Chapter – VI) Authority of Local Governments

Chapter – VI) Authority of Local Governments #

15.       Local governments to work within the Provincial framework.–(1) Every local government shall function within the framework of the Province and adhere to all applicable federal and provincial laws.

(2)       No local government shall do anything or act in a manner that impedes or is otherwise prejudicial to the exercise of executive authority of the Government.

NOTES:
PARI MATERIA PROVISIONS
PLGA 2013	PLGA 2019	PLGO 2021	PLGA 2022 (Act No. XIII of 2022)	PLGA 2022 (Act No. XXXIII of 2022)
s.	s.	s.	s.	s.
4	6	15	24	15

Comments

The local governments perform certain devolved administrative and financial functions and authority of the Provincial Government within their local areas devolved upon them. There are Provincial statutes made under Articles 137 and 142 of the Constitution of Pakistan in exercise of the executive and legislative power of the Province, e.g. the Water Act to comprehensively manage and regulate water resources in the Punjab in the interest of conservation and sustainability. Since it is the essential function of the local governments to develop integrated system of water reservoirs, water sources, water supply and treatment plants, drainage including storm water drainage, liquid and solid waste collection, disposal and treatment including landfill site and recycling plants, sanitation and other municipal services in terms of Section 21(1)(r) of the Act, it is bound to observe the provisions of the Water Act, 2019 in performance of its relevant functions. Moreover, by virtue of Sub-section (2) of Section 15 of the Act, the Government has executive authority of supervisory nature. In the judgment of the august Supreme Court of Pakistan reported as 2021 SCMR 834 in a case titled “D.G. Khan Cement Company ltd. vs. Government of the Punjab through its Chief Secretary, etc.” , the petitioner being owner of the cement manufacturing plant in Kahoon Valley in the salt range at Khairpur, District Chakwal was aggrieved of the Notification dated 08.03.2018 of the Industries, Commerce and Investment Department, Government of the Punjab under sections 3 and 11 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963, introducing amendments in Notification dated 17.09.2002 to the effect that establishment of new cement plants, and enlargement and expression of existing cement plants shall not be allowed in the “Negative Area” falling within Districts Chakwal and Khushab. The petitioner claimed that the Government and its line Department lacked jurisdiction to issue the Notification and only local government under the Punjab Local Government Act, 2013 could exercise jurisdiction over matters relating to zoning and classification of land, land use, environment control, water sources and ecological balances. The august Supreme Court while interpreting the extent and scope of Section 4(1) of the Punjab Local Government Act, 2013 corresponding to Section 15(1) of the Punjab Local Government Act, 2022, held as under:

“7.       In so far as objection of the petitioner that the mandate of zoning of land belongs to a local government is concerned, suffice it to say that the matter involved a trans-district issue which could be dealt with by the Provincial Government exercising the authority conferred by the Ordinance. Even so, the functions of the local government could not mean to trump the executive authority of the Provincial Government. The Ordinance is a special law compared to the Act and takes precedence. Furthermore, under section 4 of the Act, local governments have to function within the provincial framework and are to faithfully observe the federal and provincial law. And in the performance of their functions, the local governments shall not impede or prejudice the exercise of executive authority of the Provincial Government.”

The Hon’ble Lahore High Court Lahore in the matter of writ petition No.14964/2010 titled “Ameer Khan & Co. vs. Government of the Punjab through Secretary, Local Government, Lahore, etc.” and connected petition vide judgment dated 16.07.2010 reported as PLD 2010 Lahore 443 interpreted Section 4(1) of the Punjab Local Government Ordinance, 2001 corresponding to section 4(1) of the Punjab Local Government Act, 2013 and section 15 of the present Act in the following terms:

“A bare reading of the aforementioned provisions of the Punjab Local Government Ordinance, 2001 makes it crystal clear that all the local governments are to function within the provincial framework and adhere to federal and provincial laws. Local Government cannot impede or prejudice the executive exercise of government. Similarly, Local/District Government is bound by all policy decisions taken by the Provincial Government.”

In another writ petition No.2403/2003 titled “Muhammad vs. Pakistan Railways and others”, the Hon’ble Lahore High Court Lahore observed that the executive authority prescribed under section 4(2) of the Punjab Local Government Ordinance, 2001 is of supervisory nature.

In the judgment reported as 2003 YLR 1844 Lahore in the case titled “Ali Enterprises vs. TMA, Faisalabad” observed that the executive authority prescribed under section 4(2) of the Punjab Local Government Ordinance, 2001 is of supervisory nature, therefore, the Provincial Government has to formulate the policy by exercising powers under section 4(2) of the aforesaid Ordinance. Such executive authority had to be exercised only in public otherwise the discretionary power shall not be deemed to have been exercised in accordance with law. In the judgment reported as PLD 2010 Lahore 443 in the case titled “Ameer Khan & Co. vs. Government of the Punjab through Secretary LG&CD Department”, the Hon’ble High Court observed that in view of section 4 of the Punjab Local Government Act, 2001, Local/District Government are bound by all policy decisions taken by the Provincial Government. They may collect provincial taxes within the local area as the government may direct and deposit the same in the relevant government account.

16.       General authority and responsibility of a local government.–(1) Subject to and to the extent given under this Act, every local government shall have the authority to run the affairs of respective local area without interference.

(2)       A local government shall, having regard to the practical considerations:

(a)        exercise its authority and incur expenditure in the best interests of the residents without any favour or prejudice in a democratic and accountable manner;

(b)       involve residents in running its affairs and from time to time consult them on the level, quality, range and impact of services; and

(c)        give equitable access to services.

NOTES:
PARI MATERIA PROVISIONS
PLGA 2013	PLGA 2019	PLGO 2021	PLGA 2022 (Act No. XIII of 2022)	PLGA 2022 (Act No. XXXIII of 2022)
s.	s.	s.	s.	s.
–	5	16	25	16

Comments

This section envisages mandatory commitment of a local government to exercise its financial authority impartially in the best interest of the residents of its local area; involvement of the residents in consultation process to improve the quality of service and giving them equitable excess to services. This section does not only cast the abovementioned statutory obligation on the local government but when read with the provisions of section 151 of the present Act also reflects that failure to meet the statutory obligation may result in suspension or dissolution of a local government.

17.       Extent of authority of local governments.–(1) The authority of every local government shall be limited to the discharge of functions assigned to it under this Act or any other law for the time being in force.

(2)       Subject to the provisions of this Act, the authority of a local government shall extend to doing of all acts that are necessary for the due discharge of its functions or acts that are likely to facilitate or are conducive or incidental to the discharge of its functions under this Act or any other law for the time being in force.

NOTES:
PARI MATERIA PROVISIONS
PLGA 2013	PLGA 2019	PLGO 2021	PLGA 2022 (Act No. XIII of 2022)	PLGA 2022 (Act No. XXXIII of 2022)
s.	s.	s.	s.	s.
–	39	17	26	17

18.       Assignment of additional responsibilities by Government.–Nothing in this Act shall prevent the Government from assigning any function to a local government which is not included in its power and functions.

NOTES:
PARI MATERIA PROVISIONS
PLGA 2013	PLGA 2019	PLGO 2021	PLGA 2022 (Act No. XIII of 2022)	PLGA 2022 (Act No. XXXIII of 2022)
s.	s.	s.	s.	s.
–	22	18	27	18

Comments

Functions and powers of a Metropolitan Corporation and District Council have been provided in section 21 of the present Act, whereas functions and powers of a Union Council have been given in section 22. In fact, all the functions assigned and powers given to the local governments are the administrative and financial responsibilities of the Provincial Government devolved to the local governments under the law i.e. the Punjab Local Government Act, 2022 made under the Constitutional mandate given to the Province under Article 140A of the Constitution. This section enables the Provincial Government to assign further function to a local government keeping in view its capacity to perform. It is important to mention here that Article 140A of the Constitution does not specifically provides the scope and extent of devolution of political, financial and administrative authority to the local governments but leave it on the Provincial Government to determine the scope of such powers by each Province in accordance with the prevailing circumstances and political realities of the day. The august Supreme Court of Pakistan in the judgment reported as 2015 SCMR 1739 vide paragraphs 59 and 94(iii) observed and held as under:

“59.     The omission by the Constitution makers to specifically enumerate such powers was deliberate. They left the scope of such powers to be determined by each Province in accordance with the prevailing circumstances and political realities of the day. They acknowledged that the process must be initiated, yet were conscious of the fact that it has to be gradual. As Local Governments evolve, more and more powers would have to be devolved. Room was left for political experimentation, constitutional dialogue and growth. Instead of enumerating Local Government powers the Constitution makers left these to be worked out in harmony between the Provincial and Local Government. Why? Because they were conscious that political processes are evolutionary in nature. Institutions take root over time. They draw strength from a continuous constitutional dialogue between the people and their elected representatives. Implicit in this was also the recognition that the imposition of a ready-made model from the top often proves dysfunctional. It retards rather than accelerates political consensus. Much more stable is a model, which develops after mutual give and take over time. The progress of law, the development of political processes and the growth of institutions is often like the progress of a mountaineer: two steps forward, one step back. It may appear to be slow but patience is rewarded with stability.

94(iii)   Article 140A of the Constitution of Islamic Republic of Pakistan casts a mandatory 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.”

19.       Manner of exercise of authority by a local government.–(1) Subject to the provisions of this Act, the executive authority of a local government shall vest in and be exercised by its Head in accordance with this Act.

(2)        A Deputy Mayor or a Vice Chairperson shall generally exercise such powers and perform such functions as may be delegated by the Head of the local government.

(3) In case of temporary absence of the Head of a local government, the Deputy Mayor or the Vice Chairperson nominated by the Head shall deputize his office.

(4)       The Head of a local government may, direct, guide or supervise officer or servant of a local government.

(5)       The Council and its committees and sub-committees shall act through resolutions in accordance with the provisions of this Act.

NOTES:
PARI MATERIA PROVISIONS
PLGA 2013	PLGA 2019	PLGO 2021	PLGA 2022 (Act No. XIII of 2022)	PLGA 2022 (Act No. XXXIII of 2022)
s.	s.	s.	s.	s.
64	40	19	28	19

Comments

This section provides that executive authority of the local government vests in the Head of a local government who exercises same either directly or through functionaries of the local government in accordance with the provisions of the Act. There are certain functions assigned under the Act to be performed and powers conferred on the Head to be exercised by the Head (Sections 21 & 22).In fact these are the powers and authority delegated by the law. It is a settled principle of law that a delegatee cannot further delegate unless specifically provided under the law. In the present Act, through sub-section (2) of Section 19, the legislature has enabled the Head of the local government (delegatee) to delegate functions to be performed and powers to be exercised by a Deputy Mayor or Vice-Chairman. The reason is that under the Act, a Metropolitan Corporations and Districts Councils constitute larger local areas as compared to the defunct local governments constituted under the repealed local government laws. Hence, in order to enable the Head to administrator the local area of the Metropolitan Corporation or the District Council, he is authorized to delegate such functions and powers as he deems necessary. It is important to state that given the larger local areas of the Metropolitan Corporation and District Council, the Act through clauses (b) & (c) sub-section (1) of section 13 provides two Deputy Mayors for the Metropolitan Corporation and one Deputy Mayor for each Tehsil in a District Council. It is important to state that exercise of the Executive Authority is not unfettered, unbridle or uncontrolled but the same is circumscribed, conferred and regulated by the rules framed under the Act. At present, the Punjab Local Governments (Conduct of Business) Rules, 2017 framed under section 144 of the repealed Punjab Local Government Act, 2013 are in force being saved under section 204 of the Act. Sub-section (3) ensures continuity of exercise of the above executive authority even if the Head is temporary absent. In such case, the Head shall nominate the Deputy Mayor to deputize his office. Temporary absence refers to circumstances where the Head is unable to perform functions and exercise powers due to illness, injury, Ex-Pakistan leave, etc., but remains part of elected house. Suspension of the Head of a local government by the Chief Minister under sub-section (3) of section 160 of the Act is also a circumstance leading to temporary absence. Head of a local government is also empowered under sub-section (4) to direct, guide or supervise officer or servant of a local government but no direction made, guidance provided and supervision exercised can be beyond the scope of the Act.

20.       All acts and orders to be taken or made in the name of local government.–All acts and orders of a local government shall be expressed to be taken or made in its name.

NOTES:
PARI MATERIA PROVISIONS
PLGA 2013	PLGA 2019	PLGO 2021	PLGA 2022 (Act No. XIII of 2022)	PLGA 2022 (Act No. XXXIII of 2022)
s.	s.	s.	s.	s.
64	41	21	29	20