P L D 1956 (W (PLP)

"If the tribunal has exercised the discretion entrusted to it bona fide, not influenced by extraneous or irrelevant considerations, and not arbitrarily or illegally, the Court cannot interfere." It means that in exercising the discretion the Provincial Government must not act arbitrarily or illegaly and it would be a matter for our consideration whether failure to hear amounts to illegality in such cases or not. The facts of the case Rex v. Metropolitan Police Commis sioner ((1911) 2 K B 1131) deserve consideration. The relevant regulation provided that :‑ "A licence for a cab or a stage carriage may be granted to any person by the Commissioner of Police of the Metropolis, hereinafter referred to as the Commissioner, subject to the following exceptions: (a) A licence shall not be granted to any person under the age of twenty‑one years, and any licence so granted shall be void. (b) The Commissioner may at his discretion refuse a licence to any person who has been convicted of a felony, misdemeanour, or of cruelty to animals, or who, having previously held a licence for a cab or a stage carriage, has had such previous licence revoked or suspended". The question arose whether the Commissioner had absolute discretion to refuse licence to any person he liked. The Court of Appeal held in the negative and observed that the discretion was not absolute. It is wholly repugnant to the principles of natural justice that a person should be condemned without being heard or he be deprived of his property or right without an opportunity being given to show cause. The earliest case on the point is Copper v. Wandsworth Board of Works ((1863) 8 L T 278). Erle, C. J. observed :‑ "I do not rest my judgment solely on the fact that the powers of the board are in their nature judicial; the authorities collected in the judgment of Parke, B., in the Hammersmith case (4 Ex. 96) show that man ought not to be deprived of his property without an opportunity of being heard". Willis, J. stated the same proposition in different words :‑ "Now, the Board are not only empowered to demolish the house, but the party offending is to pay the costs, and it is clear that the justices could not proceed under the 225th section to enforce this without having the person before them, and there is a common law obligation on the board to give the person interested an opportunity of being heard before they proceed to demolish". Byles, J. stated :‑ "If they acted judicially, they have acted contrary to the whole current of cases ; and if they acted ministerially, they have acted unjustly, and exceeded their powers". These observations are very pregnant. They mean that if a ministerial officer condemns a person or deprives a person of property, he acts unjustly if he does so without hearing the interested person, even though he may not be acting judicially. Keating, J. observed :‑ "The board of works have to exercise a discretion and a very important discretion, and they are bound to hear the party concerned, in order that they may be able to form a correct opinion as to what they ought to do". In the light of these observations it can safely be said that even if an executive act affecting property or right is done without hearing the interested party, the act done ~8 cannot be said to be legal or just, within the meaning of the cases quoted above that a discretion, if it is illegal or unjust, can be rectified by means of writ of mandamus. In the case of The King against The Chancellor, Masters and Scholars of the University of Cambridge, or Doctor Bentley (Eng. Rep. Vol. 92 p. 818) a writ of mandamus was sought to restore Richard Bentley to his degree of doctor of divinity as he had been degraded by the Vice‑Chancellor's Court in the University of Cambridge for a contumacy in a civil suit without having been heard in any Court. The writ was allowed solely on the ground that the person interested had not been summoned and heard. It was held that it is required by the law of nature that every person before he can be punished ought to be present and if absent by contumacy he ought to be summoned and make default. The following observations in the case of Local Govern ment Board v. Arlidge (1951 A C 120) are worthy of consideration :‑ "The power of obtaining a writ of certiorari is not limited to judicial acts or orders in a strict sense, that is to say, acts or orders of a Court of law sitting in a judicial capacity. It extends to the acts and orders of a competent authority which has power to impose a liability or to give a decision which determines the rights or property of the affected parties. Where, however, the question of the propriety of procedure is raised in a hearing before some tribunal other than a Court of law there is no obligation to adopt the regular forms of legal procedure. It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice. In determining whether the principles of substantial justice have been complied with in matters of procedure, regard must necessarily be had to the nature of the issue to be determined and the constitution of the tribunal. The general tests to be applied have been expressed in two cases which have come before this House, Spackman v. Plumstead Board of Works and Board of Education v. Rice. In the earlier case of Spackman v. Plumstead Board of Works the question raised was whether the certificate of the superintending architect was conclusive in fixing the general line of building under the Metropolis Management Act, 1862. Lord Selborne, in the course of his opinion, states : "No doubt in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word ; but he must give the parties an opportunity of being heard before him and stating their case and their views". Similar question has been subject of decision by Indian Courts. I may refer to some of them. In the case of Dr. Mukand Lal v. The Municipal Committee, Simla (A I R 1953 Pb. 88) a bench approved the decision in Copper v. Mandsworth Board of Works (8 L T 278) mentioned above and observed "Even in the absence of any rules, the principle of natural justice should come into play i.e. the maxim 'audi alteram partem'‑no man shall be condemned unheard would be applicable". In the case of Rameshwar Prasad Kedarnath v. The District Magistrate and others (A I R 1954 All. 144) Motham, J. observed :‑ "It is common ground that in this case the petitioner was not afforded an opportunity of being heard. I would on that ground and for the reasons which I have endeavoured to state, hold that the order of the Licensing Authority, even though it be an administrative order, is one which we should quash in the exercise of our powers under Article 226". This case made a distinction between a right and privilege and held where an administrative order only deprived a man of a privilege, hearing was not essential. But if an administrative order had an effect of depriving the person of a right then hearing was necessary for the legality of the admi nistrative order. In the case Sadhuram Hardwari Lal v. Princi pal Rajindra College Bhatinda and another (A I R 1954 Pepsu 151) the question was whether the University authorities could expel a student without hearing him, it being conceded that the order was a purely administrative order. The High Court held that a hearing was a condition precedent. The Supreme Court of India in the case of Sangram Singh v. Election Tribunal, Kotah and another (A I R 1955 S C 425) had to consider whether hearing before a decision was an essential principle of natural justice. Their Lordships observed in para. 17 :‑ "Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle". The observations in the case of Bhikulal Balbhadrasao v. The State of Madhya Pradesh and another (A I R1953 Nag.125) are wholly applicable to the facts of this case. The petitioner in the case was President of the Municipal Committee, Balaghat having been elected to that office in the year 1946. On 10th March 1952, the Government of Madhya Pradesh passed an order to the effect that the petitioner had incurred a disqualification under section 15 (1), C. P. & Berar Municipalities Act, 1922. Their Lordships observed "No doubt there is no express provision in the Munici palities Act which requires such a hearing to be given but we think that it would be consonant with the principles of natural justice to give a hearing to a person before serious action of this kind is taken against him . . . . . It is said that the order is administrative and has been given finality by subsection (2) of section 22, Municipalities Act and we cannot interfere with it. In our opinion, the mere fact that an order is administrative or that it is given finality by the provisions of the Municipalities Act cannot stand in the way of the petitioner . . . . ." I may also quote the Privy Council case T. A. Balakrashna Udayar v. hasudeva Ayyar (A I R 1917 PC 71). Under the provisions of Bengal and Madras Native Religious Endowments Act (XX of 1863) a member of a committee formed there under could be removed for a misconduct. No procedure was laid down for determining the misconduct or unfitness of a member. Their Lordships of the Privy Council observed :‑ "Any order made in such a matter in disregard of the requirements of natural justice, such, for instance, as proceeding without giving the member sought to be removed notice, or affording him an opportunity of defending himself, would clearly be voidable or void". No doubt their Lordships held that a Civil Court while determining unfitness of a member was exercising judicial function. But they clearly laid down that hearing an interested party was an essential requirements of the principles of natural justice. The above discussion would show that even in case of an administrative order, if it were to affect property or right the person affected must be heard before an administrative order is passed. Section 179 is a serious encroachment on the rights of the people and the elected representatives. The power given under section 179 of the Act is not arbitrary. It has to be exercised if certain conditions exist. A Provincial Government cannot reasonably reach fair conclusions unless it formulates the charges against the municipality and offers them an opportunity to meet them. Even the Commissioner and the Collector thought that a charge sheet should be framed and the Municipality be called upon to submit its explanation. This was but natural, as the power of discretion of the Provincial Government could not be fairly exercised unless the party affected were heard. There is another approach. It has been held in some of the cases noted above and others that whenever a statutory tribunal or body of persons was empowered to impose liability or to pass orders affecting the right of others, it was bound to act judicially or quasi‑judicially subject to the limitation that where by express language or by necessary implication an absolute discretion is vested in the tribunal or body by Legislature, it was not bound to act judicially or quasi judicially. The presumption, however, is of the necessity of judicial approach. The point has been well considered by a Bench of Allahabad High Court in the case of Avadhesh Pratap Singh v. State of Uttar Pradesh and others (A I R 1952 All. 63). Agarwala, J., who delivered the judgment observed :‑ "The essential difference between an administrative or executive act on the one hand and a judicial and quasi judicial act on the other is that while in the former case, the authority vested with the power to give a decision affecting the rights of others, may be bound to enter upon an enquiry, he is not bound to give a decision as a result of the enquiry, but may act in his discretion, in utter disregard of the result of the enquiry, in the latter case, such authority is bound by law to act on the facts and circum stances, as determined upon the enquiry, in which a person to be affected is given full opportunity to place his case before the authority even though the decision of such authority, whether right or wrong, may be final and may not be liable to be challenged in a Court of law". Judged by the above criterion the act envisaged by section 17 of the Sind District Municipal Act is a quasi‑judicial act and not a merely administrative act. Supposing it were held that the Provincial Government came to a conclusion that it had not been established that the municipality had failed to perform its duties, would it be open to the Provincial Govern ment to supersede the Municipality and if it did so would it be binding on Courts. Obviously not. Under Assam Local Government Act a Deputy Commis sioner had the right to suspend any resolution of a Local Board. The question was whether the act of the Deputy Commissioner suspending the resolution was merely an execu tive or quasi‑judicial act. The Court came to the conclusion that the Deputy Commissioner had to act quasi‑judicially. Similar view was expressed by a Bench of Calcutta High Court in the case of Dipa Pal v. University of Calcutta (A I R 1952 Cal. 594). Their Lordships observed in Para 10 "It is true that the Board of Examiner is an Administra tive Body but when they are conducting enquiries or inves tigations into cases of misconduct of the candidates they are exercising quasi‑judicial functions. They are a body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals." Similar view is expressed in the case of M. S. Avadhani v. State of Mysore and others (A I R 1954 Mysore 18) Vasudevamurthy, J. observed :‑ "It is very difficult to accept the arguments that the order of the Government or the Minister who has got to decide a question of so vital and valuable interest to the petitioner, and the electorate, in pursuance 9f a statutory power or duty cast on the Government to do o under the Town Municipalities Act is one which is merely executive or administrative and incapable of correction . . . . ." After a careful consideration of the language of section 179 its consequences on the elected Municipal Councillors and the case‑law germane to the issue, we have come to the conclusion that it was incumbent on the Provincial Govern ment to hear the Municipal Board before determining, whether the conditions existed which necessitated exercise of power of supersession given to the Provincial Government. The section did not give any absolute discretion to the Provincial Government which had to act quasi‑judicially. If it were held that the order of supersession is a purely administrative act, it is still vitiated by non‑observance of the principles of natural justice. The order is, therefore, bad on the ground that the applicant bad not been heard. The order of supersession is bad for another reason. I have already quoted section 179 of the Sind District Municipal Act. It requires that in the first instance the Provincial Government be of opinion that the Municipality are not competent to perform duties imposed on them or make persistent default in the performance of duties imposed on them or exceed or abuse their powers, in the second instance the Provincial Government shall declare the Municipality to be incompetent or in default or to have exceeded or abused their powers as the case may be and in the third instance the Provincial Government shall give reasons for making the declaration. The resolution of the Provincial Government published in the Sind Gazette simply says that the Sind Government are satisfied that the "Municipality is guilty of mala administration and is no more capable of holding its office.,' The resolution does not declare that the Municipality are incompetent to perform the duties assigned to them nor it declares that the Municipality was in default in performance of their duties nor does it say that the Municipality have exceeded or abused their powers. The word "mal‑administra tion" is a vague term and cannot be held . to be synonymous either with incompetence or default or excess or abuse of powers. In the petition dated 12th February 1955, which ultimately led to supersession of the Municipality, there were allegations which could not fall within the purview of incom petence, default, excess or abuse of powers. I may quote some of them : (1) That the Municipal Board is more or less a nominated one by the then Revenue Minister Mir Ghulam Ali Khan Talpur. (2) The Board in fact is controlled by the Vice‑President who has managed to get in power by the simplicity of the President. (3) The Vice‑President and other Mirs do not pay octroi duty. The Vice‑President did not pay octroi duty for the Radio set worth Rs. 2,

700. There is no knowing whether exercise of the powers of the President by the Vice‑President was considered mal‑adminis tration by the Provincial Government. There is even a more glaring non‑compliance of the provisions of section

179. The resolution does not give reasons which led the Provincial Government to form the requisite opinion. In the absence of reasons it cannot be said whether the opinion of the Provincial Government was based on relevant or irrelevant considerations. The resolution satisfied itself with stating the conclusion. There is, therefore, clear non‑compliance of the provisions of section 179 and this non-compliance must necessarily vitiate the order of supersession. Reference may be made in this connection to the case Chauthmal v. State of Rajasthan and others (A I R 1953 Rajas. 73). One of the judges is Justice Wanchoo an eminent judge of Allahabad High Court. It has been argued by the learned counsel for the petitioner that the order of supersession was mala fide inasmuch as it was motivated by a desire to displace the party of Mir Ghulam Ali Talpur. Attention is invited to the fact that Sind Province was to come to an end on 13th October and impugned decision was taken by the Provincial Government in hot haste. This is not in our opinion sufficient to show that the act was mala fide, In view of our decision under points 1 and 2 the petition must succeed. The order of supersession is quashed and set aside and the respondents are directed to restore the petitioner and the Municipality to their respective offices. Writs of Mandamus and Certiorari be issued as prayed. We have set aside the order of supersession on the ground that no such order could be passed without hearing the Municipality and the office bearer affected. It necessarily follows that it is open to the Provincial Government, if they be so advised, to frame charges against the Municipality and proceed afresh in the manner required by law. A. H. Petition accepted.