2020 C L C 1151
[Balochistan]
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
MAQBOOL AHMED and others ----Petitioners
Versus
SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF BALOCHISTAN and
others ----Respondent
Constitution Petition No.599 of 2014 and Constitution Petition No.(S)149 of 2018, decided on 28th November, 2019.
(a) Constitution of Pakistan ---
----Art.199--- Constitutional jurisdiction of High Court ---Scope ---Term 'aggrieved person'---
Dispensation of justice --- Scope ---Dispensation of jus tice is not alone function of courts but
public functionaries are equally responsible to act fairly, justly and in accordance in law being trustees of public power ---Where public functionaries have failed to perform their
duties or they act illegally or in excess of their jurisdiction relating to public duties, any
concerned person can invoke Constitutional jurisdiction of High Court --- Term 'aggrieved
person' under Art. 199 of the Constitution is not confined to a person having strict legal right
but it ma y extend to any person having legitimate interest in performance of a public duty.
Messrs Al -Raham Travel and Tours Private Limited and others v. Ministry of
Religious Affairs 2011 SCMR 1621; Human Right's case PLD 2010 SC 759 and Javed Ibrahim Paracha v . Federation of Pakistan PLD 2004 SC 482 rel.
(b) Balochistan Land Revenue Act (XVII of 1967) ---
----S.6 ---Constitution of Pakistan, Art. 199--- Constitutional petition ---Judicial review ---
Renaming of Tehsil/District---Petitioners were aggrieved of change of name of their Tehsil and District on names of political elite and their family members by government ---Validity ---
Where executive authorities were involved in infringement of law and the Constitution, court in judicial review could unhesitatingly and wi thout slightest qualms of conscious could cast
aside technicalities of procedure in dispensing judicial review and entertain petition filed by likeminded public individuals ---Individuals who moved court for judicial redressal had to be
bona fide as matters concerned public interest and aimed for good of public ---Petitioners had
locus standi to invoke Constitutional jurisdiction of High Court to seek directions against government restraining them from doing any wrong---No law existed to change name or rename a Tehsil or District--- Government issued the notification in view of S.6 of
Balochistan Land Revenue Act, 1967 which contained no provision with regard to change of name of a District or Tehsil --- Only power available for executive to take action was der ived
from law but there was no such law under which executive could issue notifications in
question and Government also did not follow municipal laws and did not call objections from general public through publication--- High Court restored names of Distric t/Tehsil in question
as notifications passed by government were illegal, without lawful authority and void ab initio ---Constitutional petition was allowed in circumstances.
Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; R v. Hull
University Visitor ex parte by Lord Browne Wilkinson, Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948); SS Miranda Limited v. The Chief Commissioner Karachi PLD 1959 SC 134; Judicial Review of Public Actions; Government of Pakist an v.
Dada Amir Haider Khan PLD 1987 SC 504; Gaddon Textile Mills v. WAPDA 1997 SCMR 641; Saleem Akhtar J. while referring 1997 SCMR 641; KBC Authority v. Hashwani S&S Limited PLD 1993 SC 210; Chamber of Commerce and Industries Quetta v. Director General Quetta Development Authority and others PLD 2012 Bal. 3 and Khan Muhammad v. Chief
Secretary Government of Balochistan and others 2018 SCMR 1411 ref.
(c) Constitution of Pakistan ---
----Art. 199 ---Constitutional jurisdiction of High Court ---Scope ---Governme nt Policy,
interference in ---Preconditions ---Ordinarily, courts do not interfere in policy matters
however, if policy is in conflict with any provision of law or is violative of fundamental rights of citizens same can be called in question in Constitutiona l jurisdiction of High Court.
Messrs Al -Raham Travel and Tours Private Limited and others v. Ministry of
Religious Affairs 2011 SCMR 1621; Messrs Shaheen Cotton Mills, Lahore and another v.
Federation of Pakistan, Ministry of Commerce through Secretary and another PLD 2011 Lah. 120 and Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642 rel.
(d) Constitution of Pakistan ---
----Art.199--- Constitutional jurisdiction of High Court ---Executive action, scrutiny of ---
Scope ---Executive action was to be such having no possibility of violating fundamental
right ---Power of executive to take action would have to be derived from law --- Law itself
would not be able to confer upon executive any power to deal with a citizen or other persons in contravention of a fundamental right --- Functionaries of State have to function strictly
within sphere allotted to them in accordance with law --- No court or authority is entitled to
exercise power not vested in it and all citizens have an inalienable right to be treated in accordance with law ---Action of an authority admittedly to be derogatory to law and
Constitution is liable to be struck down.
Messrs Al -Raham Travel and Tours Private Limited and others v. Ministry of
Religious Affairs 2011 SCMR 1621; Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676 and Salahuddin Dharaj v. Province of Sindh through Secretary, Local Go vernment Department and 4 others PLD 2013 Sindh 236 rel.
Asghar Khan Panezai for Petitioner (in Constitution Petition No.599 of 2014).
Abdul Rahim Kakar for Intervener (in Constitution Petition No.599 of 2014).
Abdul Malik Baloch for Petitioner (in Cons titution Petition No.149 of 2018).
Shai Haq Baloch, A.A.G. for Respondent (in Constitution Petition No.149 of 2018).
Date of hearing: 12th September, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .---The titled constitution petitions have been filed
under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the
"Constitution") to call in question the vires and validity of Notification Nos. 33A 13 and 63A
13 dated 16.06.2014 and 21.05.2018 whereby Mangochar Sub- Division of District Kalat was
renamed as Khaliq Abad Mangochar" and "Tehsil Phelawagh" of District Dera Bugti was renamed as "Tehsil Qadirabad" respectively.
2. This consolidated judgment shall dispose of both the petitions, as common questions
of law and facts are involved therein.
3. Learn ed counsel for the petitioners vehemently argued that:
A. Respondent -Government while issuing the impugned Notifications has failed to take
into consideration that political figures have no mandate to get modified the historical
names of Sub Division and Tehsil, when different Tribes are inhabiting in the area
and the act of changing the names smell malafides and ulterior motives on the part of respondents.
B. Respondent -Government had travelled beyond its authority, as under the law, it is not
vested with any power to oblige anybody in a representative capacity, which would
amount to rivalry and hatred for times to come amongst the inhabitants of the area.
C. Prior to changing the names, the respondents have failed to seek general consensus from the masses inhabiting in the area as well as calling a prior concern of inhabitants
through publication for such modification or alteration. The respondents on their own cannot take any step either intentionally or unintentionally to give preference to a family, whi ch may have socio- economic and political dynamics related to different
tribesmen, tribes and clans and may also have their own interests.
D. Since Mangochar and Phelawagh are notified rural areas, therefore, municipal laws could not be enforced in such are as and the act done is an attempt to give fame to a
political figure which obviously had multiple future repercussions on all counts.
Besides above, learned counsel for petitioner further argued that in the entire Province
of Balochistan, the roads, stree ts, towns overhead bridges, educational institutions, hospitals
public parks and universities are named after people/individuals of ruling privileged, feudal,
political class of the province without noticing role of such individuals in matter of
developments, betterments and services for particular area, town, city, country or education. According to learned counsel it is evident from the conduct of Provincial Government and functionaries that the cities, towns, streets and all institutes (educational and health), relating to public in general have been treated as part of some undeclared kingdoms of local feudal
and political lords of each town, city and area, therefore, naming, renaming such institutes,
towns, cities, roads, streets is part of their kingdom rule.
4. Conversely the learned AAG strongly opposed the contentions put forth on behalf of
the petitioners and stated that the Hon'ble Chief Minister Balochistan desired for moving
summary on the request of the elected representatives as well as inhabitants of the concerned
areas, and as per procedure enumerated in the Balochistan Government Rules of Business, 2012 a summary was accordingly submitted with complete background to the Chief Minister for approval and within the meaning of Section 6 of the Land Revenue Act, 1967 the
Government of Balochistan approved the summary purely for the convenience of general public, better management and in the interest of the people of the area at large resulting in issuance of Notifications. In support of the parawise comments the learned AAG during
course of arguments also raised objections that since the petitioners have challenged a policy
matter which was endorsed by the government therefore, on this ground alone the petitions
are not maintainable. The lear ned AAG raised the preliminary objection with regard to
maintainability of these petitions on the ground that the petitioners have no locus standi to invoke the constitutional jurisdiction of this court. He further argued that the petitioners are not bonaf ide litigants, therefore these petitions being without substance, based on mere
apprehension and resulting in abuse of the process of court, are liable to be dismissed.
5. We have heard the learned counsel for the petitioners, the learned AAG and have also
gone through the entire record with their able assistance. Before dilating upon the respective contentions it may be seen that admittedly the petitioners are residents of Mangochar and Dera Bugti and are residing in the same vicinity.
6. It may be observe d that dispensation of justice is not alone the function of Courts but
public functionaries are equally responsible to act fairly, justly and in accordance with law being trustees of public power. It is settled law that where public functionaries have fail ed to
perform their duties or they act illegally or in excess of their jurisdiction relating to public duties, any concerned person can invoke the constitutional jurisdiction of this Court. The term 'aggrieved person' under Article 199 of the Constitution would not confined to a person
having strict legal right but would extend to any person having legitimate interest in performance of a public duty. The Hon'ble Supreme Court in case of M/s. Al -Raham Travel
and Tours Private Limited and others v. Ministry of Religious Affairs (2011 SCMR 1621) held that constitution is living organism and has to be interpreted to keep alive the tradition of past blended in the happening of present. The august Supreme Court further held that even the policy in conflict with pr ovision of law or violation of fundamental rights can be
challenged in constitutional jurisdiction.
7. In the matter of Human Right's case (PLD 2010 Supreme Court 759), the apex Court
on a petition filed by member of a Civil Society entertained the petition against project in
public park, thus the scope of locus standi was extended to even conscious and concerned
citizens who are live to the illegality and excess of jurisdiction by Executive Authorities of the Government. In Javed Ibrahim Paracha v. Federat ion of Pakistan (PLD 2004 Supreme
Court 482), the scope of public interest litigation was determined that firstly the matter should be of public interest and secondly the petitioner aims for public good and for the
welfare of general public. It is well set tled by now that where infringement of law and
constitution by Executive Authorities is involved, Court in judicial review would
unhesitatingly and without the slightest qualms of conscious cast aside the technicalities of procedure in dispensing judicial review and entertain the petition filed by like minded public individuals. However, there is no dispute that the individuals who moved the Court for judicial redressal must act bona fide. The matters indeed in our considered view concern public interest and aim for good of public. Therefore, petitioners have locus standi to invoke the constitutional jurisdiction of this Court, to seek directions against the respondents restraining them from doing any wrong.
8. The case in hand is in the nature of public interest litigation and the petitioners have
filed these petitions as pro bono publico. They are seeking directions against the illegal use and unauthorized renaming of Sub- Division in the name of fathers of elected representatives
of concerned areas.
9. Even otherwise being the citizens of Pakistan the petitioners have every right to
invoke the jurisdiction of this Court, for taking notice of abuse of trust and misuse of authority by the public functionaries. In the instant petition, the petitioner have alleged that
the act of respondents in renaming the Sub- Divisions concerned is illegal and unlawful, as
being in excess of the official authority and powers. The point raised and prayer made by the
petitioners comes within the ambit and scope of sub- clause (ii) of clause (a) of Sub -Article
(1) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The objection raised by learned AAG in this regard is held to be without any legal backing and thus not sustainable in the eyes of law.
10. In the case of Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC
423) the august Supreme Court of Pakistan while dealing with the case of construction of high rise buildings on the question of "locus standi" of the petitioners in para. 29 of its
judgment has observed as follows:
"For the facts and reasons, and case -law on the subject of locus standi as mentioned
above, we find that even though some writ petitioners are shown E to be residing at distances far away from the building in di spute and one writ petitioner is shown to be
residing in close proximity of the building in dispute and since the area is same, requirement of locus standi as contemplated under Article 199 of the Constitution is to have extended scope as this case has characteristics of public interest litigation and the writ petitioners are pro bono publico."
11. In these circumstances, we are of the firm view that the petitioners falls within the
definition of an "aggrieved person" and they have the locus standi to file these petitions as
contemplated in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The objection as to maintainability of the instant writ petition is rejected.
12. The learned AAG also questioned the maintainability of these petitio ns on the ground
that the Government has taken a policy decision and it is not for this court in exercise of
judicial review to sit in appeal over such policy decision to substitute it with its findings.
13. No doubt ordinarily the Courts should not interf ere in the policy matters, however, if
the policy is in conflict with any provision of law or is violative of the fundamental right of the citizens the same can be called in question in constitutional jurisdiction of this Court. In this context the august Supreme Court in judgment reported as "Al -Raham Travels and Tours
(Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others" (2011 SCMR 1621) held as under; -
"As regards the contention of the learned counse l that the High Court cannot interfere
with the policy matters in its jurisdiction, we have some reservations, as if the policy is in conflict with any provision of law or is violative of the fundamental rights of a citizen, the same can be called in quest ion before the High Court in its writ
jurisdiction. Reference can be made to Watan Party v. Federation of Pakistan (PLD 2006 Supreme Court 697) and Shaheen Cotton Mills v. Federation of Pakistan (PLD 2011 Lahore 120)."
Reliance is also made on Messrs Shah een Cotton Mills, Lahore and another v.
Federation of Pakistan, Ministry of Commerce through Secretary and another (PLD 2011 Lahore 120).
Policies in the ultimate analysis tend to be translated into Executive action. It is
equally settled law that Executi ve has no inherent power to pass any order or take any action,
as has been repeatedly held by the Hon'ble Supreme Court of Pakistan including in the
judgment reported as: Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federa tion of Pakistan through Secretary Ministry of Interior and
others (PLD 2007 SC 642) in the following terms:
"There is no inherent power in the Executive, except what has been vested in it by law, and that law is the source of power and duty."
Therefore, executive action should be such having no possibility of violating a
Fundamental Right. The only power of the Executive to take action would have to be derived from law and the law itself would not be able to confer upon the executive any power to deal with a citizen or other persons in Pakistan in contravention of a Fundamental Right.
Functionaries of State, have to function strictly within the sphere allotted to them and in accordance with law. No Court or Authority is entitled to exercise power not vest ed in it and
all citizens have an inalienable right to be treated in accordance with law. Therefore, an action of an Authority admittedly to be derogatory to law and Constitution, is liable to be struck down."
Reliance is placed on the case titled as "Asaf Fasihuddin Khan Vardag v. Government
of Pakistan and others" (2014 SCMR 676) and Salahuddin Dharaj v. Province of Sindh through Secretary, Local Government Department and 4 others PLD 2013 Sindh 236.
The Hon'ble Supreme Court of Pakistan in the case of "Messrs Al -Raham Travels and
Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs", reported in 2011 SCMR 1621,
in paragraph 33, has held that:
"50 …….. If policy is in conflict with any provision of law or is violative of fundamental rights of a citizen the same can be called in question before High Court
in writ jurisdiction".
A bare perusal of case law manifestly shows that even a policy can be called in
question in writ jurisdiction if the same is either in conflict with any provision of law or is in violation of fundamental rights of a citizen.
15. Reverting to merits of the case, record reveals that a summary was submitted to the
Chief Minister which was approved within the meaning of section 6 of the Land Revenue Act, 1967, resulting in issuance of impugned Notification of 21st May, 2014. Contents of the
Notification read as under:
Dated Quetta, the 21st May, 2014 NOTIFICATION No.33 A 13. In exercise of
powers conferred by Section 6 of the Balochistan Land Revenue Act, 1967 (XVII of 1967), the Government of Balochistan is pleased to constitute a new Sub-Division namely Manguchar in District Kalat with Headquarter at Mangochar. Consequent upon the formation of the Sub- Division the territorial limits of Kalat
District are re -arranged as per following schedule. District Sub- Division Tehsil
Sub- Tehsil Kalat Kalat Kalat Mangochar Manghochar Johan Sub- Tehsil Gazg
Sub-Tehsil. Surab Surab BY THE ORDER OF GOVERNOR BALOCHISTAN
After the above notification the Board of Reve nue submitted another summary to the
Chief Minister for change of name of Sub -Division Mangochar to Sub- Division Khaliqabad
Mangochar, which is reproduced here under:
" SUMMARY FOR CHIEF MINISTER
Subject: CHANGE OF NAME FROM SUB -DIVISION MANGOCHAR TO SUB -
DIVISION KHALIQ ABAD MANGOCHAR
Placed below is a D.O. letter from Mir Khalid Khan Langove Advisor to Chief Minister for Finance Department Balochistan, received through Commissioner, Kalat Division (F/A) wherein it has been stated that during his visit to Mangochar, the
people of Mangochar District Kalat made a request regarding change of name of the newly created Sub -Division from Mangochar to Khaliq Abad Mangochar.
2. Brief facts of the case are that a new Sub -Division Mangochar was created in Kalat
District with the prior approval of Government of Balochistan (F/B).
Now the Commissioner, Kalat Division has come up with the proposal put forward by Mir Khalid Khan Langove, Advisor to Chief Minister for F inance Department to
change the name of newly created Sub- Division from Mangochar to Khaliq Abad
Mangochar.
3. In view of the above, approval of the Hon'ble Chief Minister is solicited on the
proposal of Commissioner, Kalat Division as referred to at Para- 2 above.
Senior Member. Board of Revenue"
On basis of such summary the Notification Nos. 33 A 13 dated 16th June 2014 was
issued about change of name of Sub- Division Mangochar as Khaliq Abad Mangochar. The
Notification reads as under:
Dated Quetta, the 16th June, 2014 NOTIFICATION No.33 A 13. In partial
modification of this Board Notification of even number dated 21.05.2014, the Government of Balochistan is pleased to change the name of Sub- Division
Mangochar as "Khaliq Abad Mangochar" with immediate effect. BY THE ORDER
OF GOVERNOR BALOCHISTAN
As far as CP No. 149 of 2018 is concerned the Principal Secretary to the Chief
Minister issued a letter to Senior Member Board of Revenue with direction that the Chief Minister has desired that a s ummary for change of name of Tehsil Phelawagh for his kind
perusal be submitted. Contents of Para No.11 of the said letter read as under:
"The Hon'ble Chief Minister has desired that a summary for change of name of Tehsil Phelawagh, District Dera Bugti as Tehsil Qadirabad be submitted for his kind
perusal/orders."
Thereafter on 21st May 2018 Notification No. 63A 13 was issued which is reproduced
here under:
Dated 21st May, 2018 NOTIFICATION No.63 A 13. The Government of
Balochistan is pleased to change the name of Tehsil Phelawagh as "Tehsil Qadirabad" District Dera Bugti with immediate effect. BY THE ORDER OF
GOVERNOR BALOCHISTAN
16. It may be seen that admittedly during the entire process of renaming, no
advertisement was made in any newspaper, calling objections from the inhabitants of the area. The above change of name occasioned on the request of an elected representative of the area despite the fact that Senior Member Board of Revenue in his comments, in the summary moved by the Board of Revenue before the Chief Minister clearly wrote that Section 6 of the Land Revenue Act, 1967 is silent in this regard. The comments are reproduced here under:
" BOARD OF REVENUE BALOCHISTAN SUMMARY FOR CHIEF MINISTER BALOCHISTAN
Subject: CHANGE OF NAME OF TEHSIL PHELAWAGH AS TEHSIL
QADIRABAD
The Principal Secretary to Chief Minister has conveyed the desire of Hon'ble Chief Minister (F/A) regarding renaming Tehs il Phelawagh, District Dera Bugti as Tehsil
Qadirabad.
2. A report in this regard was asked from Commissioner, Sibi Division and copy among others endorsed to Deputy Commissioner, Dera Bugti for similar necessary action (F/B). The Deputy Commissioner Dera Butgti vide his report (F/C) has
submitted that District Dera Bugti is comprising of three Tehsils i.e. Dera Bugti, Sui and Phelawagh have estimated population of 350000 souls as per Census, 2017.
3. The Deputy commissioner in his report has further subm itted that the new proposed
name of Tehsil Phelawagyh as Qadirabad, is after the name of late Mir Ghulam Qadir Bugti a renowned tribal Chief, politician (former member of Mahlis -e-Shoora),
philanshtopist, educationalist and social personality who contribut ed in various fields
especially in the field of social welfare.
4. Keeping in view the above mentioned contributions of late Ghulam Qadir Bugti in various fields of life, the Deputy Commissioner, Dera Bugti has recommended the change of name of Tehsil Phe lawagh District Dera Bugti as Tehsil Qadirabad.
5. It is pertinent to mention here that Section 6 of Land Revenue Act, 1967, is silent about change of name of District, Sub- Division, Tehsil, Sub- Tehsil, Mouza, Circle
and village etc. However, many instanc es exist regarding renaming places/cities etc
by the Government of Balochistan.
6. Submitted for kind perusal of the Hon 'ble Chief Minister Balochistan.
Sd. Senior Member
Board of Revenue
Revenue Minister: (on tour)
Chief Secretary: P1 examine the legal effect of such cha...Is there something in
the General Clauses.
Chief Minister:
Foregoing paras:
8. The Deputy Commissioner in his report annexed with the Summary has mentioned that the person on whose name the name of Tehsil Phelawag h is proposed to be
changed i.e. Tehsil Qadirabad, was a renowned Tribal Politician (former member of Majlis -e-Shoora), Philanthropist, educationalist and social personality who
contributed in various fields especially in the field of Social Welfare. Howev er, it is
not known as to whether the objections and suggestions of the people of the area have been invited by the District Administration in this respect or otherwise. If the answer is in negative then it is likely to give rise to an uncalled for litigat ion and unrest
amongst the people of the area. The proposed change of the name of a Sub- division as
it existed since long/right from its creation till date, may necessitate the change in the
Revenue entries and may be contrary to the proviso of the Wajib- ul-Arz, (if any)
prepared at the time of settlement since there might have been some reasons or
customs prevailing in the area for giving the name of "Phelawagh" to the sub-division.
9. It would have been better had the Administrative Department in the fir st place
examined the aftermath repercussions of such change and then come up with some
specific proposal. Anyway, like the Land Revenue Act, 1964 the General Clauses Act
have also no such provision where under the name given to a place could be changed.
Submitted please.
Sd.
Secretary Law
CHIEF SECRETARY:
10. What is the name Phelawagh associated with.
Paras 8, 9 & 10 refer:
As per report of Deputy Commissioner Dera Bugti, Phelawagh is the name of an area
of District Dera Bugti, where the Masoori Section of Bugti tribe are settled since centuries. Phelawagh literally means "upper highlands" in Balochi. This office suggests that such demands should not be entertained otherwise amendment/tempering in revenue record would hurt the common man. The proposal of Deputy Commissioner, Dera Bugti is not supported at this stage. "
But despite that the then Chief Minister on 20.04.2018 directed as under:
"Tehsil Phelawagh is renamed as Tehsil Qadirabad."
17. The creation and variation of limits of a D istrict is basically a type of territorial
division usually made for administrative or electoral purposes. The creation and variation of limits of District or Sub -Division was governed by Sections 5, 6 of the West Pakistan Land
Revenue Act, 1967. In the ma tter in hand the Act, 1967 is in force. The relevant provision
contained in section 6 thereof is reproduced as under:
"6. Division to be divided in to Districts and Districts into Sub -Divisions etc (1) Each
Division shall be divided into such Districts, a nd each District may be divided into
such Sub- Divisions or Tehsils (which also include Talukas), as Government may, by
notification, specify; and each Sub- Division may, consist of such Tehsils, and having
such limits, as Government may, by notification, di rect.
(2) Government may, by notification, vary the number and limit of Divisions, Districts, Sub -Divisions or Tehsils in the Province."
18. The above Section particularly deals with division of Districts, Sub- Divisions and
Tehsils whereas subsection (1) of Section 6 thereof empowers the Government to divide each
Division and District into Sub -Divisions or Tehsils. Subsection (2) thereof empowers the
Government to issue a notification for the purpose. The question therefore is as to whether
the partial mod ification or change of the names of Tehsil Mangochar and Phelawagh brought
in the manner by the official respondents through impugned notifications were permissible under the law when there is no such provision under the Land Revenue Act, 1967.
19. It is p ertinent to mention here that the Local Government Act, 2010 (the Act, 2010)
repealed the Balochistan Local Government Ordinance, 2001 (Ordinance, 2001) while the Ordinance, 2001 had repealed the Balochistan Local Government Ordinance, 1980. In terms of Se ction 196(3) of the Ordinance, 2001, rules, regulations and bye -laws made under the
repealed Ordinance of 1980 in so far as they were not inconsistent with the provisions of Ordinance, 2001 were protected. It appears that no bye -laws, rules or regulations were made
under the Ordinance, 1980 to deal the question of naming a District, Tehsil etc.
20. The Ordinance of 1980 had repealed the Balochistan People Local Government
Ordinance, 1972 ("Act, 1972"). The Act, 1972 had repealed the Municipal Administration
Ordinance, 1960 ("MAO, 1960"). In exercise of powers conferred by sections 81 and 121 of the MAO, 1960, the competent authority made and enforced West Pakistan Municipal Committee (Streets) Rules, 1962, ("Rules, 1962"). Under Rule 9, the criterion for nam ing a
street has been provided. The criteria is as follows:
"a. Inviting objections/suggestions from general public by through publishing the same.
b. No street to be named after a person unless, he is a well known character of history or has rendered di stinguished service in the cause of nation or the municipality.
c. Street or Road shall not be named after a person if he is a sitting member of the Municipal Committee, Provincial Assembly, National Assembly, or holds any office under the Central Governm ent, provincial government or any other public."
21. No rules, regulations or bye laws have been made under the above laws
specifically for the manner in which the names of a District or Tehsil could be named. The only provision regarding naming are in the context of a street or building. It is apparent from the Rules of 1962 that the criterion laid down therein addresses the general principles i.e. transparency, avoiding names of living persons, making holder of public offices ineligible for the purposes of naming street or road.
Admittedly municipal laws are not enforced in Sub- Division Mangochar now named
Khaliqabad Mangochar and Phelawagh now Qadirabad being notified Rural areas.
22. There is no law in Balochistan to change the name or rename a Tehsil or District.
According to both the impugned notifications the Government issued the same in view of Section 6 of the Land Revenue Act, 1967 and in the said section as stated earlier there is no provision with regard to change of name of a District or Tehs il. The only power available for
the executive to take action could have been derived from law but there is no such law under which the executive could issue the impugned notifications. Even otherwise the government also did not follow the municipal laws a nd did not call any objections from the general
public through publication.
23. Ultra vires is recognized substantial ground for judicial review. Ultra vires referred to
actions which are outside or in excess of powers of decision making bodies. In the cas e of R
v. Hull University Visitor ex- parte, Lord Browne -Wilkinson, while referring to the concept
of ultra vires observed as follows:
"If the decision maker exercises his powers outside the jurisdiction conferred, in a
manner which is procedurally irregular or is Wednesbury unreasonable, he is acting
ultra vires his powers and therefore unlawfully"
24. The concept of ultra vires may be divided into three categories, namely illegality,
irrationality and procedural impropriety. Legality f or the purposes of ultra viries includes
using powers for the wrong purposes, taking irrelevant factors into account, onerous conditions, or acting in bad faith. Irrationality is based on Wednesbury unreasonableness. As shall be discussed later, the Hon'bl e Supreme Court of Pakistan has acknowledged,
recognized, and applied with approval the doctrine of Wednesbury unreasonableness as substantial ground for determining the vires of actions taken by persons holding public office.
25. Using powers for the wrong purpose in the context of approval, grants and
expenditure, out of the public funds will essentially include any action which, directly or indirectly, gives an advantage to persons holding public offices. Such actions and decisions are beyond the powers conferred under law. Such powers must be used solely for the purposes for which they were granted. Furthermore, acting in mala fides includes within its fold, a failure to decide a case in the manner required by law.
26. The classic case of more recent tim es is that of Associated Provincial Picture Houses
Ltd. v. Wednesbury Corporation (1948). Lord Green MR. alluded to the many grounds of attack which could be made against a decision, citing unreasonableness, bad faith, dishonesty, paying attention to irrel evant circumstances, disregard of the proper decision
making procedure and held that each of these could be encompassed within the umbrella term 'unreasonableness'. The test propounded in that case was whether any authority had acted, or reached a decision , in a manner 'so unreasonable that no reasonable authority could
ever have come to it'
27. A person entrusted with a discretion, must so to speak, direct himself properly in law.
He must call his own attention to the matter which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd tha t no sensible person could ever dream that it
lay within the powers of the authority.
28. The court is entitled to investigate the action of the local authority with a view to
seeing whether they have taken into account, the matters which they ought not to take into
account, or, conversely, have refused to take into account and once that question is answered in favour of the local authority, it may still be possible to say that, although the local
authority have kept within the four corners of the matters w hich they ought to consider, they
have nevertheless come to a conclusion so unreasonable that no reasonable authority could
ever have come to it. In such a case, again, we think the court can interfere.
The Hon'ble Supreme Court of Pakistan in the case of SS Miranda Limited v. The
Chief Commissioner Karachi (PLD 1959 SC 134), accepted and applied the test known as the Wednesbury unreasonableness (pages 144 to 145).
Justice (R) Fazal Karim in his book, titled Judicial Review of Public Actions, has
dealt wi th the concept of unreasonableness in the context of ultra vices (pages 1372 to 1374).
In the cases of Government of Pakistan v. Dada Amir Haider Khan (PLD 1987 SC 504), Gaddon Textile Mills v. WAPDA (1997 SCMR 641) has struck down subordinate legislation on the grounds of unreasonabless. The Hon'ble Saleem Akhtar J. while referring (1997 SCMR 641) to the test of reasonable exercise of discretion observed as follows: --
'The rule of reasonableness is so embedded in the jurisprudence that even where statute confers arbitrary powers on any authority, it is to be read in such statutes that
the authority while exercising its discretion shall act reasonably.'
The Hon'ble Supreme Court in the case of KBC Authority v. Hashwani S&S Limited
(PLD 1993 SC 210) held re gulations as unreasonable and hence ultra vires. It has been aptly
stated by Justice (R) Fazal Karim in his book, Judicial Review of Public Actions, that the law in established judicial enunciation of unreasonableness as a ground for judicial review has received legislative confirmation through assertion of section 24- A of the General Clauses
Act, 1897. Reliance is place on Chamber of Commerce and Industries Quetta v. Director General Quetta Development Authority and others (PLD 2012 Balochistan 3).
It app ears that no rules, regulations or bye -laws have been made which provide a
criterion or procedure for naming District and Tehsil in particular. Nevertheless, in the light of the above discussion, particularly the standards prescribed for financial propriet y, a high
duty of care which persons in public offices owe to the people, the same being in the nature of fiduciary duty, the doctrine of ultra vires and particularly on the touchstone of the test of reasonableness, the inevitable conclusion would be to an swer the proposition in the negative.
Naming a District, Tehsil, road, street, building or project, planned, developed and
managed from public funds, after persons holding public offices is ultra vires, illegal, without lawful authority, unreasonable and for wrong purposes. Not only that public funds should be used in the most transparent manner by observing the prescribed standards of financial propriety, but it should be seen that no advantage or benefit, directly or indirectly, has accrued or taken by o r for any person.
29. It is surprising fact that in all over the province of Balochistan names of Districts,
Tehsils, Streets, Overhead bridges, parks, schools, hospitals, public properties project buildings, roads and tows are named/renamed after people / individuals related to ruling
privileged, feudal, political class of the province without noticing role of such individuals in matter of developments, betterments and services for particular area, town, city or education. If there is a personality, qualify ing entitlement of naming/renaming, then only he deserves
such honour and not the feudal or a political office bearer of ruling party. Thus,
naming/renaming, prima -facie, in such like manner appears to be nothing but to show a bend
of inclination and ident ification towards influential people in such like area, although every
town/city etc shall always be of all inhabitants without any discrimination. Such is a favour and not a recognition of any achievement of life therefore, cause for renaming arises becau se
of change in status of ruling party though heroes of a nation remain heroes for the nation
forever. The Heroes of a nation carry history as well as are representatives of the nation
therefore, such honour, all over the world, is priceless and such recognition is given to those, whose life describe a motivational story for generations.
30. Here it is worth appreciating that during hearing learned counsel for the petitioners
with permission of the court referred a Notification dated 17th July, 2017 which s how that
how political influence works in Balochistan in such like issues so as to please others for political benefits or either of two, we shall emphasize, that it is not worth appreciating rather shows a miserable situation. The same is reproduced below :
Dated Quetta, the 17th July, 2017 NOTIFICATION
No.103 A 13. In exercise of powers conferred under Section 6 of the Balochistan Land Revenue Act, 1967 (XVII of 1967), the Government of Balochistan is pleased to create a new District namely Shaheed Sikandar Abad in
Kalat Division by dividing the existing "District Kalat" with the following territorial limits, with effect from 1st August, 2017. Name of the District Territorial limit Shaheed Sikandar Abad District with Headquarter at Surab Territorial Limits of existing Sub- Division Surab.
BY THE ORDER OF GOVERNOR BALOCHISTAN
The then Chief Minister created new District from Sub -Division Surab at Surab
District and also changed the name of the said District on his son's name. Learned counsel for the peti tioners also pointed out that the Ghous Bakhsh Raisani Memorial Hospital was
constructed out of public exchequer and the then Chief Minister named the same after his father i.e. Ghous Bakhsh Raisani Memorial Hospital. They further pointed out the Overhead bridge of Koyla Phatak was also named as Shohaday Khuzdar (Zehri) by the then Chief Minister and further mentioned that there are many streets, overhead bridges, roads hospitals and universities which have been named/renamed by the ruling party after their father, sons
and living persons.
31. There came many public properties/projects, street, roads, hospitals, educational
institutions found to have been named after one political person and his relative (s) who had done nothing and even had never come up as a political figure nor there is anything on their
credit except that of being related to a political person. Without going into any further details of legality or compliance of said action, it can, however, safely be concluded that naming
public propertie s/projects after political figures can never be a good idea therefore, it must
have been and must always be after that person only who qualifies as a real hero. The ruling
class has started a practice of naming the public places after their names and those of their
family members. Sudden changes in the name of district, tehsils, roads, streets and other places also deprive the people of the sense of history.
32. It is stated earlier that there was no rule, regulation or bye -laws ever made under the
Rules, 1 962 and under the Land Revenue Act, 1967 to change the name of District and
Tehsils. The Punjab Government framed rules which are called the Punjab Local Councils, Roads and Streets Rules, 1981 and therein formulated the requirement for changing of the name of streets under Section 9 of the said Rules, which is reproduced below:
"9. Naming of roads and streets. ---(1) No road or street shall be named after a person
unless he is,---
(a) the founder of the nation and person who was in the forefront of the fre edom
movement and took part in the creation of Pakistan;
(b) a national personality (no longer alive) with unblemished record of service to the nation;
(c) a hero who laid his life in the defence of the country;
(d) a living or deceased head of a foreign state friendly towards Pakistan;
(e) a foreign national in respect of whom permission has been granted by the Federal Government.
(f) a famous Muslims character of history; and
(g) a person who has rendered distinguished service to the urban local council.
(2) No road or street shall be named after a person, ---
(a) if he is sitting member of the urban local council; or
(b) if he holds any office under any local council, the Federal Government, Provincial Government or any public Authority or is a pu blic representative.
(3) Every proposal for the assignment of a name to a new road or street or for change in the name of an existing road or street shall be published for inviting objections and suggestions in such manner as an urban local council may det ermine and the final
proposal shall be made after taking such objections and suggestions, if any, into consideration.
(4) The urban local council shall forward its final proposal to Government for approval and no proposal shall be implemented without the e xpress approval of Government."
In different parts of the world following are the preferred categories of individuals to
be honored by having a street named, renamed or honorarily named after them:
"a. A person who demonstrates excellence, courage or exce ptional dedication to service
in way that bring special credit to the particular, town, city, street, road, institute and
area or the province or country.
b. A person who volunteers and give extraordinary help or care to individuals, families, or groups, or supports community services or humanitarian causes;
c. A person who fosters equality and reduced discrimination.
d. A person who risks his or her life to save or protect others.
e. A person who has achieved a noteworthy accomplishment or has otherwise ac ted in
an outstanding professional manner or met an uncommonly high standard that brings great benefit or honour to the particular, town, city or area or province or country.
f. Any early pioneer or group or settlers who have contributed to the development of
said area, town, city.
g. Individuals who reflect the cultural and ethnic diversity of the city, town, province and country.
h. Individuals who have made significant contributions to their field of endeavour, including the arts, entertainment, business , profession, athletics, public service etc."
These guidelines (criterion) speak for themselves that such an honour is not cheap but
require life to qualify in any of the categories. The above guidelines however leave no room for naming the public properties, buildings, roads, hospitals and educational institutions in or after the name of a political figure.
33. Be that as it may, if a political figure is enjoying an unblemished record he may
qualify (demanding judicial discretion) to earn such honour but how his family members could qualify for such honour, it is hard to understand, particularly when such naming / renaming could only be done by officials under some notification / order with an objective to make the local or national / internatio nal people about our real heroes in their personalities.
Here, one, in authority, must insist upon unblemished record and service for nation even while considering a political figure for such purpose.
34. However, what we witness and rightly pointed out by learned counsel for the
petitioners, prima facie, show that it is always easy to have a public property / building or project in or after one's name thereby attempting to make the people believe that such honour is not an honour requiring life but can wel l be achieved only being one side of a political
power. Such impression, undeniably, frustrate the very purpose of guidelines, which are meant to encourage people to serve the nation; work in defined fields or serving people by wealth hence misuse of such like authority would not only violate the provisions but also
result in disappointment among those, who really give their lives for such causes. The binding law itself allows us to say such practice is not only in negation to above provisions but also nega tes the purpose and object of naming / renaming public properties / building or
projects. An illegality or even continuity thereof for a considerable period, legally, never converts illegality into legality. We do not want to make any comments for such gla ring
violation of law itself but since this Court is always competent to order for enforcement /
compliance of law from one in authority as well to refrain from violation of commandment
of law.
The government did not place the suggestions for changing the name of the
District/Tehsil before the provincial Assembly and without taking permission from the cabinet or Provincial Assembly directly changed the names of District/Tehsil Mangochar and Phelawagh without any provision of law.
The Sindh Government amended the Section 6 of Land Revenue Act, 1967 and
introduced Section 6- A, which is reproduced here under:
"6-A Renaming of a District or a Taluka. Notwithstanding the provisions' contained in
sections 5 and 6, if the Provincial Assembly has passed or passes a resolution to the
effect that District or a Taluka may be re -named the Government shall by a
notification, re -name such District or Taluka, as the case may be. "
35. Without going into the significance of glaring violation in the matter of
naming/renami ng such like public properties, in view of what has been discussed above the
instant petitions are allowed. The impugned notification dated 21.05.2014 changing the name of Sub- Division Mangochar as 'Khaliq Abad Mangochar' and the Notification dated
21.05.2 018 issued by respondent No.1 with regard to changing the name of Tehsil
'Phelawagh' as 'Qadirabad' are hereby declared to be illegal, without lawful authority and void ab- initio. Consequently, the old names of Sub- Division Mangochar and Tehsil
Phelawagh are hereby restored.
36. Besides the names of District Shaheed Sikandar Abad, Shohadaye Zehri Bridge and
Ghous Bakhsh Raisani Memorial Hospital are also hereby declared illegal, without lawful authority and voide ab- initio. In view of the dictum laid down b y the Hon'ble Supreme Court
in the case of Khan Muhammad v. Chief Secretary Government of Balochistan and others (2018 SCMR 1411) to the effect that if there are similar Notifications, whereby the Streets, Towns, Hospitals, Educational Institutions are nam ed/renamed after the name of relative or
living person of political figures without merit/contribution on their part, same would also be of no legal effect.
Before parting with the judgment in hand we may observe that naming or renaming of
a District/Tehs il is an important subject in itself, therefore the Provincial Government may
consider for framing of rules or laying down a policy in respect of same as has been done by the sister provinces as such acts cannot be performed in absence of laid down procedure and criteria merely at the whims and wishes of political figures or elected representatives.
Copy of this judgment be sent to the Chief Secretary Government of Balochistan for
information and necessary action.
MH/1/Bal. Petitions allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.