supreme
Court 1109), this Court in respect of entertaining of a petition
under Article 184(3) of the Constitution observed as follows: -
S
"21. We shall first take up the objection of the
learned prosecutor-General with respect to the
maintainability of this Application and to the
assumption of jurisdiction by Court with respect
to the matter in question.
22. As has been mentioned above, the matter
in question relates to one of the gravest financial
scams in the banking history of our country as a
result of which the Bank of Punjab stood
cheated of an enormous amount of around
eleven billion rupees which amount of money in
fact belonged to around one million innocent
depositors including depositors of small
amounts of money whose life-savings and
property had come under serious threat casting
thus an obligation on this Court to move in to
protect and defend the right of property of such
a large section of the population i.e. about ten
lakh depositors and customers of the Bank of
Punjab which right of property stood guaranteed
to them by Article 24 and Article 9 of the
Constitution.
23. The background of the case in question
has been noticed in some detail in the earlier
parts of this order and it appears that it was in
view of the said facts and circumstances that the
Bank of Punjab had felt compelled to approach
this Court under Article 184(3) of the
Constitution read with Order XXXIII, Rule 6 of
the Supreme Court Rules of 1980 through
CONSTITUTION PETm0NS NO.24 OF 2017 ETC. 
25
V
Constitutional Original Petition No.39 of 2009
with the following prayer:
"It is, therefore, prayed that given the
callous manner and the enormity of the
fraud played by the respondents, and the
resultant threat to the safety of the
savings of more than 9,00,000 innocent
small-scale depositors of the SOP holding
Rs. 100,000 or less in their respective
Accounts on account of this fraud, as
result of which a sum of upward of Rs. 10
Billion belonging to inter alia these small-
scale borrowers and fraudulently
withdrawn from the Bank and
misappropriated by respondents Nos. 1-3,
is not even secured to the extent of 10% of
this amount coupled with the fact that
these respondents and their associates are
hooding and supporting holders of fake
CNIC's and identities, against which they
are holding more than 120 urban
Properties in DHA, Lahore Cantt. etc., and
another 105 properties, which are
predominantly rural (though mostly
worthless) in Kasur, Chunian, Muridke
etc., and are dealing with or are likely to
deal with hundreds of persons/ citizens
and with Banks etc., on the basis of these
fake identities, and even travel abroad on
that basis, besides being a security threat
to the State, it is evident that this is case
which, consistent with the
pronouncements of this august Court, is
one involving serious violations of and
threat of violation of fundamental rights of
hundreds and, potentially, thousands of
innocent persons and, as such, the issues
involved herein may be taken up by this
august Court, directly under this august
Court's jurisdiction under Article 184(3) of
the Constitution of the Islamic Republic of
Pakistan, 1973, and appropriate dictations
be given and orders passed to secure the
fundamental rights of more than
"9,00,000 small-scale depositors of SOP. It
is further prayed that during the pendency
of this petition the NAB or any other
Investigation Agency may very kindly be
directed to initiate and carry out full
investigation in the case, and, for this
purpose, to have full power and authority
to associate any and all persons in the
CA
CONSTITUTION PETITIONS NO24 OF 2017 ETC.
investigation, including the respondents
herein as well as the Writ Petitioner, and if
sufficient incriminating evidence is found
or is available against them, to forthwith
arrest, detain and interrogate in
accordance with law.
It is further prayed that the immovable
property belonging to the respondents
Nos.1-5 and their associates may very
kindly be ordered to be attached and
possession delivered to BOP and the
vehicles recovered from them may very
graciously be allowed to be sold and sale
proceeds utilized towards partial
adjustments of the outstanding amounts.
Any other interim order which is deemed
fit and proper by this honble Court under
the facts and circumstances of the case
and to secure the rights of the small scale
depositors of BOP may also be passed in
the interest of justice, equity and fairplay.
24. As has been mentioned above, besides other
petitions filed in this Court under various other
provisions of the Constitution and the law,
Constitution Petition No.39 of 2009 had been
filed under clause (3) of Article 184 of the
Constitution which clause (3) reads as under:--
(3) Without prejudice to the provisions of
Article 199, the Supreme Court shall, if it
considers that a question of public
importance with reference to the
enforcement of any of the Fundamental
Rights conferred by Chapter-I of Part-11 is
involved, have the power to make an order
of the nature mentioned in the said
Article.
25.
A perusal of the above quoted provision
would demonstrate that this Court was
possessed of powers to make any order of the
nature mentioned in Article-199 of the
Constitution, if, in the opinion of this Court, a
question of public importance relating to the
enforcement of any of the Fundamental Rights
A
CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 
27
was involved in the matter, as has been
mentioned in the preceding parts of this order,
what was at stake was not only a colossal
amount of money/property belonging to at least
one million depositors i.e. a large section of the
public but what was reportedly at stake was also
the very existence of the Bank of Punjab which
could have sunk on account of the mega fraud
in question and with which would have drowned
not only the said one million depositors but even
others dealing with the said Bank'. And what
had been sought from this Court was the
protection and defence of the said public
property. It was thus not only the right of this
Court but in fact its, onerous obligation to
intervene to defend the said assault on the said
fundamental right to life and to property of the
said public."
23. In the above cited judgments, this Court has
discussed in various circumstances the enforcement of
Fundamental rights being part of Chapter 1 of Part II of the
Constitution are violated or infringed upon and where sizable
number of citizens are deprived of their fundamental rights so
conferred on them, the Court will ensure that the people do
enjoy the fundamental rights and such are not infracted upon
and shall exercise its power given to it under Article 184(3) of
the Constitution, for that, the matter would be that of a
public importance with respect to enforcement of
fundamental rights conferred by Chapter 1, Part II of the
Constitution.
I
28
24.
Having noted in the preceding paras facts pleaded
by the petitioners, which are not denied by the Province of
Sindh, we consider them to be substantial questions giving
rise to the very enforceability of fundamental rights of the
citizens of the Province of Sindh and such fundamental rights
relates to question of public importance and for this the
petition filed under Article 184(3) of the Constitution is
maintainable.
25.
The whole gamut of the case emanates from
Article 140A of the Constitution, which is as follows: -
"140A. (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."
This Article commands each province 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. The
elections to the local governments are provided to be held by
the Election Commission of Pakistan. The Article is couched
in imperative and mandatory term by use of the word "shall"
binding the provinces to make the law. Pursuant to this very
Article of the Constitution the province of Sindh has
29
OF 2017 FrC
cOST0
Promulgated the sindh Local GoVet Act, 2013 (the 
Mt
of 2013
) This Act of 2013 in its preambleprovides that
whereas; it is expedient to establi
sh an elected local
government system to devolve poiiti
cal
adminttat and
rinancial responsibthtY and authorityto the elected
representatives of the local governments;to promote good
governance, effective deliveryof services and transparent
decisiofl a 
rough institution zed 
ticiPatbofl of the
making
people at local level; and, to 
the ancillarymatters.
26. 
The sub 
of
of the learned counsel for the
Petitioners 
at
oners was th 
ugh the law for 
5 
blishin same law,
of a local
government system has been made but by very
particularly, 
by sections 74 and 75 there0f the powers and
particularly, 
functions of the local government have been 
speci calW taken
over by the pro 
140A 
and by doing so the very
vincial governm
ticle 140A of the Constitution has been made
compliance of 
objectives Resolution and
redundant and this manner 
Fundamental Rights gravely 
infringed.
ou the protsbons of secti
27. 
We have gone thr 
ons
74 of the Act is as
and 75 of the Act of 2013 section 
follows: -
of functions from councils to
"14. Transfer 
Government
and Vice Versa
m 
jfl an other law for the time
anything contan 
being in 
force, Government may -
CONSTITTJUON PETITIONS NG24 OF 2017 ETC.
(a)
take over the management and control of
any institution or service maintained by a
Council; and
(b)
transfer the management and control of
any institution or service maintained by
Government to a Council.
28. Section 74 ibid starts with a non-obstante clause
giving overriding power to the government to take over the
management and control of any institution or service
maintained by a Council and to transfer the management and
control of any institution or service maintained by
government to a Council. Section 75 of the Act of 2013 is as
follows;.
"[75 Commercial schemes.- (l)Government
may set up a Board, Authority or any corporate
body to perform any one or more functions of
any Council, singly or jointly with any public or
private body, and may acquire, continue,
manage or operate any commercial venture or
activity as deemed necessary in the public
interest.
(2) Any commercial operations or venture
jointly with any private body or person in
existence at the time of commencement of this
Act shall continue to do so.
(3) The Council may, with the prior
permission of Government, promote administer,
execute or implement schemes for undertaking
any commercial, business enterprise or enter
into public private Partnership."
30
CONSTITUTION PETITIONS $0.24 OF 2017 ETC. 
31
D
Section 75(1) ibid gives all embracing and complete
power to the government to set up a Board, Authority or any
corporate body to perform any one or more functions of any
Council, singly or jointly, with any public or private body and
may acquire, manage or operate any commercial venture or
activity as deemed necessary in the public interest. Section
74 which, as noted above, starts with the non-obstante clause
gives to the government all pervasive powers without any
restraint or restriction and without any cause or reason or
justification and at any time, it likes to takeover management
and control of any institution or service maintained by a
Council. What number of institution or service will be taken
over from a Council by the government, the same has been
left for the government to chose. No time frame is given for
how long the government would retain management and
control of institution or service of a Council. It also seems to
mean that over the time, the government may one after the
other take over the management and control of institution or
service maintained by a Council, to the extent that the very
Act of 2013 laying down the local government system
pursuant to the mandate of Article 140A of the Constitution
demonstratively becomes nonexistent. There is no structure
provided in Section 74 ibid for the government to exercise
such powers. Similar is the position with regard to Section
75(1) ibid in which government has been given all embracing
2017  
32
and complete power to set up a Board, Authority or any
corporate body to perform any one or more functions of any
Council. This power given under Section 75(1) of the Act of
2013, while contains all attributes of Section 74 ibid except
that it does not start with non-obstante clause, thus, has no
overriding effect. In any case, the powers provided to the
government under Section 75(1) ibid also seems to be all
pervasive with no restraint or restriction and such powers
could be exercised without any cause, reason or justification
and at any time it likes and the number of functions of
Council or Councils to be given to a Board, Authority or
corporate body is also not specified and for what period such
functions of Council will be given to a Board, Authority or
corporate body is also not provided. This provision also reads
in it, over time, the government may one after the other gives
all of the functions of a Council to a Board, Authority or
corporate body set up by it. This provision also does not
contain structured authority conferred on the government
and both Sections 74 and 75 ibid in this regard have made
excessive delegation to the government in matters relating to
management and control of institution or service of a Council
and functions of a Council. Whether this nature of delegation
of power to the government by legislature was at all intended
by Article 140A ibid and whether these provisions of Sections
U
74 and 75 ibid are also in direct conflict with the Objectives
CONSTITUTION PETITIONS NO.240? 2017 ETC. 
33
Resolution in Article 2A of the Constitution, where principle of
democracy, freedom, equality, tolerance and social justice are
required to be observed by the State and also contrary to
Articles 9, 14, and 25 of the Constitution.
29. We may note that the Constitution does not
envisage unstructured, uncontrolled and arbitrary discretion
being conferred by legislature on State functionary or holder
of a public office; even if, some discretion is conferred by law
on a State functionary or on holder of a public office, the
same has to be exercised justly, honestly, fairly, and
transparently. There has to be a structured policy in the
interest of uniformity even handedness, probability and
fairness. Under the Constitution, legislature has plenary
powers within its allotted field and there could be no
application of legislative function or authority by complete
effacement or even partially in respect of a particular topic or
matter entrusted by the Constitution to the legislature. It has
been noted that entrustment of power without guidance
suffers from excessive delegation, which in the scheme of
Constitution is not permissible. Reference is made to the case
of Malik Munsif Awan,, Advocate, Chairman, Pakistan Justice
Partzj, Lahore vs. Federation of Pakistan through Secretanj,
Law and Justice, Islamabad and others (PLD 2021 Supreme
Court 379).
CONSTITUTION PETITIONS NO14 OF 2017 ETC. 
34
30. We may further observe that wherever the
legislature devolves its authority and power to be exercised by
government or any of its functionary, it has to be
circumscribed by structured exercise of discretion. The basic
ingredients of structured exercise of discretion have been time
and again stated by this Court. In the case of Jurists
Foundation through Chairman vs. Federal Government through
Secretary, Ministru of Defence and others (PLD 2020 supreme
Court 1), this Court observed as follows:-
"41. This Court has time and again held that
the essential legislative function of the
Parliament cannot be delegated. The wisdom
behind it is that the delegatee must have
legislative guidelines to formulate Rules and
Regulations, and that guidelines, contours or
boundaries must come from the Legislature
itself. Delegation of an "essential legislative
function" by the Legislature to the Executive is
not permissible under the Constitution. The
foundation of embargo owes its genesis to the
concept of trichotomy of powers between the
Legislature, the Executive and the Judicature,
which is a fundamental principle of our
constitutional construct. Under the
Constitution, these three organs of the State
have been entrusted with separate and specified
functions. The primary function of the
Legislature is to legislate laws, of the Executive
to execute laws, and of the Judicature to
interpret laws. The words of Chief Justice
Marshall of the US Supreme Court frequently
quoted, in explaining the doctrine of separation
of powers, by the Courts of various jurisdictions
in the last about two centuries still hold: "the
Legislature makes, the Executive executes, and
the Judiciary construes, the law." The
Legislature cannot abdicate performance of the
function assigned to it by the Constitution and
set up a parallel Legislative authority. Though
the Legislature can confer upon any person or
body the power to make subordinate/ delegated
legislation (rules, regulations or byelaws, etc) in
order to give effect to the law enacted by it yet it
must perform itself the essential legislative
function, i.e. to exercise its own judgment on
vital matters of policy and enact the general
principles providing guidance for making the
delegated legislation. Through section 176A, the
Parliament appears to have divested itself of the
essential legislative function which amounts to
excessive delegation."
In the case of Sabir Igbal vs. Cantonment Board,
Peshawar through Executive Officer and others (PLD 2019
Supreme Court 189), this Court observed as follows: -
"5. There is yet another dimension of the
case. The court can examine and judicially
review the executive discretion exercised by the
authorized officer on the ground of
pro portionalitzj. Alongside reasonableness,
proportionality is now a central standard
directing the action of the executive branch. The
point of departure is that a disproportionate act
that infringes upon a human right is an illegal
act. The court, which guards the legality of the
acts of the executive branch, performs judicial
C
CONSTItUTION pETITIONS NO.24 OF 2017 ETC.
review over these acts and examines whether
they fulfil the tests of proportionality.
Proportionality is a standard that examines the
relationship between the objective the executive
branch wishes to achieve, which has the
potential of infringing upon a human right, and
the means it has chosen in order to achieve that
infringing objective. The fiduciary duty, from
which the administrative duty of fairness and
administrative reasonableness are derived,
demands administrative proportionality as well.
"The courts will quash exercises of discretionary
powers in which there is not a reasonable
relationship between the objective which is
sought to be achieved and the means used to
that end, or where punishments imposed by
administrative bodies or inferior courts are
wholly out of proportion to the relevant
misconduct. An administrative measure must
not be more drastic than necessary or to sum up
in a phrase - not taking a sledgehammer to
crack a nut. According to De Smiths Judicial
Review, the standards of proportionality and
unreasonableness are inextricably intertwined.
Unreasonableness contains two elements of
proportionality when it requires the weight of
relevant considerations to be fairly balanced and
when it forbids unduly oppressive decisions.
Under the first element, proportionality is a test
requiring the decision-maker to maintain a fair
balance. under this category the courts evaluate
whether manifestly disproportionate weight has
been attached to one or other considerations
relevant to the decision. The second element is
that the courts consider whether there has been
a disproportionate interference with the
CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 
37
claimants rights or interests. A more
sophisticated version of proportionality provides
for a structured test. Here the courts ask first
whether the measure, which is being challenged,
is suitable to attaining the identified ends (the
test of suitability). Suitability here includes the
notion of "rational connection" between the
means and ends. The next step asks whether the
measure is necessary and whether a less
restrictive or onerous method could have been
adopted (the test of necessity - requiring
minimum impairment of the rights or interest in
question).
6. Applying the test of proportionality to the
executive discretion exercised in the instant
case, the order of the authorized officer, other
than the legal infirmities discussed above, fails
to maintain fair balance by removing a person
from service because he absented himself from
duty for a day. The executive discretion also fails
the structured test of proportionality including
the test of suitability and test of necessary
requiring minimum impairment of the right of
the petitioner."
31. It is trite an accepted principle of Constitutional
jurisprudence that the Constitution being a basic document is
always treated to be higher than other statutes and whenever a
document in the shape of law given by the Parliament or other
competent authority, is in conflict with the Constitution or is
inconsistent, then to that extent, the same is liable to be declared
unconstitutional. It is also a settled maxim and the very concept of
fundamental rights is that it being the right guaranteed by a
Constitution cannot be taken away by any law. In order to examine
the vires of the Statute on its scrutiny of violation on the
touchstone of taking away or abridging any of the fundamental
rights guaranteed by the Constitution, such provision of law is
declared to be ultra vires and struck down.
32. Further, this Court has dealt with the subject of local
government extensively in Raja Rab Nawa.z's case (supra). The
following observation of this Court is relevant:-
"12. It may be observed that the life of a
community is essentially the creation of its
particular environment. It is difficult to establish
an organization that would effectively look after
the well being of all the social groups in a
country. Only such political system can succeed
which is essentially indigenous. Therefore,
establishment of democratic institutions at the
grass root level is basic requirement for the
welfare of the society. The Local Self-
Government institutions lay the foundation of
such a system. They are based upon the
recognition that the only way to respond to the
needs of the individuals is to associate them
with the process of authority. In this regard, it
would be appropriate to quote Sydney Webb's
remarks who said that any system of
government, however mechanically perfect,
would fail to take roots in the midst of the
masses of people, unless it was in some way
grafted on to the spontaneous grouping of the
people themselves. As such, the broad masses of
people are to be genuinely associated with the
management of their affairs and encouraged to
work for their own welfare. Essentially, the
n
CONSTITJTloNpmoNs No.24 Cr2017 ETC
institutions at local/grass root levels protect the
human dignity of common man to which he is
entitled
13. Local 
Government 
or 
Municipal
Government is a form of public administration,
which in a majority of contexts, exists as the
lowest tier of administration within a given state
or district. In many countries, it usually
comprises the third tier of government,often
with greater powers than higher-level
administrative divisions. The question of
municipal autonomy is a key question of public
administration and governance.It is noteworthy
that Local Governments generally act within
Powers delegated to them by legislation or
directives of the higher level of government.The
Political analysts have always emphasized on the
importance of local self-government. There are
two principles underlining the establishment of
Local bodies. Firstly, local bodies enjoy extensive
Powers to act in a way they like for the
betterment of the community unless restricted
by law in any sphere of activity. Secondly, local
bodies cannot go beyond the specific functions
delineated to them in various acts and statutes.
14. The concept of participation of ordinary
People in the conduct of public affairs was
advanced by the liberal Philosopher John Stuart
Mill as early as the mid 19th century. He
considered the broad involvement of citizens to
be the most effective guarantee of a well-
functioning democratic polity, counterbalancing
the threats posed by an over-powerful and
interventionist state. In his view, the citizens
--
CONSTETUI1ON pEirrioNs NO24 OF 2017 ETC. 
40
opportunity to articulate his views and assert
his rights afforded him the best protection
against any abuse of these rights by the State.
15. In general, this tier of government is
responsible for decision-making in those policy
areas which have a direct impact on the lives of
local citizens, e.g. urban regeneration, housing,
schools, employment and social security, health,
arts, culture and sport, local public transport,
water and energy, and regional planning. These
are the areas where the local citizens must have
the opportunity to exert direct influence on
policy-makers and thus participate in the
decision-making process. Thus, local self-
government not only has a legal and a political
dimension, but it also has sociological
connotations, namely, it directly affects
community life within a demarcated locality. It is
pertinent to mention here that in the developed
democracies, local self- government has
contributed substantially to social and economic
development and the emergence of a civil society
and its importance for democratic development
has been recognized consistently all over the
world.
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. Existence of local bodies is important for
strengthening the process of democracy. In the
recent years, local self-government has been
playing a vital role in the establishment of good
governance and community development. The
local bodies, at one end, provide services to the
£
CONS1ITUTION PETITIONS NO.24 OF 2017 ETC. 
41
local community and, on the other, act as an
instrument of democratic self-government. 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.
17. All modern States have developed a
system of self-governing local authorities. In
many countries, the basic unit of local self-
government is the municipality. Over the course
of history, two types of self-governing units,
namely, cities and municipalities have evolved at
local level. The territorial boundaries of units of
local self-government are defined by law. Local
self-government is presumed to be in existence
where a local government is established as a
legal, corporate and political institution with
decision-making powers. One of the main traits
of local self-government is that there must be a
representative body, a council or an assembly,
directly elected by local citizens through
elections, with budgetary autonomy and power
to make legislation at local level. The brief of
local government structure in various countries
 
is given hereinbelow:--
CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 
42
INDIA
In India the local government is the third level of
government apart from the State and Central
governments. There are two types of Local
Government in operation; firstly, Panchayats in
rural areas and Municipalities in urban areas.
The Panchayats are a linked-system of local
bodies with village panchayats (average
population about 5,000), panchayat samities at
the intermediate level (average population about
100,000), and district panchaytas (average
population about 1,000,000). The local
government bodies are the democratic
institutions at the basic level.
FRANCE
In France there are three main tiers of local
administration; namely, the commune,
department and region. These are both districts
in which administrative decisions made at
national level are carried out and local
authorities with powers of their own. A local
authority is a public-law corporation with its
own name, territory, budget, employees, etc. and
has specific powers and a certain degree of
autonomy vis-a-vis central government. In
addition, there are France's overseas territories
and regional bodies (collectivites territorial's)
with special status (Paris, Marseille, Lyon,
Corsica, Mayotte and Saint-Pierre-et-Miquelon).
JAPAN
Since the Meiji restoration, Japan has had a
local government system based on prefectures.
The national government oversees much of the
43
CONSTITUTION pEmloNs NO.24 OF 2017 ETC.
country. Municipal governments were historical
villages. There are 47 prefectures. They have two
main responsibilities; one is mediation between
national and municipal governments, and the
other is area wide administration. Now mergers
are common for cost effective administration.
TURKEY
Turkey has two levels of local government;
provinces (iller) and districts (ilceler). The
territory of Turkey is subdivided into 81
provinces for administrative purposes. The
provinces are organized into 7 regions for census
purposes; however, they do not represent an
administrative structure. Each province is
divided into districts, for a total of 923 districts.
SOUTH AFRICA
South Africa has a two tiered local government
system comprising local municipalities which
fall into district municipalities, and metropolitan
municipalities which span both tiers of local
government.
PAKISTAN
Local government is the third tier of government
in Pakistan, after Federal Government and
Provincial Government. There are three types of
administrative unit of local government in
Pakistan; 
namely, 
District 
Government
Administrations, Town Municipal
Administrations and Union Council
Administrations. There are over five thousand
local governments in Pakistan. After the
promulgation of Local Government Ordinance,
2001, there established democratically elected
44
0fl0%lETC
im
each headed 
a
0me of the districts
loca l
councils,
(supe15ot or Mayo 
ljtan areas are called
c0nt1fl
of 
A City pistrict often
consisting
city Districts. and Uniott councils.
called ¶owfl
subdivjsboflS o'very
mt laws, election of union
four years
As per localgovernbe held after eve 
District
councils are
is a
 ivil
District 0overnmt5 PC°l who
also include a
Coordination officerdevol:I dePartmt
alsO held by
servan1t in 
of a of Nazit' are
Currently,  
powers
the DcO." 
iples of law, whicui
above prittc 
Ilov deal
in view the 
cecI b this Court, we
33.
en pronbtm1 and 75(l) of the Act
repeatedly be 
Section 74
have repe 
provisions of Article 2A (Ob)tes
subit pr
with the they do fringe upofl 
of dignity of
of 2o13 whether 
9), lnViO1't'
Resolution
), Right of Life (Articles
of citizens (Article 25 and also
man (Article 1.4),
the constituti0n.
Article 14oA of we note that the local goveWmt is a third
on and that it
34.
ent provid by the constitu
tion
 impact
tier of goveW 
grassroots level having
their day to day
ment at the
being govern n matters ating to
on the life of citizens i
wate
iin
have neat, clean 
g
living i.e.; 
adequate and safe dr and
(i 
Right to h
orts of garbage
(ii) 
Right went, free from a11the roads,streets
envffon
and sewage piling on 
and open spaces
CONSTITUBON pErrrroNs NO.24 OF 2017 ETC.
(iii)
Keeping the citizen safe from flood
devastation and other natural calamities.
(iv)
Keeping the citizen safe from fire.
(v)
Making provision for medical treatment of
all citizens without any discrimination and
providing all requisite medicines.
(vi)
Giving equal opportunity to all citizens
without discrimination of employment in
service on merit basis.
(vii) Protecting life and liberty of all citizens
without any discrimination.
(viii) Making provision for all citizens to have
adequate education in schools and
colleges with competent teaching staff and
provision of all amenities needed for a
school and college.
(ix)
School and Colleges premise are free from
all encroachments and illegal uses.
(x)
Provision of sports facilities.
(xi)
Provision of local/public transport.
(xii) Provision of graveyard, mosque and
libraries.
(xiii) Provision of parks and playgrounds.
These are some of the basic ingredients of fundamental
rights provided to be enjoyed by the citizens.
35. Local government system having pledged to deliver
these basic necessities of life and to maintain inviolability and
dignity of human beings and to provide all these basic
necessities to all citizens without discrimination, any
infringement on the part of the government to take away from
OF2OLIE]C. 
46
the local government system through an executive fiat as
provided in Sections 74 and 75(1) of the Act of 2013, renders
them palpably derogatory to such rights of the citizens and
will not be sustainable.
36. Article 140A of the Constitution commands the
province to establish by law local government system and
devolve political, administrative and financial responsibility
and authority to the elected representatives of the local
governments. The mandate of the Constitution, gives power to
the provincial legislature to comply with this command.
Where such command is directly addressed to the provincial
legislature itself, there is no room left for allowing the
legislative power to be rested in the executive and that too,
which is not structured and tempered with by any declared
legislative policy. The legislature cannot delegate un-canalised
and uncontrolled power, as the power to delegate must not be
unconfined and vagrant but must be canalised within banks
that keep it from overflowing. The banks that set the limits of
power delegated are to be constructed by the legislature by
declaring the policy of a law and by laying down standards for
guidance of those on whom the power to execute the law is
conferred. Therefore, we are of the considered view that
Sections 74 and 75(1) of the Act of 2013 are against the
principle enshrined in the Objectives Resolution and the
fundamental rights enacted in Articles 9, 14 and 25 of the
Constitution and are also contrary to and in direct conflict
with Article 140A of the Constitution and thus, declared ultra
vires and struck down.
37.
The further submissions of the learned counsel for
the petitioners is based on Article 140A of the Constitution
that the local government should include subjects of Building
Control and Town Planning, Water Supply, Sewerage and
Waste Disposal, Local/Public Transport and Civic Facilities
like Parks, Playground, Libraries, Mosques, Graveyards,
Parking Facilities etc. and that the KDA Order No.5 of 1957,
the Sindh Building Control Ordinance, 1979, the Malir
Development Authority Act, 1993, the Liyari Development
Authority Act, 1993, the Karachi Water and Sewerage Board
Act, 1996, the Hyderabad Development Authority Act, 1976,
the Sehwan Development Authority Act, 1993, the Larkana
Development Authority Act, 1994, any dispensation
pertaining to the Board of Revenue or the Master Plan
Department or any other Development Authority in the
province of Sindh and the Sindh Mass Transit Authority Act,
2014, the Sindh Food Authority Act, 2016, the Sindh
Environmental Protection Agency Act, 2014, be suitably
amended in order to devolve them to the local government.
38.
Learned Advocate General, Sindh has vehemently
opposed this submission of the learned counsel for the
petitioners by contending that the government has fulfilled
48
the mandate of Article 140A of the Constitution by
promulgating and enforcing the Act of 2013 and there is
nothing more which the government can give.
39.
Learned counsel for Respondent No.8 has also
seriously opposed the submission of the learned counsel for
the petitioners.
40.
Learned Attorney General for Pakistan, on the
other hand, has given his valuable suggestion that where the
local government system is made more vibrant, through
consultative process between the provincial government and
the local government.
41.
Article 140A has already been reproduced above.
In interpreting constitutional provisions, the Court has
always approached and given dynamic and progressive
meaning to the words of the Constitution and has also leaned
towards giving effect to the Constitution, which is addressed
by the Constitutional provisions. The Court has always
avoided giving interpretation to the Constitution, which
represents results not intended by the Constitutional makers
or to narrow down or make the Constitutional provision
pedantic. The Court has always strived to construe the
Constitution broadly so that it may meet the requirements,
which it sets down to address.
42 It is also well settled principle of interpretation i.e.
statute made pursuant to the provision of the Constitution
CONSTITtJflON PETITIONS NO.24 OF 2017 ETC. 
49
cannot restrict or retard the constitutional provision as the
constitutional provision being the supreme law the statute
must under it conform to the Constitutional law.
43. S.M. Zafar on Understanding Statutes, Cannons of
Construction, Fourth Edition has dealt with this subject as
follows: -
"Every problem about statutory interpretation
also comes up in the constitutional
interpretation, but crucial differences between
most statutes and most constitutional provisions
do exist in as much as the principles enunciated
in the Constitution are deemed fundamental; as
they draw their authority from the general will of
the people, which is supreme, and can seldom
act, they are designed to be permanent. Further
more, constitutional law being the supreme law
of the land must not be equated with the statute
law which is the creation of the legislature and
which must conform to constitutional law if it is
to exist at all. If this is so, then why should the
same principle of construction applicable to
statute law be applied to constitutional law.
Constitutional word and phrases should receive
a broader and wider interpretation for the
achievement of its social, economic and political
mission."
Under the heading of special rules of Construction of
Constitution, learned author has commented as follows: -
"(H) Any interpretation which seeks to comply
with or advance principles of policy enumerated
in the Constitution should be adopted as
CONSTITUTION PETITIONS NO.24 OF 2017 KIC. 
1!J
0
against an interpretation which goes against
such principles, as the directive principles of
State policy are to be regarded as fundamental
to the governance of the State.
(I) Constitutional document is to be broadly
construed so as to cover all exigencies. A narrow
construction has no room in the context of a
constitutional dispensation."
44.
Thus noted, the aim of Article 140A of the
Constitution was to create a local government system by
devolving political, administrative and financial responsibility
and authority to the elected representatives of the local
governments. This is a simple command to the Province to
make law giving effect to the measures laid down by the
Constitution and there are no ifs and buts in complying with
the very mandate of Article 140A of the Constitution.
45.
All the learned counsel appearing for the parties before
us, during the course of arguments, have extensively referred to
the judgment of this Court in Imrana Tiwana's case (supra). It
would, therefore, be appropriate to deal with this case and in doing
so, the facts, as are mentioned in para-1 of the judgment, are
reproduced as follows: -
"The facts of this case though hotly disputed are
relatively uncomplicated. Under challenge is the
Signal Free Corridor Project (the "Project"). The
Lahore Development Authority ("LDA"), a
statutory authority established by the
Government of Punjab ("GoPb"), is "introducing"
two underpasses, 7 U-turns and 5 overhead
CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 
51
U
pedestrian bridges on an existing 7.1 Kins of the
existing Jail Road and Main Boulevard. It starts
from Qurtaba Chowk (roundabout) and ends at
Liberty Market Main Chowk. According to the
judgment of the High Court, this remodelling
would convert this stretch into "a signal free,
high speed expressway".
Apparently, three writ petitions were filed in the Lahore
High Court, Lahore challenging the action of the Government
of Punjab and the Lahore Development Authority (LDA) of
undertaking the project mentioned in para- 1 of the judgment.
All the three writ petitions were heard by a Full Bench of the
Lahore High Court, Lahore and vide judgment dated
17.04.2015, the Bench accepted all the three writ petitions
striking down Sections 6, 13, 13A, 14, 15, 16, 18, 20, 23, 24,
28, 34A, 34B, 35, 38 and 46 of the LDA Act, 1975, as ultra
vires the Objective Resolution, Articles 2A, 4, 9, 14, 17 and 25
of the Constitution and offensive to Articles 32, 37(i) and
140A of the Constitution.
Three appeals were filed by the Lahore Development
Authority and others before this Court which were allowed
vide judgment reported in Imrana Tiwana's case (supra),
para-94 of the judgment contains the short order passed by
this Court, which is as follows: -
(i) Elected Local Governments are presently
not in existence in the Province of Punjab. The
Provincial Government through its agencies is
52
Co$S11TW10N PETITIONS $0.24 OF 2017 ETC.
performing their duties and functions. The
disputed signal Free Corridor Project was
conceived by an agency of the Provincial
Government, WA, in the year 2014 and
included in its budget allocation for 2014-15.
Construction of the project was awarded to the
Contractor on 19-2-2015, who had already
undertaken construction in the value of Rs.60
million before the interim restraint order was
issued by the learned High Court on 5-3-2015.
In the vacuum resulting from the absence of an
elected Lahore Metropolitan Corporations the
initiation, approval and execution of the
disputed signal Free Corridor project by the
Provincial Government through its agency, LDA,
is held to be valid. The said project may
accordingly be completed subject to provision of
additional facilities for pedestrians inter alia,
including road crossing and passes at intervals
of one-kilometre or less along the project road
distance.
(ii) subject, inter alia, to the criteria of spill
over, economies of scale, effectiveness as shall
be determined in the detailed reasons by the
Court, any new project falling within the domain
of Lahore Metropolitan Corporation for approval
or execution shall not be undertaken by the
Provincial Government or its agency without
prior consultation and consent, unless withheld
without justified reasons, as the case may be, of
the elected Lahore Metropolitan Corporation in
respect of such project.
(iii) Article 140A of the Constitution of Islamic
Republic of Pakistan casts a mandatory
CQNSTITIflION PETITIONS NO.24 OF 2017 ETC. 
53
obligation on the Provinces to establish Local
Governments possessing meaningful authority
and responsibility in the political arena,
administrative and financial matters. It is the
duty of a Province through the Provincial
Government and the Provincial Assembly to
purposefully empower Local Governments in the
Province so as to comply with their mandatory
obligation under Article 140A of the
Constitution.
(iv) In the present case, the powers in relation
to master plan and spatial planning historically
belonging to Lahore Metropolitan Corporation
have been superimposed with similar functions
vesting in LDA under Provincial law. To the
extent of conflict in the exercise of their
respective powers and functions by the two
bodies or on account of legal provisions having
overriding effect, Article 140A of the Constitution
confers primacy upon the authority vesting in an
elected Local Government over the powers
conferred by law on the Provincial Government
or an agency thereof. Notwithstanding the above,
the Provincial Government is in any case under
a duty to establish harmonious working
relationship with an elected Local Government
wherein respect is accorded to the views and
decisions of the latter. Accordingly, section 46 of
the Lahore Development Authority Act, 1975,
purporting to override conflicting action taken by
an elected Local Government, is held to be
against the scheme of the Constitution and
should either be read down or declared ultra
vires as determined in the detailed judgment.
CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 
54
(v)
Section 5(6) of the Punjab Environmental
Protection Act, 1997 imposes a mandatory duty
on the Provincial Government to constitute
Advisory Committee under the said Act. This
Committee is meant to assist the Environmental
Protection Agency in evaluating the
environmental impact of projects under
consideration. The failure by the Provincial
Government to constitute the said Committee
violates its statutory duty. However, in the
present case the impugned judgment has not
attended any objection to the ETA on its merits,
nor have the respondents highlighted any
objection that has remained unattended and yet
is fatal to the ETA. Moreover, the right of appeal
and further remedies on the merits of the ETA
approval available under the Pakistan
Environmental Protection Act, 1997, have not
been availed by the objecting respondents. The
ETA cannot be struck down upon presumption
or mere apprehension.
(vi)
It is improper that disparaging references
are made in the impugned judgment to a learned
senior counsel, who had objected to the
composition of the Bench. Contents of
paragraphs 10(d), 21 and 22 in the impugned
judgment containing such remarks are
accordingly expunged. Equally, the academic
expositions on the concepts of subsidiarity and
federalism within the federating units, in the
present case a Province, cannot be made
grounds by the impugned judgment for striking
down statutory law. The only touchstone for this
purpose is conflict of statutory law with the
provisions of the Constitution. Consequently,
CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 
55
S
the said grounds adopted by the impugned
judgment are rejected.
(vii) The action proposed in the impugned
judgment to be taken against the officials of the
LDA or any other person as envisaged by
paragraph 100A thereof is also set aside."
46. This very operative part of the judgment, given by
this Court in the Imrana Tawana's case (supra), in our view,
with full force applies to the present case also. As the
controversy in the present petition also substantially revolves
around the same subject, as has been dealt with by this
Court and the judgment being a law declared by a 3-Member
Bench of this Court, in terms of Article 1$9 of the
Constitution, is the operative law of the land. We tend to
agree with the operative part of the judgment of this Court in
Imrana Tiwana's case (supra) and thus, would dispose of
this petition in the following terms:-
(i) Elected Local Government are presently not
in existence in the Province of Sindh. The
Provincial Government through its agencies
is performing their duties and functions. In
the vacuum resulting from the absence of an
elected Local Government in Sindh, the
initiation, approval and execution of any of
the duties and functions of the elected local
government are allowed to be carried out by
the provincial government and no new
project following within the domain of the
elected 
local 
government 
shall be
S
56
undertaken by the provincial government or
its agency without prior consultation and
consent unless withheld without justified
reasons, as the case may be of the elected
local government in respect of such project.
(ii)
Article 140A of the Constitution of Islamic
Republic of Pakistan casts a mandatory
obligation on the Provinces to establish Local
Government possessing meaningful
authority and responsibility in the political
arena, administrative and financial matters.
It is the duty of a province through the
Provincial Government and the Provincial
Assembly to purposefully empower Local
Governments in the province so as to comply
with their mandatory obligation under
Article 140A of the Constitution.
(iii)
The powers in relation to master plan and
spatial planning which historically belongs
to the elected local government have been
superimposed with similar functions vesting
in the provincial laws. To the extent of
conflict in the exercise of their respective
powers and functions by the elected local
government and the statutory authorities or
on account of legal provisions having
overriding effect, Article 140A of the
Constitution confers primacy upon the
authority vesting in an elected local
government over the powers conferred by law
on the provincial government or agency
thereof. Notwithstanding the above, the
provincial government in any case is "under
a
57
a duty to establish harmonious working
relationship with an elected local
government" wherein respect is accorded to
the views and decisions of the latter.
(iv)
Thus, the laws made by the provincial
government i.e. the Sindh Building Control
Ordinance, 1979, KDA Order No.5 of 1957,
Malir Development Authority Act, 1993,
Liyari Development Authority Act, 1993,
Karachi Water and Sewerage Board Act,
1996, Hyderabad Development Authority
Act, 1976, Sehwan Development Authority
Act, 1993, Larkana Development Authority
Act, 1994, any dispensation pertaining to the
Board of Revenue or the Master Plan
Department or any other Development
Authority in the province of Sindh and the
Sindh Mass Transit Authority Act, 2014, the
Sindh Food Authority Act, 2016, the Sindh
Environmental Protection Agency Act, 2014,
purporting to override and conflicting action
taken by an elected local government are
held to be against the scheme of the
Constitution and the provincial government
is directed to bring all those laws in accord
with the mandate of Article 140A of the
Constitution.
(v)
The Government of Sindh shall ensure that
all local governments in the province of
Sindh do get their share in the divisible pool
of funds by implementing the Provincial
Financial Commission Award and also to
ensure that no arrears in this regard are
CONSTITUTION PETTTIONS NO.24 OF 2017 ErC. 
58
accumulated and if, there are arrears, the
same are released.
(vi) Sections 74 and 75(1) of the Act of 2013 are
against the principle enshrined in the
Objectives Resolution and the fundamental
rights enacted in Articles 9, 14 and 25 of the
Constitution and are also contrary to and in
direct conflict with Article 140A of the
Constitution and thus, declared ultra vires
and struck down. 
4
Special Bench-I 
Islamabad
2022
APPROVED FOR REPORTINO
RsbbaniP
Announced in open Court on (Sit February, 2022