' 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 vires and propriety of the Azad Jammu & Kashmir Council Electronic Media Regulatory Authority (Adaptation & Extension of Functions to Azad Kashmir) Act, 2005, alongwith PEMRA Rules, 2009, have been challenged for having been adapted and issued as without lawful authority. A further prayer for quashing all proceedings, actions and orders issued by Pakistan Electronic Media Regulatory Authority (PEMRA), in respect of petitioners and steps taken by the functionaries of Azad Jammu & Kashmir, has also been made.
2. The precise facts culminating into filing of the instant writ petition are that petitioner No, 1 claimed to be sole representative of cables operators in the State of Azad Jammu & Kashmir, established through its Constitution and registered with Chamber of Commerce & Industries, Muzaffarabad. However, petitioner No, 2 is a partnership firm which has been registered under the law of the Azad Jammu & Kashmir and is involved in the business of cable television network through its various subsidiary companies such as ITV. The Government of Pakistan enacted Pakistan Electronic Media Regulatory Authority Ordinance, 2002, on 1.3.2002. The aforesaid Ordinance was adapted and enforced by the Azad Jammu & Kashmir Council through Act VII of 2005, which is known as the Azad Jammu & Kashmir Council Electronic Media Regulatory Authority (Adaptation & Extension of Functions to Azad Kashmir) Act, 2005. The petitioner No, 2 has been running business of cable television network since 17.5.2003, under the license of Interior Department Government of Azad Jammu & Kashmir, regulating the said business in the State of Azad Jammu & Kashmir since 17.4.2003. It is alleged that on 2.7.2007, petitioner No, 2 received a letter from respondent No, 4, Deputy General Manager (Enforcement) Pakistan Electronic Media Regulatory Authority (hereinafter to be called as PEMRA), with an illegal direction to obtain a new license under the impugned Act, 2005. The petitioner wrote a letter to Additional Secretary Interior, Government of Azad Jammu & Kashmir, for seeking guidance on the issue, which was answered that licenses have already been issued by the Interior Department of the Azad Jammu & Kashmir, on payment of prescribed fees. However, on 3.10.2007 and 17.11.2007, the petitioners again received letters from Deputy General Manager (Enforcement) PEMRA, respondent No, 4, with an illegal direction of obtaining new license. The petitioners having no response from the Department of Interior Government of Azad Jammu & Kashmir, wrote to respondent No, 4 on 24.112007, for license in the category of less than 500 connections. It is maintained that petitioner No, 2 again received a letter on 31.12.2007, from respondent No, 4 with an illegal direction to re-apply for license under a wrongly determined category which was rejected by him vide letter dated 7.1.2008. It is further claimed that respondent No, 3, without considering reply of petitioner No, 2 issued seizure orders of the said petitioner's equipment, illegally on 24.1.2008, which were acted upon on the same day.
Thereafter, petitioner No, 2 filed a suit for declaration-cum-permanent injunction against respondents, in Civil Court, Muzaffarabad, which granted stay order and finally suit was also decreed in favour of petitioner No, 2 on 19.5.2008. It is also stated that respondent No, 8 transferred NOC to his subsidiary company namely ITV on 25.4.2009, which was granted in favour of petitioner No, 2, however, respondent No, 4 again turned down the application for license of M/s. ITV for frivolous reasons on 4.7.2009. It is averred that respondent No, 5 again issued direction through letters dated 24.2.2010 and 19.3.2010, with a final warning through letter dated 22.3.2010, for obtaining new license under the impugned Act and clear illegal outstanding dues. In this regard, respondent No, 5 also issued show-cause notices on 21.4.2010, 23.4.2010 and 19.5.2010 respectively. It is further stated that petitioner No, 2 moved successive applications to Deputy Commissioner, Muzaffarabad, and Commissioner, Muzaffarabad, against respondents No, 3 to 5, but in vain. It is maintained that petitioner No, 2 also preferred an application to the Prime Minister Azad Government of the State of Jammu & Kashmir, for edressal of his grievance on 13.5.2011, which was also not attended. It is claimed that respondent No, 5 has now requested to the Government of Azad Jammu & Kashmir and its functionaries vide letter dated 20.5.2011, to assist PEMRA for collection of revenue from petitioners which is 'totally illegal under the law laid down by the august Supreme Court of Azad Jammu & Kashmir. It is alleged that licenses and other regularity fees have been prescribed under the impugned Rules, 2009, which were not adapted by the Council. It is alleged that PEMRA cannot collect revenue and perform functions in the State of Azad Jammu & Kashmir. It is further maintained that the impugned Act, was adapted against the Constitution Act, hence, the instant Constitution petition.
3. The writ petition has been resisted by respondents No, 3 to 5 through written statement dated 13.1.2012. It is stated that petitioners are not aggrieved persons as such have no locus standi to file the instant writ petition. It is further stated that writ petition is hit by principles of laches as well as estoppel which is liable to be dismissed as such. It is stated that as per Section 21(7) of Interim Constitution Act, 1974, the executive authority of the Council is exercised by its Chairman, the Prime Minister of Pakistan (The Chief Executive of Pakistan as the case may be), who performs his functions from Islamabad as a persona designate either directly or through the Secretariat, of the Council located at Islamabad. It is maintained that Azad Jammu & Kashmir is assimilated in the main stream of Pakistan for all practical purposes, including administration, economic and social development, etc. The Government of Paksitan had issued two successive notifications to this effect that Azad Jammu & Kashmir shall be for all practical purposes be treated like other Provinces of Pakistan. It is maintained that Azad Jammu & Kashmir is integrated with Pakistan in administrative, social, cultural and economic affairs without prejudice to its recognized position under the UN Security Council Resolutions. It is also stated that petitioners have availed another alternate remedy before the Civil Court as such cannot , invoke the extra-ordinary Constitutional jurisdiction of this Court. It is maintained that PEMRA is functioning as an agent of Azad Jammu & Kashmir Council on behalf of Azad Jammu & Kashmir CEMRA and all the functions are being performed in the name of Azad Jammu & Kashmir CEMRA. However, inadvertently the notices were issued by PEMRA which are going to be withdrawn and rectified, which now shall be issued in the name and on behalf of Azad Jammu & Kashmir CEMRA, hence, submitted for dismissal of writ petition.
4. On request of the learned counsel for respondents No, 1 and 2 the aforesaid written statement was treated as written statement of the said respondents as well vide order dated 10.2.2012.
5. The respondents No, 6 to 8 despite obtaining several opportunities failed to file written statement, hence, their defence was closed vide order dated 5.3.2012.
6. Barrister Humayun Nawaz Khan, the learned counsel for petitioners have filed written submissions on 27.6.2015. It is stated that Section 31 of the Interim Constitution Act, 1974, empowered the Azad Jammu & Kashmir Council and the Legislative Assembly to legislate for territories of Azad Jammu & Kashmir, for all State subjects and for officers of the Council and the Government. This power is further categorized by Section 31(2) of the Constitution Act, which provides 52 subjects under Schedule third upon which the Azad Jammu & Kashmir Council can legislate, leaving others for Legislative Assembly, to make laws except 4 subjects under Section 31(3). Through the impugned Act, the Azad Jammu & Kashmir Council, has adapted a law which regulates an Authorizy viz. PEMRA a legal person, which is neither under the control of Azad Jammu & Kashmir Council nor comes under legislative competence of it under criterion laid by the Interim Constitution Act, 1974. The laws made in Pakistan are not operative in the State unless they are adapted under the parameters laid down in the Interim Constitution Act, 1974. Similarly, any institution or organization established under the laws of Pakistan cannot operate in the territory of Azad Jammu & Kashmir. It is further submitted that PEMRA is performing functions in connection with the affairs of Federation and functions entrusted to it are by the Federal Government. The Federal Government is not subordinate functionary to the Azad Jammu & Kashmir Council, therefore, Azad Jammu & Kashmir Council cannot delegate its functions to PEMRA under the law laid down by the august Supreme Court. It is further stated that PEMRA is neither answerable to the Azad Jammu & Kashmir Council nor it carries on its business in the State of Azad Jammu & Kashmir in the name of Azad Jammu & Kashmir Council, therefore, it cannot be termed as an 'agent' of the Council. It is further maintained that respondent No, 5 is an employee of PEMRA who is not answerable to the Azad Jammu & Kashmir Council, therefore, legally was not competent to issue letters/orders against petitioners. It is further submitted that numerous provisions of adapted Ordinance are not enforceable in the State of Azad Jammu & Kashmir, due to lack of infrastructure in the State and the Ordinance has been adapted without application of judicious mind and submitted for acceptance of writ petition.
7. Messrs Raza Ali Khan and Muhammad Ashraf Qureshi, the learned counsel for respondents No, 1 to 5 submitted that their written statements precisely be treated as their arguments.
8. Mr. Asghar Ali Malik the learned counsel for respondents No, 6 to 8 has filed written arguments on 29.6.2015, wherein it is submitted that the instant writ petition has been filed without issuing notices to Government/Public Officers and obtaining permission for filing representative suit as required under Sections 80 and 94 of Civil Procedure Code, hence, the same is not maintainable. The learned counsel further stated that petitioners and others are running their business pertaining to Electronic Media and for controlling the same the impugned Act and Rules have been adapted. It is emphasized that petitioners and other Cable Operators are not entitled to run their business without any legal cover. It is averred that Council-respondent adapted PEMRA Ordinance, 2002, vide AJ&K Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to AJ&K) Act (VII of 2005) and under Section 19(2) of PEMRA Ordinance, 2002, as amended by (PEMRA Amended) Act, 2007, no person shall engage in any broadcast, Media or distribution service except after obtaining a license issued under the Ordinance, whereas, petitioners instead of obtaining licenses filed instant writ petition, which is not maintainable. It is emphasized that petitioners are illegally running their business without regulating their Cable Television Service. It is further stated that petitioners were provided reasonable opportunities for obtaining their licenses and depositing required fee as per applicable In accordance with schedule but they remained failed to do so, hence, submitted for dismissal of writ petition.
9. We have examined written submissions made by the learned counsel for parties and have also examined the record. Before adverting to arguments of the learned counsel for contesting parties, it will be useful to reproduce the impugned Act (VII) of 2005, which is consisting of six sections, apart from the preamble:-- "KASHMIR COUNCIL SECRETARIAT Act passed by the AJ&K Council on the 30th June, 2005 and Chairman, AJ&K Council is hereby published for general information.
No, C-3/1/2005-All ACT VII OF 2005 AN ACT to adopt and enforce the Pakistan Electronic Media Regulator)/ Authority in Azad Jammu & Kashmir.
WHEREAS it is expedient to provide for the development of broadcast media in Azad Jammu & Kashmir in order to--
(a) improve the standards of information education and entertainment;
(b) enlarge the choice available to the people of Pakistan in the media for news, current affairs, religious knowledge, art, culture, science, technology, economic development, social sector concerns, music, sports, drama and other subjects of public and national interest;
(c) facilitate the devolution of responsibility and power to the grass-roots by improving the access of the people to mass media at the local and community; and
(d) ensure accountability, transparency and good government by optimizing the free flow of information.
' It is hereby enacted as follows:--
1. Short title, extent and commencement. -- (1)
This Act may be called the Azad Jammu & Kashmir Council Electronic Media Regulatoty Authority (Adaptation and Extension of functions to Azad Kashmir) Act, 2005.
(2) It extends to the whole of Azad Jammu & Kashmir.
(3) It shall come into force at once.
2. Adaptation of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (XIII of 2002). -- The Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (XIII of 2002), and all rules made thereunder and in force immediately before the commencement of this Act are adapted and shall, as for as practicable, be in force in Azad Jammu & Kashmir subject to the following modifications, namely:-
(a) the expressions "Pakistan" and "Federal Government" shall be construed to refer to "Azad Jammu & Kashmir" and "Azad Jammu & Kashmir Council" respectively;
(b) the expression "Authority" shall be construed to refer to "Pakistan Electronic Media Regulatory Authority" established under The Pakistan Electronic Media Regulatory Authority Ordinance, ,2002 (XIII of 2002) which shall act as an agent of the Azad Jammu & Kashmir Council in Azad Jammu & Kashmir for the purposes of this Act;
(c) "licence" means a licence issued by the Authority to establish and operate a broadcast station or distribute programme through a cable television network in Azad Jammu & Kashmir;
(d) "licensee" means a person to whom the Authority has issued a licence in Azad Jammu & Kashmir; and
(e) the expression "Provincial Government"shall be construed to refer to Azad Government of the State of Jammu and Kashmir.
3. Omission of Sections 15, 16 and 17 Ordinance XIII of 2002. In the Pakistan Electronic Media Regulatory Auithority Ordinance, 2002 (XIII of 2002), hereinafter referred to as the said Ordinance, Sections 15, 16 and 17 shall be omitted.
4. Amendment of Section 19 of Ordinance XIII of 2002. -- In the said Ordinance in Section 19, after sub-section (4), the following new subsection shall be added, namely:- "(5) The Authority shall transfer fifty percent of the fees so received from the licensee to the Azad Jammu & Kashmir Council within thirty days from the receipt of the such fees."
5. Act to override other laws. - The provisions of this Act shall have effect with standing anything contained in the Azad Jammu & Kashmir Council Wireless Telegraph Act, 1976 (XI of 1976), the Azad Jammu & Kashmir Council Telegraph Act, 1976 (XIII of 1976) or any other law for the time being in force.
Removal of difficulty. - If any difficulty or question arises in giving effect to the provisions of this Act or in regard to the construction to be placed on any adaptions, the Council may, from time to time, make such or give such directions as appear to it to be necessary for the purpose of removing such difficulty.
Passed by the Azad Jammu & Kashmir Council on 30th day of June, 2005.
' Sd/- SHAUKAT AZIZ CHARMAN, Azad Jammu & Kashmir Council."
' A study of the impugned Act reveals that Section 1 relates to short title, extent and commencement i.e, the Azad Jammu & Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005, which extends to whole of Azad Jammu & Kashmir an enforced at once from its promulgation. According to Section 2 of the impugned Act, the Pakistan Electronic Media Regulatory Authority, Ordinance, 2002 (XIII of 2002) and all Rules made thereunder and enforce immediately before commencement of the Act are adapted subject to modifications, that as per clause (a) expressions the "Pakistan" and "Federal Government" shall be construed to refer to "Azad Jammu & Kashmir" and "Azad Jammu & Kashmir Council" respectively. According to clause (b), the expression (Authority) shall be construed to refer to "Pakistan Electronic Media Regulatory Authority" established under the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (XIII of 2002),'which shall act as an agent of the Council in Azad Jammu & Kashmir for the purposes of the Act. The clauses (c) and (d) are relating to the expressions (licence) and (licensee), As per clause (e) of Section 2 the expression Provincial Government shall be construed to refer to 'Azad Government of the State of Jammu & Kashmir.
According to Section 3 of the impugned Act, Sections 15, 16 and 17 of the Ordinance XIII of 2002, are omitted: As per Section 4 of the impugned Act, after subsection (4) of Section 19, new sub-section
(5) has been added, whereby the Authority shall transfer fifty percent of fees so received from licensees to the Azad Jammu & Kashmir Council within thirty days from the receipt of such fees.
The provisions of Section 5 override other laws while Section 6 relates to removal of difficulties. The impugned Act is, therefore, consisting of two parts namely adaptation of legislation and entrustment of powers to PEMRA to perform its functions in Azad Jammu & Kashmir.
10. Firstly, we take up the point raised by the learned counsel for petitioners that Azad Jammu & Kashmir Council was not competent to legislate the provisions of the Azad Jammu & Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Jammu & Kashmir) Act, 2005, which does not fall under any of the items given in the Council Legislative List as enshrined in third schedule of the Azad Jammu & Kashmir Interim Constitution Act, 1974. The legislative powers have been bestowed to Azad Jammu & Kashmir Council and Legislative Assembly as per Section 31 of the Interim Constitution Act, 1974, which reads as under:- "31. Legislative Powers. --
(a) for the territories of Azad Jammu & Kashmir;
(b) for all State subjects wherever they may be; and
(c) for all officers of the Council or as the case may be, the Government, wherever they may be.
(2) Subject to sub-section (3)--
(a) the Council shall have exclusive power to make laws with respect to any matter in the Council Legislative List set out in the Third Schedule, hereinafter referred to as the Council Legislative List; and
(b) the Assembly shall, and the Council shall not, have power to make laws with respect to any matter not enumerated in the Council Legislative List.
(3) Neither the Council nor the Assembly shallhave the power to make any law concerning--
(a) the responsibilities of the Government ofPakistan under the UNCIP Resolutions;
(b) the defence and security of Azad Jammu & Kashmir
(c) the current coin of the issue of any bills, notes or other paper currency; or
(d) the external affairs of Azad Jammu & Kashmir including foreign trade and foreign aid.
(4) No tax shall be levied for the purposes of the territories of Azad Jammu & Kashmir except by or under the authority of an Act of the Council or the Assembly.
(5) No law shall be repugnant to the teaching and requirements of Islam as set out in the Holy Qur'an and Sunnah and all existing laws shall be brought in conformity with the Holy Qur'an and Sunnah."
11. According to third schedule of the Constitution Act, the Azad Jammu & Kashmir Council is empowered to legislate on 52 items. Out of the aforesaid item number 2 is relevant which is reproduced as follows:- "(2) Post and Telegraphs, including Telephones, Wireless, Broadcasting and other like forms of Communications; Post Office Saving Bank."
' A bare reading of item number 2 supra makes it abundantly clear that broadcasting and other like forms of communication are included in the aforesaid item, therefore, assertion of the learned counsel for petitioners that the Azad Jammu & Kashmir Council was not competent to legislate on electronic media is repelled and adaptation of the impugned Act, 2005, is held as to be valid.
12. We now take up the next point that functions of PEMRA, set up under the provisions of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, could not be extended to Azad.
Jammu & Kashmir through the impugned Act, 2005 and powers could not be conferred on its employees by the Azad Jammu & Kashmir Council. The objection of petitioners is that the aforesaid Authority cannot functions in territorial limits of Azad Jammu & Kashmir. The identical point came under consideration before the apex Court in case titled M/s. Jabbeer Hotel, Mirpur Vs. Kashmir Council, Islamabad and 4 others (2000 SCR 507). At pages 518 to 519 of the precedent case, it was opined as under:- "22. It is clear from the provisions noticed above that the executive authority of the Council and the Government can be delegated to officers and authorities subordinate to them. The Interim Constitution Act does not postulates that executive authority of Azad Jammu & Kashmir Council will be exercised by the functionaries or officers of the Government of Pakistan although the Prime Minister of Pakistan is the Chairman of the Council. It is equally clear that while performing functions as Chairman of the Council the Prime Minister of Pakistan cannot delegate any functions of the Council to an officer or authority in the Government of Pakistan although they are subordinate to him as Prime Minister.
23. According to the Constitution of Pakistan, 1973 and Azad Jammu & Kashmir Interim Constitution Act, 1974, Azad Jammu & Kashmir is not a part of Pakistan and laws of Pakistan are not applicable to the liberated territory of Jammu and Kashmir. Thus the functionaries appointed under a particular law which is in force in Pakistan do not have the jurisdiction to function in Azad Jammu & Kashmir. It is provided in sub-section (4) that the Federal Government shall establish an Institution called the Employees Old-Age Benefit Institution which shall be a body corporate. The Employees Old-Age Benefits Act, 1976, contains a provision in sub-section (2) of Section 1 that the said Act was to extend to the whole of Pakistan. The Act does not visualize that it will perform functions in Azad Jammu & Kashmir. Section 7 lays down that there will be a number of trustees appointed by the Government and that four members shall he those who have been nominated by the Provincial Governments. There is no mention that it will also have a member from Azad Jammu & Kashmir. It is thus clear that the EOB Institution is performing functions in connection with the Federation. It is set up by the Federal Government and is under its control. The functions which it performs are entrusted to it by the Federal Legislature and the Federal Government.
Clearly it is not a functionary subordinate to the Azad Jammu & Kashmir Council. It follows that Azad Jammu & Kashmir Council could not delegate its functions to the said Institution."
13. The clause (b) of Section 2 of the impugned Act is again reproduced herein below:-- (a)
(b) the expression "Authority" shall be construed to refer to "Pakistan Electronic Media Regulatory Authority" established under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (XIII of 2002) which shall act as an agent of the Azad Jammu & Kashmir Council in Azad Jammu & Kashmir for the purposes of this Act."
' The aforesaid clause declares PEMRA as an agent of the Council. The employees of PEMRA are neither appointed by the Azad Jammu & Kashmir Council nor answerable before it. Even the Council has got no power to legislate for the said employees. Therefore, after examining Constitutional provisions and ratio decidendi laid down by the apex Court in the aforesaid report, we are of the considered view, that the aforesaid clause (b) of Section 2 of the impugned Act is against the Constitution Act, to the extent of entrustment of powers to PEMRA established under the provisions of PEMRA Ordinance, 2002 (XIII of 2002).
14. Through Section 3 of the impugned Act, Sections 15, 16 and 17 of Ordinance XIII of 2002, are omitted. The aforesaid sections relate to budget, accounts, audit and annual report, which are reproduced herein below:-- "15. Budget. -- The Authority shall, in respect of each financial year, prepare its own budget and submit it to the Federal Government three months before the commencement of every financial year for information.
16. Accounts and Audit. -- (1) The Authority shall maintain complete and accurate books of accounts of its actual expenses and receipts in such form as the Federal Government may, in consultation with the Auditor General of Pakistan, determine.
(2) The Authority shall cause to be carried out audit of its accounts by one or more auditors who are chartered accountants within the meaning of the Chartered Accountants Ordinance, 1961 (X of 1961).
(3) Notwithstanding the audit provided in subsection (2) the Auditor General shall have the power to audit or cause to be audited the accounts of the Authority.
17. Annual Report. -- The Authority shall compile and submit an annual report on its operations and accounts for each financial year to the President of Pakistan and shall also arrange for its publication and circulation to the media and the public."
' It appears that as functions of PEMRA were extended in the territory of Azad Jammu & Kashmir, therefore, provisions of the aforesaid sections while considering as superfluous were omitted.
However, in case of establishment of Council Electronic Media Regulatory Authority the aforesaid statutory provisions could not be omitted, therefore, Section 3 of the Impugned Act Is also accordingly bad in law.
15. According to Section 4 of the impugned Act, after sub-section (4) of Section 19 of Ordinance XIII, 2002, the following new sub-section (5) was added, which speaks as under:-
(5) The Authority shall transfer fifty percent of the fees so received from the licensee to the Azad Jammu & Kashmir Council within thirty days from the receipt of the such fees."
As per aforesaid amended Section 5 of the impugned Act, PEMRA after receiving fees from the licensees transfer fifty percent of the same to the Azad Jammu & Kashmir Council, within 30 days from the receipt of such fees. The aforesaid sub-section (5) is also against basic provisions of Interim Constitution Act, 1974. Therefore, after deep deliberation we have reached to the conclusion that provisions of Sections 2(b), 3 and 4 of the impugned Act are contrary to Constitutional instrument, therefore, the same are liable to be struck down.
16. The petitioners have also challenged validity of the Pakistan Electronic Media ,Regulatory Authority Rules, 2009. It is averred by petitioners in paragraph No, 25 that Pakistan Electronic Media Regulatory Authority Rules, 2009, have not been adapted by the Azad Jammu & Kashmir Council.
The above para is reproduced as under:- "25. The license and other regulator)/ fees have been prescribed under the impugned Act and PEMRA Rules, 2009, which are not adopted through the impugned Act. The PEMRA can no collect this revenue from the State of Azad Jammu & Kashmir and must be stopped from doing so being against the law and the Constitution."
' The respondents No, 1 and 2 have not filed their separate written statement, however, relied upon written statement filed by respondents No, 3 to 5. Although paragraph 25 of writ petition was denied, however, the aforesaid respondents stated in paragraph 27(L-d) of written statement as under:-- 27(L-d). That, the sub-ground "L-d" is incorrect. The PEMRA Rules, 2009, as per Section 2 shall be adapted or might have been adapted under Sections 2 and 6 of the Azad Jammu & Kashmir CEMRA Act, 2005. It is the function of legislative body to adopt the same as per need of the society....."
The petitioners therefore, through pleadings proved that Pakistan Electronic Media Regulatory Authority Rules, 2009, have not been adapted by the Azad Jammu & Kashmir Council.
17. The learned counsel for respondents No, 1 to 5 through written statement referred to and relied upon para 3 of script dated 19.8.2011, issued by General Manager (Legal) of Pakistan Electronic Media Regulatory Authority bearing F. No, 7(1)/CC465/Legal/11, dated 19.8.2011, which speaks as under:-- In this regard, a detailed meeting was held with Joint Secretary, Azad Jammu & Kashmir Council in his office and issues concerning implementation of laws and Court Cases were discussed.
Therefore, the proposal of the meeting was submitted to Chairman, PEMRA who was been pleased to approve as follows:- PEMRA while performing its functions in Azad Jammu & Kashmir as an agent of Azad Jammu & Kashmir Council shall work under the name and style of Azad Jammu & Kashmir Council Electronic Media Regulatory Authority as provided under Sections 1 and 2(a) of AJ&K Council Media Regulatory Authority (Adaptation & Extension of Functions to Azad Kashmir) Act, 2005. Therefore, all correspondence/notices may be issued under the name and style of Azad Jammu & Kashmir Council Electronic Media Regulatory Authority.
(ii) Azad Jammu & Kashmir Council Electronic Media Regulatory Authority may perform its function in Azad Jammu & Kashmir under PEMRA Rules, 2002 as adapted by AJK Council in 2005 as the case for adaptation of PEMRA (Amendment) Act, 2007 and PEMRA Rules, 2009 is being taken up with the AJ&K Council for adaptation in due course of time;"
' According to paragraph of the above letter the PEMRA shall perform its functions in the name and style of CEMRA.
' The aforesaid letter is having no any statutory backing. The employees of CEMRA were neither appointed nor answerable before the Azad Jammu & Kashmir Council, who are basically employees of PEMRA. However, it is liable to be clarified that Azad Jammu & Kashmir Council is empowered to establish CEMRA through legislation and appoint its employees for the purposes of enforcement of the impugned Act.
18. The assertion of respondents No, 1 to 5 in their written statement, that due to principles of laches and estoppel the instant writ petition is not maintainable is devoid of force. A perusal of record reveals that petitioners have been preferring applications to various officials including the Prime Minister of Azad Government of the State of Jammu and Kashmir for redressal of their grievances, however, when their applications were not attended then they invoked writ jurisdiction of this Court.
Likewise the impugned Act and Rules were previously never challenged by petitioners before any Court of law nor accepted by them, therefore, principles of laches and estoppel are not applicable in the given case.
19. The official respondents No, 1 to 5 in their written statement also referred a civil suit filed by petitioner No, 2 against respondents No, 3 and 4 along with some functionaries of the Azad Jammu & Kashmir, before Senior Civil Judge, Muzaffarabad, The aforesaid suit was ex-parte decreed in favour of petitioner No, 2 vide judgment and decree dated 19.5.2008. It appears that against the aforesaid Judgment and decree an application filed by the aforesaid respondents No, 3 and 4 was also dismissed. Be that as it may, the aforesaid suit relates to declaration-cum perpetual injunction against the above respondents not to Interfere In lawful business of petitioner No, 2 in which neither the impugned Act nor Rules have been challenged, therefore, on the basis of the aforesaid suit the writ petition of petitioners cannot be refused.
20. The contention of the learned counsel for respondents No, 6 to 8 that writ petition has been filed without issuing notices to the Government/Officers and obtaining permission for filing representative suit as required under Sections 80 and 94 of Civil Procedure Code is also baseless.
According to amended provisions of sub-section (2) of Section 80 of Civil Procedure Code, where any suit is instituted without notice the plaintiff shall not be entitled to any costs and the Court shall allow not less than three months to the Government to submit its written statement. Whereas Section 94 of Civil Procedure Code relates to supplemental proceedings having no nexus with the proposition involved in the given case. The petitioners even otherwise have not filed the instant writ petition In the public Interest rather the same is for enforcement of their fundamental right pertaining to freedom of trade, business and profession, therefore, contention Is repelled.
21. The crux of above discussion is that by partly accepting the instant writ petition the provisions of Section 2(b), Sections 3 and 4 of the Azad Jammu & Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Jammu & Kashmir) Act, 2005, are hereby struck down as without lawful authority. The Pakistan Electronic Media ,Regulatory Authority Rules, 2009, which are not adapted by the Azad Jammu & Kashmir Council, are also hereby set aside, Consequently all the proceedings taken, orders/letters issued by or on behalf of PEMRA are hereby quashed, The Azad Jammu & Kashmir Council is, however, empowered to establish its own Authority and appoint its employees for the purposes of enforcement of the aforesaid Act. The writ petition to the extent of adaptation of the aforesaid impugned Act is, however, dismissed. No order as to the costs.