' SAIDAR FAKHRE ALAM, J.-Mst. Sewan Akhtar wife of Chaman Khan has moved this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against the Collector (Land Acquisition), Tehsil Nowshera, District Peshawar (respondent No, 1) and 18 others with the prayer that the order dated 64-1976 of respondent No, 1 refusing to refer her objection petition under section 18/30 of the Land Acquisition Act, 1891 to the Court being contrary to law, be quashed and directions be issued to respondent N. 1 to refer her objection to the Court for proper adjudication. Mst. Sewan Akhtar petitioner died during the proceedings and Chaman Khan her husband and seven others were brought on record as her legal representatives.
2. In the petition it is contended :-
(a) That the Government acquired land for the scheme entitled "Protection of Pabbi area from flood from Khudrezai Nala under the Land Acquisition Act and the petitioner's land measuring one kanal and twelve marlas bearing No, 1348 alongwith other land was acquired.
(b) That though the acquisition proceedings started in 1965 the same were completed on 640-1973 when an as and under section 11 of the Land Acquisition Act was made by Collector Acquisition (Assistant Commissioner), Nowshera.
(c) That even this award was incomplete as it only dealt with the assessment of compensation but omitted to make apportionment amongst several claimants.
(d) That for the first time the apportionment of the compensation was made when acquittance role "Qabzul Wasool" was prepared by Tehsil Agency on 1-9-1975.
(e) That the acquired landed property was purchased by the grandfather of the petitioner from one Shad Khan who was in Hissadari possession of the same and her grandfather, father and then herself were for the last thirty years in continuous possession of the same.
(1) That the possession of the acquired land was taken from her by the Acquisition Collector in 1966.
That the respondents Nos. 2 to 6 had purchased the land in 1973 i.e, eight years after the acquisition proceedings were started and as such were not entitled to any compensation.
(g) That in the acquittance roll the petitioner was not awarded any compensation for the said property and that within four weeks of the preparation of acquittance roll (Qabzul Wasul) the petitioner filed an objection before respondent No, 1 under section 18/30 ibid, praying that the matter be referred to the Court for decision who declined to do so and filed the petition.
(h) That the petitioner being an owner in Hissadari possession of entire land comprising Khasra No, 1398 measuring one kanal and twelve marks and its possession also having been taken from the petitioner, was entitled to receive the whole amount of compensation assessed of the property.
(i) That the grievance of the petitioner was regarding the apportionment of her share and mainly one under section 30 of the Land Acquisition Act, her prayer for its reference to Court could not be refused on the ground that it was time-barred, moreso when the apportionment of compensation on the basis of acquittance roll (Qabzul Wasul) was announced on 20.9-1975.
(j) That as the Land Acquisition Act, 1894 bars the jurisdiction of civil Courts to determine the dispute of the instant nature, namely, the apportionment of compensation assessed under the Land Acquisition Act, therefore, having no other remedy available under the law she has invoked the extraordinary jurisdiction of this Court, and by refusing to refer her case the Collector, Acquisition has failed to exercise the jurisdiction vested in him by law and as such a direction be issued to him to refer the case to the Court for apportionment of her share as provided by section 30 ibid.
3. Arguments were addressed at length on behalf of the parties and we have also perused the record of the Collector, Land Acquisition which was summoned by us. The main dispute between the parties appears to be the apportionment of the compensation of the acquired land between the two sets of owners one figuring as such in the revenue record in Khana Kasht and the other in Khana Milkiyat. The documents annexed with this petition would show that the acquiring authorities were not clear in their mind as to which set of the owners was entitled to receive the compensation and they have been shifting their views in this regard from time to time. Annexure C a letter from the Deputy Commissioner, Peshawar to Assistant Commissioner, Nowshera in this regard states, "it may be pointed out that the entrants in Khana Kasht though in possession may not enjoy the proprietary rights and as such are not owners. In case an owner (Khana Miikiyat) has sold his share to a person who appears in %harm Kasht' such vendee will shift to Khana Milkiyat".
' In short the compensation is only to be paid to owners i.e, those whose names appear in Khana Milkiyat. This would be the correct attitude, provided the revenue record is up-to-date.
4. Again Annexure D is another order passed by Assistant Commissioner, Nowshera on 12-9.1975 which is reproduced in verbatim "Mr. Zar Ali Khan for the owners and Faqir Ahmad Khan for vendee in 'Khana Kasht' present alongwith others and heard. According to the Revenue Record only those in Khana Milkiyat are to be deemed owners. The vendee can claim that portion of the compensation which the vendor can legally transfer to them and no more. Statement be prepared accordingly."
5. On application (Annexure 5) dated 16-9-1975 by the petitioner to the Collector, Acquisition/Deputy Commissioner, Peshawar District there is yet another order of the Deputy Commissioner which is as follows :- "In this case it appears to me that we cannot adopt a single line of action. In some cases the co- sharers in Khana Milklyat deserve compensation while in others the owners who still appear in KhanaKasht and have bought proprietary rights and have thereby become owners, deserve compensation. Caution has to be exercised so that the rightful owner whether he is in Cols. No, 1 or No, 2 of Jamabandi gets compensation."
6. However the Acquisition Authorities did not give any compensation to the petitioner and as such she moved an application under section 18/30 of the Land Acquisition Act to the Collector with the prayer that the matter be referred to the Court for apportionment of her share. Her prayer was turned down on 6-1-1976 and the Collector passed the order which is being challenged before us by the petitioner and for the proper appreciation of the controversy involved herein the same is reproduced "Arguments on the question of reference were heard on 31-12-1976. As far as the question of compensation is concerned the matter has been fully settled in the Award made on 10-10-1973.
' It is now after more than two years of the Award that the petitioner has come to challenge it.
Section 18 of the Land Acquisition Act is clear on the subject, The maximum period permissible to make a reference to the District Judge is six months. The objection of the petitioner is therefore time-barred and not tenable. As regards the reference under section 30 of the Act, I do not consider it proper to make a reference as it is at too late a stage. If t' !e petitioner feels aggrieved he may choose other forums for relief, if he so desires as it involves proprietary rights. File."
7. In spite of service Collector, Land Acquisition (respondent No, 1) did not join the proceedings and was placed ex parte, while rest of the respondents congested the matter bet no written statement was filed on their behalf. Mr. Rifaqat Ali Shah, Advocate representing them however argued that the making of reference under section 30 of the Land Acquisition Act is discretionary with the Collector who may or not refer a dispute regarding the apportionment of the compensation for the decision of the Court. He has not challenged the contention of the petitioner to the effect that she has not been raid tie amount of compensation and that her share has not been determined so far.
8. The learned counsel for the petitioner vehemently argued that the award passed under section 11 of the Lard Acquisition Act was defective as no apportionment of the compensation among the interested persons was made which fact is evident from the award itself (copy Annexure B) the relevant part of which states "The compensation of the land to individual owners and interested persons will be made according to the Revenue Record."
The apportionment of the compensation was, as mentioned earlier finally announced on 20-9- 1975 and as such the Land Acquisition Collector was not legally justified to say that as the award was made on 10-10-1973 therefore the petition was not within time to ask for the reference. What we find is that the petitioner has not challenged the award under section 18 of the Land Acquisition Act wherein the maximum period for moving the Collector for reference is six months, her prayer was for the apportionment of the compensation under section 0 of the Act and no period of limitation is prescribed for a reference under the said section. As the award was initially incomplete end the apportionment was made for the first time by I preparing the acquittance rolls on 20-9- 1975, the petitioner promptly moved the relevant authority, i.e, the Collector Acquisition Nowshera for referring her case to the Court for determination of her share and we find that the impugned order (Annexure E) wherein the Collector, Acquisition held that a reference under section 30 of the Land Acquisition Act could not be made as it was too late a stage is neither supported by facts brought on the record nor the law applicable thereto. We now advert to the main objection raised by the learned counsel for the respondents to the effect that the Land Acquisition Collector had the discretion in the matter either to refer the case to Court or refuse to make the reference, which is evident from the language of section 30 Ibid.
9. It is to late in the day to say, that the word "may" always imports that the matter is discretionary with the authority exercising a function Inasmuch as it is settled law that the words "may" and "shall" in legal phraseology are interchangeable, depending on the context in which they are used, and are not to be interpreted, with the rigidity which is attributed to them in ordinary parlance. It needs no emphasis that if a statute as in the instant case gives power to a public authority in certain circumstances and if those circumstances are there then it becomes his duty to exercise it when called upon to do so and in such circumstances the word "may" is to be construed as imperative. Moreso when a person who invokes those powers has a legal right which he cannot exercise without the intervention of that authority. When public officers are empowered to do a thing in the interest of a third person when they (Public Officers) are called upon to exercise the powers, since it is given for his benefit and the officers are repositories of the trust to meet the rightful demands and to prevent the failure of justice in such case, it becomes a positive and absolute duty of the officer to exercise those powers. In such a case it will be idle to argue that he has a discretion in the matter. Rather an obligation is cast upon the functionary to exercise the powers. In the case in hand we find that the Land Acquisition Act, a special statute, authorises the Land Acquisition Collector to refer the case of an interested person under section 30 of the Land Acquisition Act for the apportionment of his share if he is not satisfied about its determination by the Collector and there are judicial pronouncements that if a person who does not avail himself of the remedies as provided under the Act ibid cannot agitate the matter in an ordinary civil Court. As such we are of the view that the word "may" used in section 30 of the Land Acquisition Act is not merely directory but a mandatory one and therefore casts a duty upon the Land Acquisition Collector to refer the case to the Court under section 30 of the Land Acquisition Act for the apportionment of the share of an interested person. The impugned order which has been reproduced In extenso in the earlier part of this judgment would show that the Land Acquisition Collector while dismissing the application of the petitioner has observed, "if the petitioner feels aggrieved he may choose other forum for relief if he so desires as it involves proprietary rights."
Such being the case it had become imperative for the Collector, as he himself had failed to determine the share of compensation of the petitioner, to have referred the matter to the Court for its determination. The learned counsel appearing for the petitioner had conceded before us that her objection to the award was not under section 18 of the Land Acquisition Act, as in this Writ Petition, and also before the Land Acquisition Collector she had nowhere challenged the adequacy of the compensation but only its apportionment and this is the only relief he seeks from this Court.
10. We are therefore of the view that the impugned order dated 6-1-1974 of the Land Acquisition Collector (respondent No, 1) being without lawful authority is not sustainable as he has failed to exercise the jurisdiction vested in him under section 30 of the Land Acquisition Act and by accepting this writ petition we quash the said order and direct respondent No, 1 (Land Acquisition Collector) to refer the matter to the Court under section 30 of the Land Acquisition Act for apportionment of compensation. In the circumstances of the case there is no order as to costs.