P L D 1970 Quetta 19 (PLP)

(a) remand the case to the Council for a further finding; or (b) refer the case to a second Council; or (c) refer the parties to the civil Court; or (d) pass a decree in accordance with the finding of the Council or of not less than three‑fourths of the members thereof, on any matter stated in the reference; or (e) declare that further proceedings under this section are not required.

9. A decree passed under section 8, subsection (3), clause (d), shall not give effect to any finding or part of a finding which, in the opinion of the Deputy Commissioner, is contrary to good conscience or public policy, but shall‑ (a) be a final settlement of the case so far as the decree relates to any matter stated in the reference, although other matters therein stated may remain undisposed of ; and (b) have, to that extent and subject to the provisions of this Regulation with respect to revision, the same effect as a decree of a civil Court of ultimate resort, and be enforced by the Deputy Commissioner in the same manner as a decree of such a Court may be enforced.

10. No civil Court shall take cognizance of any claim with respect to which the Deputy Commissioner has proceeded under section 8, subsection (3), clause (a), clause (b) or clause (d)." Mr. Marri argues that according to the well‑settled principles of interpretation of statutes if there is nothing to modify, nothing to alter, nothing to qualify the language which the statute contains, it must be construed in the ordinary and natural mean ing of the words and sentences. He maintains that in such cases it matters not what the consequences of the interpretation may be, full import should be given to section 45 (1), which has been left untouched on the statute book. In support of his contention he has referred to the following `Rules in relation to Statutes appearing at pages 66 and 67 of the Interpretation of Documents by Sir Roland Burrows (1946 Edition)‑-- " . . . The golden rule is that the words of a statute must prima facie be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous law, for the purpose of a large part of our statute law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results that would otherwise follow. Judges are not called upon to apply their opinion of sound policy so as to modify the plain meaning of statutory words, but, where, in construing general words the meaning of which is not entirely plain, there are adequate reasons for doubting whether the Legislature could have been intending such an interpretation as would disregard funda mental principles, then we may be justified in adopting an alternative interpretation. At the same time, if the choice is between two interpretations, one of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the holder construc tion based on the view that Parliament would legislate only for the purpose of bringing about an affective result Thus where the words of a statute are clear, the Courts have no dispensing powers to avoid consequence which follow from the enactment, even when it would seem certain that Parliament would have avoided those con sequences had they been brought to its notice . . . . ." He contends that withdrawal of the F. C. R. may not have left any alternative forum with the Collector in case he refused permission to go to a civil Court, still the power of granting or withholding permission having been vested in the Collector by virtue of section 45 (1), the party desirous of seeking correction of revenue entries must have recourse to section 45 (1) before it goes to the civil Court. He argues that an act of Legislature delivered in clear and intelligible terms cannot be reduced to a nullity and, therefore, if the Legislature has in its wisdom not brought any consequential amendment in section 45 with the withdrawal of the F. C. R., it is not for this Court to supply the omission. He has referred to Shamsuddin Ahmed v. Registrar, High Court of East Pakistan, Dacca (P L D 1967 S C 501), Dad Muhammad Khan v. Bassa (P L D 1965 Lah. 77), Saiyed Ali Amir v. Dalmaa Cement Ltd. (P L D 1961 Kar. 255) and Muhammad Ismail and others v. The State (P L D 1969 S G 241), for this proposition of law. On the other hand, Mr. Jafari and Mr. Muhammad Ahmad Mirza appearing for the respondents argue that permission pre‑supposes discretion and if discretion is abolished due to non‑existence of alternative forum, the Collector could not comply with section 45 (1) and the non‑obtaining of the permission in the circumstances is merely a hyper technical defect and the suits have been properly and validly filed before the Civil Court. Mr. Jafari has also argued that if the interpretation put by Mr. Marri on section 45 (1) is accepted, it will lead to absurdity. He maintains that there is no F. C. R. or even any subsequent legislation which permits the Collector to refer the case to the Council‑of‑Elders in case both parties do not agree to refer the matter to the Jirga and, therefore, subsection (2) of section 45 is almost a dead letter on the statute book. Now if the Collector on receiving an application decides not to grant permission, the remedy of the aggrieved party will be lost as even the alternative forum is not available and that is not the intention of the Legislature. He argues the even if section 45 (1) is considered to be of the nature of restrictive operation, as circumstances have since changed with the withdrawal of the F. C. R. that restriction has dis appeared and the general jurisdiction of the civil Court under section 9 of the Code of Civil Procedure is no longer under any embargo and the suits filed direct are quite competent. He further argues that permission has always been against intending what is inconvenient or unreasonable and the state of law as it stood at the relevant time was in no manner res trictive of the choice of the aggrieved party to go to the civil Court.

4. From the arguments of learned counsel on both sides I find that the controversy centers round the word "may" appear ing in subsection (1) of section 45 of the Act. The appellants' contention that section 45 (1) is a mandatory provision can only be sustainable if the word "may" is read as "must", whereas the argument on the other side is that even at the time the F. C. R. was in force it was a matter of choice and discretion of the aggrieved party to seek or not to seek permission of the Collector before going to the civil Court and the word "may" actually meant "may" and not "must". There has been a good deal of discussion in judicial decisions about the interpretation of the word 'may'. According to Craies on Statute Law (Sixth Edition at page 229), may does not mean 'must'; always means may. May is a permissive or enabling expression but there are cases in which for various reasons as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it." The same subject has been dealt with by Maxwell on Interpretation of Statutes (Eleventh Edition) at page 231 in the following words:‑ "Statutes which authorize persons to do act for the benefit of others, or as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and, not mandatory. In enacting that they may or shall if they think fit, or shall have power or that it shall be lawful' for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have‑to say the least‑a compulsory force, and so would seem to be modified by judicial exposition. On the other hand, in some cases, the authorized person is invested with a discretion, and then these expressions seem divested of that compulsory force, and probably that is the prima facie meaning." However, at page 234, the learned author, while discussing the decision of the House of Lords in Julllus v. Oxford (Bp.) (1) observes:‑ . . . . it was said that from the nature of the English Language the word may can never mean `must', that it is only potential, and when it is employed there is another ques tion to be decided, viz., whether there is anything that makes it the duty of the person on whom the power is conferred to exercise that power. If not, the exercise is discretionary, But when the power is coupled with the duty of the person to whom it is given to exercise it, then it is imperative. Accordingly, when a statute enacts that a candidate at an election may be present at the polling place, or that a clergy man accused of an ecclesiastical offence may attend the proceedings of the commission, appointed to inquire into the accusation, or that a company may construct a railway, or that a plaintiff may sue in one action for injury done to his wife as well as himself, cases in which the donee of the power has only his own interests or convenience to consult, the word `may' is plainly permissive only, and a mere privilege or licence is conferred which he may exercise or not at plea sure." From the last cited passage from Maxwell, it is clear that in, each case it has to be determined whether there is anything that makes it the duty of the person on whom the power is conferred to exercise that power and when that power is coupled with a duty of the person to whom it is given to exercise it, then it is imperative. On the other hand, in cases in which the donee of the power has only his own interests or convenience to consult, the word may is plainly permissive only, and a mere privilege or license is conferred which he may exercise or not at pleasure.

5. A plain reading of section 45 of the Act and section 8 of the F. C. R. would show that primarily the Legislature has aimed at providing the alternative forum of Council‑of‑Elders to all tribesmen in the area in regard to disputes envisaged in section 45 of the Act. Let the question of Mandatory nature of that provision be examined against this background in detail. Four types of cases could have arisen at the time the F. C. R. was in force: A suit (1) by a tribesman against a tribesman, (2) by a tribesman against a non‑tribesman, (3) by a non tribesman against a tribesman, and (4) by a non tribesman against a non‑tribesman. In the first and the second cases the plaintiff tribesman had the privilege of getting the dispute referred to the Council‑of‑Elders, independently of section 45 of the Act under the provisions of section 8 of the F. C. R. by approaching the Deputy Commissioner. If, how ever, he did not even choose to risk the likely reference to F. C. R. under section 45 of the Act he could have gone to the civil Court direct. In the first case the defendant tribesman could have approached the Deputy Commissioner under section 8 of the F. C. R. to have the dispute referred to the Council‑of Elders and thus get the forum changed from the civil Court, but in the second case the non‑tribesman defendant could not have any objection to the suit being proceeded with before the civil Court. Coming to the third case, if the non‑tribesman plaintiff filed a suit without permission, the defendant tribesman could again get the case referred to the Jirga through the agency of section 8 of the F. C. R. as discussed in Case No.

1. In the fourth case, both parties being non‑tribesmen, the F. C. R. did not come into play and if the plaintiff chose not to seek per mission to go to civil Court for adjudication, no valid objection could be taken by the defendant as against the said suit. Put differently, the provisions were for the benefit of plaintiff tribesman and if he chose not to exercise that privilege, there was no fetter on him. However, if he were a defendant, he could have definitely got the course of trial changed from the civil Court to the F. C. R. under section 8 of the F. C. R. indepen dently of section 45 (1) which had not been resorted to by the plaintiffs in such cases. As regards the non‑tribesman, the position is clear enough that no protection has been given to him under the F. C. R. and, therefore, in his case no question of obligatory resort to section 45 (1) of the Act was intended. Applying the tests of interpretation laid down in the preceding paras. it can be safely asserted that section 45 (1) was an enabling provision and was merely permissive and in no manner mandatory.

9. As regards the half‑hearted argument of learned counsel for the appellants that as the word shall appears in sub section (2) of section 45, the word may in subsection (I) should also be considered imperative, suffice it to say that the two sub sections are dealing with two different situations Under sub section (1) discretion is left with the aggrieved party to apply to the Collector for permission and under subsection (2) it has been made obligatory for the Collector to provide the alternative forum to the applicant in case of with holding of permission. The permissive use of the word may in the first subsection cannot be considered to be in any manner controlled by the word shall appearing in subsection (2). For the reasons above, I hold that section 45 (1) of the Act was not a mandatory provision and the suits as filed were not in any manner incompetent or not main tainable because of absence of prior permission under section 45 (1) of the Act. The appeals fail and are dismissed. As fairly important questions of interpretation of the provisions of the Act and the F. C. R. were involved in the cases, the parties are left to bear their own costs. K. S. A. Appeal dismissed.