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Petitioner: MUHAMMAD ASLAM VS Respondent: SHAMIM AKHTARHonorable Justice Ghulam Mustafa MughalSyed Shahid Bashir,Raja Ghazanfar Ali and Mir Sharafat Hussain
P L D 2012 High Court (AJ&K) 14
Before Ghulam Mustafa Mughal, C.J., Munir Ahmed Chaudhary and M. Tabassum Aftab Alvi, JJ
MUHAMMAD ASLAM---Petitioner
Versus
SHAMIM AKHTAR and 5 others---Respondents
Writ Petition No.1369 of 2010, decided on 17th February, 2012.
(a) Azad Jammu and Kashmir State Subject Act, 1980---
----S. 4(4)(5)---Azad Jammu and Kashmir State Subjects Rules, 1980, R.6---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Cancellation of State Subject Certificate--Petitioner who migrated from Indian Held Kashmir, obtained State Subject Certificate front the Office of Deputy Commissioner--Competent Authority allotted an evacuee piece of land in the name of the petitioner---Subsequently an objection raised by the respondents with regard to grant of State Subject Certificate and allotment of evacuee property to the petitioners, Azad Jammu and Kashmir Council, constituted a Committee and on recommendation of said Committee competent Authority, cancelled State Subject Certificate issued to the petitioner---Validity---Azad Jammu and Kashmir Council had ample authority to pass an order to deprive any person of a State Subject Certificate, if in its opinion the said certificate had been obtained by means of fraud, false representation or concealment of any material fact---Exercise of such authority was subject to the provisions of Azad Jammu and Kashmir State Subject Act, 1980 and Azad Jammu and Kashmir State Subject Rules, 1980---Notice had been issued under R.6 of Azad Jammu and Kashmir State Subject Rules, 1980, but the Committee as mentioned in the said notice had not been constituted strictly in accordance with said Rules, and S.4 of Azad Jammu and Kashmir State Subject Act, 1980---Committee mentioned in the notice was only a fact finding Committee which had to probe into the matter and after the inquiry, had to make its recommendation to the Authority for proceeding under S.4 of Azad Jammu and Kashmir State Subject Act, 1980---Authority after proceeding and applying its mind, was to issue show-cause notice to the petitioner for depriving him from the State Subject Certificate---Imperative requirement of Azad Jammu and Kashmir State Subject Act, 1980 could not be dispensed with and Chairman of the Committee should be a person possessing Judicial experience---Where proceedings were initiated against a person on the ground of fraud and false representation, only. a Judicial Officer or a person in possession of judicial experience, could determine accusation in a judicious manner---Law would protect dignity of every one by not allowing to plead fraud and forgery against any person in a casual manner---Rule of common sense and fair play also demanded that charge of fraud should not be allowed to be levelled, unless precise information was supplied to the person against whom, it was levelled--When the constituted Committee was unconstitutional, then the question of waiver, could not be pleaded---Azad Jammu and Kashmir Council, had the authority to delegate its powers to a subordinate Officer, but for the purpose of delegation of power under the Azad Jammu and Kashmir State Subject Act, 1980, a notification had to be issued under S.6 of the said Act---Constitution of Committee as well as the proceedings and impugned order passed by the Committee was ultra vires the Azad Jammu and Kashmir State Subject Act, 1980 and Rules made thereunder.
Qurban Hussain v. Mst. Bashir Begum and 6 others PLD 1986 SC(AJ&K) 109; Residents of Mirpur v. Mayor Municipal Corporation Mirpur and another 1995 SCR 332; Muhammad Sharif v. Muhammad Manzoor and others 1993 SCR 92; Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355; AbdulQadir v. Abdul Karim and 4 others
1999 PLC(C,S,) 947; Sulmeman Ahmed v. Tanveer Ahmed Mir and 3 others 2002 PLC (C.S.) 714; Abdul Hamid v. Custodian of Evacuee Property and 29 others 2002 CLC 1186 and Engineer Muhammad Khalid v. The University of AJ&K and 8 others 2004 SCR 467 ref.
Umar Ahmad Ghumman v. Government of Pakistan and others PLD 2002 Lah. 521; Abdul Hafiz Khan's case PLD 1983 Quetta 20 and Muhammad Hussain and another v. Muhammad Shafi and others 2004 SCMR 1947 rel.
(b) Fraud---
----Where proceedings were initiated against a person oil the ground of fraud and false representation, only a Judicial Officer or a person in possession of judicial experience, could determine accusation in a judicious manner---Law would protect dignity of every one by not allowing to plead fraud and forgery against any person in a casual manner---Rule of common sense and fair play also demanded that charge of fraud should not be allowed to be levelled, unless precise information was supplied to the person against whom, it was levelled.
(c) Interpretation of statutes---
----Special law would prevail on the general law---Where a situation was specifically dealt with by a provision of law, then any general provision relating to the same subject would not be attracted.
PLD 1978 SC(AJ&K) 37 and 1980 CLC 789 rel.
(d) Qanun-e-Shahadat (10 of 1984)---
----Art. 114---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Estoppel and acquiescence---Scope---Estoppel and acquiescence were recognized grounds on the basis of which a writ could be refused, but when it was proved from the record that a person had not been dealt with in accordance with law; and also was not aware of the true facts of the case, he could not be denied the right to approach the court merely on the ground of acquiescence and estoppel; or he had participated in the proceedings, without raising objection.
Munawar Hussain's case 2005 SCMR 1388 and Umar Hayat's case 1999 PLC (C.S.) 93 rel.
Syed Shahid Bashir for Petitioner.
Raja Ghazanfar Ali,. A-G. and Mir Sharafat Hussain for Respondents.
Date of hearing: 17th February, 2012.
JUDGMENT
GHULAM MUSTAFA MUGHAL, C J.---The captioned petition filed under section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 has arisen out of the following facts.
Petitioner; herein, migrated from Tangdhar, Tehsil Karnah District Kupwara, (Indian Held Kashmir) and resided in Muzaffarabad for some time. Then, he shifted to Damtore (Abbotabad). He again came back and got settled in Muzaffarabad. He obtained State Subject Certificate from the office of Deputy Commissioner, Muzaffarabad on 8-1-2001. The competent Authority allotted an Evacuee piece of land measuring 11 marlas, situated in Muzaffarabad in his name. He was granted Proprietary Rights Certificate of the said land on 11-12-2001. The legal heirs of (Late) Sikandar Khan challenged the validity 'cot. the allotment made in favour of the petitioner, herein, before the Custodian, Evacuee Property through a review petition. The learned Custodian dismissed the same on 27-4-2004. During pendency of the review petition, it was argued on behalf of the applicants, therein that Muhammad Aslam/non-applicant, therein is a non-State Subjectl therefore, evacuee land cannot be allotted to him in light of the scheme of Rehabilitation Laws. One Saleema Bibi, mother of respondent No.1, herein, challenged the State Subject Certificate of the petitioner before the Azad Government of the State of Jammu and Kashmir but her application was dismissed. Another application was also filed by her before the Deputy Commissioner, Muzaffarabad for cancellation of the State Subject Certificate of the petitioner, herein, but the same was dismissed too. Third application was moved by her before the Azad Jammu and Kashmir Council for cancellation of the State Subject Certificate issued in favour of the petitioner on the ground that the same has been obtained by practicing fraud. Her application was sent to the Senior Member, Board of Revenue for inquiry. The Board of Revenue sent the said application to the Commissioner, Muzaffarabad Division for further process. It was reported by the Commissioner, Muzaffarabad that the matter has already been investigated and no illegality was found, therefore, proceedings may be dropped. The Azad Jammu and Kashmir Council issued another letter to the Board of Revenue for holding a detailed inquiry, in pursuance, whereof, late Khurshid-ul-Hassan Bazmi (Deputy Commissioner) was appointed as Inquiry Officer. Mr. Khurshid-' ul-Hasssan Bazmi, allegedly, in violation of law, recommended for cancellation of the State Subject Certificate. His recommendations were objected to by the petitioner, whereupon the Commissioner, Revenue Muzaffarabad was appointed as Inquiry Officer, who, also recommended for cancellation of the State Subject Certificate. The recommendations of the Revenue Commissioner were challenged by the petitioner through a writ petition before this Court on 24-22009. This Court, vide judgment dated 22-1-2010 accepted the petition and directed the Azad Jammu and Kashmir Council for deciding the controversy in Accordance with law. Thereafter, the Council took up the matter in exercise of powers conferred on it under section 4(5) of the Azad Jammu and Kashmir State Subjects Act; 1980, read with Rule 6 of the AJ&K State Subjects Rules, 1980 and constituted a Committee vide Notification dated 25-2-2010. On 24-3-2010, notice under Rule 6 of the Azad Jammu and Kashmir State Subjects Rules 1980 was issued to the petitioner, whereby he was directed to appear before the Committee along with all the documentary evidence. The said Committee, after conducting the proceedings, recommended to the competent authority for cancellation of the State Subject Certificate issued in favour of the petitioner and the order was accordingly issued on 24-11-2010, whereby State Subject Certificate, bearing number 075/2001, issued by the District Magistrate, Muzaffarabad, in favour of the petitioner stood cancelled
Petition has been contested by the respondents by filing written statement. It is pleaded by them that disputed questions of facts have been raised which cannot be resolved without recording evidence.. It is further stated that the Azad Jammu and Kashmir Council being, authority has . competently constituted the committee vide notification dated 25-2-2010 for judging the legality and propriety of the State Subject Certificate issued in favour of the petitioner. The committee after necessary proceedings came to the conclusion that the Certificate has been obtained by the petitioner by practising fraud, hence, the same was cancelled by the competent authority. In. parawise reply it is stated that no illegality has been committed while constituting the committee. It is stated that the committee has also not committed any illegality while conducting the proceedings.. The Government of Azad Jammu and ? Kashmir has also filed written statement in which the stand taken by the Council has been reiterated, therefore, the same need not to be repeated.
Syed Shahid Bahar, the learned Advocate for the petitioner vehemently argued that application filed on behalf of respondent No.1 was time barred and was not supported by any material, therefore, was liable to be rejected without further proceedings and by entertaining the same the respondents have., travelled beyond the statutory provision contained in the relevant statute. The learned Advocate submitted that where a State Subject or a domicile certificate allegedly has been obtained by means of fraud, false representation or the concealment of any material fact then the procedure provided by subsection (4) of section 4 of the Azad Jammu and Kashmir State Subjects Act, 1980 read with rule 6 of the Azad Jammu and Kashmir State Subjects Rules, 1980 has to be observed. He argued that in this case neither a proper notice containing the substance of the acquisition has been served upon the petitioner nor the committee constituted by the Council was lawful. He submitted that committee mentioned in subsection (5) should be consisting of a Chairman, being a person possessing judicial experience, appointed by Council and. of such other members' appointed by the Council as it thinks proper. The learned Advocate alleged that notice and the committee has been constituted simultaneously through the same notification which is clear negation of law. It is argued that statutory right of , the petitioner, herein, to apply for the constitution of the committee has been taken away by the respondents through arbitrary exercise of powers. The learned Advocate contended that even otherwise, it was enjoined upon the committee to look into the evidence and examine the record on the basis of which Deputy Commissioner has issued State Subject Certificate. The learned Advocate submitted that respondents have acted without any lawful authority because authority of the Council cannot be delegated to them under the provision of Interim Constitution Act, 1974, The learned Advocate placed reliance on the following cases:
1. Qurban Hussain v. Mst. Bashir Begum and 6 others (PLD 1986 SC AJ&K 109);
2. Residents of Mirpur v. Mayor Municipal Corporation Mirpur and another (1995 SCR 332)
Mir Sharafat Hussain, the learned Advocate for the other side contended that petitioner is estopped from raising objection regarding the constitution of committee after his participation in its proceedings. He submitted that it is the petitioner who should have requested the Council for appointment of the committee and in that case a committee should have constituted whose chairman or senior member should be a person in possession of judicial experience. The learned Advocate contended that the committee, which has returned its findings against the petitioner was constituted in pursuance of the judgment of this Court dated 22-1-2011 and the said committee has given sufficient opportunity to the petitioner for producing evidence who in-fact was a resident of Abbottabad area and this fact is amply proved from the Revenue Papers examined by the committee. The learned Advocate contended that the witnesses produced by the petitioner in support of his claim born in Azad Kashmir and did not know the forefathers of the petitioner. The learned Advocate referring to the State Subject Certificate issued in favour of the petitioner contended that date of birth of the petitioner entered in the State Subject Certificate in question is 1943 which means that at the time of migration he was hardly 7 years old and in this age without family migration was impossible and unbelievable., He maintained that none of the other family members has been examined by him in order to prove the migration from the occupied part of the Kashmir nor. any "Rashan Card" or other tangible evidence has been produced by him in support of his claim, therefore, it cannot be said that findings of the committee were not based on evidence or the Committee has misread the record or its conclusion is against the statutory law and rules. The learned Advocate placed reliance on the following cases: .
1.?? Muhammad Sharif v. Muhammad Manzoor and others 1993 SCR 92;
2.?? Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355:
3.?? Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 947;
4.?? Sulmeman Ahmed v. Tanveer Ahmed Mir and 3 others 2002 PLC (C.S.) 714;
5.?? Abdul Hamid v. Custodian of Evacuee Property and 29 others 2002 CLC 1186;
6.?? Engineer Muhammad Khalid v. The University of AJ&K and 8 others 2004 SCR 467
In the aforementioned authorities it has been ruled that when a person participates in the proceedings before any forum without raising any objection about its constitution/jurisdiction then after the decision he cannot came with the volta-face and say. that such forum was unlawful and its proceedings are without lawful authority.
We have heard the learned counsel for the parties and gone through the record of the case.
Fbr proper appreciation of the controversy, it is necessary to reproduce the relevant provisions of the Azad Jammu and Kashmir State Subject Act and Rules, 1980 as well as the notice in question, which are as under
(4) Deprivation of State Subject Certificate:---(1) Notwithstanding anything contained in the Azad Jammu and Kashmir State Subject Cancellation Act, 1971 (IX of 1971), a State Subject Certificate shall cease to be valid if its possessor is deprived of it by an order under the next following subsections.
(2) Subject to the provisions of this section, the Council may by order deprive any person of his State Subject Certificate if it is satisfied that he obtained the said certificate, or the certificate of domicile by means of fraud, false representation or the concealment of any material fact.
(3) The Council shall not make an order depriving a person of a State Subject Certificate under subsection (2) unless it is satisfied that it is in the public interest that person should not continue to be a State Subject.
(4) Before making an order under subsection (2) the Council shall give the person against whom it is proposed to make the order notice in writing informing him of the grounds on which it is proposed to make the order and calling upon him to show cause why it should not be made,
(5) If it is proposed to make the order on any of the grounds specified in subsection (2) and the person against whom it is proposed to make the order applies in the prescribed manner for an inquiry, the Council shall, and in any other case may, refer the case to a committee of inquiry consisting of a Chairman, being a person possessing judicial experience, appointed by the Council and of such other members appointed by the Council as it thinks proper."
"6. Deprivation of State Subject Certificate:--(1) The Council may, on a report from the Azad Government of the State of Jammu and Kashmir or on its own motion, issue a notice to any person who is alleged to have obtained a State Subject Certificate by means of fraud, false representation or the concealment of any material fact to show cause why an order depriving him of the said Certificate should not be passed against him,
(2) Such notice shall contain information concerning the grounds on which it is proposed to make the order depriving him of State Subject Certificate.
(3) Any person served with a notice in accordance with the sub-rules (1) and (2) may, within sixty days of the service of such notice, apply to the Council for the' appointment of a committee of enquiry.
(4) An application under sub-rule (3) shall among other things be accompanied by an affidavit that the allegations made against him are untrue, and by a bond in the sum of Rs.5,000/ to be forfeited to the Council should be committee of enquiry find the application false and frivolous or given with a view to causing delay:
(5) On receiving' the application, the Council shall appoint a connnittee as provided for in sub section (5) of section 4 of the Act.
(6) The Council shall pass such orders on the report of the committee of enquiry or, if a committee is not appointed, on the application itself as it deems fit."
10.. Appeal, Review etc.-- The Council may at any time entertain any application, appeal review or revision application and may, subject to rule 6, cancel, suspend, invalidate, extend or revise any certificate issued under these rules or may grant a certificate refused by any other authority under these rules or pass any order it may deem necessary or fit."
"No.C-5 I 12008- AJ KC AZAD JAMMIi & KASHMIR COUNCIL SECRETARIAT
Sector F-5/2, Islamabad, the 24 March, 2010.
NOTICE
Subject:-NOTICE UNDER RULE 6 OF THE AZAD JAMMU & KASHMIR STATE SUBJECTS RULES, 1980.
WHEREAS, Mrs. Shahtnim Akhtar D/o Mr. Sikandar Khan, R/o House No.56, Chaudhary Sarfaraz Road, Rawalpindi has alleged that Mr. Muhammad Aslam Slo Haji Umar Din, R/o Ward No.17, Muzaffarabad is not a State Subject and has obtained the State Subject Certificate by fraud and mis?representation in the matter.
2. AND WHEREAS, the High Court of AJ&K has also ordered the AJ&K Council Secretariat to "decide the matter fresh in accordance with the law within a period of sixty (60) days.
3. AND WHEREAS, a committee??????? comprising??????? of???????? the following has been constituted under section 4 of the Azad Jammu & Kashmir State Subjects Act, 1980 read with rule 6 of the Azad Jammu & Kashmir State Subjects Rules, 1980 to probe the matter and to make its recommendations accordingly:-.
S.No. ????????????? Name and Designation -?????????????????????????????????????????????????????????? Status
Malik Qaiser Majeed,?????????????????????????????????????????????????????????????? Chairman Joint Secretary (Council)
Mr. Hamid Nisar,???????????????????????????????????????????????????????????????????? Member Deputy Secretary (Committees).
Raja Tariq Mehmood,????????????????????????????????????????????????????????????? Member/-
Section Officer (C&L)????????????????????????????????????????????????? Secretary
4. NOW, THEREFORE, in exercise of the powers vested under Rule 6 read with Rule 10 of the Azad Jdmma & Kashmir State Subjects Rules, 1980, 'you, Mr. Muhammad Aslam S/o Hajl Umai' Din, are directed to appear before the aforesaid committee on 6th April, 2010 at 12:00 Hours in the AJ&K Council Secretariat, Sector F-5/2, Islamabad for personal hearing so that the matter is decided within the stipulated period as ordered by the AJ&K High Court.
5. Your are, therefore, directed to bring original documents/genuine evidences in support of your claim regarding the subject case on the above-said schedule failing which an ex?parte action will be taken against you.
(RAJA TARIQ MEHMOOD) SECTION OFFICER (C&L)
Mrs. Shahmim Akhtar Dio Mr. Sikandar Khan, House No.207, Street No.56,
Chaudhary Sarfaraz Road, Mohallah Waris Khan, Rawalpindi."
A perusal of the above provisions of the Act and rules would show that Council has ample authority to pass an order to deprive any person of a State Subject Certificate if in its opinion the said certificate has been obtained by means of fraud, false representation or concealment of any material fact however, this authority is subject to the provisions of the Act and rules. A perusal of the record' would show that notice has been issued under rule 6 of the Azad Jammu & Kashmir .State Subjects Rules, 1980 but the committee mentioned in the notice, in fact, has not been constituted strictly in accordance with rule 6 and section 4 of the Act. Underlined paragraph of the notice is sufficient proof of the fact that committee mentioned in the notice was only a fact finding committee which has to probe into the matter and after the inquiry has to make its recommendations to the authority for proceeding under section 4 of the Azad Jammu and Kashmir State Subjects Act, 1980. After proceeding and applying its mind authority was to issue show cause notice under subsection (4) of. Section 4 of the above At to the petitioner for depriving him from the State Subject Certificate. After the service of show cause notice petitioner, herein, can ask for trial through a committee to be constituted under subsection (5) of section 4 of the Act. Sub-rule (2) of Rule 6 provides the same scheme and postulates that notice shall contain the grounds on which the competent authority intends to pass the order. It is imperative and requirement of the Act which could not be dispensed with that the chairman of the committee should be a person possessing judicial experience.. This condition, in our considered view, has a. purpose and wisdom behind it. Where. proceedings are initiated against a person on the ground of fraud and false representation, then only a judicial officer or person in possession of judicial experience can determine accusation in a judicious manner. It may be stated that law protects dignity of every one by not allowing to plead fraud and forgery against'any person in a casual manner. The rule of commonsense and fair play also demands that charge of fraud should not be allowed to be levelled unless precise information is supplied to the person against whom it is levelled. Where the fraud is pleaded then the person against whom it is pleaded must have a right of fair trial. In case of loss of State Subject the strict compliance of provisions of Act and rules is the requirement of law because the loss of State Subject results into loss of some other civil rights as well. In Umar Ahmad Ghununan v Govt. of Pakistan and others (PLD 2002 Lahore 521) it was observed that right of citizenship is not an ordinary right because if the same is lost then the deprived person is dishonored and becomes stranger and stands excluded from the honours of the State is no better than an alien. The observation of the learned Court recorded in paras 24 and 25 of the judgment are as under:
"24. The right of citizenship is not an ordinary right.=-A study of the Constitution of Islamic Republic of Pakistan would indicate that certain rights have been granted to all "persons" residing in the State while some rights are available to…
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