1990CLC283 (PLP)

Date of hearing: 21st November, 1989. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 assails the order dated 9th of April, 1989 passed by Deputy Commissioner, Okara (respondent No.2) whereby he accepted an appeal filed by respondent No.l and modified the order of the Collector/Assistant Commissioner, Okara dated 19‑4‑1987.

2. The petitioner as also respondent No.2, both claiming to be non -proprietors of village 7/1‑L, Tehsil and District Okara, applied for the grant of land in terms of section 3 of Punjab Jinnah Abadis for non‑Proprietors in Rural Areas Ordinance, 1986. It was recommended by the Allotment Committee that the petitioner be allotted Plot No.370 and respondent No.2 Plot No.378. The Assistant Commissioner/Collector Okara proceeding on the basis of these recommendations directed the allotment of the two plots respectively to the petitioner and respondent Not. This order was passed on 19th April, 1987. After about one year and 9 months, respondent No.2 filed an appeal against this order of the Assistant Comissioner before the Deputy Commissioner, Okara which was accepted on 9th April, 1989 and it was ordered that the petitioner be allotted Plot No.378 instead of Plot No.370, and Plot No.370 be given to respondent No.l. This order of the District Collector has been impugned in this petition.

3. Learned counsel for the petitioner has raised two contentions in support of this petition. Firstly, that the appeal was barred by time and the Deputy Commissioner without condoning the delay could not have accepted it on merits. Secondly, that the procedure prescribed in sub‑rule (2) of rule 13 of the Punjab Jinnah Abadis for Non‑Proprietors in Rural Areas Rules, 1986 has not been adhered to by the Deputy Commissioner Okara while accepting the appeal of the petitioner. The learned counsel for the contesting respondent, on the other hand, defended the impugned order.

4. As regards the question of limitation, it is to be seen that neither the Ordinance nor the Rules prescribe any period for filing an appeal and as such the contention of the learned counsel that the appeal was barred by time, is without any force. 1t may, however, be observed that if an appeal is filed after undue, inordinate or unexplained delay, the question of laches or acquiescence might become a relevant consideration while exercising appellate jurisdiction under section 9 of the Ordinance, but there is, however, no justification for equating delay with limitation. Pakistan Post Office v. Settlement Commissioner (1987 I SCMR 1119 refers). In this view of the matter, it cannot be urged with any, success that the appeal filed by respondent No.1 was barred by time.

5. However, the other contention of the learned counsel is well founded. Rule 13 (2) of the Punjab Jinnah Abadis for Non‑Proprietors in Rural Areas Rules, 1986, provides that before deciding the appeal, the appellate authority shall invite the comments of the Allotment Committee on the grounds of appeal. According to sub‑rule (3), the Allotment Committee is bound to furnish its comments within a period of one month from the date when intimation is received in this behalf from the appellate Authority. If the comments are not received within this period of time, the appellate Authority can proceed to decide the appeal without waiting for the comments. A reading of these provisions leaves no doubt that an appellate Authority is under a statutory obligation to call for the comments from the Allotment Committee and to allow a period of one month to it for submitting such comments. It is only after the comments have been received or the period of one month from the date of intimation to the Allotment Committee elapses that the appellate Authority can proceed to decide the appeal. Reference with advantage may be made to Maxwell on the Interpretation of Statutes (12th Edition at page 320). Wherein it has been stated: "Enactments regulating the procedure in Courts are usually construed as imperative, even where the observance of the formalities in question is not a condition exacted from the party seeking the benefit of the statute, but a duty imposed on a Court or public officer when no general inconvenience or injustice seems to call for a different construction." In Atta Muhammad Oureshi v. The Settlement Commissioner, Lahore Division Lahore and 2 others (P L D 1971 S.C. 61) it was observed that:‑ " ....As a general rule, statutes, .which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language". The object in calling for the comments of the Allotment Committee is to enable it to present its point of view before the appellate Authority which has to be given due consideration. In these circumstances, failure to abide by this provision would render the order of the appellate Authority to be without lawful authority.

6. In the present case, there is categorical assertion on behalf of the petitioner that the comments of Allotment Committee were not called by the Deputy Commissioner at all. This assertion has not been rebutted by the respondents who have failed to rile any written statement. Even otherwise, this contention is borne out from the impugned order itself which does not show that at any stage the Deputy Commissioner had called the comments from the Allotment Committee or that he was even aware of the existence of such a C requirement. This being the position, the impugned order is not sustainable. In view of what has been stated above, this writ petition is accepted, the impugned order dated 9th April, 1989 passed by the Deputy Commissioner, Okara, is declared to have been passed without any lawful authority and of no legal effect with the result that the appeal filed by respondent No.1 shall be deemed to be still pending before him which shall now be decided in accordance with law. No order as to costs. H.B.T./S‑599/L Petition accepted