' 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 of 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 Subject 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. Khurshidul-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 24-2-2009. 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 riot 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 sect4 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.
' For 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 committee 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 /2008-AJKC AZAD JAMMU & 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. Shahmim Akhtar D/o Mr. Sikandar Khan, R/o House No,56, Chaudhary Sarfaraz Road, Rawalpindi has alleged that Mr. Muhammad Aslam S/o Haji Umar Din, R/o Ward No,17, Muzaffarabad is not a State Subject and has obtained the State Subject Certificate by fraud and misrepresentation 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 jammu & Kashmir State Subjects Rules, 1980, 'you, Mr. Muhammad Aslam S/o Haji Umair 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 exparte action will be taken against you.
(RAJA TARIQ MEHMOOD)
SECTION OFFICER (C&L)
' Mrs. Shahmim Akhtar D/o 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 file 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 recommendation 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 Ghumman 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 only "citizens". For instance the right be treated in accordance with law (Article 4), right of freedom of movement (Article 15), right of freedom of assembly (Article 16), of freedom of Association (Article 17), of trade (Article 18), of speech (Article 19) and to profess religion and of equality before law and equal protection of law (Article 25) are available to citizens alone. On the other, hand right to life (Article 9), right to safeguard against illegal detention (Article 10) and of inviolability of dignity of man (Article 14) are available to all persons irrespective of their nationality or citizenship. The citizen under the Constitution enjoys a special status. The right to be a citizen is, therefore, a precious right. It is the most valuable right that an individual may have in a State. About this valuable right, the Chief Justice of the United States Supreme Court, in Perez V.
Brownell [(356 US 44, 64 (1958)] observed as under;- "Citizenship is man's basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen."
"25 The loss of citizenship entails deprivation of the aforementioned rights and privileges.--As Homer remarked, any one who is deprived of this right ,would be "like some dishonoured stranger; he who is excluded from the honours of the State in no better than an alien". (A commentary on The Constitution of the United States by BERNARD SCHWARTZ, page 714). It was in recognition of the afore-referred basic right which persuaded the Legislature to remedy, the mischief of the statutory loss of nationality originally contemplated in the unamended section 14, and subsection (3) was added. Unfortunately whoever framed or drafted the amended provision did it in a slovenly manner and demonstrated want of care. The net result has been a language which reflects discrimination, arbitrariness and is not in accord with the intent of the law maker. But the Court has to ascertain the said intent while construing the statute."
' In Abdul Hafiz Khan's case (PLD 1983 Quetta 20) a Division Bench of the High Court have also taken an identical view. Para 15 of the judgment is relevant which is as under:-- "The Act does not and having regard to the preamble of the Act should not provide for case where citizenship once required or recognized under the Act can be summarily, arbitrarily and whimsically withdrawn by Deputy Commissioner. Loss of citizenship is a serious matter and the status of a citizen can not be interfered with lightly by a Deputy Commissioner. It appears that the Deputy Commissioners, at last, in this part of the country are not aware of the consequences which can flow from the deprivation of citizenship by cancellation of the certificate. The citizen is entitled to be certified under the Act and also under common law and he can not be deprived of his right just by a stroke of pen. As soon as a certificate of citizenship is withdrawn or cancelled it amounts to denial of civil rights of an individual and more over the person would have no right to live in the country. The only mode whereby a person can lose a right of citizenship of Pakistan is provided under section 16 and Rule 26. There is no other authority in the Central Government to cancel a certificate issued except as provided under section 16 of the Act. Under Rule 26 on conviction the certificate issued is rendered null and void."
It has been observed by the apex Court of Azad Jammu and Kashmir in reference No,1 of 1977 (PLD 1978 SC (AJ&K) 37) that "this is an elementary principle that if an Act or Rule prescribes a particular method of performance of an act the act should be performed according to that method alone or not at all". The same principle was reiterated in 1980 CLC 789. By now, law is well settled that special law shall prevail on the general law, meaning thereby that where a situation is specifically dealt with by a provision of law then any general provision relating to the same subject would not be attracted.
' The contention of Mir Sharafat Hussain, the learned Advocate for the respondents that petitioner herein, has participated in the proceedings of the committee, hence, cannot raise any objection on the ground that the said committee was not constituted properly or had not observed the procedure provided by the Act and rules strictly is devoid of any force. No doubt; in the Authorities relied upon by the learned Advocate, the same view has been taken but the facts of the cases relied upon by the learned Advocate for the respondents were totally different. Where the committee itself is unconstitutional then the question of waiver, in our estimation, cannot be pleaded. In a case titled Muhammad E Hussain and another' v. Muhammad Shafi and others (2004 SCMR 1947) in para 10 of the report it was observed as under:- "True, that when a Court suffers from want of inherent jurisdiction, no amount of consent or acquiescence in the proceedings can invest such Court with such jurisdiction. Question of waiver or estoppel in that case would not arise and where a Court does not lack in its inherent jurisdiction but the procedure or mode of hearing, it adopts, is defective or irregular and in such a position a party joins issues and participates in the proceedings without raising any objection of such defect or irregularity touching upon jurisdiction; later on, it cannot be allowed to challenge the jurisdiction when the result of the proceedings goes against it. In the first case, order of the Court will be a nullity in the eye of law but not so in the second case. In view of section 11 (ibid), a decree passed by the Court, whose jurisdiction is assailed is not void. The defect of jurisdiction contemplated by the section is not of a fundamental character as it is no more than an irregularity in the exercise of jurisdiction."
' The same view was reiterated in Munawar Hussain's case 2005 SCMR 1388).
We are conscious of the fact that estoppel and acquiescence are recognized grounds on the basis of which a writ can be refused but when it is proved from the record that a person has not been dealt with in accordance with law and also was not aware of the true facts of the case, he cannot be denied the right to approach the Court mere on the ground of acquiescence and estoppel or he has participated in proceedings of committee without raising objection. The apex Court of Azad Jammu and Kashmir in Umar Hayat's case 1999 PLC (C.S.) 93 has approved the sante view and we respectfully follow the same. Their lordship at page 201 of the report have observed as under:- "it is difficult to summarise in a few words all the shades of the meaning of the acquiescence as defined and interpreted in the judgments and the celebrated words mentioned above, but it can be safely stated that there can be no acquiescence unless two ingredients are present. Firstly.
There should be, express or implied, abandonment of a right or failure to enforce it. The second ingredient is that the act by which acquiescence is inferred should be inconsistent with the right. In the present case both these factors are absent. So far as inconsistency is concerned, it needs to be emphasised that the appellant's contention never was that the Public Service Commission had no authority to hold test and interview for the dispute posts. His operation was that test should be restricted to refugees settled in Pakistan. His appearance in the failure to get it ' cancelled, was not an inconsistent conduct because being a refugee himself he was entitled to appear in the test "
' The contention of Syed Shahid Bahar, learned counsel for the petitioner that Council cannot delegate its authority to its officer is devoid of any force in presence of subsection (13) of Section 21 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. However, the general delegation as has been pleaded in the Rules of Business is not helpful to the respondents. So far as the present case is concerned, the Azad Jammu and Kashmir, State Subjects Act, 1980 is a special law which deals with special purposes i,e, grant, deprivation and Cancellation of the State Subject Certificates and Domicile Certificates. Section 6 of the Act deals with the delegation of powers for the purpose of exercising jurisdiction under this Act. For proper appreciation of the matter section 6 is reproduced as under:-- "6. Delegation of powers.-The Council may, by order notified in the official Gazette, direct, that any power conferred upon it or duty imposed on it by this Act shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged by such authority or officer as may be so specified."
A perusal of the above reproduced provision of law leads to the conclusion that the Council has the authority to delegate its powers to a subordinate officer but for the purpose of delegation of powers under the Azad Jammu and Kashmir State Subjects Act, 1980, a notification has to be issued under section 6 of the said Act. In the case in hand, no such notification has been produced by the other side showing that the officer, who has granted the approval for cancellation of the State Subject Certificate, has exercised the jurisdiction as delegatee of the Council under the aforesaid section. As stated above, the notification regarding the distribution of the executive work by the Council under the Rules of Business being general law has no nexus with delegation of powers under section 6 of the Azad Jammu and Kashmir State Subjects Act, 1980.
The upshot of the above discussion is that the petition is accepted and constitution of the committee as well as the proceedings returned by it and order dated 24-11-2010 are declared ultra vires of the Azad Jammu and Kashmir State Subjects Act, 1980 and rules made thereunder.
However, our this order will not debar the competent authority from proceedings afresh in accordance with law.