' MUNIR AHMED CHAUDHARY, J.---The above captioned petitions have been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, through which an inquiry initiated against the petitioners to cancel State Subject Certificate has been challenged. These petitions shall be disposed of through a single judgment.
2. Facts stated in the petitions are that petitioners are real brothers and they have contained State Subject certificates in their favour. Respondent Sajid-ur-Rehman Mir submitted an application against the petitioners before Member Board of Revenue Camp Office Mirpur to cancel the State Subject Certificates issued in favour of the petitioners. The Said application was referred to Registrar Board of Revenue, who later on, referred the same to Deputy Commissioner/District Magistrate/Collector Mirpur for an inquiry. District Magistrate/Collector issued notices to the applicant as well as the petitioners and after completion of an enquiry, District Magistrate Mirpur submitted his report to Member Board of Revenue and recommended to cancel the said certificates in favour of petitioners. This report was forwarded to Azad Jammu and Kashmir Council.
A notice under Rule 6 of the Azad Jammu and Kashmir State Subject Rules, 1980, was issued to the petitioners on 24-4-2007 by a Section Officer on behalf of Azad Jammu and Kashmir Council.
Meanwhile, the petitioners filed the captioned petitions and prayed to quash all the proceedings initiated by the official respondents being without lawful authority, without jurisdiction and having no legal effect.
3. Respondents submitted written statement stating therein that the Kashmir Council is competent to entertain any request for cancellation of the State Subject Certificate if it has been obtained by fraud, false representation or suppression of any material fact. The petitioners should have placed their version before Kashmir Council, 'instead of filing the instant petitions. They had an alternate remedy which they did not avail. The Council has exclusive authority to perform its functions under rules framed in accordance with Azad Jammu and Kashmir State Subject Act, 1980. It was further stated that investigation of complicated questions of facts is involved in the present matter, so the petitions are not maintainable. The petitioners obtained the said certificates through fraud, misrepresentation and concealed material facts. It was prayed to dismiss the instant writ petitions.
Arguments were advanced by the learned counsel for the parties. While controverting the learned Counsel for respondents, Mr.
4. Mr. M. Riaz Tabassum, Advocate, the learned counsel for the petitioners argued that the said certificates were issued in favour of the petitioners in 1965 and onwards. The forefathers of the petitioners are permanent residents of Mirpur since pre-partition and buried in Mirpur (old city).
After an inquiry, the said certificates were issued. Now, the official respondents want to deprive the petitioners of the said certificates with connivance of one Sajid-ur-Rehman without any lawful authority and violating the concerned provisions of law. The learned Counsel requested to quash all the proceedings against the petitioners and referred the following precedents in support of his arguments.
(i) An unreported case titled "Abdul Ghani v. Hamid Mufti and others decided by the High Court of AJ&K (65/1994 dated 15-11-1997).
(ii) An unreported case titled "Ghulam Nabi v. AJ&K Council and others decided by the High Court of AJ&K (34/ 2002 dated on 18-10-2005).
' Ch. Muhammad Taj, the learned Counsel for the respondent/Sajid-urRehman contended that the matter regarding cancellation of State-Subject Certificates issued in favour of the petitioners is pending before the AJ&K Council and no final order has been passed, so, the instant petitions are not competent to be filed at this stage. The petitioners have got an alternate remedy, to approach AJ&K Council to place their version and if they are not satisfied by the conclusion, they can approach any other forum for their redressal. No violation of the provisions of law has been made by the respondents while performing their functions. The learned Counsel requested to dismiss the petitions.
' Mr. Bostan Chaudhary, the learned Counsel for the official respondents argued further that AJ&K Council has got powers to deprive anybody of certificate, if found that the said certificate was obtained by fraud, false representation or concealing material facts. This power can be exercised by the Council on a report by the AJ&K Government or on its own motion. The Council has issued notice to the petitioners for hearing after receiving a report from AJ&K Government and no final order has been passed against the petitioners. The learned Counsel contended that the present petitions are not maintainable and liable to be dismissed.
6. After hearing the learned Counsel for the parties, I have gone through the relevant record and law minutely. The relevant law, firstly was enforced on 25-8-1971 which was known as Azad Jammu and Kashmir State Subject Certificate (Cancellation) Act 1971. According to this law, a Board for inquiry was to be constituted under section 3 of the Act 1971 which could probe into the matter for cancellation of a certificate. No such Board was constituted in the present matter, it means the inquiry was not conducted under the Act 1971. Other provisions of law for depriving a person of a certificate are embodied in Azad Jammu and Kashmir State Subjects Act, 1980 (hereinafter referred as the Act, 1980). It is pertinent to produce section 4 of the Act, 1980, to understand the functions of Azad Jammu and Kashmir Council, as under:-- "4. Deprivation of State Subject Certificate.---(1) Notwithstanding anything contained in the Azad Jammu and Kashmir State Subject Cancellation Act, 19.71 (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 order deprive any person of his State Subject Certificate if it satisfied' that he obtained the said certificate or the certificate 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 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".
It is clear from the reading of the provisions contained in Section 4, that Azad Jammu and Kashmir Council has got ample power to deprive a person of a State Subject Certificate. Now, the question arises that how the proceedings are initiated by the Azad Jammu and Kashmir Council. Azad Jammu and Kashmir State Subjects Rules 1980 have been enforced for this purpose. Rule 6 , of the said Rules is reproduced as under:- "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 ownership 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 committee as provided for in subsection (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."
The above mentioned rule provides that the Council can issue a notice on a report of Azad Jammu and Kashmir Government or on its own motion, to a person who is alleged to have obtained a 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.
The record of the present petitions reveals that Azad Jammu and Kashmir Council issued notice under Rule 6 of the Rules 1980 on the report of Board of Revenue of Azad Jammu and Kashmir Government. Meanwhile, the petitioners filed the instant petitions before this Court. Whether Board of Revenue reported the matter to Azad Jammu and Kashmir Council on behalf of Azad Jammu and Kashmir Government or not? As per Rules of Business enforced in Azad Jammu and Kashmir, all the Secretaries to the Government are the part and parcel of the Government and they act on behalf of the Government while deciding the matters or performing their functions to the extent of matters regarding respective Departments. So, the report or recommendation forwarded by Board of Revenue, in the present matter shall be considered as forwarded by the Government. Now, it was up to the Azad Jammu and Kashmir Council to perform its functions in accordance with the Act, 1980 and the Rules framed under the Act, 1980. The Azad Jammu and Kashmir Council issued notice to the petitioners under Rule 6, meanwhile, the petitioners knocked the door of this Court.
The report forwarded by the Board of Revenue are the facts found by the concerned authority and not an inquiry for the purpose of passing a final order. Azad Jammu and Kashmir Council has to inquire the matter under discussion in accordance with the Act 1980, and the Rules framed for the purpose. The petitioners have an opportunity to be heard. They have a right to apply for the appointment of a committee for inquiry and to produce their evidence before the said committee.
7. The petitioners have challenged the proceedings made by the revenue officials on the direction of Board of Revenue and the notice issued by the Azad Jammu and Kashmir Council. These proceedings have been initiated in accordance with the provisions provided for the purpose. No proceedings or show cause notice can be challenged in a writ petition, if it has been processed in accordance with a lawful authority. This principle has been laid down in a case titled as Shaheen Asad v. Azfar Yaseen and others 2001 PLC (C.S.) 93] as under:- "15. In our view a show cause notice can be challenged in a writ petition only if it has been issued without lawful authority but it cannot be so challenged if it has been issued by a competent authority. Through a show cause notice adverse material is brought to the notice of the concerned person without previously determining the finality of that material and the person likely to be adversely affected is given an opportunity to explain his position."
8. In the light of what has been discussed above, it is clear that the proceedings initiated by the respondents against the petitioners are in accordance with the provisions of law of the land. The petitioners have got an alternate remedy and opportunity to be heard before the Azad Jammu and Kashmir Council. No final order has been passed against the petitioners. So, both the instant writ petitions are not competent and maintainable, which are hereby dismissed with no order as to costs.