' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the order, dated 6-2-1988, passed by the Additional Commissioner (Revenue), Gujranwala Division, Lahore, whereby he accepted the revision filed by respondents Nos.2. To 5 against the order and decree passed by the Assistant Commissioner/Collector, Sadar Sub-Division, Gujranwala, confirming the judgment and ex parte decree dated 11-6-1965 regarding recovery of rent and ejectment of the aforesaid respondents in respect of Khasra No,427 in village Ladhewala Goraya.
2. Briefly, the facts are that the petitioners filed a suit on 22-9-1981 before the Tehsildar/Assistant Collector Grade-I, Gujranwala, for the recovery of Rs,367.25 from the predecessor-in-interest of respondents Nos.2 to 5 and their ejectment from the disputed land. The predecessor-in-interest of the respondents put in appearance before the Tehsildar. A written statement was also filed by him, but later he absented from the proceedings. In consequence thereof an ex parte decree was passed against him on 16-11-1985. The predecessor-in-interest of respondents Nos.2 to 5 challenged the said ex parte decree before the Assistant Commissioner/Collector, Gujranwala, who vide his order, dated 29-4-1986 dismissed the appeal. On revision, the learned Additional Commissioner (Revenue), Gujranwala, vide order dated 6-2-1988 accepted the revision petition on the ground that both the Tehsildar and the Collector had become functus officio to decide the matter, inasmuch as, the same was not decided by them within the stipulated period.
3. Learned counsel for the petitioners contended that the learned Additional Commissioner has failed to appreciate and or consider the provisions of sub-rules (4) and (5) of Rule 4 of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977 (hereinafter called the Rules), which provide that if the Assistant Collector of the First Grade does not dispose of the plaint of a landlord within sixty days of its receipt, the same shall stand transferred to the Collector concerned to be tried in the same manner as in the original case and the case so transferred is to be disposed of within thirty days and, therefore, failure on the part of the Tehsildar to dispose of the plaint within the stipulated period does not render the proceedings void before the Collector, when the plaint is so transferred to him by operation of law. Further submits that the time limit of thirty days for disposal of the plaint by the Collector is not mandatory but directory in terms of the said rules.
4. Mr. Hasnat Ahmad Khan, learned counsel for the contesting respondents submitted that the provisions of sub-rules (4) and (5) are mandatory. The Tehsildar was bound to dispose of the case within the stipulated period of sixty days and on his failure to do so, the matter stood transferred to the Collector, on whom it was also obligatory to dispose of the matter within thirty days. In the instant case, it is submitted that the matter was neither transferred to the Collector nor has he decided the same within the stipulated period of thirty days and, therefore, the Tehsildar and the Collector became functus officio. Learned counsel for the contesting respondents next argued that in terms of rule 7(4), the impugned order passed by the Commissioner in revision attained finality and the same is, therefore, not open to challenge in writ jurisdiction.
5. I have given my anxious consideration to the submissions made by learned counsel for the parties and examined the Rules. The question which requires' consideration in this case is whether the provisions of sub-rules (4) and (5) of Rule 4 are directory or mandatory and what is its scope. It would be useful to reproduce the provisions of Rule 4:- "4. Rule of procedure.---(1) On receipt of the plaint of a landlord the Court shall, if the plaint is in order and not open to objection, cause a notice with a copy of the spit, to be served on every tenant separately, to show cause why he shall not be ejected from his tenancy or such portion thereof as is mentioned in the suit.
(2) The notice shall specify the name of the landlord on whdse plaint it has been issued and shall give description of the land to which it relates.
(3) The Assistant Collector' of the First Grade, after hearing the parties on a date fixed for the purpose, and after making such enquiries as he may Consider necessary, shall pass an order directing the tenant to be ejected or the notice to be discharged, as the case may be.
(4) The said Court shall dispose of the plaint within sixty days of its receipt.
(5) If the said Court fails to decide a case within the stipulated period of sixty days, the case shall stand transferred to the Court of Collector concerned to be tried in the same manner as in the original Court. The case so transferred shall be disposed of within thirty days and the order passed by the Collector shall be final.
(6) When the case stands transferred to the Collector under sub-rule (5), the lower Court shall forward the record of the case to the Collector alongwith an explanation for its failure to decide the case within the 'prescribed period of sixty days. If such an explanation is not found satisfactory by the Collector, the officer concerned shall be censured and liable to disciplinary action under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975."
6. It is well settled that no universal rule can be laid down for the construction of statutes or rules as to whether they are to be considered mandatory or directory. Each case is to be examined with reference to its subject-matter, the phraseology used therein and its scope. It is the duty of the Courts to ascertain the whole scope of the statute or rules to be construed. In Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134, it was held:- ' As a general rule, however, a statute is understood to be directory when it contains matter merely on direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it different, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory, disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision.",
7. Applying the test laid down in Niaz Muhammad Khan's case (supra), it would appear that the requirement enjoined by sub-rules (4) and 5 of Rule 4 is mandatory in nature in so far as the disposal of the plaint within the stipulated period by the Assistant Collector of the First Grade is concerned, inasmuch as, on failure to dispose of the plaint within sixty days of its receipt, the case stands transferred by operation of law to the Collector concerned to be B tried in the same manner as in the original Court. The failure to dispose of the plaint within the stipulated period is not visited by any penal consequences, nevertheless the Assistant Collector of First Grade becomes functus officio after the expiry of the stipulated period. I have, therefore, no doubt in my mind that the provisions of the aforesaid rules are mandatory to the extent indicated above. In Muhammad Rafi v. Additional Commissioner (Revenue), Sargodha, 1981 SCM R 1181, the view taken by the High Court was upheld that where the Assistant Collector Grade-I, Sargodha, had decided the case before him after the maximum period of sixty days prescribed in this behalf, then on the expiry of sixty days the matter stood automatically transferred to the file of the Assistant Commissioner/ Collector under rule 4(5) of the Rules and consequently the order of the Assistant Collector was without jurisdiction and the case was deemed to be pending before the Assistant Commissioner/Collector. The view expressed in Muhammad Rail's case (supra) was upheld in Ashfaq Khalid v. Muhammad Hanif 1988 SC 'M R 74. The aforesaid decisions were also followed in the case of Mst. Sat. Bharai v. The Additional Commissioner (Rev.) 1986 C' L C 1448, wherein it was held that on expiry of requisite period proceedings before the Assistant Collector would automatically stand transferred to the Court of Collector and the suit of ejectment would be deemed to be pending. To the same effect is the case of Muhammad Aslam v. The Additional Commissioner (Rev.) Lahore 1983 CLC 915, wherein it was held that after the prescribed period, the Tehsildar became entirely functus officio and the order of ejectment passed by him would be void and totally without jurisdiction. It was further held that as the basic order was without jurisdiction, the order impugned in appeal before the Collector and the order made by the Additional Commissioner must also fall down. Consequently, the application of the landlord for ejectment was treated as still pending before the Collector for disposal.
8. It would thus be seen that when the case is transferred to the Collector, sub-rule (5) of rule 4 enjoins that the same shall be disposed of by the Collector within thirty days. The failure to comply with the time limit of thirty days for the disposal of the case is not visited either by the penal consequences by rejecting the plaint or its automatic transfer to the next higher authority in the hierarchy, namely, the Commissioner. This being so, the mere disregard of the time limit provided in sub-rule (5) of Rule 4 does not entail any legal consequence amounting to invalidity of the order passed by the Collector. He, therefore, does not become functus officio to dispose of the matter after the expiry of stipulated period of thirty days. The rationale behind sub-rules (4) and (5) ibid is expeditious disposal of plaint by the Assistant Collector of the First Grade and on his failure to do so within the prescribed period, by the Collector concerned, but not to penalize the parties for disregard of the time limit either by the Assistant Collector of the First Grade or by the Collector. The Assistant Collector of the First Grade, is however, liable to disciplinary action in case of failure to decide the case within the prescribed period unless the delay is satisfactorily explained to the Collector.
9. As to the contention that on failure to dispose of the plaint within sixty days of its receipt by the Assistant Collector of the First Grade, the matter was never transferred to the Collector concerned and, therefore, he had no jurisdiction to decide the same, suffice it to say that in terms of the provisions of sub-rule (5) ibid, the case stands transferred to the Collector concerned by operation of law. In any event, no party is to suffer for the act of the Court and, therefore, the mere absence of physical transfer of the case to the Collector would not render the proceedings void.
9-A There is no force in the submission made by learned counsel for the contesting respondents that the order passed by. The Commissioner under Rule 7 has attained finality in terms of sub-rule
(4) ibid and is, therefore, not open to challenge in writ jurisdiction. The word "final" has been explained in Ataullah Malik v. The Custodian Evacuee Property PLD 1964 SC 236, to mean that a point which has been decided in a proceeding cannot be re-agitated. The provisions of Rule 7 (4), however, do not debar an aggrieved person to invoke the constitutional jurisdiction of this Court for the redress of his D grievance. In the instant case, it has been found that the impugned order of the Commissioner is without lawful authority and, therefore, it is liable to be quashed.
10. It may, however, be pointed out that the proceedings taken or done by the Teshildar after expiry of stipulated period are null and void and shall be excluded from consideration by the Collector while disposing of the matter in terms of sub-rule (5) of Rule 4 ibid.
11. In view of the above, the impugned order, dated 6-2-1968 passed by the Additional Commissioner (Revenue), Gujranwala Division, Gujranwala, is hereby declared as without lawful authority and of no legal effect. The case is remanded to the Assistant Commissioner/ Collector, Gujranwala for disposal in accordance with law as expeditiously as possible, but not later than thirty days from the date of first hearing. The parties are directed to appear before him on 29-4- 1989. The writ petition is accepted to the extent indicated above, but the parties shall bear their own costs-