' MUHAMMAD ASIF JAN, J.--Agricultural land measuring about 110 Kanals belonging to the petitioners in villages known as Mauza Charar, Amar Sadhu and Kumahan in Tehsil Cantonment of District Lahore was sought to be acquired under the Land Acquisition Act of 1894 for the benefit of the Lahore Cantonment Cooperative Housing Society Limited, Lahore (respondent No,3) which shall be referred to hereinafter for purposes of brevity as the "respondent-society", by virtue of including the said land in a Notification bearing No, LAC/21699 of the Office of the Collector, Lahore, issued on the 13th of December, 1988, but published some 9 days later in the Punjab Cazette of Thursday 22imi of December, 1988.
2. The initial notification which was issued on the 13th of December, 1988, and published in the Punjab Gazette on Thursday 22nd of December, 1988, reads as follows:- "Whereas it appears to the Collector, Lahore District that the land is likely to be required to be taken at the society expense for housing purpose, namely for the construction of residential colony (Township) by Lahore Cantt. Cooperative Housing Society Ltd., Lahore (Regd. No,906), it is hereby notified that land in the locality described below is likely to be required for the above purpose.
1. The Notification is made under the provision of section 4 of the Land Acquisition Act, 1894 to all whom it may concern.
2. In exercise of the powers conferred by the aforesaid section the Collector, Lahore District is pleased to authorise the officer for the time being engaged in the undertaking with their servants workmen to enter upon and survey any land in the locality and do all other acts required or permitted by that section." This is followed by a sub-title of "Specification" where under details the land in question are given which works out to a total area of 936 Kanals.
3. Subsequently, Collector, Lahore District wrote to the Commissioner, Lahore Division, Lahore vide Memo. No, LAC/19560-B dated the 21st of December, 1989, on the subject of "Acquisition of land for Lahore Cantonment Cooperative Housing Society in Villages Charar, Amar Sadhu and Kumahan, Tehsil Cantonment, Lahore" which reads as follows:-- "Kindly find enclosed draft Notification under section 5 of the Act, 1894, along with connected documents, in triplicate, for onward transmission to the Government of the Punjab, Lahore, for approval and publication in the Punjab Gazette (Extraordinary) and to kindl supply the copy of endorsement regarding forwarding letter to be issued to the Press for publication of the same for further action. It is also submitted that the provisional estimated cost of Rs,9,90,85,938 ordered by the District Collector, Lahore has been deposited into the Government Treasury today, the copies of Challan forms will be submitted on receipt of the same from the State Bank of Pakistan, Lahore."
' The said memorandum forwards the proposed draft for the notification which reads as follows:-- "Whereas the Governor the Punjab is satisfied that the land notified tinder section 4 of the Land Acquisition Act, 1894 vide Collector, Lahore District's Notification No, LAC/21699, dated 13-12-1988 and published on 22-12-1988 (as described in the specification below) is needed for a public purpose, for housing purpose, namely for the construction of residential (Township) at the Society expense by Lahore Cantt. Cooperative Housing Society Ltd., Lahore (Regd. No,906).
' Now, therefore, in exercise of the powers under section 5 of the Land Acquisition Act, 1894, the Governor of the Punjab has been satisfied that the land specified below of which the plan can be inspected in the Office of the Land Acquisition Collector, Lahore and the Office of the said Society is needed for the said purpose.
' Any person who is interested and who has any objection to the acquisition of the said land may within 30 days of the issuance of this Notification, file an objection in writing before the Land Acquisition Collector, Lahore, District Courts, Lahore.
' Land upon which any religious place of worship, shrine, tomb, graveyard or any immovable property attached to any institution and the boundaries of which are contiguous with the site of the same shall be excluded from the said land, similarly Waqf and Evacuee Property, State land, land owned by Central Government/Provincial Government shall be excluded from the said land."
' The proposed draft is followed by a sub-heading Of "Specification" which gives the necessary details of the land in question.
4. The required notification was published in the Punjab Gazette of Wednesday, 7th of February, 1990 which reads as follows:-- "Whereas the Governor of the Punjab is satisfied that the land notified under section 4 of the Land Acquisition Act, 1894 vide Collector, Lahore District's Notification No, LAC/21699 dated 13th December, 1988 and published on 22nd December, 1988 (as described in the specification below) is needed for housing purpose, namely, for the construction of residential colony (Township) at the Society expense by Lahore Cantt. Cooperative Housing Society Ltd., Lahore (Regd. No,906).
' Now, therefore, in exercise of the powers under section 5 of the Land Acquisition Act, 1894, the Governor of the Punjab has been satisfied that the land specified below of which the Plan can be inspected in the Office of the Land Acquisition Collector, Lahore and the Office of the said Society is needed for the said purpose.
' Any person who is interested and who has any objection to the acquisition of the said land may within 30 days of the issuance of this Notification, file an objection in writing before the Land Acquisition Collector, Lahore District Courts, Lahore.
' Land upon which any religious place of worship, shrine, tomb, graveyard or any immovable property attached to any institution and the boundaries of which are contiguous with the site of the same shall be excluded from the said land. Similarly Waqf and Evacuee property, State land, land owned by Central Government/Provincial Government shall be excluded from the said land."
' Thus, it is quite clear that this subsequent notification was ostensibly issued on the 21st of December, 1989 with reference to the date of the proposed draft sent by the Collector to the Commissioner and was actually published 47 days later on the 7th of February, 1990.
5. The notification under section 5 of the Land Acquisition Act of 1894, issued on the 21st of December, 1989, and published on the 7th of February, 1990, states that:-- "Any person who is interested and who has any objection to the acquisition of the said land may within 30 days of the issuance of this Notification, file an objection in writing before the Land Acquisition. Collector, Lahore, District Courts, Lahore."
' Evidently for purpose of filing objection time would begin to run from the date of publication i,e, the 7th of February, 1990 and would expire on the completion of 30 days because contrarily it would not be possible to file objections within 30 days of the issuance of the notification, dated the 21st of December, 1989.
6. Be that as it may, some land owners challenged the acquisition proceedings by way of civil suits and succeeded in obtaining status quo orders while the petitioners moved this Court invoking its extraordinary jurisdiction under Article 199 of the Constitution of the Islamic "Republic of Pakistan of 1973 by way of Writ Petition No,2694 of 1990 which first came up for hearing before the then Acting Chief Justice (Muhammad Afzal Lone) who was pleased to order that:-- "Let the writ petition be entertained as it is. The examination of question as to whether or not, 25 petitioners can be jumbled together in one petition, is, left to the Bench, before whom it is enlisted.
May be placed before any Bench on 22-4-1990."
' Thereafter the matter was placed before one of us (Sh. Ijaz Nisar) on the 22nd of April, 1990, and following order was passed:-- "Learned counsel appearing on behalf of the petitioners contends that the acquisition of the land in dispute is not in accordance with law, in that, Rule 7, Punjab Land Acquisition Rules, 1983 requires extension of period by the Board of Revenue if a period of more than one year elapses between the issuance of a notification under sections 4 and 5 of the Land Acquisition Act, 1984, (actually 1894).
According to him, the notification under section 4 lapses if no such extension is obtained. He has relied on Syed Mahbood Alam Shah and others v. Deputy Commissioner and others (1989 CLC 1801) in support of the above contention.
2. Report and comments be called from the respondents so as to reach this Court within a month.
3. Status quo, meanwhile."
' Thus, the acquisition proceedings came to an halt under the order of this Court.
7. However, subsequently on the motion of the respondent-society an order was passed in Civil Miscellaneous No,2466 of 1990 in Writ Petition No,2694 of 1990 on the 6th of May, 1990 by one of us (Sh. Ijaz Nisar) which reads as follows:-- "Learned counsel for the respondent states that acquisition proceedings are pending before the Land Acquisition Collector and the objections filed by the petitioners are being looked into and the last date of submission of his report is 8th May, 1990. According to him, by the order dated 22-4- 1990 passed by this Court directing the maintenance of status quo the Land Acquisition Collector may not be in a position to finalize the acquisition proceedings. He seeks the clarification of the aforementioned order to the extent that it would not prevent the Land Acquisition Collector from proceedings with the acquisition proceedings. The request is granted. However, the position prevailing at the spot with regard to the possession shall be maintained till further orders.
2. The main petition which is yet at motion stage may be fixed for hearing within three weeks."
8. Thereafter this petition was placed on the cause list of our learned brother Malik Muhammad Qayyum, J. And his Lordship was pleased to pass the following order:- "The latter has brought to the notice of this Court a judgment delivered by my learned brother Akhtar Hasan, J. (as his Lordship then was) in Writ Petition 70 of 1992, which pirma facie appears to take a view different from those expressed in Nazar ul Hassan v. The Collector, Lahore District, Lahore and 5 others (PLD 1990 Lahore 472) and Kh. Zubair Ahmad and others v. Collector and others (1990 MLD 1941).
2. As there appears to be divergence of opinion on the question in issue, it is appropriate that this and the connected petitions be heard by a Larger Bench.
3. The office shall place all these matters before the Honourable Chief Justice for such orders as he may deem fit."
9. The next order was passed on the 27th of April, 1994, by a Bench consisting of our learned brothers Khalil-ur-Rehman Khan, J. (as his Lordship then was) and Malik Muhammad Qayyum, J, and their Lordships were pleased to pass the following order:-- "The question of law being agitated in these petitions was examined by one of us (Malik Muhammad Qayyum, J.). The same very question also came up for consideration before Akhtar Hassan, J. In Writ Petition No,70 of 1992 and a view contrary to the view taken in the case of Nazarul Hussain v. The Collector, Lahore District, Lahore and 5 others (PLD 1990 Lahore 472) was expressed.
The question involved in these petitions was also considered by Munir A. Sheikh, J. In the case of Kh.
Zubair Ahmad and others v. Collector and others 1990 MLD 1941 and the view expressed in the same as was taken by one of us Malik Muhammad Qayyum, J.) in the case of Nazarul Hussain (supra). This very view was again examined by a Division Bench (comprising of Munir A. Sheikh, J.
And Ausaf Ali Khan, J.) in the case of Cantonment Executive Officer v. Syed Iqbal Mustafa and 2 others 1993 CLC 1489 and the view expressed earlier in the case of Kh. Zubair (supra), was confirmed. There is, thus, a Division Bench judgment with respect to the controversy, subject- matter of these petitions.
2. We are told that the Supreme Court has in the case of Commissioner, Sargodha Division and 4 others v. Mukhtar Ahmed etc. Civil Petition No,556/L of 1991) refused to grant leave against the judgment rendered by one of us (Malik Muhammad Qayyum, J.).
3. In the above situation, it appears appropriate that the matter be referred to a larger Bench.
Office is directed to place these files before Hon'ble the Chief Justice for constitution of a larger Bench."
10. Pursuant to the order, dated the 27th of April, 1994, passed by our learned brothers Khalil-ur- Rehman Khan, J. (as his Lordship then was) and Malik Muhammad Qayyum, J. a larger Bench consisting of three Judges was set up by Mr. Justice Irshad Hassan Khan, the then Acting Chief Justice of this Court and our learned brother Mian Nazir Akhtar, J. And one of us (Muhammad Asif Jan, J.)
11. However, before the Full Bench consisting of our learned brother Irshad Hassan Khan, J. The then Acting Chief Justice of this Court and Mian Nazir Akhtar, J. Along with one of us (Muhammad Asif Jan, J.) could finally decide this Constitutional petition along with the other connected petitions, our learned brother Irshad Hassan Khan, the then Acting Chief Justice was elevated to the Supreme Court of Pakistan.
' Resultantly, another Full Bench consisting of one of us (Sh. Ljaz Nisar, J., the then Acting Chief Justice and now Chief Justice of this Court) along with our learned brother Muhammad Arif, J. And another one of us (Muhammad Asif Jan, J.) was set up to decide this Constitutional petition along with all the other connected petitions.
12. Soon thereafter our learned brother Muhammad Arif, J. Left this Court temporarily for Islamabad to work there as Federal Law Secretary in the Ministry of Lan and Justice, Government of Pakistan, with the result that our learned brother Khalid Paul Khawaja, J. Was requested to sit on the Bench with us.
13. Although the reason for setting up a larger Bench for, deciding this petition along with other connected petitions mentioned in the relevant order is that "there appears to be divergence of opinion on the question in issue... ... ...". Unfortunately, the question in issue has not been tramed. It will, therefore, be for this Bench not only to answer the question but also to frame it before answering it. This exercise will, therefore, necessarily entail a reading of the different judgments delivered by different Benches of this Court; pin-pointing the question or questions arising therein and then proceeding to give a definite answer to the same.
14. Before this exercise is undertaken it will be necessary to first examine the Land Acquisition Act of 1894 (I of 1894) along with the Punjab Land Acquisition Rules of 1983 published in the Gazette of Punjab, Extraordinary, 22-2-1981 and made by the Governor of the Punjab in exercise of the powers conferred on him by subsection (1) of section 55 of the Land Acquisition Act of 1894. (For purpose of brevity the Act in question shall be referred to hereinafter as the Act and the Rules shall be referred to briefly as the Rules.)
15. The Land Acquisition Act (I of 1894) was promulgated on the 2nd of February, 1894, for the acquisition of land needed for public purposes and for Companies and for determining the amount of compensation to be made on account of such acquisition.
' The expression "public purposes" has not been defined by the Act. Clause (t) of section 3 of the Act merely lays down that:- "(f) The expression 'public purpose' includes the provision of village sites in district in which the Provincial Government shall have declared by notification in the official Gazette that it is customary for the Government to make such provision."
' However, the expression "Company" has been explained to mean as follows:-- "(c) The expression 'Company' means a Company registered under the Indian Companies Act, 1882 or under the (English) Companies Act, 1862 to 1890 or incorporated by an Act of Parliament of the United Kingdom or by a Pakistan Law, or by Royal Charter or Letters Patent and includes a society registered under the Societies Registration Act, 1860, and a registered society within the meaning of the Cooperative Societies Act, 1912."
' The Indian Companies Act of 1882 which was a verbatim repetition of the English Companies Act of 1862 was in fact repealed and replaced by the Indian Companies Act of 1913 which has now been repealed and replaced by the Companies Ordinance of 1984 (Ordinance No, XLVII of 1984).
16. The expression 'public purpose' has rightly not been defined in its generic sense by the Act because it is an expression which is a relative term and will depend and vary from one particular set of facts and circumstances to another set of facts and circumstances. However, the bottom line is that public purpose will have to be a purpose which is in furtherance of the general interest of the community at large as opposed to the particular interest of an individual as held by this Court in the case of Dr. M. Nasim Javed v. Lahore Cantt. Cooperative Housing Society Ltd. Reported in PLD 1983 Lahore page 552 at page 559.
' But at the same time public purpose does not cease to be so simply because incidental benefit will ensure to private individuals. See Nichol's on Eminent Domain, Vol. 2, section 7.222. This, however, is again subject to the old established English saying that you cannot rob Paul to pay Peter".
' Public purpose is an object in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned as laid down by this Court in the case of Muhammad Akbar v. Commissioner Rawalpindi reported in PLD 1976 Lahore page 747 at 754.
17. The Constitution of Islamic Republic of Pakistan of 1973 in Chapter I 4, which deals with fundamental rights guaranteed under the Constitution in Article 24 provides that:-- "(1) No person shall be compulsorily deprived of his property save iii accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and; save by the authority or law while provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.
(3) Nothing in this Article shall affect the validity of--
(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or
(b) any law permitting the taking over of any property which has been acquired by or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or
(c) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be enemy property or evacuee property under any law (not being property which has ceased to be evacuee property under any law); or
(d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of the property, or for the benefit of its owner; or
(e) any law provided for the acquisition of any class of property for the purpose of--
(i) providing housing, education and medical aid to all or any specified class of citizens; or
(ii) providing housing and public facilities and services such as roads, water supply, swerage, gas and electric power to all or any specified class of citizens; or
(iii) providing maintenance to those who on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or
(f) any existing law or any law made in pursuance of Article 253.
(4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any Court."
' Thus, no property can be acquired compulsorily or taken possession of save for a public purpose.
' This is the rider clause in exercise of the power of Eminent Domain.
18. Thus, the raison deter, i,e, the reason for the existence of the Land Acquisition Act of 1894 and as stated in its preamble is for the acquisition of land needed for public purposes and for Companies and for determining the amount of compensation to be made on account of such acquisition. In other words, whenever a deviation is to be made from the normal procedure for acquiring land through private negotiations and sale through the methodology of acquisition it must necessarily be for a public purpose. The question of determining the amount of compensation will only come later.
19. Part II of the Act deals with acquisition and section 4 of the Act empowers the Provincial Government on being satisfied that land in any locality is either needed or is likely to be needed for any public purpose, to publish a notification to that effect in the official Gazette.
' Thus, the initial notification under section 4 of the Act is only in the nature of a preliminary notification and the intent of the Provincial Government which it must publish in the official in order to put those who are affected or are likely to be affected on due notice. This is clearly reflected from the initial notification issued on the 13th of December, 1988 and published in the Punjab Gazette on the 22nd of December, 1988 wherein it is stated that "it appears to the Collector, Lahore District that the land is likely to be required to be taken at the Society expense for housing purpose........ '`.
This declaration of intent is to be confirmed by way of a second notification under section 5 of the Act by stating in clear and unequivocal terms that a particular land is needed for a public purpose for a Company. This indefinite statement has to be made "at any time after the initial notification under section 4, by having this second notification also published in the official Gazette, stating therein all the necessary details of the land to be acquired and giving public notice.
' No time has been fixed between the preliminary notification under section 4 of the Act and the second notification under section 5 of the Act. The words used in section 5 of the Act are "at any time"
' The question arises as to whether the phrase "at any time" used in section 5 of the act will literally mean at ally time i,e, ad infinitum or will it mean a reasonable time?
' If the phrase "at any time" will not mean time ad infinitum but will mean within a reasonable time then yet another question will arise as to what is meant by reasonable time?
' We shall advert to these questions and give their answers in due course.
20. Where a sovereign has chosen to exercise the power of Eminent Domain for the acquisition of land, the sovereign also retains the power to withdraw from the acquisition of any land of which possession has not been taken by virtue of section 48 of the Act which provides as follows:-- "(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.
(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred him in the prosecution of the proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section."
In other words one method for bringing acquisition proceedings to an end given by the Act is that the Government itself brings it to an end. Apart l from this method given in the Act there is none other.
21. The Act concludes by empowering the Provincial Government to make rules consistent with the Act for the guidance of those who have to work and operate under the Act by laying down that:-- "(1) The Provincial Government shall have power to make rules consistent with this Act for the guidance of officers in all matters connected with its enforcement and may from time to time alter and add to the rules so made.
(2) The power to make, alter and add to rules under subsection (1) shall be subject to the condition of the rules being made, altered or added to after previous publication.
(3) All such rules, alterations and additions shall be published in the official Gazette, and shall thereupon have the force of law."
22. In exercise of the powers conferred on him by subsection (1) of section 55 of the Land Acquisition Act of 1894, the Governor of the Punjab was pleased to make the Punjab Land Acquisition Rules of 1983 which were published in the Gazette of Punjab, Extraordinary 22-2-1983 and came into force at once. For purpose of brevity these Rules shall be referred hereinafter as the Rules.
23. Rule 7 of the Rules provides that:- "Where the land is to be acquired for a public purpose the Commissioner shall issue a Notification under section 5 of the Act not later than one year from the date of the publication of the Notification under section 4, if no Notification is issued under section 5 within the period specified in this rule, the Commissioner shall immediately report the matter to the Board of Revenue, for extension in time and the Board of Revenue may; in its discretion, extend the time for the issue of a Notification under section 5, which shall not be more than sixty days. If the Board of Revenue declines to grant the extension applied for or if the Commissioner fails to issue a Notification under section 5 within the extended period, the acquisition proceedings shall be deemed to have come to an end. However, any time spent in the prosecution of a judicial remedy shall stand excluded from the period of litigation."
24. Where the acquisition is for the benefit of a Company, the same requirements as mentioned in Rule 7 of the Rules have to be fulfilled under Rule 8.
25. That the acquisition must be for a public purpose both under the Act and Rule 7 is a sine qua non and there is no cavil with this proposition of law.
However, both under Rule 7 as also Rule 8 of the Rules, a definite and fixed period of time has been given.
' Rule 7 makes it mandatory by providing that the Commissioner shall issue a Notification under section 5 of the Act nor later than one year from the date of publication of the notification under section 4 of the Act. However, the Board of Revenue may in its discretion extend the time for the issuance of the second notification under section 5 of the Act by a maximum period of 60 days. In other words, the maximum period of time between the first notification under section 4 of the Act and the second notification under section 5 of the Act commencing from the date of the publication is 14 months. Thereafter, by virtue of a deeming clause in Rule 7 of the Rules, the acquisition proceedings shall be deemed to have come to an end and there is a similar deeming clause in Rule 8 of the Rules where the acquisition is for the benefit of a Company.
26. One question which emerges straightaway is as follows:-- "Is Rule 7 of the Rules along with rule 8 consistent with the Act within the meaning of section 55 of the Act?"
' The next question which necessarily follows the first question is as follows:-- "If Rule 7 as also Rule 8 of the Rules is not consistent with the Act, then what is the legal effect?"
' The 3rd and last question is that:-- "If Rule 7 as also Rule 8 of the Rules is inconsistent with the Act, then is it intra vires or ultra vires the Act?
27. Before answering these questions, it is necessary to examine the exact import of the various decisions given by this Court.
28. In the case of Nazarul Hussain v. The Collector, Lahore District. Lahore and 5 others reported in PLD 1990 Lah. 472, and decided by our learned brother Malik Muhammad Qayyum, J. On the 16th of June, 1990, a large number of Writ Petitions were decided together by his Lordship. His Lordship was pleased to hold in paragraph 8 of the judgment as under: -- "The rule is unambiguous and is capable of no other interpretation except that if within the prescribed time the requisite steps are not taken, the proceedings stand frustrated. The rule is couched in emphatic terms which leaves no doubt as to the intention of its framers that on the failure to take action as contemplated by this rule, within specified period the proceedings shall be deemed to have come to an end. The contention of the learned Advocate-General as learned counsel for respondent No,5 that the rule is directory and not mandatory in character cannot be accepted. The consequences flowing from the nonobservance of the rule having been provided in the rule itself it cannot, be construed as directory but emphatic."
' His Lordship was further pleased to hold in paragraph 9 of the judgment that:-- "While interpreting the provisions of law like the Land Acquisition Act or the Rules framed thereunder it is to be kept in mind that acquisition implies compulsory deprivation of property of an individual. Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 lays down that no property shall be compulsorily acquired or taken possession thereof save for public purpose and save by authority of law which provides for compensation thereof. The Land Acquisition Act, according to its preamble not only provides for the acquisition of land for public purpose but also ensure that adequate compensation is paid to the land-owners. The different provisions of this enactment underline the anxiety of the Legislature to ensure that due compensation is paid to the land-owners. It need not be reiterated that compensation means equivalent in value of the land acquired, i,e, gold for gold."
' His Lordship was pleased to observe in paragraph 13 that:- "By framing rule 7, the Government has placed restriction upon its functionaries that the notification under section 5 must be issued within the specified period failing which the proceedings shall be deemed to have come to an end."
' But unfortunately, the question whether by framing Rule 7 the Government through a deeming clause could achieve what perhaps the parent Act does not want to achieve went begging and remained unanswered. His Lordship was pleased to conclude by holding that:- "The result of the above discussion is that by not having issued notification under sections 5 and 5- A or for that matter under section 17 of the Act, within the period prescribed by rule 7, the proceedings for acquisition came to an end and the subsequent notification are clearly without lawful authority."
28-A. In the case of Kh. Zubair Ahmad and others v. Collector and others reported in 1990 MLD page 1941 decided on the 2nd of May, 1990, our learned brother Munir A. Sheikh, J. Was pleased to observe in paragraph 4 of his Lordship's judgment that:-- "It is manifest from a bare reading of rule 6 that after the issuance of notification under section 4 of the Act the Collector is required to take immediate necessary steps to have the area surveyed and submit his report to the Commissioner not later than 60 days from the date of publication of the said notification. Under Rule 7 of the said Rules where the land was acquired for public purposes which is the case, here, the Commissioner is required to issue a notification under section 5 of the Act not later than one year from the date of publication of notification under section 4 and if such a notification was not issued as envisaged by section 5 within the said period of one year, the Commissioner is required to immediately report the matter to the Board of Revenue for extension in time and the Board of Revenue has been vested with the powers to extend the time not for more than sixty days. The consequence of refusal of Board of Revenue to extend the time or the Commissioner's failure to issue notification under section 5 within the extended time is that the acquisition proceedings by operation of this rule are to be deemed to have come to an end.
Admittedly no notification under section 5 of the Act was issued within one year of the publication of notification under section 4 on 21-7-1986 and the case was not referred to Board of Revenue for extension of time which was not extended as such by operation of rule 7 of the said rules the acquisition proceedings have come to an end."
' His Lordship was further pleased to observe in paragraph 7 of the judgment that:-- 'Another mode of looking at the matter is that undoubtedly under section 20 of West Pakistan General Clauses Act, 1956 power vests to rescind the notification which power is exercisable in the like manner as power to issue notification. Section 48 of the Act indeed empowers the Government to withdraw from acquisition of any land of which possession has not been taken and the case is not covered by section 36 of the Act. The effect of rule 7 which provides that the acquisition proceedings shall come to an end can legitimately be construed as rescission of notification issued under section 4 or withdrawal from the acquisition proceedings. It may be mentioned here that power to rescind the notification or to withdraw from acquisition proceedings are not .Controlled by any consideration or there is no time limit within which the same can be exercised.
Considering the case from this point of view, the Punjab Land Acquisition Rules, 1983 cannot be held to be ultra vires of the Act, the arguments of learned Advocate-General are repelled. It is apart from the firmly settled law that it is not open to the Government who is framer of the rules to question their v ire s . "
There is an old maxim "Cujus est instituere ejus abrogare" he that institutes may also abrogate and in fact this is exactly the power which is available under section 48 of the Act. But then, this power has to be exercised by the sovereign consciously and manifestly and not only that the power has to be exercised consciously, but compensation has to be paid for the exercise of this power. The question is that can the power available under section 48 of the Act be exercised through Rule 7 of the rules by virtue of a deeming clause?
' At any rate the conclusions drawn by our learned brother Munir A. Sheikh, J. Are more or less on the same lines as the conclusions drawn by our learned brother Malik Muhammad Qayyum, J.
Although the reasonings are slightly different.
29. In the case of The Cantonment Executive Officer M.E. Section, Cantonment Board, Bahawalpur v.
Syed Iqbal Mustafa and 2 others, decided by our learned brother Munir A. Sheikh and Ausaf Ali Khan, JJ. On the 1st of March, 1993 and reported in 1993 CLC 1489 (D.B.) our learned brothers were pleased to hold that:- "The withdrawal from acquisition had already been made by operation of rule 7 which shall be deemed to have been done by the Provincial Government.... ... ..."
30. Once again the distinction between a well-considered, conscious decision of the Government and the effect of a deeming clause by virtue of a rule was lost sight of.
31. It also seems to us that in this context an earlier decision of this Court given in the case of The National Police Foundation Cooperative Housing Society Ltd. v. Board of Revenue, Government of Punjab, Lahore and 2 others decided on the 29th of January, 1984 and reported in PLD 1984 Lahore 191, holding inter alia that "There is no cavil with the proposition that under section 48 of the Act except in the cases provided in section 36 thereof, Government alone is at liberty to withdraw from acquisition proceedings of any land of which possession has not been taken..." was not brought to the gracious notice of our learned brothers while deciding the case of The Cantonment Executive Officer, M.E. Section, Cantonment Board, Bahawalpur v. Syed Iqbal Mustafa and two others reported in 1993 CLC 1489.
32. Be that as it may, the conclusions drawn by our learned brothers Munir A. Sheikh and Ausaf Ali Khan, JJ. While deciding the case of Cantonment Executive Officer, M.E. Section, Cantonment Board, Bahawalpur v. Syed Iqbal Mustafa and 2 others reported in 1993 CLC 1489 are the same as those in the case of Kh. Zubair and others v. Collector and others reported in 1990 MLD 1941 and Nazarul Hussian v. The Collector, Lahore District, Lahore and 5 others reported in PLD 1990 Lah.
472.
33. A contrary view was taken by our learned brother Akhtar Hassan in the Javiad Mughal v. The Judicial Employees Cooperative Housing Society Ltd., Lahore bearing Writ Petition No,70 of 1992 and decided by his Lordship on the 31st of May.
1992.
' In this judgment which does not seem to have been reported in any legal journal or law magazine, our learned brother was pleased to observe in paragraph 6 of his Lordship's judgment that:- "The main thrust was based upon non-compliance with rule 8 of the Punjab Land Acquisition Rules, 1983, which in case of land acquired for company, compulsorily required issuance of a notification under section 5 with a period of one year from the date of the notification earlier issued under section 4.........
' Reliance in this behalf was placed, inter alia upon Nazarul Hussain v. The Collector, Lahore District, Lahore and 5 others PLD 1990 Lah. 472 where statingly this point was directly dealt with."
' Contrarily, it was submitted before his Lordship that in all cases where the parent statute did not fix a terminal date for completion of a particular Act, then fixing such a cut out date through subordinate rules framed under the Act had been invariably held to be paid in law because rules cannot over ride the statute under which they are framed and in this context reliance was placed upon Ch. Altaf Hussain etc. v. The Chief Settlement Commissioner, Pakistan, Lahore etc. PLD 1965 SC 68 (77), Hakim-ud-Din v. Government of West Pakistan etc. PLD 1960 (W.P.) Lah. 709 (720-.1), Syed Ahmad Abbas Zaidi etc. v. Settlement Commissioner, Rawalpindi etc. PLD 1968 Lah. 166 (178 and 179), Mehrban Khan v. Mst. Fayyaz Begum etc. PLD 1984 Lah. 202 and Ali Muhammad H.K. Dada v.
State Life Insurance Corporation of Pakistan etc. PLD 1988 Kar. 279 as instances of cases where the parent legislation did not provide a terminal date but the rules, choosing to provide the same, where struck down.
' It was also brought to his Lordship's gracious notice that the decision rendered by our learned brother Malik Muhammad Qayyum, J. In the case of Nazarul Hussain v. The Collector, Lahore District, Lahore and 5 others reported in PLD 1990 Lah. 472 did not consider the phrase "at any time" used in section 5 of the Act and that the learned author of the said judgment had kept in mind only the provisions of section 17(1) of the Act, which admittedly did not contain the time-clause.
' It was also submitted before his Lordship that an inordinate delay in finalizing the acquisition proceedings could be compensated by awarding damages rather than imposing a time limit as was done by their Lordships of the Supreme Court in the case of N.-W.F.P. Through Collector, Abbottabad Land Acquisition and others v. Haji Ali Asghar Khan and others reported in 1985 SCMR 767.
34. His Lordship, was, therefore, pleased to hold in paragraph 9 of his Lordship's judgment that:- "There could hardly be two opinions that section 5 gives an open ended period for issuance of the second notification. The phrase "at any time" used therein speak for it. Limiting this span of time by rule 8 in the case of a company, to a period of one year, obviously overrides the Statute. The various cases cited in para. 7 ante, in particular that of the Ch. Altaf Hussain's case handed down by the Supreme Court, lend support to the proposition that where a terminal date is not provided by a statute, rules cannot do so. In these cases, rules were struck down. Maxwell in his treatise, XIth Edition, expressed:-- 'If reconciliation is impossible, the subordinate provision must give way, and probably the instrument would be treated as subordinate to the section.' Page 50.
'They must not be in excess of the statutory power authorising them, nor repugnant to that statute on to the general principles of law. If rules are made under a statute, section of which are later repealed and reenacted in a narrower form, the rules must be cut down so as not to conflict with the narrower statute. Page 290.
' Likewise Craies on Statute Law, VIth Edition, observed:-- ' By-laws made in pursuance of a statutory power must not go beyond, nor be repugnant to, the enactment under which they are made.' Page 327, ' For all these reasons the rules are ultra vires."
' It was further observed by our leaned brother Akhtar Hassan, J. In paragraph 10 of his Lordship's judgment that:- "The only decision cited down for the contrary view was as reported in PLD 1990 Lah.
427. I had the advantage of going through it, but could not find if the key clause 'at any time' employed in the typical context of section 5 of the Act, was focused at while holding that the rules restricting its operation to one year, were not ultra vires of the Act...."
' Being conscious of the fact that an equally erudite judgment had already been delivered by our learned brother Malik Muhammad Qayyum, J. In Nazarul Hussain's case, our learned brother Akhtar Hassan, J. In the case of Javaid Mugbal v. The Judicial Employees Cooperative Housing Society Ltd., Lahore, bearing Writ Petition No,70 of 1992 expressed in all humility in paragraph 19 of his Lordship's judgment that:- "There may be no gainsaying the fact that my view was diametrically opposed to the erudite judgment rendered in the aforesaid case and ordinarily I should have asked for a Larger Bench. I had, in fact, suggested this course but Mr. Anwar Baig for the respondents insisted that the judgment in this case could be announced with impunity on points which were not taken up in the said case. The argument was quite persuasive inasmuch as there was no discussion in the aforesaid judgment on:--
(1) the implication of the clause " at any time" as used in section 5;
(2) the well-received rule that omission of time limit in statutes could not be supplied by rules, (para. 7 ante);
(3) fait accompli of acquisition proceedings as already reached in this case;
(4) reference sought under section 18 amounted to acquiescence vis-a-vis acquisition of the land;
(5) laches in bringing the present petitions considerably late after announcement of awards and above all;
(6) fixing precisely the same limitation by other Provinces by amending the present statute (section 5) rather than through rules. ' with utmost respect, I feel these were adequate reasons to distinguish this case from that of Nazarul Hussain and, therefore, ventured this judgment in my humble way."
35. The view of our learned brother Akhtar Hassan, J. Expressed so ably by his Lordship was neither challenged nor examined by the Supreme Court. However, in the case of Government of Pakistan, Secretaries Works, Communications and Physical Planning v. Tauqir Ahmad Khan and others and reported in 1995 PSC 451 (Supreme Court of Pakistan), their Lordships of the Supreme Court vide their Lordships' order dated, the 9th of January, 1995, were pleased to refuse leave to appeal against the judgment/order of this Court holding acquisition proceedings to be void after the expiry of one year because during this period the price of the land had escalated and if proceedings were allowed to continue the compensation would hardly bear any proportion to the market value of the land in question. Therefore, their Lordships of the Supreme Court refused to be a party to this manifest injustice.
' Unfortunately, the various questions arising from a reading of the Act and the Rules in juxtaposition and the different views taken by different Benches of this Court never came up before their Lordships of the Supreme Court and therefore, no finding either way was given by their Lordships. Thus, leaving the onerous responsibility of deciding these questions for this Bench.
36. The factual controversy between the petitioners and the respondent-Society revolves around the dates of issuance and publication of the notifications in question.
According to the petitioners the Notification under section 5 of the Act although issued within one year was not published within one year and, therefore, by virtue of the deeming clause of Rule 7 as also Rule 8 of the Rules the entire acquisition proceedings had come to an end. As against that the respondent-society claims that the second Notification was within a period of one year. As a result of this controversy much has been submitted at the bar regarding the words "issued" and "published". A bare reading of sections 4 and 5 of the Act shows that the word published has been employed in both the provisions. The publication has to be in the official Gazette. The idea is to give public notice to those effected or likely to be effected.
' The dictionary meaning of the word "issue" defined in the Shorter Oxford English Dictionary on Historical Principles, 3rd Edition, Vol. I, page 1051 is as under:-- "to give exit; to send forth, or allow to pass out.-- to emit; to discharge."
' According to Words and Phrases Judicially Defined, Vol. III, 1944 Edition, pages 166 and 167 the word "issue" means as under:-- "Issuing of order means and is exactly the same as making an order under their seal. Issuing is not sending the order by the clerk to overseers but it is issued out of their own minds by their own hands and putting the seal on a piece of paper. Serving the order is one thing and issuing the order is another."
' According to the New Lexicon Webster's Dictionary, page 515, the word "issued" means as under:-- "Issued: to come or flow forth; to be derived, result/(Law) to be descended; to be put into circulation; vt. To publish or give out; to put into circulation; to issue a new coinage."
' According to Aiyar's Judicial Dictionary, 10th Edition, page 558, the word "issued" means as under:- - "A notification under section 14(1) is deemed to have been issued when it is signed and delivered and sent out for publication in the official Gazette."
' The ordinary meaning of the word "publication/publish" according to Words and Phrases Judicially Defined, Vol. IV, 1944 Edition, pages 438 and 439 is:-- "make publication". It seems to me that paper is published when and where it is offered to the public by the proprietor."
' According to the New Lexicon Webster's Dictionary, page 807, word "publication" means as under:- - "a publishing or being published; the issue of printed matter for public sale or free distribution, a printed and published book magazine, pamphlet et. (M.E,. Publication fr.
0.F.)"
' According to Aiyar ' s Judicial Dictionary, 10th Edition, at page 843, word "Publication" means as under:-- "... ...Is the act of publishing anything; offering it to public notice or rendering it accessible to public scrutiny."
37. The case of the respondent-society is that the notification under section 5 of the Act which was issued on the 21st of December, 1989, is within time and that the starting date of limitation is date of publication under section 4 of the Act i,e, the 22nd of December, 1988 and the terminus a quo is the date of issue of notification under section 5 of the Act i,e, the 21st of December, 1989, which is within one year. Learned counsel for the respondent-society has relied upon. Webster's Dictionary to submit that a notification is a written or printed communication as held in the case of Bengal Oil Mills Ltd. v. Dada Sons reported in PLD 1964 Karachi page 18.
38. According to the Corpus Juris Secundum, a Complete Restatement of the Entire American Law, as developed by All Reported Cases, Vol. LXXIII, page 638, the word "publication" is legally very old, and of no one certain meaning, and its ordinary and popular signification is narrower than its technical legal meaning. However, inseparable from the term is the idea of publicity, circulation and intended distribution, and the though running through all the uses of the word is an advising of the public, a making known of something to the public for a purpose, and in this sense it has a well understood signification.
' In its ordinary acceptation, "publication" means to make public; to make known to people in general; to bring before the public; to exhibit, to display, or reveal; to print, or cause to be printed, and to issue from the press either for sale or general distribution. The Act of publishing a thing is making it public by offering it to public notice and rendering it accessible to public scrutiny. In this sense "publication" is defined as meaning that which is published or made known, a notification to the public at large either by words, writing, or printing.
' However, mere printing without issuing would not in law amount to publication as held by the Supreme Court in the case of The Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others reported in PLD 1971 Supreme Court 82, which was a case under the East Bengal State Acquisition and Tenancy Act of 1950 and wherein it was held that a notification for the purposes of the Act means a notification not merely printed but published in the official Gazette and it was further held that mere insertion in the official Gazette was not enough and that it should be published in a manner usually adopted for publishing such document.
40. The distinction between the words "issue" and "publication" was once again brought out by their Lordships of the Supreme Court in the case of Muhammad Ishaque v. Chief Administrator Auqaf, Punjab reported in PLD 1977 Supreme Court 639, wherein their Lordships of the -Supreme Court once again were pleased to observe that mere printing of a notification in the Gazette was not sufficient to constitute "publication" and further that "publication" would take effect only when the notification was made available to the general public.
41. The basic controversy between the petitioners and the respondent-society besides being a factual controversy is actually a question of law rather than facts. According to the petitioners the entire acquisition proceedings have died their own unnatural death on account of a deeming clause in Rule 7 and Rule 8 of the Rules because the required notification under section 5 of the Act was not issued within one year. The case of the respondent-society is that although as a matter of fact the required notification was issued within a period of one year but even if it were not so, the rule in question i,e, Rule 7 as also Rule 8 is ultra vires the parent Act for the reasons that it is not consistent with the provisions of the Act; that it travels beyond the rule-making power available under the Act and that it defeats the very purpose of the Act.
42. We now propose to advert to the questions already framed by us in paragraph 26 of our judgment and are repeated hereunder:--
(i) Is Rule 7 of the rules along with rule 8 consistent with the Act within the meaning of section 55 of the Act?
(ii) If rule 7 as also Rule 8 is inconsistent with the Act, then what is the legal effect?
(iii) If Rule 7 as also Rule 8 is inconsistent with the Act, then is it intra vires or ultra vires the Act? And finally
(iv) What is the effect of the deeming clause in Rules 7 and 8 of the Rules?
43. The last question may be answered first of all. The old classic concept of interpretation of a deeming clause in a Statute was that the intention has to be gathered from the plain meaning of the words used in the Statute itself regardless of consequences, "even though the heavens may fall". However, with the passage of time and with judicial activism this old classic concept gradually has undergone a change. The old concept regarding the interpretation of a deeming clause is reflected in various judgments of this Court as well as the Supreme Court delivered in the following cases:--
(1) Agha Shaukat Ali v. Settlement and Rehabilitation Commissioner, Lahore and another PLD 1965 (W.P.) Lah. 445;
(2) Begum B.H. Sayed v. Afzal Jahan Begum and others PLD 1966 (W.P.) Lah. 967;
(3) Abdul Hakim Khan v. Mrs. Doreen Barket Ram PLD 1973 Lah. 466;
(4) Malik Muhammad Saleem and another v. Commissioner, Rawalpindi Division, Rawalpindi and 3 others PLD 1976 Lahore 1233;
(5) Begum B.H. Syed v. Mst. Afzal Jahan Begum and another PLD 1970 SC 29;
(6) Messrs Usmania Glass Sheet Factory Limited, Chittagong v. Sales Tax Officer, Chittagong PLD 1971 Supreme Court 205;
(7) Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397; and
(8) Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad etc. v. United Sugar Mills Ltd., Karachi PLD 1977 SC 397.
44. As held by their Lordships of the Supreme Court in the case of Begum B.H. Syed v. Mst. Afzal Jahan Begum and another reported in PLD 1970 Supreme Court 29 a deeming clause is used to create legal fiction. Thus, the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction. Again, as held by their Lordships of the Supreme Court in the case of Mehreen Zaibun Nisa v. Land Commissioner, Multan and others reported in PLD 1975 Supreme Court 397, the Court is not only entitled but bound to ascertain for what purpose has the statutory fiction been resorted to. And the same interpretation has been given in the subsequent cases of Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others reported in 1993 SCMR 1905 and Siraj Din and 3 others v. Sardar Khan and 2 others reported in 1993 SCMR page
745. The preponderance of the case-law as developed by the superior Courts regarding the interpretation of a deeming clause is that in each case. It would be a question as to with what object, the Legislature made the deeming provision.
45. In the case of the Land Acquisition Act of 1894 the object is very clear and that is acquisition of land for public purposes and for Companies. The other and consequential object is determination of the amount of compensation to be paid on account of such acquisition. The object of the deeming clause in Rule 7 as also Rule 8 of the Rules appears to be that the phrase "at any time" used in section 5 of the Act might not be left to mean an unlimited period of time so that M the payment of compensation may not be unnecessarily and unreasonably delayed. But the phrase "at any time" cannot be circumvented to mean one year. It could possibly be substituted by the words "within reasonable time". As held by the Indian Supreme Court in the case of Consolidated Coffee Ltd. v. Coffee Board, Banglore, reported in (1980) 3 SC cases 358 the word "deemed" is used I " a great deal in modern legislation in different senses and it is not that a deeming provision is every time made for the purpose of creating a fiction. A deeming provision might be made to include what is the uncertain for the purpose of a statute, but in each case, it would be a question as to with what object, the Legislature has made a deeming provision.
46. The ultimate example of a deeming clause was by way of inserting the controversial Chapter 3- A in the Constitution of the Islamic Republic of Pakistan of 1973 by means of Presidential Order No, 1 of 1980, wherein Article 203-C(4-B) was inserted by Presidential Order No,14 of 1985, which lays down that:-- "Article 203-C(4-B).-The President may, at any time, by order in writing,--
(a) modify the term of appointment of a Judge;
(b) assign to a Judge any other office; and
(c) require a Judge to perform such other functions as the President may deem fit; and pass such other order as he may consider appropriate.
' Explanation.--In this clause and clause (4-C), "Judge" includes Chief Justice.
Article 203-C(5).-A Judge of a High Court who does not accept appointment as a Judge shall be deemed to have retired."
' This tremendous damage done to the superior Judiciary of Pakistan by a deeming clause has recently been undone by their Lordships of the Supreme Court in the judgment delivered by their Lordships in the case of Al-Jehad Trust and others v. Federation of Pakistan and others reported in PLD 1996 Supreme Court 324.
We are therefore, of the opinion that the object of the deeming clause in Rules 7 and 8 of the Rules is to get on with and complete acquisition proceedings as expeditiously as possible.
47. We now propose to take up the first question framed by us i,e, is rule 7 of the Rules alongwith rule 8 consistent with the Act within the meaning of section 55 of the Act: "Section 55 of the Act reads as follows:--
(1) The Provincial Government shall have power to make rules consistent with this Act for the guidance of officers in all matters connected with its enforcement, and may from time to time alter and add to the rules so made.
(2) The power to make, alter and add to rules under subsection (1) shall be subject to the condition of the rules being made, altered or added to after previous publication.
(3) All such rules, alternations and additions shall be published in the official Gazette, and shall thereupon have the force of law."
48. The power to make Rules is subject to the condition that the. Rules shall be consistent with the Act. In other words, the Rules shall be in furtherance of the Act. Secondly, the purpose of the Rules shall be a limited purpose and the limited purpose will be, that the Rules shall be for the guidance of the officers in all matters connected with the enforcement of the Act. The rules cannot be inconsistent with the purpose of the Act and they are meant only for the guidance of those who have to work the Act.
' The word "guidance" has been explained in the Legal Thesaurus, Regular Edition, page 244 as follows:-- ' Admonition, advice, advisement, advocacy, backing, bidding, briefing, coaching, consilium, consultation, counsel, criticism, cue, direction, directive, ductus, edification, education, encouragement, enlightenment, exhortation, expostulation, fosterage, help, hint, inclucation, indoctrination, information, instructions, lead, leadership, lesson, management, monition, opinion, orientation, patronage, pedagogy, persuasion, precept, prescription, prompting, recommendation, reference, schooling, sponsorship, steering, suggestion, supervision, teaching, training, tuition, tutelage, tutoring Associated Concepts: advisory opinion, assistance of counsel, declaratory judgment."
We are quite clear in our minds that under the pretext of "guidance" the purpose of the Act cannot be defeated, neither can the spirit of the Act be sacrificed at the altar of rules 7 and 8 of the Rules.
Therefore, our answer to question No,1, as framed by us is that Rule 7 as also Rule 8 of the Rules have travelled beyond the purport and purpose of section 55 of the Act and we hold that Rule 7 as also Rule 8 are inconsistent with the parent Act.
49. The second question is that if Rule 7 as also Rule 8 of the Rules are inconsistent with the Act, then what is the legal effect? The second question is inter-connected with the third question that if Rule 7 and Rule 8 of the Rules are inconsistent with the Act then are the said two Rules intra vires or ultra vires the Act?
' We propose to answer both these inter-related questions together.
' One of the best statements regarding the vires of Rules is to be found in Interpretation of Statutes by Bhawani Lal, page 59, as under:- "The tests to apply in considering whether rules are within the powers of the rule-making authority under a statute are:--
(1) Whether the rules are reasonable and convenient for carrying the Act into full effect?
(2) Whether the rules relate to matters arising under the provisions of the Act?
(3) Whether they relate to the matters not in the Act otherwise provided for? And
(4) Whether they are inconstant with the provisions of the Act?
' The validity of a rule may be determined not so much by ascertaining whether it confers rights or merely regulates procedure, but by determining whether the rule is in conformity with the powers conferred under the statute and whether it is consistent with the statute; reasonable and not contrary to general principles."
The phrase "reasonableness" is an all pervasive phrase and escapes a clear cut legal definition.
"Reasonableness" will necessarily depend upon the facts and circumstances of each case. What may be reasonable in one given set of circumstances may be unreasonable in another given set of circumstances. Maxwell on Interpretations of Statutes in the Twelfth Edition at page 199 explains the term as follows:-- "An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available as held in Artemious v. Procopiou (1966) 1 QB 878.
' Where to apply words literally would 'defeat the obvious intention of the legislation and produce a wholly unreasonable result' we must 'do some violence to the words' and so achieve that obvious intention and produce a rational construction as it was held in the case of Luke v. I.R.C. (1963) AC 557.
' The question of inconvenience or unreasonableness must be looked at in the light of the state of affairs at the date of the passing of the statute, not in the light of subsequent events, as held in the case of Att.-Gen. v. Prince Ernest Augustus of Hanover (1957) AC 436."
We are, therefore, clearly of the opinion that Rules 7 and 8 of the Rules are on directo in nature and not mandato The loss of both these Rules clearly seems to be to complete the acquisition proceedings without inordinate delay and to achieve the desired results as soon as possible.
According to Stroud's Judicial Dictionary of Words and Phrases, Fourth Edition Vol. 1, page 195 to do a thing "as soon as possible" means to do it within a reasonable time, with an understanding to do it within the shortest possible time. In the performance of a public duty by public functionaries it is observed in Maxwell on the Interpretation of Statutes, Eleventh Edition, page 369, that where a statute relates to the performance of a public duty, and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, yet not promote the essential aims of the Legislature, such prescription or rules seem to be generally understood as mere instructions for the guidance of those on whom the duty is imposed or, in other words, as directory only, as held in Montreal Street Ry. v. Normandin (1917) AC 170 at page 174.
It has often been held that when an Act or Rules ordered a thing to be done by a public body or public officer and pointed out the specific time when it was to be done, the Act or Rules were only directory and not mandatory and might be complied with even after the prescribed time as held by Littledale, J. In the case of Smith v. Jones (1830) IB & AD 334.
50. As already observed by us in paragraph 20 of our judgment, one method of bringing acquisition proceedings to an end is by a declaration to that effect by the sovereign power itself.
For there may be cases where the land which was sought to be acquired for a public purpose is no longer required. This however, will require a conscious application of mind by the sovereign power as is clear from a bare reading of section 48 of the Act. We are, therefore, of the considered view that a power which the Government can exercise only through a conscious application of mind cannot be deemed to have been exercised by default under Rule 7 or Rule 8 of the Rules.
52. We, therefore, hold that both Rules 7 and 8 of the Rules are ultra vires the Act and declare them to be bad in law and strike them down as being of no legal effect leaving the competent Legislature to make suitable amendments by fresh legislation.
53. Resultantly, this Constitutional petition along with Writ Petitions Nos.
2203/88, 2371/90, 2370/90, 2732/90, 2734/90, 5811/90, 5711/90, 5308/90, 5704/90, 5705/90, 5706/90, 5709/90, 5710/90, 5712/90, 5713/90, 5714/90, 5394/90, 5378/90, 5708/90, 5707/90, 5806/90, 7045/90, 12231/91, 7262/90, 5503/91, 6728/90, 6727/90, 6726/90, 3205/90, 6501/90, 2921/90, 4169/90, 7833/90, 6561/90 9407/91, 6070/91, 5379/90 and 5603/90 is dismissed with, no order as to costs.