' M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petition has been addressed under section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, whereby following relief is solicited by petitioner:- "It is, therefore, very humbly prayed That this Hon'ble Court be pleased to issue requisite writ against the non-petitioners to the effect that they must arrange the issuance of license for broadcasting spice FM-107 Radio Channel under the law of the State of Jammu & Kashmir;
(ii) That alternative non-petitioner No,5 may kindly be directed to act in accordance' with the notification issued by the Azad Government of the State of Jammu and Kashmir dated 17-4-2003 (Annexure "PE/3") and law enforced in the State while granting license for limited range Community Radio Station Spice FM-107;
(iii) Any other relief to which the petitioner is deemed entitled to may also be granted very graciously".
2. The petitioner is a registered firm in the name and style of "Cutting Edge Communication (Private) Limited" which applied for issuance of license to operate FM-107 Radio Channel at Mirpur.
An application in this regard was moved to Additional Secretary Home Department of Azad Government of the State of Jammu and Kashmir, which was forwarded to the Azad Jammu and Kashmir Council Secretariat, vide letter dated 27-8-2012. Meanwhile, petitioner also approached to Deputy Commissioner, Mirpur, for issuance of license on the ground that in similar circumstances permission and NOCs were granted to others. However, Deputy Commissioner, Mirpur, instead of issuance of NOC advised the petitioner to directly approach Pakistan Electronic Media Regulatory Authority (PEMRA) for Radio transmission license, vide order dated 4-9-2012. It is averred that various applications were also moved to Vice-Chairman Azad Jammu and Kashmir Council, Prime Minister Azad Government of the State of Jammu and Kashmir, Minister Law, Justice Parliamentary Affairs and Human Rights, Department, Minister Information Azad Jammu and Kashmir Government, however, needful was not done, therefore, petitioner has constrained to file the instant constitution petition.
3. On pre-admission notice the respondents have filed para wise comments, whereby contents of writ petition have been controverted. It is stated in the comments that application of petitioner for issuance of Radio Transmission License, was turned down by Pakistan Electronic Media Regulatory Authority, vide order dated 12-9-2012. Against the said order an alternate remedy was available to petitioner to prefer an appeal, which was not done, therefore, the instant writ petition is not maintainable.
4. The learned counsel for petitioner has reiterated the grounds as agitated in writ petition and submitted for admission of writ petition.
5. The learned Additional Advocate-General has raised a preliminary objection that against refusal to issue Radio Transmission License, petitioner was provided an alternate remedy of appeal under section 30-A of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, which was adapted by the Azad Jammu and Kashmir Council vide Act No, VII of 2005, therefore, the instant writ petition is not entertain able.
6. After hearing the learned counsel for parties at great length, I have perused the contents of writ petition, examined the appended documents and section 30-A of Pakistan Electronic Media Regulatory Authority Ordinance, 2002. Before considering arguments of the learned counsel, it is appropriate to reproduce section 30-A supra, which reads as follows:--- "30-A. Appeal.--- Any person aggrieved by any decision or order of the authority may within thirty days of the receipt of such decision or order, prefer an appeal to the High Court.
' Provided that PEMRA shall make available a copy of its decision or order of revocation of license within twenty-four hours after decision to the licensee for referring an appeal to the High Court".
' A bare reading of the above statutory provision of law makes it crystal clear that any person aggrieved by any decision or order of the authority have got an alternate remedy of appeal. The term authority has been defined under section 2(b) of the PEMRA Ordinance, 2002, which means the Pakistan Electronic Media Regulatory Authority established under section 3 thereof. Section 3 of the Ordinance, 2002 postulates that as soon as may be, the Federal Government shall by notification in the official Gazette, establish an authority to be known as the Pakistan Electronic Media Regulatory Authority for carrying out the purposes of this Ordinance. According to subsection (2) of section 3 the authority shall be a body corporate having perpetual succession and common seal with powers subject to the provision of this Ordinance to hold and dispose of property by the said name, sue and be sued. The establishment of authority and its functioning is not controversial amongst the parties. It is worthwhile to be observed here that PEMRA Ordinance, 2002 has been adapted by the Council through Act No,VII of 2005 known as the Azad Jammu and Kashmir Council (Electronic Media Regulatory Authority Adaptation and Extension of Functions to Azad Kashmir) Act, 2005.
7. Admittedly petitioner's application for issuance of license to establish and operate FM-107 Radio Channel at Mirpur was turned down by PEMRA, vide script dated 12-9-2012, appended by petitioner himself as (Annexure PD-1) along with writ petition, which is reproduced as under:--- "PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY HEADQUARTERS ISLAMABAD.
' F.10-4 (299) Cen 12/454 Dated: 12th September 2012.
' Subject: ISSUENCE OF LICNESE TO OPERATE FM RADIO-107 ' Reference: AJK Council letter No, Law-1/1/2005 AJKC dated 27-10-2012 on the subject.
2. It is informed that PEMRA issues commercial FM Radio licenses through open and transparent bidding process in phase wise program under section 19 of PEMRA Ordinance, 2002 as amended by the PEMRA (Amendment) Act, 2007.
3 . The Authority has already approved FM Radio Licensing Phase-X for the whole country and Azad Jammu & Kashmir. The case has been forwarded to Frequency Allocation Board (FAB) for confirmation of the availability of frequency for the next phase of bidding i,e, Phase X. Applications will be invited through national and local newspaper in the future, as and when the frequencies are cleared by FAB. Secondly, the PEMRA law is sub judice in the Supreme Court of AJ&K.
' Forgoing in view the application of Mr. Tanvir Ahmed, CEO of M/s Cutting Edge (PVT) Ltd. Mirpur AJK for issuance of FM Radio Licence cannot be entertained at this stage. Therefore company may be advised to apply as and when PEMRA invites the applications.
' This issues with approval of the competent authority.
' (General Manager Licensing)"
8. According to subsection (2) of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 on the application of any aggrieved party this court may direct a person performing functions in connection with the affairs of Azad Jammu and Kashmir or local authority to refrain from doing that which he is not permitted by law to do, or do that which he is required by law to do; or declaring that any act done or proceedings taken by a person performing functions in A connection with the affairs of the State or a local authority has been done or taken without lawful authority, if no other adequate remedy is provided by law. As against refusal to issue Radio Transmission License the petitioner could prefer an appeal within 30 days under section 30-A Pakistan Electronic Media Regulatory Authority Ordinance, 2002, therefore, the instant writ petition is hit by subsection (2) of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. In my view the existence of another adequate remedy is a rule of law which ousts the jurisdiction of High Court and no exception can be taken to the view that in presence of alternate remedy of appeal the writ jurisdiction cannot be invoked and I hold accordingly. An identical point was considered by the apex Court in case reported as Faqir Muhammad and others v. Custodian Evacuee Property and others (1996 SCR 349), wherein at page 351 it was observed as follows:--- "However, the High Court has rightly expressed the view that an adequate remedy by way of review petition was available to the appellants. Subsection (6) of section 43 of the Administration of Evacuee Property Act, 1957 confers wide powers of review on the Custodian and it is the proper remedy in which all questions of fact can be effectively resolved. In presence of this adequate remedy a writ petition was not maintainable. Therefore, we leave the question open whether cancellation of allotment of Muhammad Alam was valid or not and uphold the dismissal of the writ petition on the sole ground that the appellants had not availed of the adequate remedy available to them. All other findings given by the High Court are vacated. "
' The aforesaid view was reiterated by the Hon'ble Supreme Court in case of Muzaffar Hussain v. AJK University and 4 others (1999 PLC (C.S.) 239), wherein, at pages 242 and 243 it was held as under:-- -.
"We have given our due consideration to the matter in hand. In the instant case the impugned order of the dismissal of the appellant Was passed by the Assistant Registrar and not by the Vice- Chancellor who is the. Chairman of the Syndicate to whom the appeal is competent under section 38 of the University of Azad Jammu and Kashmir Act, 1985 and the Rules framed thereunder. It is correct that the impugned order shows that the Vice-Chancellor has also agreed with the recommendations made by the Inquiry Officer but that itself is not sufficient to hold that the appeal before the Syndicate would have been a futile exercise, especially so when under subsection (2) of section 10 of the Act, if the Vice-Chancellor is not able to perform his duties for illness or for some other cause, he can make arrangement for performing his duties. For convenience section 10 is reproduced as under:--- "10. Vice-Chancellor.- (1) The Vice-Chancellor shall be appointed by the Chancellor on such terms and conditions as the Chancellor may determine and shall hold office during the pleasure of the Chancellor for a term not exceeding four years.
(2) At any time when the office of the Vice-Chancellor is vacant or the Vice-Chancellor is absent or is unable to perform the functions of his office due to illness or some other cause, the Chancellor shall make such arrangements for the performance of the duties of the Vice- Chancellor as he may deem fit."
' Thus, if the appellant had any objection that the Vice-Chancellor should not preside over the meeting of the Syndicate in which his appeal was to be heard, he could raise an objection to that effect and any other arrangement could be made for presiding over the meeting in which the appeal was to be heard. Thus, the mere fact that the Vice-Chancellor agreed with the report of the Inquiry Officer would not render the provisions regarding the appeal to the Syndicate as nugatory. "
' The same view was expressed by the apex Court of Pakistan in a Full Bench case titled Abdul Rehman Mayat and another v. Wealth Tax Officer and others (198$ SCMR 1722). At page 1724 of the report it was held as follows:--- "After hearing the learned counsel for the parties we find that the decision of the High Court refusing to interfere with the orders impugned before it, in the exercise of constitutional jurisdiction, is mainly based on the ground that the second appeal filed by the appellants was still pending adjudication before the Income Tax Appellate Tribunal in which the same questions were under consideration. It is well-recognized and indeed provided by Article 199 of the Constitution that the extraordinary jurisdiction of the High Court can ordinarily be invoked when there is no other remedy provided by law. When appellants themselves had invoked the statutory remedy of second appeal, no exception can be taken to the view taken by the High Court that in the presence of the pending appeal, the writ jurisdiction cannot be invoked. Therefore, there is no justification to interfere with the impugned order of the High Court."
' The point of alternate remedy of appeal also came under consideration before Quetta High Court in case reported as Hari Kishan Pass v. Chairman, WAPDA (PLD 1983 Quetta 61), wherein, at page 66 it was held as follows:--- "The petitioners had the alternate remedy; which they did not care to avail of and started moving applications in wrong forums. The petitions are liable to be dismissed on this ground alone."
' The similar view was expressed by the Karachi High Court in case reported as Muhammad Farooq Textile Mills Ltd. v. Special Court (Banking) of Sind and 2 others (PLD 1985 Karachi-1), wherein at page 3 of the report it was held as under:--- "We are therefore of the view that this petition is for such reason immature and what is more that adequate alternate relief is available. Suffice to say that no decree has yet been passed so that the petitioner is not exposed to any forfeiture or perils of execution. We may also state that as against the decrees that may be passed in any one of these two suits an appeal can be filed before this High Court either under the Law Reforms Ordinance or under section 12 of the Banking Companies Ordinance. There could be no better case of alternate relief being available."
9. The contention of the learned counsel for petitioner that Home Department of Azad Jammu and Kashmir-respondent No,5 be directed to act upon Government notification dated 17-4-2003 and issue license to petitioner spice FM-107 is misconceived. The Government-respondent through notification supra issued procedure and guidelines for electronic Media till promulgation of legislation. As observed earlier, law on the subject was promulgated/adapted through Act, VII of 2005 of the Azad Jammu and Kashmir Council, which is a special law pertaining to electronic media and media enterprise, therefore, notification dated 17-4-2003 is no more in existence, hence, not enforceable.
10. It reflects from record that during pendency of the instant writ petition District Magistrate Mirpur, issued notice on 19-11-2012 to petitioner to show cause that how he is operating Radio Station FM- 107 without obtaining license from PEMRA. The vires of the above mentioned notice has also been solicited to be challenged through application for seeking amendment in writ petition, dated 26-11- 2012. As per section 19(2) of PEMRA Ordinance, 2002 without obtaining license from the authority no person can engage in any broadcast media or distribution of service, therefore, even by granting amendment in the writ petition no relief can be extended to petitioner under law, hence, the application for amendment is turned down. Another application has been moved on behalf of Kashmir Association of Independent Radio Station for impleading party in the line of respondents.
As writ petition is not liable to be admitted for regular hearing to create false hope, therefore, the same has also become redundant.
11. The crux of above discussion is that finding no substance in the instant writ petition the same is hereby dismissed in limine and consigned to record. However, petitioner will be at liberty to apply for issuance of license to establish and operate FM-107 Radio Channel, as and when frequencies are cleared by Frequency Allocation Board, through open and transparent bidding process when the applications will be invited by the Pakistan Electronic Media Regulatory Authority as per section 19 of PEMRA Ordinance, 2002.