ATAULLAH SAJJAD, J.---This writ petition challenges the acquisition of property measuring 16 acres, 7 kanals and 13 marlas and comprising of a number of cottages, other buildings, servant quarters, an orchard and vacant land, by the Capital Development Authority (hereinafter called the Authority) under the Capital Development Ordinance XXIII of 1960 (hereinafter called the Ordinance). The property belonged to the Murree Brewery Co. Ltd. Who are the petitioners before us. The respondents are three in number, namely, Pakistan through the Secretary to the Government of Pakistan Works Division, the Capital Develop--ment Authority, Rawalpindi, and the Deputy Commissioner, Capital Development Authority (Land Directorate), Rawalpindi.
2. The property in question was requisitioned in August 1959, and is being used for the President's Secretariat. The petitioners received two notices dated 10th of September 1964. From the Deputy Commissioner, C. D. A., Rawalpindi, copies of which are Annexures `C' and `D' on this record. The first notice purported to be under section 21 of the Ordinance and notified the general public that a Scheme had been framed under the Ordinance and the land in question was sought to be acquired for the purposes of that Scheme. The notice called upon all persons whose rights and interests were affected, to tender their objections to the execution of the Scheme on 17th of September 1964, at 9 a.m. In the Lands Directorate of the Authority. The second notice was under section 27 of the Ordinance and intimated the petitioners that it was proposed to acquire their property in connection with the construction of Islamabad in compliance with the directions of the Authority dated 10th of September 1964, and objections to the proposed acquisition shall be heard on 21st of September 1.964. The petitioners objected to the proposed acquisition by filing a representation (Copy Annexure `E') in which it was stated that the Government will not gain monetarily by acquiring this property; that the alleged purpose of acquisi--petition i.e. The accommodation of President's Cabinet at Rawalpindi was against the declared intention of the Government to shift the Secretariat to Islamabad and that the acquisition will result in truncating the property of the Company and will affect injuriously its future Schemes about its industry. It was also asserted that the Scheme for which acquisition was being made did not find place in the master plan as required under section 11 of the Ordinance.
3. The petitioners sought an interview with the President through their Managing Director but were granted permission to have an interview with Mr. N. A. Farooqi, the then Principal Secretary to the President. It is alleged in this writ petition that Mr. Farooqi told the Managing Director of the petitioner company that the reasons for the acquisition were fiscal and that it was quite conceivable that the Central Government or any Agency of the Central Government may remain in Rawalpindi for the next twenty years. The Managing Director, after this interview addressed a letter to the Principal Secretary to the President of Pakistan on 10th of October 1964 (Copy Annexure `F') and suggested that the acquisition would not yield the economical results which the Government were expecting and that the arrangements that existed before the move for acquisition was made, would prove more beneficial to the Government. It was also alleged in this representation that the Deputy Commissioner was proceeding with the assessment of the com--pensation notwithstanding the fact that tile Principal Secretary had promised to consider sympathetically the request of the Company for a stay order. The representation goes on to suggest that there had been an agreement already between the Principal Secretary and the Managing Director of the Company regarding stay of proceedings.
4. Mr. N. A. Farooqi replied to this letter on 14th of October 1964 (Copy Amnexure `G') saying that lie had agreed to consider the representation made by the Managing Director but so far as his memory went there was no suggestion for a stay order. He denied that there was any agreement with regard to the stay of proceedings. He also intimated to the Company that he had considered their representation but had come to the conclusion that the acquisition should be proceeded with.
5. The proceedings .Regarding acquisition were completed by the Deputy Commissioner on 7th of November 1964.
6. The present writ petition came up for preliminary hear--ing on 18th of November 1964, when an order was passed by a Division Bench calling for a report from respondents 2 and 3. The petitioners had also moved an application for stay but it was stated by their counsel at the bar that it had become infructuous as the acquisition had taken place and the award had been announced.
7. The petitioners also filed an appeal before the Commis--sioner, Rawalpindi Division, in his capacity as "Appellate Authority" under section 36 of the Ordinance. A copy of the memorandum of appeal dated 21st of November 1964, is at page 53 of the record. This appeal, we are told is still pending.
8. The grounds on which the acquisition was attacked ire the writ petition are as follows.-
(i) that the acquisition was mala fide ;
(ii) that it was not made for the purposes of the Ordinance ;
(iii) that the preparation of a Scheme was a pre-requisite to the acquisition of property under the Ordinance and since no Scheme existed, the property could not be acquired;
(iv) that the two notices issued under sections 21 and 27 of the Ordinance were issued simultaneously and thus deprived the petitioners of "due opportunity" to raise objections against the proposed acquisition ; and
(v) that no written order of acquisition had been served on the petitioners under section 25 of the Ordinance.
9. Preliminary objections and para-wise comments were filed on behalf of the Authority. Written statement was also filed on behalf of respondent No. 1 i.e. Pakistan. The Authority also I1 led a brief additional written statement wherein it was inter alia asserted that a Scheme had actually been prepared under the Ordinance. A copy of the Scheme was attached with the additional written statement. This copy shows that a Scheme designated as "rovision of office accommodation fur the President's Secretariat" had been made by the Authority and the Deputy Commissioner was directed to make arrangements "for selecting suitable land, acquire it and place it at the disposal of the relevant authorities and do all other acts necessary to achieve the purpose."
10. The written statements of both the respondents are almost on similar lines. It was stated by the Authority that the land acquired was within the Specified Area as defined in the Ordinance and was liable to acquisition at any time under sec--petition 22 of the Ordinance. It was asserted that a notice under section 21 of the Ordinance was not a pre-requisite to the exercise of the powers of acquisition. It was further asserted that it was not, at all, necessary under the law to serve a notice of acquisi--petition under section 25 of the Ordinance. The allegations regarding mala fides were refuted and it was stated that the allegations were vague and that the two respondents had, in any case, no concern with what transpired between the petitioners and certain unnamed officers. In respect of the immediate purpose of the acquisition it was stated that the provision of office, accommodation for the President's Secretariat was within the framework of the Ordinance and the premises in dispute was found to be most suitable for that purpose. It was further stated that the Authority had prepared a master plan and a phased master programme under section 11 of the Ordinance for the development of the Capital site and its environs which were approved by the Central Government and the environs included the acquired property. The framing of a Scheme, it was stated, was discretionary and not a condition precedent for acquisition. In reply to the complaint of the petitioners that the acquisition of the property in dispute would truncate their industrial concern and would curtail their business, it was stated that in the future shape of things according to the master plan prepared by the Authority and approved by the Central Government, the acquired area and the rest of the property which is left with the petitioners was not meant for an industrial purposes and the Murree Brewery Co. Will have to vacate the entire site and shift from their present premises to the zone reserved for the industrial purposes. Objections were also taken to the maintenance of the present writ petition on the ground that an equally speedy and efficacious remedy by way of appeal had been availed of by the petitioners.
11. I will first deal with the question whether in the presence of a remedy by way of an appeal it is permissible to us under the law to entertain this writ petition. Appeal is an efficacious alternative remedy and this Court will not ordinarily exercise its powers under Article 98 of the Constitution of 1962 where such a remedy has been provided under the law and availed of by the aggrieved party.
In this writ petition, however, there are allegations of mala fide, excess of jurisdiction and failure A to observe the rule of audi alteram partem. It does not require any effort to hold that the presence of mala fide or the failure to observe the rules of natural justice corrode the very founda--tions of jurisdiction. In my view where such allegations are made the pendency of an appeal will not stand in the way of the aggrieved party to seek relief under Article 98. It was held by the Supreme Court in Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others (PLD1961SC119) that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well--recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority.
12. It was held in Muhammad Swaleh and another v. Messrs United Groin & Fooder Agencies (PLD1964SC97) that the violation of the principles of natural justice would render the proceedings coram non judice. The Supreme Court held in the case of Messrs Farid--sons Ltd. And another v.
Government of Pakistan and another (PLD 1961 SC 537) that notwithstanding the existence of an alternative remedy by way of appeal, the High Court will exercise its powers to issue writ where the violation of the rules of natural justice is alleged. Reference in this connection may also be made to R. v. Wandsworth, JJ., Ex parte Read : ((1942) All E R 1) where the Justices who had retired to decide a preliminary question convicted the petitioner on one of the charges without giving him an opportunity of answering the charge. It was held that this was not a case of want of jurisdiction but was analogous to it. It was further held that where there has been denial of natural justice, the applicant is entitled to an order of certiorari even though another remedy by way of appeal is available to him.
13. In a case where bias or malice exists, the Court or tribunal concerned is not properly constituted.
The Supreme Court of Pakistan held in Messrs East & West Steamship Company v. Pakistan (PLD 1958 SC (Pak.) 41) that where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party.
14. The preliminary objection having been disposed of, I will now proceed to. Deal with the various contentions raised. The allegation of mala fide is based on the assertion that there had been some dispute, about the assessm ent of rent of the property after it was requisitioned, between the petitioners and the officers of the Central P. W. D. Who had got annoyed with the petitioners on that account. It was further alleged that a high officer had asked the Managing Director of the petitioners to donate a sum of rupees fifty thousand towards a particular fund but the Managing Director contributed a much smaller amount and the officer thus got annoyed. The officers who according to the petitioners had motivated the acquisition on account of mala fide remain unnamed. It was not even asserted that they or anyone of them had any connection with the Authority on whose directions the acquisition has been made. No further evidence was brought on the record to support the allegation of mala fide. It is, therefore, impossible to base any finding of mala fide on the bare averment made in the petition.
15. The allegation that the acquisition is not for the purposes of the Ordinance and the Authority has transgressed its jurisdiction, may now be examined.
16. A reference to the Ordinance shows that its purpose is to make all arrangements for the planning and development of Islamabad within the framework of a regional development plan.
The Authority has been constituted under section 4 of the Ordinance to carry out the purposes of the Ordinance. It has the power to acquire and hold property, both movable and immovable. The general direction and administration of the Authority and its affairs are to vest in the Board which may exercise all powers and do all acts and things which may be exercised or done by the Authority. The areas with which the Authority is to deal are of two species. One is the "Capital Site" and the other are "Areas specified in the Schedule to the Ordinance." Rawalpindi is one of the Specified Areas. The Central Government can add to the list of "Specified Areas" by a notification in the Gazette. The Authority has to prepare a master plan and a phased master programme for the development of tine Capital Site and may also prepare a similar plan and programme for the rest of the Specified Areas. These plans have to be approved by the Central Government. The Authority under section 12 has the further power to ask any local body or agency which means any Department or any organization of the Central or Provincial Government and includes a corporation, or other autonomous or semi-autonomous body set up the Central or Provincial Government, to prepare a Scheme or Schemes in respect. Of matters ordinarily dealt with by such local bodies or agencies.. Subsection (2) of section 12 is illustrative of the subject-matters regarding which the Schemes may be framed. It may be reproduced here with advantage :- Section 12(2)-Such schemes, may relate to-
(a) land use, zoning and land reservation ;
(b) public buildings ;
(c) industry ;
(d) transportation and communications ; highways, roads, streets, railways, aerodromes ;
(e) tele-communications, including wireless, television, radio, telephone ;
(f) utilisation of water, power and other natural resources ;
(g) community planning, housing, slum clearance, ameliora--petition ;
(h) community facilities including water supply, sewrage, drainage, sewrage disposal, electricity supply, gas supply and other public utilities;
(i) preservation of objects or places of historical or scientific interest or natural beauty.
The Central Government has the power under subsection (3) of section 12 to add to the list of subjects given in subsection (2) referred to above. The expenditure incurred on the preparation of these Schemes has to be apportioned or borne as agreed between the Authority and local bodies or the agencies concerned.
17. Under section 13, the Authority can itself prepare a Scheme relating to the subjects mentioned in subsection (2) of section 12 in the Specified Areas. Section 14 enjoins that a Scheme shall indicate the manner of its execution, the estimate of costs and benefits and the allocation of costs to the various purposes. Under section 17, the Authority may call upon any local body or agency to execute a Scheme or to enforce regula--tions on behalf of the Authority. Under section 20, the Authority is authorised to remove or demolish the buildings in execution of a Scheme, but this should not be done unless an opportunity of being heard has been given to the owner or occupier thereof. Similarly, under section 21, a notice had to be issued to all persons w1lose rights and interests are affected by the execution of a Scheme to enable them to file their objections to its execution.
18. Section 15 which finds place along with the above provisions in the same Chapter i.e. Chapter III, deals with the general powers given to the Authority under the Ordinance. Under clause (i) of subsection (2) the Authority may acquire any land within the Specified Areas in accordance with the procedure laid down in Chapter IV. The Authority has also the powers under clause (vii) to proceed with certain development Schemes pending the preparation of a master plan.
19. The powers of acquisition are contained in Chapter IV. Section 22 says that all land within the Specified Areas shall be liable to acquisition at any time in accordance with the provisions of this Chapter. Section 25 authorises the Deputy Commissioner to acquire any land for the purposes of the Ordinance by an order in writing. Under section 27, the Deputy Commissioner has to issue a public notice declaring the intention of the Central Government to take possession of the land and inviting claims to compensation and objections to the measurements made by the Deputy Commissioner. Section 33-A authorises the temporary acquisition up to a period of five years and such land may after the aforesaid period be released or acquired permanently on the application of the owner.
20. An analysis of the various provisions referred to above' would show that it has been left to the discretion of the Authority to ask a local body or agency to frame a Scheme or itself do the same.
Subsection (2) of section 12, quoted above makes it clear that the scope of framing Scheme generally relates to matters of public utility and the object of the provisions of Chapter III is to give a dominant voice to the Authority in such matters in the Capital Site or Specified Areas so that its Schemes do not come in clash with the local bodies or agencies functioning in these areas. The Schemes may have to be framed and changed owing to the contingencies which may arise in fulfilling the objects of the Ordinance.
21. The powers of acquisition are contained in a separate self-sufficient Chapter. Even according to section 15, which finds place in Chapter III, a general and untrammeled power is given to the Authority to acquire land. If the intention of the Legislature was to make acquisition of the land subject to preparation of a Scheme, a clear indication should have been given in section 15.
It is also to be noticed that separate provisions under sec--tions 21 and 27 have been made for providing opportunities to the affected persons for being heard. This would show that the two Chapters i. e. Chapters III and IV are self-contained codes on their respective subjects, and their provisions are not inter--dependent. The Schemes may be amended or revised according to the situations arising in future and the Legislature very wisely kept the power of acquisition distinct and uncontrolled by matters of detail.
22. The written statements filed on behalf of respondents 1 and 2 show that in the future shape of things as shown in the master plan and the phased master programme, this area has been specified for purposes other than industrial. The case of the Authority is that the property has been acquired under a Scheme. A copy of this Scheme was attached along with the additional written statement. The Authority has the power to frame a Scheme under section 13 of the Ordinance. The subject of public buildings is cowered by clause (b) of subsection (2) of section 12. So even if a Scheme was necessary before passing the order of acquisition, it is there. If the costs etc. Have not been mentioned as required under section 14, it is because of the reason that the award had yet to be made when the Scheme was issued. That is after all a mater of detail. The contents of this Scheme snow that the immediate object of the acquisition is to provide suitable accommodation for more efficient functioning of the President's Secretariat.
23. The property also figures in the long term arrangements and is meant for use in the regional development scheme and has been shown in the master plan, The acquisition is, therefore, clearly for the purposes of the Ordinance.
24. I also find that it was not at ail necessary to serve any order under section 25 of the Ordinance on the person whose property is sought to be acquired. That section gives powers to the Deputy Commissioner to acquire property on the direction of the Authority. The notice issued to the petitioner shows that the Deputy Commissioner teas acting in pursuance of the order of the Authority under which he was required to take acquisition proceedings. The provisions regarding show-cause notice against acquisition are contained in section 27 under which a notice has admittedly been issued to the petitioners and they have filed this objections.
25. It was submitted at the bar that the Presidential Secretariat has to be removed after some time and that the apparent purpose for which this property is acquired will then disappear. It is further asserted that fiscal considerations prevailed with the Authority to acquire this property and this was not a relevant consideration within the purposes of the Ordinance.
1-a 26. It is not within the domain of a Court of law to analyse the sufficiency of the reasons which prevail with an Authority to acquire property, arid if apparantly the acquisition is for a public purpas9, the Court will not interfere unless a question off n7ala fide is raised. It was held in Stockton & Darlington Railway Co. v. Brown ((1860) 9H L C: 246), that "when the Legislature authorised railway directors to take, for the purposes of their undertaking, any lands specialty described in the Act, it constituted them the sole Judges as to whether they will or will not take those lands: Provided only that they take them bona fide with the object of using them for the purposes authorised by the Legislature, and not for any sinister or collateral purpose I do not think there is nothing to vitiate the proceedings if one of the considerations is fiscal and the desire is to lighten the burden on the State exchequer. In this case, however, the purpose of the acquisition is not solely fiscal.
27. The respondents 1 and 2 have stated that they have acquired the land for permanent use for regional development in a Specified Area. The petitioners have not been able to rebut this factual assertion. It also appears from the pleadings of the parties that the Authority thought that this building might be used for the purpose of the Presidential Secretariat for another twenty years.
Even if this was the sole purpose for which this property was acquired, I would be inclined to hold that this was a valid purpose under the Ordinance. The fact that the public purpose for which the land is being acquired is for limited duration does not affect the powers of acquisition of the Authority. In Ezra v. The Secretary of State and others (I L R 30 Cal. 36) the Government had acquired the land for Bank of Bengal and the agreement executed under section 41 of the Land Acquisition Act, 1874, showed that the contract between the Government and the Bank of Bengal would be terminable at the end of ten years. It was urged that the limited duration of the public purpose for which the land was being acquired for the Bank vitiated the acquisition. The Calcutta High Court held that the plaintiff had no concern with this aspect of the case as he obtained the absolute value of the property and was debarred from raising any question relating to the permanency or otherwise of the purpose for which it was acquired.
28. The objection regarding the violation of the rules of natural justice is based on the assertion that two notices under sections 21 and 27 were issued simultaneously. The grievance of the petitioners is not that they were deprived of a hearing but their complaint is that the simultaneous issuance of the notices deprived them of a "due opportunity" to show cause. I do not see how this is correct. I have found above that the framing of a Scheme is not a pre-requisite to the acquisition.
The notice issued under section 21 was, therefore, unnecessary and a surplusage. It, however, did not in any way prejudice the petitioners who found a wider range for raising objections in reply to the two notices. The petitioners filed objections to the show-cause notices and were heard.
Therefore, there has been no infringement of the rules of natural justice. As to the issuance of two notices simultaneously, the matter stands resolved by the judgment of the Supreme Court in the case of Maulana Abul Ala Maudoodi v. Government of West Pakistan (PLD 1964 SC 673) and Lt.- Col. Muhammad Amin Khan and others v. Government of West Pakistan and others (PLD 1966 Lah, 111) wherein it was held that simultaneous issue of notifications does not vitiate the proceedings.
The latter was a case under the Land Acquisition, Act.
29. The fundamental objections raised by the petitioners fail. The matters of procedure can best be decided by the Appellate Authority.
30. As a result of the above discussion, I dismiss this writ petition with costs.
SARDAR MUHAMMAD IQBAL, J.---I agree.