The instant petition is directed against the orders dated 09.04.2021 and 10.07.2021, whereby the learned Additional District Judge, Lodhran, dismissed two applications of the petitioner , first for grant of permission to withdraw Rs.20,00,000/- from A/c No.799591009536, MCB Bank, Lodhran and the other for submission of return/financial statement.
2. In the case in hand the petitioner applied for her appointment as guardian of the person and property of her real daughter namely Mst. Naseem Akhtar , who being mentally disabled was unable to perform any sort of routine affairs. According to the petitioner , after the death of her husband, who was employed in police department, Mst.
Naseem Akhtar was residing with the petitioner , and she being mother was looking after her affairs. According to the petitioner , pension of husband of Mst. Naseem Akhtar was sanctioned and in the total amount of Rs.32,67,678/-, share to her extent (25%) was lying in A/c No.799591009536, MCB Bank, Lodhran.
3. The learned Additional District Judge, Lodhran through order dated 09.04.2019 accepted the application and appointed the petitioner as guardian of person and property of Mst. Naseem Akhtar , with the observation "the petitioner who is real mother of Mst. Naseem Akhter as the appointment of the petitioner as her guardian is hereby declared as lawful guardian of the property and person of Mst. Naseem Akhtar . Resultantly instant petition is allowed, subject to furnishing surety bond in sum of Rs.17,27,276/- with one surety in the like amount to the satisfaction of this court. However , the amount shall not be disbursed without prior permission of this court."
4. The petitioner applied for withdrawal of an amount of Rs.20,00,000/- for the purpose of construction of house and for medical treatment of her disabled daughter , but the learned Additional District Judge, Lodhran, dismissed the same through order dated 09.04.2021, with the observation that the petitioner after her appointment as guardian was duty bound to furnish an inventory of the immovable as well as mova ble property and all other assets received on behalf of mentally disorder person together with statement of all claims due on and all debt and liabilities due by such a person within a period of three months but the same was not submitted during such a long period of two years. Thereafter , the petitioner through another application submitted the detail of the expenditures/inventory on 08.07.2021, but the Court did not accept the same with the observation that after a delay of two years without any plausible explanation the same was not acceptable and dismissed the application through order dated 10.07.2021.
5. Learned counsel for the petitioner argued that the petitioner is real mother of the ward. She is not only facilitating the ward regarding all aspects of life but also bearing all expenditures including medical treatment, therefore, she is in need of the amount. She has no house to live and she has no other source of income to expend the amount for medical treatment of disabled daughter , therefore, she be allowed to withdraw the said amount.
6. The petitioner was appointed guardian of the person and property of Mst. Naseem Akhtar through order dated 09.04.2019. It has been noticed that at the time of issuing the certificate for guardianship the Court did not pass any order regarding submission of detail of the movable and immovable property belonging to the ward/disabled daughter . The surety required through the order was submitted by the petitioner . After the issuance of certificate/acceptance of the application for appointment of guardian of person and property of Mst. Naseem Akhtar (disabled) the Court even did not issue any notice to the petitioner for filing of any statement/return. Thereafter , the lady filed this application on 13.03.2021 after about two years of issuance of certificate, wherein she has mentioned in detail the requirements/need for withdrawing the amount lying in MCB, which was disallowed by the Court vide order dated 09.04.2021 on the ground that the lady has not deposited the required inventory/statement of accounts regarding the movable and immovable property of the disabled daughter which was mandatory under the law. I would like to reproduce the relevant statutory provision on the subject (Section 37 of the Mental Health Ordinance, 2001), as under:- "37. Furnishing of inventory of immovable property , etc.- (1) Every manager appointed under this Ordinance shall, within a period of three months from the date of his appointment, deliver to the Court an inventory of the immovable property belonging to the mentally disordered person and of all asse ts and other movable property received on behalf of the mentally disordered person, together with a statement of all claims due on and all debts and liabilities due by such a person.
(2) All transactions under this Ordinance shall be made through a bank authorized by the Court.
(3) Every such manager shall also furnish to the Court within a period of three months of the closure of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the mentally disordered person and the balance remaining with him.
(4) If any relative of a mentally disordered person impugns, by a petition to the Court, the accuracy of the inventory or statement referred to in sub-section (1) or, as the case may be, any annual account referred to in sub-section (3), the Court may summon the manager and summarily inquire into the matter and make such order thereon as it thinks fit.
(5) Any relative of a mentally disordered person may, with the leave of the Court, sue for an account from any manager appointed under this Ordinance or from any such person after his removal from office or trust, or from his legal representatives in the case of his death, in respect of any property then or formerly under his management or of any sums of money or other property received by him on account of such property ."
7. The learned lower Court while apprising the said Section itself, has not considered the philosophy behind the Ordinance that it was purely enacted for the welfare of the disabled person. Mere the word 'shall' has been used in the statute without recommending any penal clause. In that case, Court has to consider the application/scope of that provision. Reliance in this regard is placed on Province of Punjab through Secretary Excise and Taxation Department, Lahore and others vs. Murree Brewery Company Limited (MBCL) and another (2021 SCMR 305), wherein it is held as under:- "The test to determine whether a provision is directory or mandatory is by ascertaining the legislative intent behind the same. The general rule expounded by this Court is that the usage of the word 'shall' generally carries the connotation that a provision in mandatory in nature1. However , other factors such as the object and purpose of the statute and inclusion of penal consequences in cases of non-compliance also serve as an instructive guide in deducing the nature of the provision."
I also rely on the case reported as Province of Punjab through Conservator of Forest, Faisalabad and others vs. Javed Iqbal ( 2021 SCMR 328 ), wherein it is held as follows:- "In order to determine whether a provision was directory or mandatory , the duty of the court was to try to unravel the real intention of the legislature. The ultimate test was the intent of the legislature and not the language in which the intent was clothed. The object and purpose of enacting the provision provided a strong and clear indicator for ascertaining such intent of the legislatu re. The intention of the legislature must govern and this was to be ascertained not only from the phraseology of the provision but also by considering its nature, its object, and the consequences which would follow from construing it one way or the other . This exercise entailed careful examination of the scheme of the Act in order to discover the real purpose and object of the Act. A provision in a statute was mandatory if the omission to follow it rendered the proceedings to which it related illegal and void, while a provision was directory if its observance was not necessary to the validity of the proceeding.
One of the important test that must alway s be employed in order to determine whether provision was mandatory or directory in character was to consider whether the noncompliance of a particular provision caused inconvenience or injustice and, if it did, the court would say that that provision must be complied with and that it was obligatory in its character . There were three fundamental tests, which were often applied with remarkable success in the determination of this question. They were based on considerations of the scope and object, sometimes called the scheme and purpose, of the enactment in question, on considerations of justice and balance of convenience and on a consideration of the nature of the particular provision, namely , whether it affec ted the performance of a public duty or related to a right, privilege or power in the former case the enactment was generally directory , in the latter mandatory ."
Similarly , in the case of the State through Regional Director ANF vs Imam Bakhsh and others (2018 SCMR 2039 ), the specific provision has been discussed in detail, the operative part of which is as under:- "The duty of the court is to try to unravel the real intention of the legislature. This exercise entails carefully attending to the scheme of the Act and then highlighting the provisions that actually embody the real purpose and object of the Act. A provision in a statute is mandatory if the omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceedings.
Thus, some parts of a statute may be mandatory whilst others may be directory . It can even be the case that a certain portion of a provision, obligating something to be done, is mandatory in nature whilst another part of the same provision, is directory , owing to the guiding legislative intent behind it. Even parts of a single provision or rule may be mandatory or directory . In another context, whether a statute or rule be termed mandatory or directory would depend upon larger public interest, nicely balanced with the precious right of the common man."
I also rely upon the case of the Collector of Sales Tax, Gujranwala and others vs. Messrs Super Asia Mohammad Din & sons and others ( 2017 SCMR 1427 ), wherein it is held:- "While the use of the word 'shall' is not the sole factor which determines the mandatory or directory nature of a provision, it is certainly one of the indicators of legislative intent. Other factors include the presence of penal consequences in case of non-compliance, but perhaps the clearest indicator is the object and purpose of the statute and the provision in question. It is the duty of the Court to garner the real intent of the legislature as expressed in the law itself."
Reliance in this regard can also be place d upon the cases reported as Adeel Ahmad Gaba vs. Special Judge Rent and another (PLD 2019 Lahore 268), Messrs Wazir Khan Store and others vs. United Bank Limited through Authorized Attorney (2015 CLD 1729 ) and Apollo Textile Mills Ltd. and others vs. Soneri Bank Ltd.
(2012 CLD 337 ).
8. The Court was under obligation to see the intent of the legislation. The petitioner who is real mother of the disabled lady was appointed as guardian . She has mentioned the reason for obtaining/withdrawing the amount from the bank. The Court is also the guardian of the minors and disabled persons. The Court is not only to see and supervise but to take care of the rights of the minors and the disabled persons. Although the lady submitted the statement of expenditure too late and did not deposit/submit the inventory about the movable and immovable property related to the disabled person as required under Section 37 of the Ordinan ce, yet this was for the Court to take into account the reason/need mentioned by the petitioner for withdrawal of amount. The Court was under obligation to consider and entertain the statement of accounts/expenditures tendered by the lady. The other factor is that there was no complaint against lady/petitioner/guardian that she is not taking care of the disabled lady (her person and property). In that case, the Court was under obligation to consider the need of the lady and to entertain the documents/statement of accounts/ex penditures tendered by the petitioner and may also enquire about the correctness of the same, but the Court cannot refuse to entertain the same because the intent of the legislation is the welfare of the minor/disabled person.
9. In the circumstances, the instant petition is allowed, the impugned orders dated 09.04.2021 and 10.07.2021 are set aside and the case is remanded to the learned Additional District Judge, Lodhran, with the direction to entertain the inventory/statement of accounts submitted by the petitioner and decide the application afresh keeping in view the spirit of the statute which is purely for the welfare of the ward/disabled person. No order as to costs.