1. The supra titled writ petitions have been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
2. 2.As common questions of facts and law are involved in the captioned writ petitions, therefore, the same are consolidated and decided through this single judgment.
3. The precise facts forming background of Writ Petition No, 2287-A/2015 are that, petitioner "Roots Millennium School" commenced its business with a single school since pretty long time with immense zeal and managed to spread its network of schools all over Pakistan and Azad Jammu & Kashmir having at present, 191 schools in forty nine cities, where total strength of students is 62,854 out of which 25,636 are girls and remaining 37,218 are boys. The aforesaid school, alongwith all other private educational institutions, is regulated and controlled as per the Azad Jammu & Kashmir Private Educational Institutions (Promotion and Regulation) Act, 2007. It is averred that through the impugned orders dated 12th October, 2015 and 22nd October, 2015, issued by Respondents Nos. 1 and 2 while exercising .Powers under Section 144, Cr.P.C. Restrained petitioners alongwith other private educational institutions for an indefinite period from increasing the fee level(s) in the year 2015-16. The claim of petitioners is that the aforesaid orders were issued contrary to the Azad Jammu & Kashmir Private Educational Institutions (Promotion and Regulation)
3. Act, 2007, as well basic provisions of the Interim Constitution Act, 1974, hence, the instant constitution petition.
4. The writ petition has been resisted by respondents through comments filed on 28th October, 2016, which were treated as written statement vide order dated 2nd March, 2016. It is averred that the impugned orders were issued after hearing schools owners in the public interest; as there was no law to reduce fee of Private Schools. It is maintained that Administration of "Roots Millennium School" enhanced unreasonable fee of schools and other charges beyond the control of public-at- large. It is further claimed by respondents that in various cities, petitioners fixed different rates of fee and in Mirpur high standard and unreasonably fee was enhanced, hence, the impugned ban was imposed in the public interest, therefore, submitted for dismissal of writ petition.
4. 5.The facts culminating into filing of Writ Petition No, 2289/2015 are that petitioner, Dr. Farzana Firoz, is running City School through her attorney Manager Administration Allah Ditta Sabir, all over the Pakistan and Azad Jammu & Kashmir since long time with immense zeal and passion. The aforesaid petitioner by reiterating facts and grounds of Writ Petition No, 2287-A/2015 has also challenged the vires of the impugned orders dated 12' October, 2015 and 22nd October, 2015, issued by District Magistrate, Mirpur and Commissioner Mirpur Division, through the instant constitution petition.
5. 6.The summary of Writ Petition No, 2297/2015 is that petitioner, Horia Niazi and another are running a business of "City School" at Upper Chatter Housing Scheme Muzaffarabad, who also by repeating facts and grounds of Writ Petition No, 2287-A/2015 have challenged vires of the impugned order dated 30th September, 2015, issued by District Magistrate, Muzaffarabad, imposing similar ban on enhancement of fee on the part of all private schools, tuition centers and academies.
6. 7.The respondents despite service in Writ Petitions No, 2289/2015 and 2297/2015 failed to file written statement, hence, were proceeded ex parte vide even dated orders 13th October, 2016.
7. 8.Syed Nishat Kazmi, the learned counsel for petitioners strenuously argued that District Magistrate, Mirpur and Muzaffarabad, in utter disregard of basic provisions of Section 144, Cr.P.C. imposed ban upon petitioners and other private institutions with regard to enhancement of fee and other charges directing to receive the same on the basis of already determined rate of the previous year.
8. He further contended that such like order could not be issued, that too, for an indefinite-period, which is violative of sub-Section (61 of Section 144 of Cr.P.C. The learned counsel pressed into service that in Writ Petition No, 2297/15, ban was imposed by District Magistrate, Muzaffarabad, on enhancing fee and dues vide impugned order dated 30th September, 2015, for two months period, which has been expired, however, submitted that all the aforesaid orders are coram-non-judice, hence, craved for acceptance of writ petitions and quashment of orders under challenged. 9.After hearing the learned counsel for petitioners, I have perused the contents of writ petitions and examined the appended documents with utmost care.
9. 10.A contemplate perusal of record reveals that District Magistrate, Mirpur, through the impugned order dated 27th Oct., 2015, imposed ban upon private Schools and Colleges, specially "City Schools Mirpur", "Beacon House Schools System" and "Roots Millennium Schools System", from enhancing fee and other charges by declaring that the same shall be received on the basis of fee already determined in the previous year. It was further directed that additional fee already received by the institutions shall be adjusted/returned to the students. The aforesaid order has been challenged by "Roots Millennium Schools" through Writ Petition No, 2287-A/2015, and by Dr. Farzana Feroze, of "City Schools Mirpur", through Writ Petition No, 2289/2015. The petitioner Horia Niazi and another, however, challenged the similar impugned order dated 30th Sep., 2015, issued by. District Magistrate, Muzaffarabad. The aforesaid Section 144 Criminal Procedure Code, 1898, reads as follows:-- "144. Power to issue order absolute a once in urgent cases of nuisance or apprehended danger.--
(1) In cases where, in the opinion of a District Magistrate Sub-Divisional Magistrate, or of any other [Executive Magistrate] specially empowered by the Provincial Government or the District Magistrate to act under this section, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is. desirable, such Magistrate may, by a written order stating the material facts of the case and served in manner provided, by Section 134, direct any person to abstain from a certain act or take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance or the public tranquility, or a riot, or an affray.
(2) An order under this section may, in case of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex-parte. (3)An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
10. (4)Any Magistrate may, either on his own motion or on the application of any person aggrieved rescind or alter any order 'made under this section by himself or any Magistrate subordinate to him, or by his predecessor-in-office.
11. (5)Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order; and, if the Magistrate rejects the application wholly or in partly, he shall record in writing his reasons for so doing.
12. (6)No order under this section shall remain in force for more than two months from the making thereof, unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the Provincial Government, by notification in the official Gazette, otherwise directs."
13. ' A bare reading of Section 144, Cr.P.C. reveals that District Magistrate, Sub-Divisional Magistrate and any Executive Magistrate, by written order stating the material facts of the case can direct any person to abstain from a certain act onto take certain order with respect to certain property in his possession or under his management, if the said Magistrates, consider that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray. Section 144, Cr.P.C. is the single section in Chapter XI of Cr.P.C. It is intended for temporary orders only in cases of grave emergency. It confers extraordinary power which no doubt extends to interference with the legal rights of individuals. The . aforesaid section is enacted to provide for making temporary orders in urgent cases of nuisance of apprehended danger, where immediate prevention or speedy remedy is desirable. It provides that where there, is sufficient ground for proceeding under the section and immediate prevention or speedy remedy is desirable, the authority may make an order in writing against any person or the public generally if the concerned Magistrate considers that his direction is likely to prevent or intends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to his life, health or safety or disturbance of the public tranquility, or a riot, or an affray. The order must state the material facts of the case and it must be served in the manner provided by S. 134, Cr.P.C. and may direct a person to abstain from a certain act or to make certain order with certain property in his possession or under his management. In cases of emergency or in cases where the circumstances do not admit of service in due time of notice upon the person against whom the order is directed, it may be passed ex-parte. The order remains in force as per sub-section (6) of Section 144 for not more than two months, unless the Government, in cases of danger to human life, health or safety, or is a likelihood of a riot, or an affray, otherwise directs. As the impugned order dated 22nd Oct., 2015, was issued by District Magistrate, Mirpur, for an indefinite period that too against the spirit of the basic provisions of the aforesaid section, hence, the same is not sustainable under law. However, Commissioner Mirpur Division, Respondent No, 2, never passed any order on 12th October, 2016, as alleged by petitioners.
14. The aforesaid respondent stood forward certain recommendations to Chief Secretary Dated Government of the State of Jammu & Kashmir, which can be considered by rules making committee and the Government while 4, Hiring substituting Rules as per Section 15 of the Azad Jammu Kashmir Private Educational Institutions (Promotion and Regulation) Act, 2007.
15. 11.Through Writ Petition No, 2297/2015, titled "Horia Niazi and.- another vs. District Magistrate, Muzaffarabad & others" petitioners challenged vires of the impugned order dated 30th November, 2015, issued by District Magistrate, Muzaffarabad, for two months period, which has already been expired, therefore, the aforesaid writ petition has become infructuous.
16. 12.According to Section 3 of the Azad Jammu & Kashmir Private Education Institutions (Promotion and Regulation) Act, 2007, no institution shall operate unless it is registered in accordance with the provisions of the Act and rules framed there under. The aforesaid section is reproduced as under:-- "3. All institutions shall he registered.--No institution shall operate unless it is registered in accordance with the provisions of this Act and the rules made thereunder; ' Provided that the institutions existing on the commencing day shall apply for registration within ninety days from the said day and may continue to function without registration until the application is disposed off; ' Provided further that the Educational Institutions affiliated with Federal Board of Intermediate & Secondary Education may or may not participate in the terminal examinations to be held under the Boards of Elementary Education AJK."
13. Similarly according to Section 4, there shall be Registering Authority appointed or authorized by the Government, who may register an institution as prescribed by law. The aforesaid section speaks as follows: "4.Registering Authority.--(1) There shall be a Registering Authority appointed or authorized by the Govt. who may register an institution as prescribed by law.
(2) In order to register an institution and to factually ascertain the true position of an applicant and its institution, the Registering Authority may himself or through a subordinate officer, physically examine the institution and report thereon."
17. 14.An application for registration can be moved by the concerned institution according to Section 5, whereas conditions for registration are postulated under Section 6 of the Act. The aforesaid Sections 5 & 6 are reproduced as under:-- "5. Application for Registration.--(1) The in charge of an institution may make an application to the Registering Authority in the form and manner as contained in Schedule-I to this A.
18. (2)The Registering Authority after making such inquiry as it may deem necessary and in such manner and about such matters as may be prescribed, shall either register the institution or reject the application: Provided that in case of rejection of the application, the 'Authority shall assign reasons for such rejection.
19. (3)No order of rejection shall be made without giving the applicant an opportunity of being heard.
20. (4)An application for registration shall be decided by the Registering Authority within two months from receipt thereof; Provided that where the Registering Authority is unable to make a decision within the aforesaid period for any valid reasons, the institutions already working shall continue to function till decision by the Registering Authority.
(5) The Registering Authority shall charge fee for registration and renewal of registration as may be prescribed.
21. 6.Conditions for Registration.--The Registration of an institution shall be made subject to the following conditions.-- (i)Only such teaching staff shall be appointed by the institutions who shall have such qualification and training as may be prescribed.
22. (ii)The teaching staff shall, in no manner, either by sign or word of mouth or writing or any other means, propagate anything repugnant to Islam, ideology of Pakistan and State's accession to Pakistan.
23. (iii)Terminal examinations shall be conducted by the respective Boards and University of AJK.
24. (iv)Tuition fees and other charges levied by the institution shall not be fixed or raised beyond reasonable limits.
25. (v)The record and registers as prescribed in Schedule III shall be maintained by the incharge of the institution.(vi)The institution, through a prospectus, shall notify the details of facilities provided, subjects to be taught, medium of instruction, qualifications of the teaching staff, fees and other charges before the commencement of each academic year.
(vii) The institution shall furnish such information to the Government or the Registering authority as may be required from time to time.(viii) The in charge and employees of an institution shall bear a good moral character and should not be convicted of any offence involving moral turpitude,
(ix) The institution should have an adequate accommodation for teaching purposes and open space for assembly and games.
(x) The institution shall be bound to teach such textbooks/syllabus as may be approved by the Government from time to time."
15. As per Section 4 supra, the Government issued notification on June 11th 2012, which speaks as follows:-- "AZAD GOVT. OF THE STATE OF JAMMU & KASHMIR (Finance Department)
26. "Muzaffarabad" June 11th, 2012 Notification: No, FD/T/14948-15047/2012.--In exercise of the power conferred under Sections 4 and 5(5) of Azad Jammu & Kashmir Private Educational Institutions (Promotion and Regulation) Act, 2007, and supersession of previous Notification No, SE/Admin/2(101)2007 dated 31.07.2007, the President Azad Govt. of the- State of Jammu & Kashmir is pleased to sanction the following fee for registration of Private Educational Institutions with immediate effect.
27. Registration fee:
(i) Registration fee of private Primary and Middle SchoolRs.
28. 10,000/- (ii)High School/Higher Secondary Schools Rs.
29. 15,000/- (iii)Colleges Rs.
30. 20,000/-
(iv) Annual Inspection Fee Rs. 2000/-
2. Director Public Instruction Male (Schools) shall be registering authority for the categories (i) & (ii) while the Director Public Instruction (Colleges) shall be the registering authority for category (iii) above.
31. (Mehrban Hussain Ch.) Deputy Secretary (Budget/Tax)"
32. 16.Through the aforesaid Govt. notification Director Public Instructions Male (Schools) is registering authority for Private Primary, Middle, High and Higher Secondary Schools. However, Director Public Instructions (Colleges) is registering authority for Private Colleges.
33. 17.According to clause (iv) of Section 6 of Private Educational Institutions (Promotion and Regulation) Act, 2007, tuition fee and other charges levied by any institution shall not be fixed or raised beyond reasonable limits, however, in case of unreasonable fee or violation of other conditions, the matter can be taken by "Registering Authority" for cancellation of registration of such like institution. It is binding duty of Registering Authority of Education Department to take immediate steps against all Private Primary, Middle, Secondary, Higher Secondary Schools as well as Private Colleges which are functioning anywhere in the territory of Azad Jammu & Kashmir to stop the same from functioning without registration for maintenance of law supra. There are lot of complaints of public-at-large in respect of enhancement of fee, time and again soliciting contributions from students in the name of functions payment of meager salary to highly qualified staff and insufficient accommodation of the private institutions which are in my judicial notice.
34. 18.Before parting it is worthwhile to observe here that all Divisional Commissioners, District Magistrates and Sub-Divisional Magistrates will be bound to take steps for enforcement of the Azad Jammu & Kashmir Private Educational Institutions (Promotion and Regulation) Act, 2007, and will co-operate with Registering Authority for implementation of the aforesaid Act.
35. 19.The crux of above discussion is that by accepting Writ /Petitions No, 2287-A and 2289/2015, the impugned order dated 22nd Oct., 2015, issued by District Magistrate, Mirpur, is hereby quashed as without lawful authority, hence, having no legal effect. The Writ Petition No, 2297/15 is, however, dismissed as having become infructuous. The Secretary Education Schools and Secretary C Education Colleges and Director Public Instructions (Schools) as well as Director Public Instructions (Colleges) are hereby directed to take necessary steps and close all private Schools and Colleges, which are functioning without obtaining registration from the Registering Authority as observed in Paragraph 17 supra. All Divisional Commissioners, District Magistrates and Sub-Divisional Magistrates are also directed to take necessary measures to implement the orders of the Registering Authority of Education Department pertaining to closing of unregistered institutions and enforce the Azad Jammu & Kashmir Private Educational Institutions (Promotion and Registration)
36. Act, 2007. The office shall transmit attested copies of the instant judgment to Secretary Education (Schools), Secretary Education (Colleges), Director Public Instructions (Schools) and Director Public Instructions (Colleges) as well as all Divisional Commissioners for compliance with report to Registrar of this Court within three months. No order as to the costs.