' MUHAMMAD YUNUS SURAKHVI, J.--This appeal, with the leave of the Court, has been filed to call in question an order recorded by the High Court on June 10, 1995, whereby the writ petition filed by the appellants, herein, challenging the acquisition proceedings, was dismissed.
2. The precise facts of the case are that the appellants and pro forma-respondents are admittedly owners of land situate in village Azizpur (Chittarpari), Tehsil Mirpur. Out of their land, land measuring 1 Kanal 6-1/2 Marlas detailed as 3 Marlas from Survey No,551(Old), 807 (New), 19-1/2 Marlas from Survey No,617-min (Old), 817 (New) and 4 marlas from Survey No,617-min (Old), 818 (New), was planned to be acquired by respondents Nos.1 and 2 for providing a link road facility to the allottees of plots in Azizpur Hamlet. A Notification under section 4 of the Land Acquisition Act was issued on July 25, 1994, by the Collector, District Mirpur. The appellants, herein, challenged the acquisition proceedings, through a Constitutional petition, in the High Court mainly on the ground that the land owned by the appellants is being acquired with a mala fide intention, on account of inimical attitude of the Chairman, M.D.A., towards the appellants, as they did not support him in the previous election, contested by him as a candidate for Member Legislative Assembly. It was also averred in the writ petition that in the Master Plan of the Azizpur Hamlet the facility of road to the allottees has already been provided but on the spot some portion of the road has been encroached upon by various persons and instead of removing the obstruction and encroachment respondents Nos.1 and 2 were bent upon to acquire the land of appellants with a mala fide intent, against the provisions of relevant law. The writ petition was dismissed by the High Court vide the impugned order mainly on the following grounds:--
(i) That the acquisition proceedings have been initiated for the purpose of providing road facility to the allottees of Azizpur (Chittarpari) Hamlet and as such the acquisition is purely for the public purpose;
(ii) that the appellants have an alternate remedy by way of challenging the acquisition proceedings and raising their objections before Acquisition Authorities;
(iii) that the area of road existing in the Master Plan has been declared as unacquired by the Settlement Authorities in the new settlement record; so the Acquisition Authorities have been left with no option, except to acquire the proposed land;
(iv) that the appellants have no cause of action to file a writ petition against the acquisition proceedings, and
(v) that the appellants have suppressed material facts, thereby disentitling themselves to any relief by involving the Constitutional jurisdiction.
3. Raja Muhammad Siddique and Ch. Ali Muhammad, the learned counsel appearing on behalf of appellants, vehemently contended that the impugned order of the High Court is patently illegal, violative of law and contrary to the pleadings of the parties and as such liable to be set aside.
According to the learned counsel for the appellants it was not the case of the respondents that the old link road existing in the Master Plan has been found to be on the unacquired area, as shown in the new settlement record, in accordance with the statement of Sardar Taseer Ahmad, Assistant Estate Officer, M.DA. The learned counsel maintained that there was ample evidence on the record to the effect that a road in the Master Plan exists; however some of its portion has been encroached upon by some other persons and instead of removing the encroachment or obstruction caused on the road respondents Nos.1 and 2, in order to grind their own axe with a mala fide intent, are persistently pursuing the acquisition of the land belonging to the appellants.
The learned counsel maintained that the impugned order is totally inconsistent and runs counter to the plea taken by the respondents in their written statements.
' The learned counsel strenuously contended that from the material brought on record it becomes abundantly clear that in the Master Plan and according to the reports of subordinate staff of the M.DA. The road already exists on. The spot, however, some portion of it has been illegally encroached upon by some persons and the fact that instead of removing the illegal encroachment and resorting to the remedy provided in the Land Acquisition Act itself for dispossessing the encroachers, the action of respondents Nos.1 and 2 towards the acquisition of the land belonging to the appellants is a clear manifestation of their mala tide intention.
4. Ch. Muhammad Azam Khan and Mr. Abdul Ghafoor Qureshi, the learned counsel appearing on behalf of respondents, controverted the contentions raised by the learned counsel for the appellants, the leaned counsel have argued that the land owned by the appellants as being acquired for the welfare of the public as the road facility is one of the basic amenities of life. They emphasised that the acquisition proceedings have been initiated for common purpose and the same cannot be said to be motivated or based on mala fide intention, as attributed to respondents Nos.1 and 2. The learned counsel for the respondents in support of their contentions referred to Rule 4 of the Azad Jammu and Kashmir Land Acquisition Rules, 1993, and maintained that under Rule 4 of the said Rules, it is the sweet discretion of the Collector of the district to examine the feasibility of the land proposed to be acquired, taking into consideration the genuineness of the public purpose involved. The Collector of the District before issuing the Notification under section 4 of the Land Acquisition Act fully satisfied himself about the acquisition proceedings and as such, according to the learned counsel for the respondents, the acquisition proceedings cannot be called in question by filing a writ pettier:
5. We have heard the respective contentions of the learned counsel for the parties and perused the record made available with care. From the perusal of record we have come across a report of the Patwari or M.D.A. Dated June 8, 1992, marked as Exh.P-3, wherein it was disclosed by Patwari, after visiting the spot along with the Girdawar of M.DA., that on the spot, on the western side of Plots Nos.787 and 801, the road exists in the land acquired by M.D.A. Which has been illegally occupied by Raj Muhammad son of Fateh Muhammad and Walayat Khan son of Abdul Karim in the awarded area. It was also pointed out that in No, Khasras 814-min and 815 which is unawarded area the houses have been constructed by the aforesaid persons by making illegal encroachment, on account of which the road is stated to have been closed. The demarcation report was submitted by Patwari and Girdawar of M.D A. On the order of M.DA. Even in the Master Plan, Annexure P4, 20 feet wide link road is shown to have been in existence, though it was reported by the concerned Patwari and Girdawar that road falling in the area of M.DA. Has been encroached upon by certain allottees but no steps were taken to dispossess or dislodge the encroachers. In this regard the provisions of Land Acquisition Act are very clear and a specific provision has been enacted to dispossess any person who has illegally encroached upon the land acquired by the authority.
There is yet another report submitted by Assistant Commissioner, Mirpur, dated December 14, 1994, about which the objection of learned counsel for respondents is that this report has been submitted after issuing the Notification under section 4 of the Land Acquisition Act by the Collector of District Mirpur. Be that as it may, the fact remains that this report also shows that in Azizpur Hamlet towards south a link road 20 feet wide was existing but the same was illegally occupied by the allottees of various plots. As said earlier instead of taking action against the illegal occupants who blocked the road a new scheme was prepared to acquire land belonging to the appellants.
On the record there is another letter written by Chairman, M.DA. To Deputy Commissioner (Collector), Mirpur, dated November 5, 1994, wherein it was suggested that without adverting to the proceedings under sections 5 and 5-A of the Land Acquisition Act the Notification under sections 6 and 17 of the Land Acquisition Act may be issued and the possession be handed over to M.D A., by expediting the matter. All these documents support the allegation of the mala fide attributed to the respondent No,1 by the appellants. It may be pointed out that whenever a Notification under section 4 is issued for the purpose of acquisition, it is mandatory to hear the objections of the concerned land owners under sections 5 and 5-A of the Land Acquisition Act. If no opportunity is provided to the owners of the land to submit their objections and to put up their objections, if any, with regard to the acquisition proceedings, the proceedings cannot be said to have been taken under the provisions of the Act. The aforesaid facts reveal that the allegation of the appellants that respondent No,1 with a mala fide intent wants to acquire the land of the appellants under the pretext of a public purpose is not without substance. On the other hand to above facts establish that instead of resorting to the provisions for dispossessing the illegal occupants from the link road already existing, the respondents Nos. 1 and 2 felt advised to initiate acquisition proceedings for the purpose of acquiring the land of appellants. The letter written by Chairman, M.D.A. To Deputy Commissioner (Collector), Mirpur, is a clear manifestation of his malice towards the appellants so as to deprive them of their right to submit their objections and to be heard before passing any order adversely affecting their rights. There is no cavil with the proposition that a road facility is always provided to a certain locality for the general welfare of the inhabitants of that locality but at the same time it may be pointed out that if a road was already existing and some portion of it has been illegally occupied by the allottees, the natural course should have been to proceed against the illegal occupants instead of initiating fresh acquisition proceedings. The action taken against the illegal encroachers by dispossessing them would have even saved the time and undue expenses on the Government exchequer. From the material on the record we can safely infer that the proceedings for acquisition, of the land of the appellants have been initiated with a mala fide intent and the appellants had no other adequate, effective and efficacious remedy except to invoke the writ jurisdiction of the High Court.
6. There is also no quarrel with the proposition that appellants have an alternate remedy by submitting their objections before Acquisition Authorities under the Land Acquisition Act but the above stated facts have revealed that it had practically become impossible for the appellants to submit their objections before the Acquisition Authorities, moreso when the respondent with his undue influence moved the Deputy Commissioner, Mirpur (Collector), to dispense with the mandatory provisions of sections 5 and 5-A of the Land Acquisition Act. So in our opinion the alternate remedy, if any, will not be so adequate or efficacious than the remedy which the appellants chose by filing the writ petition.
7. In their written statements it was nowhere the case of respondents that the previous road providing link to the allottees of Hamlet has been declared to be the unawarded area, according to the new settlement record. This aspect of the case, for the first time was introduced by Sardar Taseer Ahmad, Assistant Estate Officer, M.D.A., the recording of whose statement was thought advisable by the High Court. Even this witness filed no document with the record showing that the previously acquired area for the proposed road has been entered in the new selltement record as unawarded. The bare statement, made by Sardar Taseer Ahmad, in our view, does not sufficiently negate the reports of iu6ordinate staff which we have already discussed in detail. Be that as it may, the fact remains that any plea which is totally contradictory or inconsistent with the original plea taken in the written statements by the respondents cannot be allowed to be raised and made bias of the judgment. It may pertinently be pointed out that the learned Judge in the High Court primarily based his decision on the statement of Sardar Taseer Ahmad, which on the basis of fundamental rule of pleadings cannot be taken into consideration.
8. It was also opined by the learned Judge in the High Court that the appellants have no cause of action to file a writ petition against the acquisition proceedings. We cannot accept this rule as a rule of universal application. Where any mala fide or excess or abuse of power is attributed and a sufficient inference from the material on record can be gathered in support of the allegation, the jurisdiction of High Court in entertaining a writ petition and granting the necessary relief in a writ of certiorari is not prohibited by law. Our aforesaid view is fortified by the case reported as M/s. Qureshi Vegetable Ghee Mills v. Dy. Collector, Excise and Taxation, Mirpur and others 1994 SCR 123, wherein it was held at page 129 that, "Argument that the appellant should first seek the redress of his grievance by way of appeal or revision is fallacious and is repelled". Further held when the jurisdiction of authorities is itself under challenge then writ is competent. Again at page 131 it was observed: "The actions which are mala fide, corani non judice or without jurisdiction cannot be validated if the same are found to be without jurisdiction, even after passing the validating legislation which operated retrospectively.
9. In a case reported as Messrs East and West Steamship Company v. Pakistan and others, PLD 1958 SC (Pak.) 41 at page 51 it was held that "Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court. M. The exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party".
10. As regards reference of Rule 4 of Azad Jammu and Kashmir Land Acquisition Rules of 1993, referred by the learned counsel for the respondents suffice it to say that Collector, District Mirpur did not even weigh and take into consideration the reports of spot inspection submitted by the subordinate staff and proceeded with the acquisition proceedings, in violation of the relevant provisions of law. A Government functionary is not supposed to determine the feasibility of the land proposed to be acquired in accordance with his wishes and whims; therefore, the argument being devoid of force, stands repelled.
11. In the end of the impugned judgment it was further opined by the learned Judge in the High Court that: "Additionally, it is also noticed that the petitioners have failed to disclose the fact of declaring the land as unacquired where the road was marked and was included in the ownership of the petitioners". We regret that how the fact of previous road existing on the unacquired area could have come within the knowledge of appellants. The learned Judge in the High Court himself opined that in view of statement made by Sardar Taseer Ahmad, it was revealed that the previous road had been entered in the recent settlement record as unacquired area so it was humanly impossible for the appellants to know this fact. Moreover the statement of Sardar Taseer Ahmad as observed earlier is against the factual position and against the reports submitted by the subordinate staff of M.DA. So far as the ownership of the acquired land vesting with the appellants is concerned it is not even disputed by the respondents. So in our view the question of suppression of material facts attributed to appellants, in the circumstances of the case, does not arise. In this view-of the matter we accept this appeal, set aside the impugned order recorded by the High Court on June 10, 1995, and declare the acquisition proceedings initiated by respondents in so far as the land of appellants is concerned, as mala fide, without any lawful authority and of no legal effect. We make no order as to costs.