1985 PLP 2144 (CLC)

FAKHRUDDIN H. SHAIKH, J.-- The learned counsel for the petitioners seeks to challenge through this, petition the notice, dated1-3-1983 issued by the respondent under section 5 of M.L.O.

130. The learned counsel for the petitioners has raised three-fold contentions. Firstly, that the respondent is not an authorised officer to act under paragraph 5 of the M.L.O. 130 and secondly, that the land in respect of which the impugned notices have been issued does not belong to Hyderabad Municipal Corporation, and lastly that there is no encroachment of land by the petitioners.

2. As regards the first contention, the learned counsel for the respondent has invited our attention to Annexure R.2 filed alongwith his counter-affidavit wherein the respondent (Land Management Officer Hyderabad Municipal Corporation) has been designated as an authorized officer to issue notices under M.L.O. 130 for the purpose of removal of encroachments over the land owned by the Hyderabad Municipal Corporation vide Order No. LM/C/81 of 1982, dated 20-9-1982.

3. As regards the second contention that the land does not belong to the Hyderabad Municipal Corporation our attention has been drawn by the learned counsel for the respondent to para. 9 of the counter-affidavit filed by the respondent and also to Annexure 5 attached thereto. It would be convenient to reproduce the said paragraph which reads as under: "It is submitted that the space/land in question is part of Survey No. 159 of Deh Gujjo which land alongwith some other land comprising of several survey numbers and admeasuring 21.01 acres of Deh Gujjo has been acquired for the construction of the truck stand and the possession thereof has been handed over to the Hyderabad Municipal Corporation. I further submit that the Hyderabad Municipal Corporation after taking over possession of the said land including the S.No. 159 of Deh Gujjo has started the development work for construction of the truck stand. I further submit that the disputed land, thus is a public property vesting in and belonging to and under the management of the Hyderabad Municipal Corporation. I produce copy of the Notification of acquisition as Annexure R.5."

4. In our view, both the contentions of the learned counsel for the petitioners have been sufficiently answered by the learned counsel for , the respondent through the counter-affidavit and as such they have no force at all.

5. To substantiate his 'third contention learned counsel for the petitioners referred to Annexures on pages 55 and 57 which are letters issued to the City Mukhtiarkar by the Assistant Commissioner, Hyderabad in 1'975 for providing alternate accommodation to the petitioners. Learned counsel for the respondent disputes the assertion of the petitioners' counsel that there is no encroachment. This Court, under the circumstances, cannot go into the disputed question of fact. Presumption, in the absence of any personal malice, would attach to the impugned notices that they are in order and more so when there is no re-joinder to the respondents' counter-affidavit.

6. There is, however, another aspect of the matter, the petitioner, admittedly on receipt of the impugned notices filed a Civil Suit No. 83 of 1983 in the Court of .Senior Civil Judge, Hyderabad. The petitioners, in the first instance, were able to obtain stay order which was subsequently vacated and in fact the plaint was rejected under Order VII, rule 11, C.P.C. against which the petitioners have also filed an appeal which is pending in the District Court in which the petitioners have been able to obtain stay order which is still operating. The petitioners having availed of the alternate remedy and no case as to the mala fide, malice or spitefulness having been made out against the respondent, this Court will, not ordinarily invoke its extraordinary constitutional jurisdiction. Reliance may be placed on Sahibzadi Nasima Begum v. Chief Settlement and Rehabilitation Commissioner and others 1982 C L C 2181 and Sher Muhammad and others v. Ali Gohar and others 1983 C L C 2473. Ratio decidendi in these cases has been that after resort to civil suit the petitioners cannot leave the remedy in half way and invoke the constitutional jurisdiction of the superior Courts.

7. In any case the notices have been issued under M.L.O.130 reconstituted as M.L.O. 202 and our jurisdiction against action taken or purported to have been taken under Martial Law is barred under Article 18 of the Provisional Constitution Order, 1981. Even if the notices have been issued wrongly as to the fact of encroachment the Court cannot go into their legality, correctness or propriety as we cannot entertain this petition for want of jurisdiction. Reliance is placed on 1983 C L C 3160 and 1982 C L C 1979. In the latter D.B. case, of which my learned brother, Fakhruddin H. Shaikh J. who delivered the judgment on the said case, was a member, the observations made by Ajmal Mian, J of this Court in Constitutional Petition No. D-1330 of 1978 were relied upon and referred to which read as under:-- "A perusal of the above-quoted paras., indicates that this Court cannot go into the validity or effect of an order of Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Administrator or a Martial Law Administrator or of anything done or action taken o intended to be done or taken thereunder. In our view the phrase 'anything done' or 'action taken' 'intended to be done or taken thereunder' employed in the above-quoted para. (a) of the P.C.O. is of wide import as to exclude the jurisdiction of this Court to go into the validity of an order

8. We would however, like to observe that the petitioners are free to avail their remedy as provided under paragraph 8 of M.L.O. 202.

9. In the result, this petition is dismissed in limine. A.A. Petition dismissed.