P L D 1956 (W (PLP)

KAIKAUS, J.‑--The Lahore Improvement Trust (herein after referred to as the Trust) is a body brought into existence by the Punjab Town Improvement Act, IV of 1922. Its function, as its name shows, is to improve and expand the town of Lahore. By virtue of section 4 of the Act, the Trust consists of seven trustees three of whom are to be elected by the Corporation of the City of Lahore from amongst its coun cillors. Hadi Ali Shah, the petitioner before us, was one of the trustees elected by the Corporation of the City of Lahore, his term of trusteeship having commenced on the 6th of November 1953. By virtue of section 6 of the Punjab Town Improvement Act, he was to continue as member for three years unless he ceased in the meantime to be councillor of the Corporation. However, by a notification dated the 31st of August 1955 the Punjab Government, in exercise of their powers under section 10 (d) of the Act, removed Hadi Ali Shah from the membership of the Board of Trustees on account of his having "flagrantly abused the powers of a Trustee." This is a petition by Hadi Ali Shah for the issue of a writ of mandamus or other appropriate writ to the Government of West Pakistan, to the Lahore Improvement Trust and to the Corporation of the City of Lahore, that the said notification which was illegal, ultra vires and in abuse of statutory powers be not acted upon. The grounds of attack on this order of the Provincial Government are two: (1) that it is mala fide, and (2) that it was passed without notice to the petitioner. The objection as to mala fides is thus amplified in the petition "(6) That in the recent Provincial political tangle the peti tioner was and still is in political alliance with Malik Feroze Khan Noon and when his ministry was thrown out, the Government that came in power started victimization of its political opponents and in view of the petitioner's political alliance for reasons unconnected with the activities of the petitioner as a trustee which were not found favour with and against which nothing has even so far been said formally, he was removed from the office of the trustee. The noti fication is not based on any material and is not in exercise of any powers vesting in the Government and is actuated by collateral purpose of victimization of the petitioner for his political ideology." In reply there has been filed, amongst others, an affidavit by Mr. Alamdar Husain Gilani who was Minister for Local Self‑Government at the relevant time, that he and the then Chief Minister had examined the case relating to the peti tioner, that they had come to the conclusion that he ought to be removed as he had abused his position as a trustee and that the order was made bona fide in the public interest and not in consequence of the alleged association of the petitioner with Malik Firoze Khan Noon. It is not denied that the order was passed without notice to the petitioner. After going through the affidavits put in by the parties and through the Government file relating to the removal of the petitioner, I find the case against the petitioner for removal to be that while the Pakistan Cloth Market Federation, a body of which the petitioner is the president, was negotiating with the Trust for a transfer of some land, the petitioner got him self elected as a member of the sub‑committee that was to deal with the application of the Pakistan Cloth Market Federation, although he had a pecuniary and probably a very substantial interest in the bargain. In order that the case against the petitioner and the material which existed against him and on the basis of which the Government acted may be properly appre ciated, the relevant facts have to be stated in some detail The Trust had framed a scheme of building a cloth market for Kucha Patpattian in Lahore. Two bodies, i.e., the Punjab Cloth Traders' Federation and the Lahore Wholesale Cloth Market Society, applied in 1951 separately for lease to them of shop sites contemplated by the scheme. The petitioner was a chairman of one of these bodies and a member of the other. These applications were considered in some meeting of the Trust and the applicants were called upon to make a deposit by way of earnest money. The. Wholesale Cloth Market Society deposited two sums, one of Rs, 25,000 and the other of Rs, 35,000 in February 1952. In the same month, the Punjab Cloth Traders' Federation also made a deposit of Rs. 50,

000. In March 1952, the Trust resolved that 21 plots be leased out to the Wholesale Cloth Market Association (this was really a mis-description of the Wholesale Cloth Market Society) on a premium of Rs. 30,0000 at an annual rent of Rs.9,000 for 90 years. In June 1952, an application was put in by the two bodies that they should be regarded as amalga mated. They had in the meantime become a single body which is called the Pakistan Cloth Market Federation Regis tered and whose chairman is the petitioner. The Trust directed the new body to made a deposit of Rs. 1,50,000 so as to make up the total of rupees three lacs which was required as a premium and to deposit Rs. 9,000 as one year's rent in advance, and this direction was complied with in the same month. In December 1952, the Pakistan Cloth Market Federation was asked to make a further payment of Rs. 35,000 to be adjusted towards future lease money, for payment to some person who had a building on the site which was the subject of the lease. On the 6th of October 1953, this sum too was paid. Possession of the premises had in the meantime been delivered to the Pakistan Cloth Market Federation, though it is not clear when. On the 29th of June 1954, the Chairman of the Trust made a note that as the Trust stood in need of money, instead of there being a lease, the plots should be sold. An agreement was in fact informally reached with the Pakistan Cloth Market Federation for sale of the shop sites on payment of Rs. 10,60,500 in three installments. On the 20th of December 1954, there was a meeting of the Trust in which a sub‑committee was formed to work out the details of the Patpattan scheme. On the 29th of June 1955 this scheme was discussed by the Chairman with the office bearers of the Pakistan Cloth Market Federation including the petitioner. On the 14th of July there was again a meeting of the Trust. This item was not on the agenda, but in connec tion with some other item Hadi Ali Shah petitioner was put on the sub‑committee which had been formed on the 20th of December 1954 for consideration of the details of the Pat pattian scheme. According to the respondents, Hadi Ali Shah himself suggested that he should be placed on the sub‑committee and he did not at the time disclose that he was the President of the Pakistan Cloth Market Federation. This sub‑committee, it may be stated, was also to deal with the offer of the Federation to purchase the shop sites in Patpattian scheme. On the 23rd of July 1955, the Personal Assistant to the Minister for Local Self‑Government made an office note that according to information received by the Minister of Local Self‑Government a market inside Shahalmi Gate con structed by the Lahore Improvement Trust was being given to one party exclusively and that the Minister desired Deputy Secretary, Local Self‑Government, to look into the matter and make a report. At this the Secretary, Local Self‑ Govern ment, reported that the market to which the Minister was referring was probably the Cloth Market in Kucha Patpattian, and that the matter had been discussed in a meeting of the Trust and was still pending. The Chairman of the Trust had assured the Secretary that the land would be disposed of to the utmost advantage of the Trust. The note said that the Trust could do far better financially than by disposing of it to the Pakistan Cloth Market Federation. The Minister for Local Self‑Government then looked into the file. At this stage, the Chief Minister sent for the file and found that there was a great scandal about the sale of this land in favour of the Pakistan Cloth Market Federation. The suggestion is that the Pakistan Cloth Market Federation was getting improperly the benefit of the Patpattian scheme to the exclusion of the public and for a consideration much less than what could be received by an open sale of shop site. The Chief Minister found that the President of the Pakistan Cloth Market. Federation (Hadi Ali Shah) had been taking active part in the negotiations and had even been taken on the sub‑committee that was to deal with the matter. The Chief Minister discussed the subject with the Minister for Local Self Government and the result of the discussion was the notification which has been challenged. Before us an affidavit has been filed by Mr. Abdul Majid P.C.S. who was at the relevant time Secretary of the Lahore Improvement Trust. Mr. Abdul Majid has stated in his affidavit:-- (1) that in the meeting of the Trust dated the 20th December 1954 in which a special sub‑committee was appointed for a report as to the Patpattian scheme, the petitioner took part in the discussion without disclosing his interest. (2) that in the meeting of the Trust dated the 14th July 1955, although the Patpattian scheme was not on the agenda, the petitioner, without disclosing his interest in the Pakistan Cloth Market Federation, in connection with some other item, suggested that he should be put on the sub committee dealing with the Patpattian scheme and was in fact so put by a resolution of the Trust. In a counter affidavit the petitioner, while not contradict ing Mr. Abdul Majid as to the non‑disclosure of his interest: in the Pakistan Cloth Market Federation, has stated that the Chairman and members of the Trust were already aware of his interest in the Pakistan Cloth Market Federation. He has not denied the rest of the allegations made by Mr. Abdul Majid. That the petitioner has in fact a substantial interest in the said Federation and has at all times been its president, is also not denied. To sum up the case against the petitioner, the Federation of which he is the president and in which he has a substantial interest was trying to get shop sites allotted to it under the Patpattian scheme to the exclusion of the public and for a consideration much less than that which could be secured if the shop sites were disposed of in open auction and the petitioner took part in the negotiations as well as the dis cussion relating to the allotment of the shop sites without disclosing his interest, and got himself put on the sub committee which was to deal with the question of the transfer of shop sites to the Federation in a meeting when the item was not even on the agenda. There can be no doubt on the present record that the petitioner had, at his own suggestion, and in a meeting when the item was not on the agenda, got himself put on the sub committee dealing with the question of allotment of shop sites in the Patpattian scheme to the Pakistan Cloth Market Federation. The petitioner has not, in his lengthy, affidavit, even referred to the meeting of the 14th of July, the meeting in which he was put on the sub‑committee. It is also clear that he had not during the meeting disclosed his interest, though it may be that some of the trustees (and one cannot approve of their conduct in putting him on the sub‑committee) may have known the petitioner's interest already. Also let it be stated that though all these facts appear on the present record, it is not clear whether, the fact that the petitioner himself suggested his inclusion in the sub‑committee, and the fact that he did not disclose his interest in the Pakistan Cloth Market Federation had been brought to the notice of the Government when it decided to remove the petitioner. I now proceed to consider the pleas of the petitioner. As regards the allegation of mala fides, there is no material at all on the file to show that the removal of the petitioner was in any way due to his alleged support to the Noon Ministry. The petitioner has not even referred to any conduct of his in support of that Ministry and it is safe to presume that there was no such conduct. It cats hardly be contended that the mere allegation that the petitioner was a supporter of the Noon Ministry is sufficient for holding every order passed by the succeeding ministry against the petitioner as malicious. On the record the plea is baseless. The second objection of the petitioner raises, in the view I take, the general question of the extent of the control by the Court over purely administrative acts. The contention on behalf of the petitioner is that the order of the Provincial Government removing the petitioner was passed without notice to the petitioner and considering the nature and effect of the order it is highly unjust that it should be passed without an opportunity of explanation. Before proceeding further it would be convenient to reproduce here sections 10 and 11 of the Punjab Town Improvement Act which grant the power of removal and provide for its effect:‑--

10. The Provincial Government may by notification remove any Trustee‑-- (a) if he refuses to act or becomes, in the opinion of the Provincial Government, incapable of acting or has been declared an insolvent, or has been convicted of any such offence or subjected by a Criminal Court to any such order as implies, in the opinion of the Provincial Government, a defect of character which unfits him to be a Trustee; or (b) if he has been declared by notification to be dis qualified for employment in, or has been dismissed from the public service and the reason for the disqualification or dis missal is such as implies in the opinion of the Provincial a defect of character which unfits him to be a Trustee; or (c) if he has absented himself for more than three conse cutive months from the meetings of the Trust, or of any committee of which he is a member, and is unable to explain such absence to the satisfaction of the Provincial Government; or (d) if, in the opinion of the Provincial Government, he has flagrantly abused his position as a Trustee; or (e) if he has knowingly acquired or continues to hold without the permission in writing of the Provincial Govern ment, directly or indirectly, or by a partner, any share or interest in any contract or employment with, by or on behalf of the Trust; or (f) if he has knowingly acted as Trustee in a matter other than a matter referred to in clause (iv) or (v) of the follow ing proviso in which he or a partner had, directly or indirectly, a personal interest, or in which he was professionally interested on behalf of a client, principal or other person; or (g) if he has acted in contravention of section 16; or (h) being a legal practitioner, if he acts or appears on behalf of any other person in any criminal proceedings instituted by or on behalf of the Trust; or (i) in the case of a salaried "servant of the State," if his continuance in office is, in the opinion of the Provincial Government, unnecessary or undesirable Provided that a person shall not be deemed, for the purpose of clause (e), to acquire, or continue to have, share or interest in a contract or employment by reason only of his‑ (i) having a share or interest in any lease, sale or purchase of land or building, or in agreement for the same provided that such share or interest was acquired before he became a Trustee; or (ii) having a share in a joint stock company which shall contract with, or be employed by or on behalf of the Trust; or . (iii) having a share or interest in a newspaper in which an advertisement relating to the affairs of the Trust is inserted; or (iv) holding a debenture or otherwise being interested in a loan raised by or on behalf of the Turst; or (v) being retained by the Trust as a legal practitioner; or (vi) having a share or interest in the occasional sale of an article in which he regularly trades to the Trust, to a value not exceeding in any one year, such amount as the Trust, with the sanction of the Provincial Government, may fix in this behalf. 11. (1) A Trustee removed under clause (a) of section 10 shall not be eligible for re‑election, or re‑appointment for a period of three years from the date‑of his removal: Provided that if a Trustee has been removed by reason of his having been declared an insolvent, he shall be eligible for re‑election or re‑appointment when he shall have obtained his discharge. (2) A transfer removed under any other provision of section 10 shall not be eligible for re‑election or re‑appoint ment until he is declared by the Provincial Government to be so eligible. One feels the force of the objection put forward on behalf of the petitioner when one considers that the power granted to the Provincial Government is indeed great. The Government can notify under section 10 (d), as it has notified in the present case, that a person "has flagrantly abused his position as a trustee"‑a finding which involves a higher degree of moral turpitude and which may, if public opinion was strong, ruin a person's career. By section 11 the removed person becomes ineligible for re‑election until the Provincial Government declares him to be eligible. The contention on behalf of the respondents is that the power granted to the Provincial Government for removing a member under section 10 (d) is altogether unfettered. The only condition of the exercise of that power is the opinion of the Provincial Government. No procedure and no inquiry is prescribed for the formation of this opinion. There is no duty to act judicially and there is no occasion for the application of any principle of natural justice. It is also pointed out that in some other analogous enactments there is a provision for notice and the inference from the omission to provide for any notice is that no notice was intended. Is the proposition put forward on behalf of the respon dents, that in respect of purely administrative acts the executive has no responsibility (at least none capable of judicial control) of justice, reason or fair-play, and that however unjust and unreasonable an order however unfair the procedure adopted by the executive officer, Courts have no power to set the matter right? It is true that generally when an order is impeached as unjust the question that is asked is whether there was a duty to act judicially or whether the proceeding was a quasi‑judicial one. I intend however to consider whether, apart from the duty to act judicially which is referred to in cases relating to certiorari, there is some duty cast upon the executive for being fair, just and reasonable, as a result of which they may have, in cases involving serious consequences to a citizen, to issue notice before passing an order. I am considering this question apart from duty to act judicially because my own conception of a quasi‑judicial proceeding is that there should be a judicial approach the attitude of a person who has to decide as a Judge between two contending propositions in a manner analogous to that of a judge. It may be that according to some judgments the proceedings with which I am dealing may amount to quasi‑judicial proceedings. It may be that according to some judgments the necessity of a notice would itself imply the existence of a quasi‑judicial proceeding. That, however, is not my own conception of a quasi‑judicial proceeding, and I prefer to consider the ques tion of notice in this case apart from whether the proceeding was judicial or quasi‑judicial. It must be kept in mind, when we begin consideration of the extent of a judicial control over an executive act, that whenever the question of such control arises before a Court the true question to be answered is whether the act is in accor dance with law. If it be in accordance with law, there is no power in the Court to declare it invalid. When we talk of some principle of justice governing the acts of the executive it is only because we regard that principle implied in the relevant law so that the breach of the principle would make the act illegal. The point to be decided always is whether the order is within the powers that have been granted. It is not necessary, however, that conditions to which the exercise of power is subject should be express. There may be a condition of the exercise of power implied in the discretion granted and a non‑compliance with such condition will as much invalidate the act as the breach of an express condition. On a careful consideration of the matter, I am of opinion that it is not possible to support the proposition that in respect of purely executive acts the discretion of the executive is not subject to any consideration of justice, reason and fair-play The Legislature, while it grants power to pass an order, wants it to be exercised fairly, reasonably and cautiously. It cannot be urged that the Legislature supports caprice, malice or wanton action. These are evils and evil the Legislature cannot intend. Of course, I do not mean that in every case of exercise of executive power the Court will itself determine what is proper order to be passed and so substitute its judgment for that of the executive. That would be usurping the func tions of the executive. If the order is one that could possibly have been passed by a person acting, justly, fairly and reasonably, the Court has no further concern in the matter. These are the limits of the inquiry by the Court. Sufficient authority exists in support of what I have stated above. The first case I want to refer to in this connection is the judgment of their Lordships of the Privy Council in Leslie Williams v. Haines Thomas Giddy (11 I C 509). True that was an extreme case and the exercise of discretion was, as their Lordships put it, "at best a colourable performance." But there are observations in the judgment which without doubt support the conclusion that there does exist even in respect of administrative acts a duty of being just, fair and reasonable. In that case the Public Service Board had to determine what amount should be granted as gratuity to a servant of the State of New South Wales. The Board had discretion to grant at the rate of one month's average salary for each year of service. The average monthly salary of the servant concerned was 23L 10s. Id. In the words of their Lordships, "They (the Board) struck off the pounds, they struck off the shillings, and they allowed him just one penny for each year of service." It was nobody's case that the servant had in any way mis -conducted himself so as to merit such treatment. Their Lordships held that there was no true exercise of discretion. Lord MacNaghton, who delivered the judgment of the Board, while discussing the question whether there was a real exer cise of discretion, said: "Well, this is not the first occasion on which seven years' faithful service has met with a recompense at once unexpect ed and undesired. That is probably the best that can be said for the action of the Board. But was it reasonable? Was it fair? Few would deem it a generous or handsome tribute to the work of an old and faithful servant even with the extra farthing thrown in. Plain folk would call it a mockery a sham‑a pretence. Nobody, of course, can dispute that the Government or the Board had a discretion in the matter. But it was not an arbitrary discretion as Bring, J., seems to think. It was ‑a discretion to be exercised reason ably, fairly and justly." Their Lordships, have stated that the discretion is to be exercised justly, fairly and reasonably. The act with which their Lordships were concerned was without doubt a purely administrative act. The Public Service Board were not determining any facts at all. Facts were admitted. The only question was the amount of gratuity. which may be awarded. The Board had a discretion to award any amount up to one month's salary for every year of service. In the opinion of their Lordships, they had not exercised the discretion justly, fairly and reasonably, and the exercise of, discretion was held to be invalid. In Halsbury Volume 31, page 533 the rule relating to exercise of the functions by the executive is thus stated:‑ "Statutory powers must be exercised bona fide, reasonably and without negligence, and when they are conferred for a purpose unknown to the common law; it is assumed that what is not expressly or impliedly authorised is prohibited." In Maxwell Ninth Edition, page 129 it is stated that "where, as in a multitude of Acts, some thing is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statute. "According to his discretion" means, it has been said, according to the rules of reason and justice, not private opinion; according to law and not humour; it is to be not arbitrary, vague and fanciful, but legal and regular; to be exercised not capriciously, but on judicial grounds and for substantial reasons. And it must be exercised within the limits to which an honest man competent to the discharge of his office ought to confine himself, that is, within the limits and for the objects intended by the Legislature. These dicta may be summed up in the statement of Lord Esher that the discretion must be exercised without taking into account any reason which is not a legal one. If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion." In Cooper v. The Wandsworth Board of Works (143 English Reports 414), the question before the Court was whether an order by a District Board directing demolition of a house built without the required seven days' notice to the Board was illegal as the Board had passed the order without notice to the party concerned. The 76th section of the Metropolis Local Manage ment Act which gave the Board power to demolish did not prescribe any notice by the Board. The learned Judges held that the order of demolition was illegal as it was passed without notice. Erle, C. J., held notice was essential irrespective of any duty to act judicially. The learned judge said: "It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard is limited to a judicial proceeding, and that a district board ordering a house to be pulled down cannot be said to be doing judicial act. I do not quite agree with that; neither do I undertake to rest my judgment solely upon the ground that the district board is a Court exercising judicial discretion upon the point; but the law, I think, has been applied to many exercises of power which in common under standing would not be at all more a judicial proceeding than would be the act of the district board in ordering a house to be pulled down." Kesting, J. too held the order to be improper with out reference to the question whether there was a duty to act judicially. Willes and Byles JJ., did rest their decision on the ground that the act was judicial. But I can say (as Erle, CT, had said with reference to earlier cases) that the order of the District Board in that case was no more judicial than the order with which we are concerned in the present case. The provisions are similar in character. In that case too there was no provision for any inquiry by the District Board. The present case is rather stronger because a serious loss to reputation may be of much greater importance than the destruction of a building. Hopkins v. Smethwick Local Board of Health ((1890) 24 Q B D 712) is a similar case. In that case a demolition had been ordered by the local board without notice to the person concerned. The original action was heard by Lenman and Wills JJ. Denman J., , simply held that the case was within the rule laid down in Cooper v. Wandsworth District Board Wills, J., was of the opinion that the very nature of a determination could show that the act of reaching that determination was a judicial act. Condemning a man to have his house pulled down was, in the opinion of the learned Judge, a determination of a kind which could only be the result of a judicial act. Whether we agree with this definition depends upon our definition of a judicial act. But what is important to bear in mind is that in similar circumstances an order without notice was held to be invalid on the ground that it was unjust, On appeal in that case, Esher M.R. made no reference to the judicial or administrative nature of the act. The learned Judge simply said with reference to the absence of notice: " It would be contrary to fundamental justice to allow that course to be taken without giving the owner notice and an opportunity to show cause ". There are some Indian cases where a similar view has been taken. In Ghisalal v. Regional Transport Authority (A, I R 1952 Madhya Bharat 128) the question was whether a permit under the Motor Vehicles Act could be cancelled without notice. It was held that even in respect of administrative note, principles of justice apply. The learned judges said: Though the Court may not control all administrative and executive acts they can and in order to see that no injustice is done by authorities that are invested by Legislative enactments with large statutory powers affecting the rights of private citizens, should insist-‑if such insistence is necessary to achieve the object and purpose of the statute‑that in passing even administrative orders the well -recognised principles of approach are not ignored. In the case before us a permit was granted to the present applicant. This was cancelled on an appeal preferred by Fazil Khan, without any notice to the appli cant and without affording him an opportunity of being heard. I am clear that this was improper and the present is eminently a fit case in which the High Court ought to interfere to set right the wrong ". In S. K. Gosh v. Vice‑Chancellor, Utkal University (A I R 1952 Orissa 1) the Syndicate of the University cancelled an examination on the ground of leakage of examination papers. The act was regarded as a wholly administrative act, the application impeaching it being not for certiorari but for mandamus. But it was held that a body exercising statutory powers was not protected merely because it acted bona fide. It must also act reasonably and with due care. I give below a rather lengthy extract from the judgment as it refers to a number of English authorities on the point. The learned Judges say: "But a body exercising statutory powers cannot rely on good faith alone for escaping the jurisdiction of this Court under Article 228, however arbitrary or capricious its actions may be. If want of good faith be held to be the only ground for interfering with the exercise of statutory powers, the primary object of the writ of mandamus namely to supply defects of justice‑would be frustrated. The field in which the question of bad faith arises is "such that the reservation for the case of bad faith is hardly more than a formality" per Lord Redcliffe 'Nakkuda Ali v. M. F. De. S. dayaratne ((1951) 1 A C 66 at p. 77) It must further be shown that the statutory powers were exer cised reasonably with due care (see 'Halsbury, 2nd Edition, Vol. 31, p. 533'.). As early as 1864 in Galloway v. Corporation of London ' ((1864) 46 E R 356 L J), Turner observed: " Powers, such as those which are given to the Corpo ration by this Act of Parliament, are at all times to be exercised 'bona fide' and with judgment and discretion". This observation was quoted with approval in Mayor & C. of Westminster v. L. & N. W. Rly. Co. ((1905) A C 496) where Lord MacNaghton said " It is well settled that a public body invested with statutory powers such as those conferred upon the cor poration must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably ". To a similar effect is the observation in " The Queen v. Church Wardens of All Saints, Wagan (1 A C 611 at p. 624) of Lord Hatherley where he emphasised that statutory bodies should exercise their powers justly and fairly in a reasonable and proper manner. (See also the observations of Farwell, J., in 'Roberts v. Charing Cross Euston & Hamestead Rly. Co.' (42 Empire Digest p. 723. para. 1423) In 'Sanitary Commissioners of Gibraltar v. Orfila ', ((1890) 15 A C 400) Lord Watson emphasised the same aspect by saying: " It is an implied condition of statutory powers that when exercised at all, they shall be executed with due care". It is true that this Court will not interfere with or revise the opinion of the administrative body if there is anything on which that body could reasonably have come to its conclusion ( Halsbury, 2nd Edition, Volume 31, pp. 35‑36.). But the discretion should be exercised in a judicial spirit. Lord Reading, C.J., observed in 'Rex v. London County Council '. ((1915) 2 K B 466 at p. 475) " The second and more serious contention is that the Council have not exercised their discretion in a judicial spirit in the sense that they have allowed extraneous considerations to affect their decisions. If they have allowed themselves to take into consideration matters which had no bearing upon the merits of the case before them, but which nevertheless influenced their minds in arriving at their decision, they have not exercised their discretion properly and have not heard and determined the case according to law ". Thus there is ample authority in English decisions to justify inference by this Court if on the materials placed before us it can be held that the Syndicate did not exercise its discretion reasonably and with due care even though it might have acted in good faith. I am fully aware that this Court cannot take upon itself the functions of an Appellate Court of fact, scrutinise the materials that were available to the Syndicate and substitute its own discretion and judgment for that of the Syndicate. But the writ of mandamus being of the most extensive remedial nature and intended for supplying defects of justice its application should not be refused in cases where there is an abuse of discretion by a responsible statutory body. As Lord Mansfield pointed out in the case of Dr. Askew cited above: "It is true that the judgment and discretion of deter mining upon this skill, ability, learning and sufficiency to exercise and practice this profession is trusted to the College of Physicians and this Court will not take it from them, nor interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; nor arbitrary, capricious, or biased; much less warped by respondent or personal dislike ". The American authorities also support the same view: " The great weight of authority is to the effect that an exception to the general rule that discretionary acts will not be reviewed or controlled exists when the dis cretion has been abused. The discretion must be exercised under the established rules of law, and it may be said to be abused within the foregoing rule where the action complained of has been arbitrary or capricious . . . . or there has been a refusal to consider partinent evidence . . " (38 ' Corpus Juris ', p. 598, para. 74)". Can it be said on the materials that were available on the 21st April, 1951, that the members of the Syndicate acted with due care and reasonably in directing the holding of a fresh examination in Anatomy?" In Extraordinary Legal Remedies by Ferris, the rule with respect to the control of administrative acts is thus stated: " The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reason ably and within his jurisdiction, that is, upon facts sufficient to support his action ". Further it is said: " The rule that mandamus will not lie to review or control an actual exercise of discretion is qualified to this extent, that the discretion must be exercised reasonably and honestly, and not arbitrarily or capriciously, or in bad faith ". In Dipa Pal v. University of Calcutta (A I R 1952 Cal. 594), the University Board of Examiners found a student guilty of misconduct and cancelled her examination without notice to her. The law did not provide for any notice or for any inquiry. The decision of the Board of Examiners was confirmed by the Syndicate of the University. It was held that the act of the Board of Examiners was a judicial act, while the act of the Syndicate in confirming the order of the Board of Examiners was a wholly executive act. Both acts, it was held, had to be performed reasonably and carefully and the order was held void as it did not comply with those requirements. Even with respect to the act of the Board of Examiners, the decision that it was a judicial act was based only on the nature of the act, as was done by Wills J in Hopkins v. Smethwick Local Board of Health. As I stated above with respect to Cooper v. The Wandsworth Board of Works, I can say with respect to this case too that the order of the Board of Examiners was no more judicial in character than the order of the Provincial Government in the present case. It is just because the student concerned was held guilty of misconduct that the learned judges regarded the act as judicial although no notice and no inquiry had been prescribed by the relevant provisions of law. Also, although the Board of Examiners was found to be acting judicially, so far as the Syndicate was concerned the finding was that its confirmation was a purely executive act and still it was held that as it was bound to act reasonably and with care, and it had not so acted, the order was void." With respect to municipal corporations a rule was laid down by Rattigan. J., in Ghulam Muhammad v. Jangbaz and M. C. Jullundur (58 P R 1907) that an act of a municipal committee would be invalid if it was capricious, malicious, wanton or oppressive. I do not know of any later case in which any fault has been found with the rule enunciated in that case and I am of the opinion that the principle on which the discretion of the municipal committee was regarded subject to such limitations would apply generally to all administra tive acts. My conclusion is that even in respect of purely adminis trative acts there is a duty to act justly, fairly, and reason ably, and if the order impugned be one which could not possibly have been passed by a person acting justly, fairly and reasonably, the order will be invalid in law. I am also of the opinion that the duty to act justly, fairly and reasonably necessitated the grant of an opportunity of explanation to the petitioner by the Provincial Government before passing the order in dispute. I do not say that in all cases where an executive order is passed a notice should be sent to the party concerned. That will depend upon the nature of the order, the effect it is going to have, and other relevant circum stances. There may be no need of sending a notice where for instance a person has already had an opportunity of ex planation. He may already have been convicted or held guilty in some inquiry. It may also be that in a case where an order is urgently called for and public interest may suffer by delay in the proceedings, notice has to be dispensed with. In cases not involving serious consequences where an execu tive officer has to deal with too large a number of cases, he may be forced to act only on such material as he can procure without notice. The duty is to act justly, fairly and reason ably and whether such duty will involve in a particular case the giving of notice would depend on the circumstances oil that case. I have no doubt, however, that where the consequences of the order are going to be serious and there is no urgency, the party concerned is entitled to an opportunity of explanation. In the present case the order that has been passed would amount to a finding against the petitioner that he had been guilty of an act involving a high degree of moral turpitude. The case is not only similar to some of those I have mentioned above, but is definitely stronger. It is true, no doubt, that some of those judgments regarded the acts as judicial; but what I am really concerned with is that the learned judges regarded the passing of an order involving serious consequences without notice unjust and held the order invalid on that ground. I have no doubt also that the present order is not less judicial in character than the orders passed in the cases with which I have dealt. I hold that an oppor tunity of explanation was essential in the present case. The next question is as to what is the order that we should pass. Under Article 170 of the present Constitution of Pakistan, our jurisdiction is not limited to the issue of the well‑known writs of certiorari, mandmus, etc. As was observed in Jeshinglehai Ishwar Lal v. Emperor (A I R 1950 Bom. 363 (F B)) in con nection with the powers of the Indian High Courts under the analogous provision in the Indian Constitution, the High Court can in the exercise of this jurisdiction pass all such orders as are suited to the circumstances of a case. The object of Article 170 of our Constitution is to enable the High Courts to enforce observance of law by public officers and whenever there is a violation of law by such officers, an appropriate order can be passed to compel observance. Let me make it clear that I do not approve of the conduct of the petitioner. He had no opportunity of an explanation before the Provincial Government, but he had an opportunity of explanation before us. Affidavits have been filed by both the parties as to the facts which led to the removal of the petitioner. I have already stated that the petitioner had got himself put on the committee which was dealing with the transaction between the Federation, of which the petitioner is the President, and the Trust. I might have dismissed this petition on the ground that the jurisdiction under Article 170 of the Constitution being a discretionary one, the conduct of F the petitioner would disentitle him to relief. I am impressed, however, by the anormity of injustice that can be done to a party if there is a finding given against him that he has flag rantly abused his position as a trustee and I would, therefore, in spite of that fact, entertain this petition and set aside the order passed by the Provincial Government. As a result, the order of the Provincial Government removing the petitioner under section 10 (d) of the Punjab Town Improvement Act is set aside on account of want of an opportunity of explanation, and the Provincial Government is directed if it wants to proceed against the petitioner under the provision of the Punjab Town Improvement Act td do so only after giving him an opportunity to explain. No order as to costs. AKHLAQUE HUSAIN, J.‑--I concur in the order proposed by my learned brother. It was blatantly unfair of the Provincial Government to remove the petitioner from the office he was holding without giving him any opportunity whatever to dispel the suspicions which may have existed against him. I am also inclined to think, on the basis of the material on the record, that the members and officials of the Lahore Improvement Trust were fully aware of the peti tioner's connection with, and interest in, the Pakistan Cloth Market Federation. A. H. Order set aside.