MUSHRAQ HUSSAIN, J.--This order shall dispose of Writ Petitions Nos, 1136, 936, 1005, 1242, 1317 and 1390 of 1970 since the questions of law involved in these cases are common. Arguments have been addressed by Khawaja Abdur Rahim and Mr. M. S. Baqir, Advocates, while the gentlemen appearing in the other petitions have adopted them.
2. The petitioners or their predecessors-in-interest were granted various parcels of land from time to time under the Pedigree Livestock Breeding Scheme. The initial period of lease in each case was ten years and could be renewed for not more than five years at a time by the Collector. They claim that they bad complied with all the stipulations laid down in the Statement of Conditions which governed their tenancy and that in each case an application had been presented well in advance of the expiry of the term for renewal of the same under Clause 8 of the Statement of Conditions notified by the Government of West Pakistan under No, Col. 7/1-1-58, dated the 3rd of May 1960.
3. The Collector in each case refused to renew the grant. It has been contended that the refusal was not due to any exercise of discre tion by the Collector himself but in pursuance of Government Memorandum No, 465-70/1932-CV, dated the 5th of June 1970, a copy of which is An n exude 'P. 8' to Writ Petition No, 1136 of 1970. This Memorandum provided that the leases under the Scheme in favour of non-lambardars should not be renewed and the area so becoming available should be allotted to lambardars under the same Scheme in lots of twelve-and-a-half acres. The petitioners have felt aggrieved by the Collector's refusal to renew the leases. Hence these petitions.
4. These and other leases of Government land are from time to time made under section 10 of the Colonization of Government Lands (Punjab) Act, 1912, by the Collector. This section empowers the Government to issue a statement or statements of the conditions on which it is willing to grant such land. The allotment of the land is to be made by the Collector "Subject to the control of the Financial Com-missioner". The land is to be held under such statement of conditions issued under the section "as the Collector may by a written order declare to be applicable to the case". Once possession has been delivered the land is to be held as a tenant "subject to the conditions declared applicable thereto". 7 he statement of conditions by which the grants in question are governed were notified by the Government on the 3rd of May 1960. Under this statement of conditions only such persons are eligible as have interest in or experience of Livestock Breeding and who are selected by the Government on the report of the Director, Animal Husbandry Department, for such purpose. The period of tenancy is initially ten years and clause 8 provides that the same would stand determined "unless renewed on the recommendations of the Director, Animal Husbandry Department. Before the expiry of the tenancy or the renewed period of the tenancy, the tenant may apply to the Collector for its renewal. If the Collector is satisfied that the tenant has duly complied with all the terms and conditions of the expiring tenancy and that his working has been satisfactory he may renew it for a further period not exceeding five years at a time". There is no allegation that any one of the petitioners has violated any of the terms contained in the statement of conditions. It is not denied that applications for renewal of the tenancy were made before its expiry. A case is sought to be built up on the assertions that-- (a)the word "may" used in clause 8 in respect of renewal of the tenancy should be read as "shall" because the petitioners have developed the land, have sunk money in the process and are entitled, as a matter of right, to the renewal of the leases because their work has been satisfactory and that the Collector had no power whatsoever under clause 8 to refuse to make the renewal for which a written request had been made, (b)the statement of conditions was notified by the Government in the official Gazette in 1960 and no amendment thereof could be made without following the same procedure. The Government Memorandum, which has led to the refusal to renew by the Collector, was never notified and does, therefore, not affect the rights accrued under the aforesaid statement, (c)assuming that the Collector had a discretion in the matter of renewal, he could have exercised that for considerations mentioned in the statement of conditions and could not allow himself to be influenced by any Government Instructions which were not contained in the aforesaid Statement and were not otherwise duly notified, (d)Government had no power in any case to issue the Memorandum contrary to the Notifications, (e)the application for renewal had been submitted earlier than the Memorandum was issued. In some cases the date on which possession was given is latter than the date on which the lease was executed and therefore the question of renewal would arise only after the period of lease, calculated from the date of the delivery of possession, has run out, and
(f) that condition 24(10) authorises action only for a public purpose, or in case of mistake. Neither of these circumstances was attracted to the facts of the cases and, therefore, also the action was uncalled for.
5. Whether the use of the word "may" confers a discretion upon an administrative authority or it places an obligation upon it has been the subject-matter of judicial attention more than once. One of the earlier cases where it came up for interpretation is Frederic Guilder Julius v. The Right Rev.
The Lord Bishp of Oxford; The Rev. Thomas Thelluson Carter a case in which several earlier rulings have been noticed and considered. It continues to be the leading case on the subject.
A parishioner of the parish of Clawer of which respondent No, 2 was the rector was aggrieved by an assumption that the latter was guilty of non-observance of the law of the Church of England. He, therefore, presented a petition to the bishop respondent No, 1 praying for the appointment of a commission for holding an enquiry. The bishop rejected the application. The matter came up before the Queen's Bench Division which accepted it. On the case coming before it, the Court of1 Appeal reversed the judgment and the matter came up before the House of Lords. It was argued before the House that the words "it shall be lawful" used in the statute simply declare the possession of power, of which the rules and the principles of law require the exercise. It was submitted that "in numerous instances those expressions, and the simply word 'may' (which in itself does appear to be wholly and almost exclusively permissive) have received from the Courts the meaning of being directory. Whenever a public duty is to be performed they must have that meaning. This argument was met with the reply that these words only conferred a power and unless there was some thing. in the statutes to show that the conferee was bound to put that power into active operation whatever the circumstances of the case might be, no compulsion could be inferred from them. The question posed by the House was "is the bishop bound, on the application of any party, to issue a commission, or has he a discretion as to whether he will issue it or not." The Lord Chancellor made it clear in his speech that-- "the words 'it shall be lawful' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do.
They confer a faculty or power and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen's Bench to decide, on an application for a mandamus. And the words 'it shall be lawful' being according to their natural meaning permissive or enabling words only, it lies upon those, as it seems to me, who contend that an obligation exists to exercise this power, to show in the circumstances or the case something which, according to the principles I have mentioned, creates this obligation9 9 His Lordship then referred to- ll) Alderman Backwell 1 Vern. 152 (2)King v. Barlow Sal. 609 (3)The King v. Havering-atte-Bower 5 B & A 691 (4)Macdougall v. Peterson 11 C B 755 (5)Morisse v. Royal British Bank I C B (N S) 67 (6)Reg. v. Tithe Commissioners 14 C B 459 and having done so observed-- "My Lords, the cases to which I have referred appear to decide nothing more than this, that where a power is deposited with a Public Officer for the purpose of being used for the benefit of persons who are specifically pointed cut, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised."
The rule accepted by the House in this case, therefore, was that the word "may" is plain and unambiguous and makes "that legal and possible which there would otherwise be no right or authority to do." It confers "a faculty or power" but does not of its own do more than that. It is only a permissive or enabling word and something has to be shown from the nature of the power, its object, the attending conditions and "something in the title of person or persons for whose benefit the power is to be exercised which may couple the power with a duty and make it the duty of the person in whom the power reposed, to exercise that power when called upon to do so."
6. In Sheffield Corporation v. Luxford (1929) 2 K B D 180, the High Court observed that-- "Now it is quite true that the language of the Act is permissive and not compulsory. It has often been said, and it is possibly a convenient abbreviation but like all inaccurate expressions it often leads to misunderstanding, that in many statutes the word "may" means "must". I think it has been pointed out once for all in Julius v. Bishop of Oxford (5 A C 214, 222, 229, 235, 241) that that is an inaccurate expression. "May" 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 statutes is entrusted with the power it becomes his duty to exercise it. One of those cases is where he is applied to use the power which the act gives him in order to enforce the legal right of the applicant."
7. Much water has flown down the bridge since the House of Lords took the view, referred to above.
Keir and Lawson in Cases in Constitutional Law (Fifth Edition) at page 485 observe--"There is obviously no difficulty where the duty has been imposed in express terms, but at one time it was not uncommon practice to imply a duty from the grant of a power, the word 'may' in an act of parliament was often construed to mean 'shall'. With the greater precision of modern draftsmanship this practice has disappeared, and it would be only in the most compelling context that a Court would imply a duty to exercise a power."
This observation is based upon the consideration of dicta in a large number of cases including East Suffolk Rivers Catchment Board v. Kent.
8. Let us, however, first apply the dictum of the case of Julius v. Bishop of Oxford to the present circumstances. One of the most essential pre-requisites of converting discretion into a duty to be performed on mere application is that the applicant must have a right to the performance of the "duty" t y the public functionary. There is no such right in the case before us. The land admittedly belongs to Government. The Government decided to utilise the land for breeding pedigree livestock in certain Colony areas of the Province and with this end in view decided to grant tenancies to "be used for the sole purpose of pedigree livestock." The period of tenancy is clearly laid B down in the ground as being ten years, in the first instance The renewal is not automatic but is to be made only on the recommendation of the Director, Animal Husbandry. The wards used are that "it will be determined unless renewed". There is nothing in the ground to show that the intention is to transform this lease into one in perpetuity. On the other hand renewal is provided only for a period of five years at a time which is conditional upon the recommendation of the Director and the orders of the Collector. In other words, the whole matter is to be reviewed after every five years.
This review has to be made in the light of public interest. It is not just for the purpose of finding out whether the terms and conditions of the grant have been fulfilled. The remedial provisions against breaches or non-observance of the conditions by the tenant have been separately made in clause 26 of the same statement of conditions which inter alia, provides for an order of "resump Lion of the tenancy". It is, therefore, clear that the provisions for the periodic nature of the tenancy and its renewal contained in paragraph 8 have not been made just for the purpose of reserving the right to refuse renewal in case the tenant has failed to comply with the terms but also to unable the Collector to refuse renewal on other relevant considerations if he deems fit. The petitioners have thus not been given any right of renewal under the Scheme. The right is not to be spelt out from the use of the word "may" but has to be independently shown so that the word "may" could be read as "shall". Since there is nothing which could show that the petitioners have any right, the word "may" could not be given any more meaning than it normally has i e. the conferment of a power on discretion upon the Collector.
9. Reference was made before us to Ghulam Hussain and another v. Muhammad Rafig and others in support of the contention, that the word "may" which occurs in section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959, does not confer a naked, uncontrolled and unguided discretionary power on the Rent Controller. The dictum in that case was pronounced in respect of a tenant who has a right under the West Pakistan Urban Rent Restriction Ordinance and to whom the la v gives the right to continue in possession of property unless ejected in due course of law by a2 3 Court for reasons given in the Ordinance itself. In the present case, as has already been indicated, the petitioners do not have any right once the term of the lease expires.
10.The mere fact that the petitioners have made improvements or sunk money in developing the land does not make c any the difference for a right could hardly be created on such flimsy and ulterior basis.
11.Let us in this very context examine if it could, at all be held that the Collector was bound to exercise his discretion in favour of the tenant. It is by now axiomatic that no public authority can make any promise in advance that it would exercise its discretion only in a certain manner even if that be for a consideration. As far back as the year 1918 a Swedish steamship company, owner of a ship "Amphitrite" was desirous of trading with her to the United Kingdom Two of its ships had been detained in British ports under the "Ship for ship" policy. It, therefore, applied to the British Legation at Stockholm for a guarantee that the boat will be permitted to make a return voyage. The guarantee was duly given and the voyage was made. For the second trip a guarantee was again obtained in the words that "the s. s. Amphitrite will be allowed to release herself in here next voyage to the United Kingdom". This time the Government in United Kingdom went back upon the undertaking. The ship owners presented a petition of right. The High Court of Justice held- ". . . it was an arrangement whereby the Government purported to give an assurance as to what its executive action would be in the future in relation to a particular ship in the event of her coming to this country with a particular kind of cargo. And this is, to my mind, not a contract for the breach of which damages can be used for in Court of law. It was merely an expression of intention to act in a particular way in a certain event. My main reason for so thinking is that it is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises. It cannot by contract hamper its freedom of action in matters which concern the welfare of the State." Rederiaktiebolaget Amphiterite v. The King (1921) 3 K B 500.
This view was affirmed in Birkdal District Electric Supply Company Limited v. Corporation of Southport : "If a person or a public authority is entrusted by the Legislature with certain powers or duties expressly or implicitly for public purpose, then those persons or bodies cannot divest themselves of those powers and duties. They cannot enter into any contract or take any action incompatible with the due exercise of their powers or the discharge of their duties."
12. To the same effect are observations in Ransom & Luck Limited v. Surbitoon Borough Council, where Lord Greene M. R. observed that-- "The first thing to do, in my mind, is to examine section 34, and the reason for the fundamental importance of doing so is that, if Mr. Blain's argument is right, the section will have empowered the planning authority to bargain away its statutory powers of planning and of altering its plans at any time before a scheme is finally approved. These are the powers which are conferred upon it by the Act in the public interest and yet the agreement on which he relies would, according to his interpretation of it, have the effect of stabilizing the quantity or quality of development without any possibility of the planning authority ever being able afterwards to alter it except on the terms of paying damages for breach of contract. I am bound to say that in approaching this section in an Act of this character I do so without any expectation that 1 shall find in it a power for the planning authority to bargain away the important powers that the Legislature has conferred upon it... I ask myself this question: Is it likely that Parliament, in a section falling under the head I have mentioned and without express words to that effect would do anything so unusual, so explosive, as to enable a planning authority to do that which all the principles laid down and observed by the Courts and the Legislature in regard to statutory duties of this kind forbid, namely, to tie its hands and contract itself out of them?"4 5 Similarly in Antonio Buttigieg v. Captain Stephen H. Cross and others the Privy Council referred to the Amphitrite case and approved and followed it. In William Cory & Son Ltd. v. City of London Corporation, the City of London Corporation, as the sanitary authority, made a contract for the removal of refuse from the city of London under which the contractors undertook to use lighters and barges fitted with `temporary coamings and coverings to be secured to the permanent coamings' and to comply with the bye-laws of the port health authority for the port of London as to removal of refuse. While the contract was still in force and had a life of about 20 years, the Corporation in its capacity of Port Health Authority Promulgated new bye-laws which placed heavier responsibility on the contractors. It was not disputed that the additional burden thrown on the contractors by those bye-laws was such as would entitle them, when the bye-law came into force, to treat the contract as having been frustrated, but it was contended by the contractor that the nature of the byelaw was an anticipatory breach of contract, entitling them forthwith to treat the contract as repudiated. The Court held that the contractors could not immediately treat the contract as repudiated. It was held that "the term sought to be complied in this case is one whereby the Corporation, a legislative body charged by statute in imperative language with the duty of making bye-laws, relating, inter alia to the removal of the refuse in the interest of the public health in the port of London, . . . engages not to make any bye-laws for this purpose which should lay on the claimants burdens other and more severe than those provided for in clause 1 of their contract with the Corporation, and, therefore, prevent the claimants from fulfilling the contract by complying with clause 1 without more. I consider that such a term, whether implied or even express could not be valid. . In this setting, it would seem that the implied term relied on would impose an unwarrantable fetter on the Corporation in the exercise of its statutory duties under the Public Health (London) Act, 1936 section 84 (1)(a)".
13. The observations of Russel, J. In York Corporation v. Henry Leetham & Sons Ltd. were approved which are to the effect that the contracts were ultra vires and void because under them Corporation had disabled itself, whatever emergency might arise, from exercising its statutory powers to increase tolls as from time to time might be necessary. The learned Judge based his decision on-- "the incapacity of a body charged with statutory powers for public purposes to divest itself of such powers or to fetter itself in the use of such powers." What necessarily follows is that although it can lay down such rules, but it cannot bind itself by them: they can be validly made but they will not preclude the authority from altering them will in the public interest or indeed from deciding in flat contradiction to them.
14.It can hardly be denied that the grant of this land concerns "the welfare of the State", and therefore it was not open to the Collector or for the matter of that the Government to fetter the exercise of its executive action because that action had to be determined by the needs of the community as and when the question arose.
15.Not only did therefore the petitioners have no right whatsoever to the renewal of the tenancies on the one hand, on the other the Government had no power to fetter the exercise of its discretion by providing for a renewal clause in the statement of terms and conditions which, according to the petitioners made it imperative for the Government to renew the lease. In other words, neither was there a right in these applicants for the renewal of the leases nor a compulsive duty in the Collector to renew the leases irrespective of the considerations of public interest enunciated by the Government.
16.The Collector is a public functionary upon whom powers in the present context are conferred by section 10 of the Colonization of Lands Act under which the grant itself is made. The Collector is bound under that section by the Instructions of the Board of Revenue because it makes him6 7 8 subject to its control. The Member of the Board of Revenue is an ex officio Secretary to the Government. In the present case, the Memorandum by which the petitioners are aggrieved has been issued by the Government and has been forwarded by the Secretary to Government in the Colonies Department, a Member of the Board of Revenue to all the Collectors for compliance. The law requires the Collector to function under the control of Government and the Member, Board of Revenue. Could it be said that by exercising his discretion in accordance with the Memorandum issued by the Government and the Board of Revenue he had rendered his action liable to being set aside by this Court? This Memorandum had been issued by a Controlling authority which has the powers to alter the Statement of Conditions and for all intents and purposes the aforesaid Memorandum would have the force of the Statement of Conditions itself. The Collector who is supposed to carry out the policy of the Government in all such matters did, therefore, do nothing illegal by conforming to a policy laid down by it. By doing so, he did not "surrender his discretion" since the limits of his discretion itself had been changed by the Memorandum in question.
Reference in this connection may be made to Muhammad Ashraf v. Board of Revenue, West Pakistan and another, where it was laid down that-- "In our view the Instructions issued by the Board of Revenue in connection with the allotment of, and transfer of pro-prietary rights in, the land had the force of law and were not mere departmental instructions issued internally for the information of the Revenue Officers. We have no doubt that the Instructions or the Conditions issued under the section have the force of law."
The Collector was, therefore, bound to follow them.
17.Section 10 does not provide that the statement of conditions laid down by the Government under it shall be notified in the Gazette. All that it requires is that the Provincial Government "may issue a statement or statements of the conditions" The mere fact that in the present case they were notified was nothing more than a gratuitous act and any change in them either indirectly in the shape of a Memorandum or directly in the shape of an Amendment was not required to be notified and, at least, no law has been shown to us to the contrary by learned counsel appearing for the parties. The validity of the Memorandum is, therefore, not decreased or diminished by its non-publication in the Gazette.
18.The mere fact that the application for renewal had been submitted before the Memorandum was issued would not make any the difference since the Collector had to act in accordance with the needs of the community existing at the time when he passed orders refusing to renew the lease. The Memorandum related to renewal and was acted upon at the time when the question of renewal came up. It is, therefore, incorrect to assert that it was applied retrospectively.
19.We need not say any thing about the submission regarding condition No, 24(10) of the Statement of Conditions for the simple reason that it not attracted to the facts of the cases before us for it deals with contingencies other than renewal.
20.As to the submission about the period of lease being co-extensive with the period of possession, we need only say that it would be premature to take notice of it for the simple reason that the impugned orders only concern themselves with refusal to renew the leases and would normally take effect only as and when the leases come to an end.
21.It was also sought to be made out that the petitioners had, in fact, become possessed of the option of renewal in such a manner that even the authority having the power to renew had no power to extinguish it. In support of it, reference was made to a tract on Fundamental Legal Conceptions by Wesley Newcomb Hohfeld and more particularly to certain observations contained at pages 56 and 57. Suffice it to say that the observations pertained to an entirely different concept i,e, of offer and acceptance and the irrevocability of the offer in the realm of the law of contract. No such question is involved in the cases before us.
22.The petitions are, therefore, dismissed with costs.9 5 A C 214 1941 A C 74 PLD 1965 Kar. 468 1926 A C 355 at p. 364 (1949) 1 Ch. 18Q AIR 1947 P C 29 (1951) 9 All Eng. L R 85 (1924) 1 Ch. 557 PLD 1958 Lah. 1155