' The petitioner has called in question vires of the order, dated 31-8-1986 passed by the Commissioner, Faisalabad Division, in appeal, whereby the order of the Cane Commissioner, Punjab, dated 16-3-1986 was upheld disallowing inclusion of 28 Chaks from free Zone to the reserved area of the petitioner.
2. Briefly stated the facts leading to the present petition are that Sugarcane Control Board in its meeting held on 15-1-1986, at the request of the petitioner recommended that 28 Chaks from free Zone, may be included in the reserved area of the petitioner. The minutes of the meeting of the Sugarcane Control Board are appended as Annex.A. However, in the notification, dated 16-3-1986, issued by the Cane Commissioner, Punjab, respondent No.1, these Chaks were not included in the reserved area of the petitioner, consequently, feeling aggrieved, petitioner preferred an appeal before the learned Commissioner, Faisalabad Division as contemplated by S.10(2) of the Sugar Factories Control Act, 1950 hereinafter referred to as Act which was dismissed vide the impugned order. Hence the present petition.
3. The learned counsel for the petitioner has raised bifold contentions. Firstly, respondent No.1 was statutorily obliged to include these Chaks in the reserved area of the petitioner in view of the decision of the Sugarcane Control Board, dated 15-1-1986 (Annex.A) for the reason that although the expression used in sections 10 and 14 of the Act is 'may' but it is to be read as 'shall' thus respondent No.1 was bound to implement the recommendations of the Sugarcane Control Board, which were mandatory in nature; and as a necessary corollary thereof, the orders of the Cane Commissioner, Punjab, dated 16-3-1986 and the order passed by the Commissioner, Faisalabad Division in appeal, dated 31-8-1986 are without lawful authority. Secondly, on facts since the area of the petitioner has been reduced in terms of acreage, therefore, 28 Chaks should have been included in the reserved area of the petitioner.
4. Report was called for from respondent No.1, and the same has been perused.
5. I have examined the provisions of Section 10 and Section 14 of the Act, the recommendations made by the Sugarcane Control Board in its meeting held on 15-1-1986, the notification issued by the Cane Commissioner, Punjab, as well as the order impugned in these proceedings.
6. The crucial question for the purposes of adjudication of the present petition is the juridical classification of the statutory status of the Sugarcane Control Board, with a view to ascertaining the real intendment of the law-giver, as to whether its capacity is only consultative and recommendatory, vis-a-vis, the Cane Commissioner or is it intended to be an authoritative body whose decision is mandatory in character, as a result whereof, the Cane Commissioner
7. The intendment of the framers of this piece of legislation in this behalf is to be deduced from the text of Ss.10 and 14 of the Act, and for convenience of reference the relevant text thereof is reproduced hereinbelow: "S.10 (1).--The Cane Commissioner, may, after consulting the Board, issue an order declaring any area to be reserved area for the purposes of the supply of cane to a particular factory during a particular crushing season, and may likewise, at any time, cancel such order or alter the boundaries of an area so reserved."
"S.14:(i) The Cane Commissioner may, after consulting the Board, issue an order declaring an area to be an assigned area for the purposes of the supply of cane to a particular factory."
8. Section 10 deals with reserved areas whereas section 14 caters for assigned areas. The key for resolving the present controversy is enshrined in the opening sentence of both the sections which are in paramateria i.e. "The Cane Commissioner "may" after consulting the Board." To narrow down the analysis, the real words of predominant significance in the present context are 'may' and 'consulting'. The legislature has manifested in unambiguous terms, its intention, by deliberately preferring, out of choice, to deploy the expression "consulting" as a suffix to the word 'may'. There is an inbuilt and inseverable placenta as nexus between the two words i.e. 'may' and 'consulting', and ought to be read conjunctively. The scope of the expression 'may' has been qualified out of the design by the statutory draftsman, by using the expression "consulting" which, in literal, grammatical and logical sense, conveys the meanings not beyond the specie of advice and consultation; which may or may not be accepted. The word "consulting" is a derivative from the word "consult" which means as per:- ' Chambers Twentieth Century Dictionary: "To ask advice of, to look up for information, to discuss, to consider, to take counsel."
' The Oxford English Dictionary, Vol. II: "To take advice of, seek counsel from, to have recourse to for guidance."
' Webster's New International Dictionary, second edition: "To seek opinion, to ask advice, to apply to for information."
' This word was judicially interpreted in the case of Pushpam R. v State of Madras AIR (sic)Mad. 392 as under: "Consult" implies a conference of two or more minds to enable the consultor to consider pros and cons before coming to a decision. The consultation may be between an uninformed person, an expert or between two experts." It was also considered in "Fletcher v. Minister of Town and Country Planning (1947) 2 All E R 496, per Morris, J: "The New Towns Act 1946,S.1(1) (repealed; see now S.1(1) of the New Towns Act, 1965), provides that the Minister of Town and Country Planning may make an order designating the site of a new town after "consultation" with local authorities. "The word 'consultation' is one that is in general use and that is well-understood.
' No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which consultation must take place. The Act does not prescribe any particular form of consultation. If a complaint is made of failure to consult, it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultation may often be a happening at one meeting may form the background of a later one".
' Similarly it was considered in the case of "Rollo v Minister of Town and Country Planning (1948) 1 All E R 13, C.A. Per Lord Greene, M.R. "A certain amount has been said as to what consultation means. In my view....It means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice and, on the other hand, a sufficient opportunity must be given to the local authority to tender that advice".
' The cumulative effect of the aforegoings is that the word 'consult' or 'consultation' or 'consulting' means no more than to ask c for an advice, which if tendered then it is left to the sole choice of the person, seeking the advice to follow it or forget about it.
9. Thus on a plain reading of these sections, one is impelled to believe that the juridical status or capacity of the Sugarcane Control Board is only consultative and advisory at its best. This body appears to have been created so as to ascertain the views of all the concerned parties before any decision is taken by the Cane Commissioner, in discharge of his statutory duty, on the basis of the available data and the Government policy at a given point of time, and is not bound to abide by the advice rendered by the Sugarcane Control Board as a result of the consultation.
10. Now adverting to the arguments of the learned counsel that the word 'may' appearing in sections 10 and 14 of the Act is to be read as 'shall', it may be mentioned that the learned counsel for petitioner at the tail-end of his submission very fably made a reference to this point. - Before proceeding further, from the very outset, I may say that there is no cavil with the time honoured legal proposition E that the words 'may' and 'shall' are interchangeable, dependent on the context.
' In this regard, I would like to rely upon the pronouncements made by their Lordships of the Supreme Court in the following cases:- ' Muhammad Saleh v The Chief Settlement Commissioner and 2 others PLD 1972 SC 326: "It is now well-settled that the words 'may' and 'shall' in legal phraseology are interchangeable, depending on the context F in which they are used, and are not to be interpreted with the regidity which is attributed to them in ordinary parlance."
' Ghulam Qadir v. Deputy Commissioner, 1984 SCMR 493: "Though in general sense the word 'may' gives an impression of its being enabling or discretional, and the word 'shall' as obligatory, yet the connotation is not inelastic and inviolate. Cases are not wanting where the words 'may', 'shall' and 'must' are used interchangeably. Accordingly, in order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the Legislature is the guiding factor."
' Thus, the law laid down by the Honourable Supreme Court in these judgments is that whether the word "may" is to be interpreted as "shall" or vice versa, the guiding principle is the intention of the H law-giver which is to be discovered from the context in which the words have been used. And, in the instant case, the framers of the Act have clearly manifested their intention and design without leaving any room for ambiguity in the context of things by setting the word I "may" in the company of the word "consulting", which in turn means that "may" is to be read as 'may', and would have only a directory connotation and not mandatory sanction.
11. There is yet another way of looking at this argument. Assuming for the sake by pothetical adventure that the word "may" here is to be read as "shall", then at its best, it would mean that the Cane Commissioner shall, after consulting the Board. That is to say that the Cane Commissioner must do the specified act i.e. Declare the reserved area or the assigned area, as the case may be, but this will not change the basic status of the Sugarcane Control Board, which only enjoys a consultative or advice rendering body, and, consequently, lacks the biting sting of authoritative capacity to issue mandate to the Cane Commissioner.
12. Therefore, I am of the opinion that though the Sugarcane Control Board in its recommendation, embodied in its minutes, dated 15-1-1986 (a) had recommended to includ these 28 Chaks from free zone in the reserved area of the petitioner, but he was not statutorily bound to implement the same for reasons spelt out in the report.
13. Now I advert to the second contention of the learned counsel, viz., whether on merits of the case, these 28 Chaks warranted such an inclusion, since allegedly petitioner's area has been reduced in terms of acreage. I have examined the reasoning which prevailed with the learned Commissioner, Faisalabad Division, as well as with the learned Cane Commissioner Punjab, i.e. The crushing capacity of the petitioner and complaints of the cane growers of the area in question.
14. Upon Court question, the learned counsel for the petitioner as well as Mr. Abdul Haq Saeed, Vice-President, Agriculture, of the petitioner, who is present in the Court, submitted that the crushing capacity of petitioner's mill has remained the same since its inception a decade ago.
Further, it was submitted that the amount of sugar-cane crushed by the petitioner in the year 1975, roughly speaking, was 2,50,000 maunds, while in the year 1985, it was 6,40,000 maunds. This repels the contention of the petitioner on merits, being underfed: because the determining factor in such a case is not the acreage but the yield and the quantum of sugar-cane available and crushed by a sugar mill. The above comparative figures clearly go to show that though the crushing capacity of the petitioner has remained constant over the last decade, but amount of sugar-cane available to it for crushing has enhanced by nearly more than 2 1/2 times. I may add that with the modern agricultural technology, yield of crops per Acre of land has escalated enormously.
15. In this view of the matter, I believe that the learned Cane Commissioner has acted in accordance with law, in discharge of his statutory duties and has not committed any jurisdictional error. Consequently the impugned order, upholding the same does not suffer from any legal infirmity thus merits no interference. The writ petition has no force and accordingly it stands dismissed in limine.