P L D 1956 (W (PLP)

(2) When a committee is so superseded, the following consequences shall ensue:‑ (a) All members of the committee shall, from the date of the notification, vacate their seats. (b) All powers and duties of the committee may, until the committee is reconstituted, be exercised and performed by such person as the local Government may appoint in that behalf. (c) All property vested in the committee shall, until the committee is reconstituted, vest in His Majesty. (3) The Government may, if it shall think fit, at any time constitute another committee in the place of any committee superseded under this section." It has been accepted by judicial authority now that certiorari lies only in respect of judicial acts. "Any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, is subject to the controlling jurisdiction of the High Court of Justice, exercised by means of these orders." R. v. Electricity Commissioners ((1924) 1 K B 171). It is also understood that "one of the best definitions of a judicial act as distinguished from an administrative act" is that given by Chief Justice May in the Queen v. The Corporation of Dublin ((1878) 2 L R In 371) in the following terms: "It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term `judicial' does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others." And Lord Fletcher Moulton, L. J. observed in Rex v. Woodhouse ((1906) 2 K B 504) "The term 'judicial act' is used in contrast with purely ministerial acts. To these latter the process of certiorari does not apply, as for instance to the issue of a warrant to enforce a rate, even though the rate is one which could itself be questioned by certiorari. In short, there must be the exercise of some right or duty in order to provide scope for a writ of certiorari at common law." English cases abundantly show that the Judges have "provided scope" in all possible matters requiring adjudication of some sort, where rights and duties are affected, and that they have narrowed down the, ample girth of administrative functions to purely ministerial acts. In the words of Mahajan, J. Province of Bombay v. Advani (1950 S C R 621 at p, 658) the jurisdiction to issue writs of certiorari "varies according to the foot of the Chancellor". We would say with respect that it varies with the foot of the High Court, which grows in length with the) growing conferment of quasi‑judicial functions on administrative bodies. Some instances of the exercise of this power may be taken from Halsbury's Laws of England (III Edition, Vol. II, page 58) " A report made by a chief gas examiner, a certificate of disablement under the Workmen's Compensation Act, 1925 by a certifying surgeon, and a certificate and report that a boy was incapable by reason of mental defect of receiving benefit from instruction in a special school or class and was an imbecile have been removed and quashed by certiorari; similarly a resolution of an authority granting permission to build under a town‑planning order, a resolution of the Milk Marketing Board imposing a penalty on a registered retailer, . . . . . . decisions of the dental services committee and the Ministry of Health investigating com plaints against a dental practitioner have been held to be judicial acts." We have, therefore, no doubt that when a Commissioner or the Provincial Government consider the evidence of in competency or mal-administration against a Committee, and decide that it is not fit to function, that it should cease to exist for the time being, that, the members thereof should vacate their seats, that the elected representatives of the municipal area concerned should be superseded by an adminis trator of the Government's choice, they perform judicial acts to which the writ of certiorari extends. We have decided to issue a writ of certiorari solely on the ground that the Commissioner had no power to supersede the Committee. Section 238 of the Municipal Act gives the power of supersession to the Provincial Government, but by an adaptation pursuant to the establishment of the West Pakistan Province the words "Provincial Government" were replaced by "Commissioner", and it has been argued that the adaptation is illegal. For the Government, the power of adaptation is claimed under section 5 of the Establishment of West Pakistan Act, 1955, which is as follows:‑ 5". Orders of the Governor‑General.‑(1) The Governor -General may by order make such provision as appears to him to be necessary or expedient‑ (a) for constituting the Province of West Pakistan; (b) for the purpose of adaptation of laws, make repeals of, omissions from, additions to and modifications of any Act (other than this Act, the Government of India Acct, 1935, or the Indian Independence Act, 1947), or any Order -in‑Council, Letters Patent, Ordinance or any rule, regula tions, order, bye‑law or public notification applying immediately before the appointed day to any specified (c) for authorizing the exercise, by any person or authority specified in the Order, of any of the functions of govern ment in any specified territory between the date of this Act and the appointed day; (d) for other matters supplemental, and incidental to and consequential upon the establishment of the Province of West Pakistan. (2) The Governor‑General may delegate any of his functions under clauses (b) and (c) of subsection (1) of this section to the Governor of West Pakistan and airy order of the Governor may include any matter supplemental or incidental to, or consequential upon, any provision made by such order Provided that the power exercisable under this section shall not extend beyond six months from the appointed day." In exercise of the power conferred upon the Governor -General by subsection (2), a notification was issued on the 10th October 1955, by which His Excellency delegated to the Governor of the Province, with effect from the 14th October, the power "to make by order such provision as appears to him to be necessary or expedient for the purpose of adaptation of laws applying immediately before the 14th October 1955 to the . . . . . . specified territories". Next, on the 14th October, the Governor promulgated the West Pakistan (Adaptation of Laws) Order, 1955, stating in the preamble that the Governor‑General had been pleased to empower him "to make repeals of, omissions from, additions to and adapta tions and modifications of any such law . . . ." etc., and by clause 8 read with Schedule III, section 238 of the Municipal Act was "adapted" so as to substitute "Commis sioner" for "Provincial Government". Now, incidentally, the statement in the preamble that the Governor had been empowered "to make adaptations" is wrong as a matter of, fact, because the power that the Governor‑General himself possessed under section 5 of the Act‑and which he could delegate was to make repeals and modifications "for the purpose of adaptation of laws", not to make adaptations regardless of any purpose. And the Governor‑General also did no more than authorise the Governor to make such pro vision as appeared necessary or expedient "for the purpose of adaptation of laws". Section 5 itself is defective in language when sub section (1) is read after omitting clause (a), for it reads thus "The Governor‑General may by order make such provision as appears to him to be necessary or expedient . . . . for the purpose of adaptation of laws, make repeals of, omissions from, additions to and modifications of any Act . . . . .: ' If the sentence had stopped at "adaptation of laws", it would be complete in sense. But the mistake of syntax may be ignored, for the meaning is clear. The meaning is that the Governor‑General may "for the purpose of adaptation of laws, make repeals of, omissions from, additions to and modifications of any Act". It is equally clear that any alteration is to be made only for the purpose of adaptation of laws; that is, if the laws existing on the date of integration do not suit one another or fit into one another, they will be made to fit. Four independent Provinces. (to say nothing of the States) each with its own laws, were being brought together, and any antagonism between their laws had to be smoothed out. The authorities mentioned in some of those laws would perhaps not exist after the integration, or they would be known by different names. But where a function was entrusted to the Government, the transfer of that function to another authority would in no sense constitute a purpose which would be subservient to adaptation. The test of adaptation lies in the fact that, but for the alteration carried out, the law which has been altered will not be correctly applicable to the new surroundings. In the new surroundings, we still have a Provincial Government, so that, if section 238 of the Municipal Act had not been "adapted" there would be no difficulty in its operation. What the Adaptation Order has done now is to authorise the Commissioner to perform the function of Government in the field of supersession. Incidentally, clause (c) of subsection (1) of section 5 makes exactly the provision which was necessary for an "adaptation" of this nature, but it has not been called an adaptation. It authorises the exercise, "by any person or authority specified in the Order, of any of the functions of Government in any specified territory", but this authority is to be exercised only "between the date of this Act and the appointed day"‑between the 3rd and the 14th of October 1955. It was, therefore, argued that the functions of Government could have been exercised by the Commissioner only if he had been empowered under clause (d), and only up to the 14th October. We do not say that this argument is conclusive, because the modification of an Act could have been separately authorised by the Constituent Assembly even to the extent to which the Adaptation Order has gone; only, it has gone beyond the contemplation of the Assembly. But we do regard clause (c) as bringing out by contrast, even though by a remarkable coincidence, the essential difference between the adaptation of various laws so as to fit into one another and the exercise of governmental functions. We, therefore, hold that the Adaptation of Laws Order is illegal to this extent, and that, as the law stands at present, the Commissioner cannot supersede a Municipal Committee. We suggest that its provisions be scrutinized and, ex abundanti cautela, or, for the removal of doubts, re‑enacted by the appropriate Legislature. We issue a writ of certiorari, quashing the order of the Commissioner by which the Municipal Committee of Mandi Baha‑ud‑Din was superseded. The petitioners will be entitled to costs. A. H. Order quashed.