Find a Lawyer

Constitutional Petition No. 244 of 1979, decided on 8th October, 1985.

‑Ss. 4 & 5‑‑Reference of dispute to Tribunal‑‑Procedure specified‑‑No time‑barred dispute, however, could be referred to Tribunal. A plain reading of section 4 of the Ordinance indicates that where any party to a dispute which is required to be adjudicated upon in accordance with the provisions of the Ordinance, not being a dispute arising or in relation to any area specified in second schedule, makes or all parties to such dispute make an application in writing to the Deputy Commissioner for the adjudication or settlement of such dispute, the Deputy Commissioner shall constitute a Tribunal in accordance with section 5 by an order in writing and refer the dispute to the Tribunal for a finding on such matter or issue as may be specified in the order. A dispute which is time‑barred, cannot be referred to by the Deputy Commissioner because of the express bar contained in subsection (2) of the above‑quoted section 4 .

‑‑‑Expression "directory" and "mandatory"‑‑Distinction‑‑Where law provided certain manner for doing certain act and such provision was not directory but mandatory, manner prescribed by law, held, was to be‑adhered to‑‑Deviation from course prescribed, therefore, would vitiate action taken.

Haji Sultan Muhammad v. Haji Syed Taj Muhammad and 4 others P L D 1977 Quetta 39; Faiz Muhammad and 2 others v. Muhammad Sharif and 7 others P L D 1976 Quetta 23; E A.Evans v. Muhammad Ashraf, reported in P L D 1964 S C 536; Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 S C 61 and Mir Dost Muhammad v. The Government of Baluchistan and 3 others, P L D 1980 Quetta 1 ref.

‑‑‑Ss. 4 & 5‑‑Words "shall" and "may"‑‑Connotation‑‑Word "shall" used in enactment demonstrated mandatory nature of requirement‑‑Word, "shall" as used in section 4(2) of Ordinance, 1968, held, was employed as of mandatory nature.‑‑[Interpretation of statutes Tp. 26]

‑‑‑Ss. 4, 5, 8 & 10‑‑Reference of dispute to Tribunal‑‑Requirements‑ Application not disclosing cause of action could not be referred to Tribunal‑‑Averment in plaint, prima facie disclosing triable cause of action, same having been denied in written statement making facts as disputed questions of fact, findings on such questions of fact, held, could only be recorded by Tribunal‑‑Transaction described as 'sale' in plaint and described as 'gift' in written statement was disputed question of fact which was within exclusive competency of Tribunal‑‑Order of Authority about nature of transaction without referring same to Tribunal was without jurisdiction and of no legal effect.

‑‑Ss. 4, 5, 8 & 10‑‑Finding of fact‑‑Requirement‑‑Pre‑requisite of recording finding of fact, held, was that forum which recorded same should have been competent‑‑Concurrent finding of fact recorded by Authorities having no jurisdiction would not make such order legal and binding.

‑‑‑Art. 9‑‑Civil Procedure (Special Provision) Ordinance (I of 1968). Ss.4, 5, 8 & 10‑‑Striking out party‑‑Plea by one of petitioners that he might be dropped from petition as same had been filed without his authority‑‑No orders having been passed on such petition due to inadvertance of office‑‑High Court observed that such fact might be pleaded and urged before Tribunal with whatever legal implications same involved‑‑Case remanded to Authority with direction to refer dispute to Tribunal.

Muhammad Arshad Chaudhry for Petitioners. Publicator for Respondents Nos. 1 to 8.

Shakeel Ahmad for the Remaining Respondents. Nemo for Respondnet No. 32. Date of hearing: 8th October, 1985.

This petition is directed against the orders, dated 22nd June, 1976, 25th May, 1978 and 8th July, 1979 passed by the respondents Nos. 2, 30, 31 and 32 respectively. The brief facts leading to the filing of the above petition are that one late Muhammad lbraheem owned suit agricultural land, which according to the averments in the petition, was devolved on respondents Nos. 1 to 28 on the expiry of said Muhammad lbraheem. It may be observed that there is controversy on the question, whether the respondent No. 29 Abduliah Jan son of Shaheen was also one of the L. Rs. or not. According to the learned counsel for the petitioners. the respondent No. 29 was not one of the L. Rs. , but is the purchaser of the suit land from respondents Nos. 1 to 28, whereas, according to Mr. Shakeel Ahmed, learned counsel for the respondents Nos. 1 to 29 (hereinafter referred to as the 'respondents'), he was. one of the L.Rs. who had inherited the suit land alongwith the respondents Nos. 1 to 28 and in whose favour the gift has been effected by the respondents Nos. 1 to 28. Be that as it may, the petitioners filed a suit on 30th May, 1976 under the Civil Procedure (Special Provisions) Ordinance, 1968 (hereinafter referred to as the 'Ordinance') for pre‑emption on the averment that the suit land was sold by respondents Nos. 1 to 28 to the respondent No, 29. The above suit was registered. In pursuance thereof, process was issued to the above respondents who filed written statements averring therein, that factually there was no sale transaction, but the suit land was gifted by the respondents Nos. 1 to 28 in favour of respondent No. 29 to the extent of their share. The learned Assistant

Commissioner instead of framing issues and referring the matter to the Tribunal in terms of section 4 of the Ordinance decided himself the question, whether it was a sale transaction or was it a gift and held that it was merely a gift and, therefore, the question of exercising the right of pre‑emption did not arise and dismissed the suit. The petitioners being aggrieved by the above order filed an appeal, which was dismissed by the learned Additional Commissioner by his order dated 25th May, 1978. The petitioners being aggrieved by the above two orders filed a revision petition, which was also dismissed by a learned member of the Board of Revenue by his order, dated 8th July, 1979, whereby the orders of the Assistant Commissioner and Additional Commissioner were maintained. The petitioners being aggrieved by the above three orders have filed the present petition. In support of the above petition Mr. Arshad Chaudhry, learned counsel for the petitioners has vehemently urged that the above orders are without jurisdiction as they violate the provisions of section 4 of the Ordinance.

On the other hand, Mr. Shakeei Ahmed, learned counsel for the respondents has contended as follows:

(i) That the Assistant Commissioner was competent to examine the question, whether factually there was a sale, or was it a gift and, therefore, the revisional authority was competent to maintain the order of the Assistant Commissioner;

(Il) That there is concurrent finding of the three Courts that it was a transaction of gift and not of sale and, therefore; this Court in exercise of constitutional writ jurisdiction, will not interfere with the above concurrent findings;

(iii) That even otherwise, the plaint does not disclose that the 'talabs' were made in accordance with law and, therefore, no purpose would be served in remanding the case to the Assistant Commissioner; and

(iv) That the petitioner No 2 has filed an application before this Court disowning the petitioner No.l as attorney and withdrawing from the petition and, therefore, this petition has become infructuous so far as the petitioner No. 2 is concerned. In order to appreciate the respective contentions of the learned counsel for the parties, it may be appropriate to refer to section 4 of the Ordinance, which reads as follows:‑

"4. Constitution of and reference of dispute tribunal.‑‑ (1) Where any party to a ire, which s require to be a adjudicated upon in accordance with the provisions of this Ordinance, not being a dispute arising in or relating to any area specified in the second Schedule, makes, or all parties to such dispute arising in or relating to any area specified in the second Schedule, make an application in writing to the Deputy Commissioner, for the adjudication or settlement of such dispute, the Deputy Commissioner shall constitute a Tribunal in accordance with section 5, and by order in writing, refer the dispute to the Tribunal for a finding on such matters or issues as may be specified in the order.

(2) A dispute shall not be referred to a Tribunal if a civil suit in respect thereof, would be barred by the provisions of the Limitation Act, 1908 (1 X of 1908) .

(3) An application under subsection (1) for the adjudication of a dispute shall be made:

(a) For the case of a dispute relating to immovable property, to the Deputy Commissioner, within whose jurisdiction such property is situate provided that where the property is situated within the jurisdiction of different Deputy Commissioners, it may be made to any one of Deputy Commissioners within the local limits of whose jurisdiction any portion of the property is situated, and

(b) in the case of a dispute relating to any other matter, to the Deputy Commissioner within the local limits of whose jurisdiction the cause of action arose.

4. A plain reading of the above‑quoted section 4 of the Ordinance indicates that where any party to a dispute which is required to be adjudicated upon in accordance with the provisions of the Ordinance, not being a dispute arising or in relation to any area specified in second Schedule, makes or all parties to such dispute make an application in writing to the Deputy Commissioner for the adjudication or settlement of such dispute, the Deputy Commissioner shall constitute a Tribunal in accordance with section 5 by an order in writing and refer the dispute to the Tribunal for a finding on such matter or issue as may be specified in the order. It is also evident that a dispute which is time barred, can not be referred to by the Deputy Commissioner because of the express bar contained in subsection (2) of the above‑quoted section 4.

5. It is an admitted position that the Assistant Commissioner exercising the powers of Deputy Commissioner under the Ordinance has not referred the dispute between the parties in the present case, to a Tribunal in terms of subsection (1) of section 4, but instead of referring it to the Tribunal, decided himself by holding that the transaction was a gift and not a sale. Both the parties have referred to a learned Single Judge Judgment of this Court in the case of Haji Sultan Muhammad v. Haji Syed Taj Muhammad and 4 others reported in P L D 1977 Quetta 39, in which, it has been inter alia, held that the Deputy Commissioner is under duty to examine the case before referring it to a Tribunal and to determine, whether the case is referable to a Tribunal or not. It has also been held that the Deputy Commissioner has no right to determine the question, whether 'talabs' were made in accordance with law and which of the parties havLz preferential right of pre‑emption, as these are the questions within the exclusive jurisdiction of the Tribunal.

Mr. Arshad Chowdhry, learned counsel for the petitioners has ..'.q referred to the case of Faiz Muhammad and 2 others v. Muhammad Sharif and 7 others reported in P L . D 1976 Quetta 23, wherein, a learned Single Judge of the erstwhile High Court of Sind and Baluchistan has held that the disputed questions of facts are to be referred to the Tribunal, and are not to be decided by the Deputy Commissioner. He has also referred to the following cases:

(i) E.A. Evans v. Muhammad Ashraf, reported in P L D 1964 S C 536, in which, it has been held that a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is mandatory and even a tenant cannot waive the above statutory requirement.

(ii) Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others, reported in P L D 1971 S C 61. In the above case, it was held that it is a well‑settled principle of law that if a particular act is required to be done in a particular manner, the same is to be done in the manner prescribed.

(iii) Mir Dost Muhammad v. The Government of Baluchistan and 3 others, reported in P L D 1980 Quetta 1 in which a D.B. of this Court has held that the procedure laid down for taking proceeding before a Court or Tribunal, is to be complied with. There is no cavil to the proposition that if a law provides certain manner for doing certain act and such provision is not directory but mandatory, the manner prescribed by law is to be adhered to and any deviation would vitiate the action taken. In the instant case, we have already referred to hereinabove section 4 of the Ordinance, which expressly provides that upon receipt' of an application in respect of a dispute, the Deputy Commissioner shall refer the dispute to a Tribunal in terms of section 5 of the Ordinance. The word "shall" has been used, which demonstrates the mandatory nature of the above requirement. It is true that sometimes the word "shall" is construed as "may", but in the above subsection, there is no such indication that the word "shall" employed should be construed as "may". It is also evident from above subsection (2) of section 4 of the Ordinance that the Deputy Commissioner is obliged to examine the question of limitation before making a reference to the Tribunal, and in case, he concludes that the dispute in barred by limitation, he is obliged to decline the application. In the above Quetta case of 1977, referred to hereinabove, and relied upon by both the learned counsel for the parties, it has been, inter alia held as pointed out hereinabove, that before making a reference to the Tribunal, the Deputy Commissioner is to see, whether there is a dispute of the nature which can be referred to the Tribunal.

7. We are also inclined to hold that if an application does riot disclose any cause of action on the face of it, it will be futile to refer the alleged dispute to a Tribunal. However, if the averments are made in the application, which prima facie disclose a triable cause of action and the same are denied in the written statement making certain facts as disputed questions of fact, the finding on such disputed questions of facts can only be recorded by a Tribunal in terms of sections 8 and 10 of the Ordinance.

In the instant case, the question, whether it was a sale transaction as averred by the petitioners in the plaintiff or was it a gift, as contended by the respondents in their written statements was a disputed question of fact, which needed recording of evidence and recording of a finding of fact, which was within the exclusive competency of the Tribunal and not the Assistant Commissioner. Similarly, the question, whether the 'talabs' were made in accordance with law, is a question of fact, which cannot be decided without recording of the evidence.

8. We are, therefore, of the view that the impugned orders are without jurisdiction and of no legal effect.

9. Adverting to the contention of Mr. Shakeel Ahmed, learned counsel for the respondents that there is concurrent finding of fact recorded by three competent forums on the question that it was a transaction of gift and not sale and, therefore, this finding of fact cannot be disturbed by this Court, it may be stated that we would have not hesitated to subscribe to the above submission, but the pre‑requisite of recording of finding of fact, is that the forum which records the same should be competent. In the instant case, neither the Assistant Commissioner, nor the Additional Commissioner, nor the Member of the Board of Revenue had the jurisdiction to record a finding of fact without first referring the dispute to the Tribunal in this view of the matter, the fact that the three forums have concurred with each other on a finding of fact, of which they had no jurisdiction, would not make it legal and binding.

10. It was then contended by Mr. Shakeel Ahmed, learned counsel, for the respondents that one of the petitioner namely, petitioner No. 2, who is real brother of petitioner No. 1 has filed an application in this Court disowning the petitioner No. 1 as his attorney and also praying that he may be allowed to be dropped from the petition. This application was though numbered by the office of this Court, but there seems that no orders have been passed thereon. In our view I will suffice to observe that it will be open to the‑respondents to plead this fact before the Tribunal and urge whatever legal implication is involved because of the filing of the above application.

11. For the aforesaid reasons, we declare the impugned orders as being without lawful authority and of no legal effect. The case is remanded to the Assistant Commissioner with the direction to refer the dispute to the Tribunal. There shall be no orders as to costs.

A . A Petition allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.