1994 PLP 2254 (CLC)

In Chapter II, in Para.

2. Occupancy tenants on the evacuee land shall be eligible to get the proprietary rights in the tenancy on payment of Rs.10 per PIU for which the last date of payment shall be 7‑11‑1989."

4. On coming to know of this notification, the petitioners filed four separate applications in the office of the District Collector, Kasur/respondent No. 2 on 2‑11‑1989 stating therein that they were occupancy tenants of the properties in dispute and were prepared to purchase them at the price fixed by the Government of Punjab. After .receiving the applications the Ministerial Staff of respondent No. 2 prepared the challan forms for the purpose of depositing of the price of these properties. The petitioners, thereafter, deposited the price in accordance with the challan forms. Despite the deposits, the respondents declined to issue conveyance deeds to the petitioners. In this factual background the petitioners moved this Court under Article 199 of the Constitution of Pakistan (1973).

5. In compliance with the order of this Court dated 2‑10‑1990, respondent No. 2 filed parawise comments wherein it was admitted that the petitioners were occupancy tenants of the properties in disputes; that they had deposited the prices of these properties in consonance with the price determined by his Ministerial Staff; that‑the petitioners had tendered the prices after the date fixed in the notification dated 24‑9‑1989 and so their cases had been sent to the Member, Board of Revenue for grant of extension of time. Para. 5 of the parawise comments reads as under:‑‑ "In correct as contended. Facts are that while processing the case of petitioners it came to light that the petitioners had deposited the amount after target date. Thereafter, their case was withheld and proposal was made to Government for grant of further extension of date. The case of Rang Ellahi etc. referred to in the petition have escaped the notice of authority about late deposit of the price by other applicants. All other identical cases in which the price have been deposited after due date, have been withheld along with petitioner's case for want of extension from Government and has also admitted by the petitioners, as is evident from the copy of application attached with petition. "

6. The learned counsel for the petitioners raised two points in order to substantiate their claims for the purchase of property in dispute:‑‑ Firstly; That the properties in dispute were available evacuee agricultural land; that under the Act, these properties stood transferred to Government of Punjab; that the petitioners, under proviso to clause (b) of subsection (1) of section 3 of the Act XIV of 1975, were entitled, as a matter of right, to purchase the properties in dispute. Secondly; That the notification dated 24‑9‑1989 was directory in nature and did not take away the powers of respondent No. 2 to dispose of the applications filed by the petitioners, on merits and in consonance with the proviso to sub‑clause (b) of section 3 of Act XIV of 1975.

7. On the contrary, the learned Additional Advocate‑General, appearing on behalf of the respondents, reiterated the stand taken in the parawise comments. It was submitted by him that the petitioners had deposited the prices after the date prescribed in the notification noted above and so i~ was the Member, Board of Revenue who was competent to extend the time in order to regularise the belated payment of the prices by the petitioners. 8????????? From the foregoing narration of facts, the circumstances of the case and arguments of the learned counsel for the parties, following questions emerge for determination: (1)??????? Whether the notification dated 24‑9‑1989 is directory in nature and so it does not take away the powers of respondent No. 2 to sell the properties in dispute to the petitioners? (2)??????? Whether the petitioners are entitled, under the law, to purchase the property in dispute and respondent No. 2 is bound under the law to make sale of these properties to them? (3)??????? Whether the relief of writ of mandamus is appropriate remedy on the facts and circumstances of the cases, noted above? The answer to questions Nos. 1, 2 and 3 turns upon construction of section 3 of Act XIV of 1975. It reads under:‑‑ "(1)????? All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) 'of section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal‑‑ (a)??????? in the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf; and (b)??????? in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf: Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land: Provided further that only so much land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972. (2)??????? The agricultural land temporarily allotted under any of the aforesaid Acts or Regulations to a displaced person from Jammu and Kashmir State or to such other person as to Federal Government may determine who is not in cultivating possession of the allotted land, shall be offered for sale to such allottee unless an order of cancellation of allotment has been passed against him in respect of such land: Provided that only so much land shall be offered to such allottee as does not together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972: Provided further that the temporary allottee or other person who purchases the land so offered to him shall not eject the tenant from such land except on the ground that he has failed to pay rent in accordance with the terms of his tenancy: Provided further that, in the event of a displaced person from Jammu and Kashmir State or any of his successors‑in‑interest being repatriated to that State, he shall pay to the Provincial Government the price of the land held by him at the rate ascertained by that Government. "

10. From the plain language of section it is clear that all the evacuee properties/both urban and rural including agricultural land other than these properties which were attached to charitable, religious or educational trust or institutions, whether occupied or unoccupied and which were available for disposal before 1st July, 1974, stood transferred to the Provincial Government on the payment of such price which might be fixed by the Federal Government. The proviso to clause (b), subsection (1) of section 3 is of crucial significance to the fate of these petitions. It postulates that the Government is to offer such agricultural land to any person, who was continuously in occupation of that property .for four harvests immediately preceding Kharif, 1973. This offer shall be subject to two conditions. Firstly, such land shall be offered to such persons which together with land already held by him does not exceed subsisting holding. Secondly, against such person no ejectment order has been passed. This sub‑clause purposely uses the wcd "offer" to be made by .he Province of Punjab to occupant. Ordinary meaning of word "offer" is "to bring to or before; to present for acceptance or rejection; to hold out or proffer; to make a 'proposal to; to exhibit something that may be taken or received or not. To attempt or endeavour; to make an effort to effect some object, as, to offer to bribe; in this sense used principally in criminal law." (See Black's Dictionary of Law, fifth edition, page 975). From the above, it is quite clear that the word "offer" has two elements. Firstly; that some one is to make a proposal or to make endeavour to bring something to another person in objective manner. Secondly, that the person is to accept or reject that offer. Seen from this perspective, it is quite clear that Government of the Punjab had to offer these properties for sale to their occupants in objective way, of course, subject to limitations noted above.

11. Having concluded that respondent No. 2 was bound under the law to decide the entitlement of the petitioners strictly in consonance with section 3(1)(b), proviso to of Act. The next question arising for consideration is "whether the prescription contained in Notification dated 24‑9‑1989 pertaining to deposit of price is directory or mandatory in nature. It is, now, a well‑settled rule of interpretation that statutes/specifying the time for the performance of official duties are directory in nature. It will be advantageous at this juncture to reproduce the relevant passage from the celebrated ‑ work "Construction of? Statutes" by Earl T. Crawford, page 269: "As a general rule, a statute which specifies a time for the performance of an official duty will be construed as directory so far as the time for performance is concerned, especially where the statute fixes the time simply for convenience or orderly procedure. But there are various exceptions. For instance, the language may be such that the performance of the act within or at the specified time, is imperative. As a result, if the statute contains prohibitive or negative words relating to the time within which the act is to be performed, it will be considered mandatory. Furthermore, a statute may even make time the essence of the official act. In such a case, the requirement as to the time of performance is also mandatory. Moreover, the consequences of failing to perform the official act within or at the designated time, may be considered, as indicative of the legislative intention. Even the nature of the act is entitled to consideration. Furthermore, it may be asserted, as a general rule, that where a statute imposes upon a public officer the duty of performing some act relating to the interests of the public, and fixes a time for the doing of such act, the requirement as to time is to be regarded as directory, and not as a limitation of the exercise of the power, unless it contains negative words, denying the exercise of the power after the time named, or unless from the character of the act to be performed, the manner of its performance, or its effect upon public interests or private rights, it must be presumed that the legislature had in contemplation that the act had better not be performed at all than be performed at any other time than that named. "

12. Applying this principle to tote facts and circumstances of this case, I have no difficulty in holding that Notification dated 24‑9‑1989 issued by the Governor of the Punjab under section 3 of the Act is intended to further operation of section 3 of Act XIV of 1975. The time is specified therein is for the convenience of the occupants of available evacuee properties. This notification, in my estimation, is, therefore, directory in nature and does not curb/dilute the power of respondent No. 2 to examine the entitlement of the petitioners within the parameters of law and then make the sale of properties in dispute, if they .show their entitlement to purchase them.

13. While coming to last question I am tempted to quote rules propounded in Capt. (Retd.) Naqiullah v. Chairman, State Engineering Corporation Ltd. and others (1989 CEC 2384) pertaining to issuance of writ of mandamus. It was held therein:‑‑ (1)??????? That since the High Court has the power and, therefore, a direction to make the order, the order cannot be asked as of right; (2)??????? that since the person who is directed by the order must be one who is performing functions in connection with the affairs of the Centre, a Province of a Local Authority, the order can issue only against a class of public functionaries; (3)??????? that since the order directs a public functionary to do what he is required by law to do, such functionary must have a legal duty to do what he is directed to do; (4)??????? that the Court's jurisdiction to make an order is dependent on the non existence of an alternative adequate remedy, and (5)??????? that to give it jurisdiction, the Court must be moved by a party aggrieved, i.e. by a person whose rights are being adversely affected by the inaction or refusal of the public functionary. "Right" means a right recognised by lam, and. capable of being enforced by the power of the State.

13. Applying the aforesaid principle to the facts and circumstances of the petitions, in hand, I am of the considered view that these petitions must succeed. The petitioners would have a vested legal right to purchase the properties in dispute if they can substantiate their right under subsection (1) of, section 3 of‑ the Act XIV of 1975 and respondent No. 2 is, then, bound under the above provisions to offer the properties in dispute, to the petitioners for sale if they are able to satisfy the conditions laid down therein. As a result of the above discussion, these writ petitions are allowed. Respondent No. 2 is directed to determine the entitlement of the petitioners strictly within the parameters of clause (b), subsection (1) of section 3 of the Act XIV of 1975. There shall be no order as to costs. M.B.A./M‑1722/L?????????????????????????????????????????????????????????????????????????????? Petitions accepted