P L D 1972 Lahore 858 (PLP)

3. In order to appreciate the argument, the relevant section 3 of the Ordinance and rules 3 and 4 of the West Pakistan Goats (Restriction) Rules, 1961, as amended up‑to‑date, are reproduced below:‑ Ordinance XLII of 1959: "Section 3.‑Restriction on grazing etc., of goats.‑Govern. meat may, by notification, declare that in any specified area, hereinafter referred to as local area, it shall be unlawful‑ (a) after twelve months of the publication of the notification, to graze or pasture goats on any land; and (b) after eighteen months of the publication of the notifica tion, to keep goats: Provided that Government may in any area permit the keeping of goats subject to such condition as may be prescribed." West Pakistan Goats (Restriction) Rules, 1961: "Rule 3.‑A notification under section 3 of the Ordinance shall be published in the official Gazette and at least two newspapers having wide publicity in the local area and copies thereof shall be affixed in the office of the Union Council and intimation to that effect sent to the Secretary, Union Council, by a registered post acknowledgment due." Rule 4.‑Permission for keeping goats on stall‑feeding may be given under the proviso to section 3 of the Ordinance and any person so desiring may apply to the Union Council of the area either in person or by registered post stating the number of such goats. Such application shall be made within eighteen months of the publication of the notification under section 3 of the Ordinance. Orders on the application shall be conveyed by registered post or copy thereof served on the applicant personally, within one week of the receipt of the application. If the application has been made within the time allowed; the keeping of goats up to the number applied for, shall not, till receipt of such orders, be treated as unlawful.‑

4. The question of law arising is whether Rule 3 framed by the Provincial Government is mandatory or directory in character, in so far it provides for publication of the notification under section 3 of the Ordinance declaring a particular territory as a local area for the purposes of section 3, in two newspapers of wide publicity in the local area. Section 3 of the Ordinance merely provides for publication of the notification in the official Gazette, which also is the requirement of the General Clauses Act. Rule 3 has further prescribed publication of the notification. In two local newspapers and affixation of copies thereof in the office of the Union Council and sending of intimation to that effect to the Secretary, Union Council, by a registered post acknowledg ment due. The Ordinance is a Penal Statute, its strict compliance Is admitted on all hands. The petitioners contend that the Rules framed thereunder have also to be complied with strictly. On the other hand, the learned Advocate‑General contends on behalf of the State that Rules are subordinate legislation and if they travel beyond the requirement of section 3 of the Ordinance, by way of providing some facility to the persons affected, substantial compliance thereof will be sufficient. It is argued that the various notifications have been duly issued in the Gazette. Copies have been sent to the Union Councils for exhibition and wide publicity fn the respective local areas and even assuming that publication in the local newspapers has not been made, the omission will not render the penal action proposed invalid. He maintains that substantial compliance was sufficient for purposes of publicity in the local areas. It is also argued that the petitioners can raise all these factual pleas of non‑issuance of notice in the two local newspapers before the respective Courts before whom the prosecu tion cases against the petitioners are pending and it is not a fit case for interference in writ jurisdiction. He has relied on Chief Commissioner Karachi v. Jamil Ahmad and another (P L D 1961 SC 145), to argue that provisions regarding Government's duty to publish notifica tion, its manner and details of publication are to be construed as directory rather than mandatory.

5. Learned counsel for the petitioners have, however, referred to 59 Corpus Juris, para. 631, at pages 1072 to 1075, pertaining to the general rules for determination of character of provisions. The following extract has been specially relied on:‑ Whether statute is mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition and the same is true where no substantial rights depend on the statute, no injury can result from ignoring it, and the purpose of the Legislature can be accomplished in a manner other than that prescribed, with substantially, the same results. But a provision relating to the essence of the thing to be done, that is, to matters of substance, (s mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows that the Legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when some antecedent and pre‑requisite conditions must exist prior to the exercise of power, or must be performed before certain other powers can be exercised, then the statute must be regarded as mandatory . . . . . ." Reliance has also been placed on page 518 of Statutory Construc tion by Crawford, which passage reads as under .‑ "2 In other words, most Statutes of a comprehensive and detailed nature are likely to contain many requirements, which pertain to minor or non‑essential particulars. The basic test by which to determine whether the requirement is essential or not, is to consider the consequences of the failure to follow the statute. In this way the importance of the requirement will be revealed. If the requirement is revealed to be important, it may logically be assumed that the Legislature intended that ft be met, if found to be unimportant, that it need not be met . . . . . After all, if every minor and unessential detail of a Statute were considered imperative, almost every act performed in accordance therewith would be invalid or ineffective, whether the act was performed by individuals or by public officers. The confusion and impotency which would take place would in all probability breakdown our legal system. In order for Law to be administered efficiently, effectively and expeditiously, the distinction between essential and non‑essential requirements must be maintained, either by the Courts or by express legislative enactment . . . ."

6. The Rules have been published by the rule‑making authority in pursuance of section 12 of the Ordinance which provides that Government may, after previous publication, make rules to carry out the purpose of the Ordinance and such Rules may provide for procedure for application of the Ordinance to any local area, etc. etc. Section 12 of the Ordinance, in other words, contemplates that the rule‑making authority may decide the manner in which the persons likely to be affected in the local area are to be informed of the publication of the notification in official Gazette. The Statute being, penal in nature and the Rules having been framed to carry out the purposes of the Ordinance, the condition prescribed in the Rules for publication of the notification in the two newspapers of wide publicity in the local area was in the direction of publicizing the notification further and such a facility or concession given by the rule‑making authority cannot be considered to travel beyond the Statute or to render the purposes of the Statute nugatory. The contention that substantial compliance of such a rule will be sufficient, advanced on behalf of the Government, is not in accord with the principles of interpretation reproduced above. A citizen, who is likely to be affected by the Statute and its enforcement in the local area, cannot be considered to have not been adversely affected by the non‑publication of the notification in the two local newspapers, because the consequences of non‑compliance with the provisions of the Ordinance or the Rules are visited with a penalty and In such cases the omission on the part of the public servant cannot be considered to have not invalidated the prosecu tions initiated against the petitioners. The authority Chief Commissioner. Karachi v. Jamil Ahmad and another is clearly distinguishable from the facts before us. We, therefore, hold that the publication of the notification in two newspapers of wide publicity in the local area being the essence of the matter for purposes of publicity and giving proper notice to the rustic citizen likely to be affected thereby and not merely a matter of form, it compels an imperative construction and cannot be considered to be as requiring a directory construction. On this view of the matter, the Rules having not been complied with there was no proper publication of the notification in the local areas concerned. The prosecutions are infirm on the legal plane and cannot be sustained. The writ petitions succeed and are allowed. The criminal proceedings initiated against the petitioners in the various writ petitions are hereby quashed. There will be no order as to costs. S. A. H. Petition allowed.