M. TABASSUM AFTAB ALVI, C.J.---- The supra titled writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby , vires and propriety of the Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005, along with 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 and Kashmir , has also been made.
2. 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 and Kashmir , established through its Constitution and registered with Chamber of Commerce and Industries, Muzaf farabad. However , petitioner No.2, is a partnership firm which has been registere d under the law of the Azad Jammu and 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 01.03.2002. The aforesaid Ordinance was adapted and enforced by the Azad Jammu and Kashmir Council through Act VII of 2005, which is known as the Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005. The petitioner No.2, has been running business of cable television network since 17.05.2003, under the license of Interior Department Government of Azad Jammu and Kashmir , regulating the said business in the State of Azad Jammu and Kashmir since 17.04.2003. On 02.07.2007, 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 a direction to obtain a new license under the impugned Act, 2005. The petitioner wrote a letter to Additional Secretary Interior , Government of Azad Jammu and Kashmir , for seeking guidance on the issue, which was answered that licenses have already been issued by the Interior Department of the Azad Jammu and Kashmir , on payment of prescribed fee. However , on 03.10.2007 and 17.11.2007, petitioners again received letters from Deputy General Manager (Enforcement) PEMRA, respondent No.4, with direction of obtaining new license. The petitioners having no response from the Department of Interior Government of Azad Jammu and Kashmi r, wrote to respondent No.4, on 24.11.2007, for license in the category of less than 500 connections. The petitioner No.2, again received a letter on 31.12.2007, from respondent No.4, with a direction to re-apply for license vide letter dated 07.01.2008. The respondent No.3, without considering' reply of petitioner No.2, issued seizure orders of the said petitioner's equipment on 24.01.2008, which were acted upon on the same day. Thereafter , petitioner No.2, filed a suit for declaration-cum-perpetual-injunction against respondents, in Civil Court, Muzaf farabad, which grant ed stay order and finally suit was also decreed in favour of the aforesaid petitioner , on 19.05.2008. It is also stated that respondent No.8, transferred NOC to his subsidiary company namely ITV on 25.04.2009, which was granted in favour of petitioner No.2, however , respondent No.4, again turned down the application for license of Messrs ITV by frivolous reasons on 04.07.2009. It is averred that respondent No. again issued direction through letter s dated 24.02.2010 and 19.03.2010, with a final warning through letter dated 22.03.2010, for obtaining new license under the impugned Act and clear outstanding dues. In this regard, respondent No.5, also issued show-cause notices on 21.04.2010, 23.04.2010, and 19.05.2010, respectively . The petitioner No.2, moved successive applications to Deputy Commissioner Muzaf farabad and Commissioner Muzaf farabad, against respondents Nos.3 to 5, but in vain. The petitioner No.2, also preferred an application to the Prime Minister Azad Government of the State of Jammu and Kashmir , for redressal of his grievance on 13.05.201 1, which was also not attended. It is claimed that respondent No.5, has now requested to Government of Azad Jammu and Kashmir and its functionaries vide letter dated 20.05.201 1, 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 and Kashmir . It is alleged that licenses and other regularity fee have been prescribed under the impugned Rules, 2009, which were not adapted by the Council. It is claimed that PEMRA cannot collect revenue and perform functions in the State of Azad Jammu and Kashmir . It is further maintained that the impugne d Act, was adapted against the Interim Constitution, 1974, hence, the instant constitution petition. This Court in earlier round of litigation partly accepted writ petition vide judgment dated 15.09.2015. However , in appeal, the case was remanded by the Apex Court to decide the same afresh while attending preliminary objection of locus standi of petitioners as raised by contesting respondents in written statement vide judgment dated 08.03.2018.
3. The writ petition has been resisted by respondents Nos.3 to 5, through written statement dated 13.01.2012. 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, 1974, the exec utive 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 designata either directly or through the Secretariat, of the Council located at Islamabad. It is maintained that Azad Jammu and Kashmir is assimilated in the main stream of Pakistan for all practical purposes, including administration, economic and social development etc. The Government of Pakistan had issued two successive notifications to this effect that Azad Jammu and Kashmir shall be for all practical purposes be treated like other Provinces of Pakistan. It is maintained that Azad Jammu and Kashmir is integrated with Pakistan in administrative, social, cultural and economic affairs without prejudice to its recognized position under the UN Secu rity Council Resolutions. It is also stated that petitioners have availed another alternate remedy before the Civil Court as such cannot invoke the extraordinary constitutional jurisdiction of this Court. It is maintained that PEMRA is functioning as an agent of Azad Jammu and Kashmir Council on behalf of Azad Jammu and Kashmir CEMRA and all the functions are being performed in the name of Azad Jammu and 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 and Kashmir CEMRA, hence, submitted for dismissal of writ petition.
4. On request of the learned counsel for respondents Nos. 1 and 2 the aforesaid written statement was treated as written statement of the said respondents as well vide order dated 10.02.2012.
5. The respondents Nos.6 to 8, despite obtaining several opportunities failed to file written statement, hence, their defence was closed vide order dated 05.03.2012.
6. Barrister Humayun Nawaz Khan, the learned counsel for petitioners have filed written arguments, wherein, it is submitted that petitioners have challenged legality of the Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005, along with PEMRA Rules, 2009, being in direct conflict with provisions of Interim Constitution,. 1974. He added that this Court in earlier round of litigation accepted the instant writ petition vide judgment dated 15.09.2015, however , the same was remanded by the Apex Court on the ground of locus standi. The learned counsel maintained that petitioner No.1, is the sole representative association of cables operators in the State of Azad Jammu and Kashmir established through its constitution and registered with Chamber of Commerce and Industries, Muzaf farabad, whereas, petitioner No.2, is a partnership firm which has been registered as such under the laws of Azad Jammu and Kashmir , hence, writ petition is maintainable. He submitted that petitioner No.2, is a firm which is duly registered with Registrar of Firms under section 59 of the Partnership Act, 1932, having authority of 2nd partner of petitioner No.2, in favour of 1st partner , Syed Anwar Hussain Shah, who has filed the instant writ petition. The learned counsel pressed into service that contention of respondents pertaining to 13th Amendment is totally misconceived as rights and liabilities of petitioners are yet to be determined for the period 2011-2018, hence, all actions taken and orders passed by PEMRA in respect of petitioners and steps taken by functionaries in Azad Jammu and Kashmir under PEMRA, are liable to be set-aside. The learned counsel in support of his contentions placed reliance on the following case law:-
(i) Federation of Pakistan through the Secretary , Ministry of Kashmir Affairs and Northern Affairs Division, Islamabad v . Malik Muhammad Miskeen and 8 others, [PLD 1995 SC (AJ&K) I];
(ii) Azad Government of the State of Jammu and Kashmir through Chief Secretary , Muzaffarabad and 3 others, [PLD 1995 SC (AJ&K) 47];
(iii) Sajjad Hussain Shah and others v. Azad Jammu and Kashmir Council Secretariat through Joint Secretary Council Secretariat Sector F-5/2, Islamabad and others, [PLD 2013 HC (AJ&K) 34];
(iv) Messrs Jabbeer Hotel Mirpur v . Kashmir Council Islamabad and 4 others, [2001 PLC (CS.) 1 1];
7. Messrs Abdul Rasheed Abbasi, Bashir Ahmed Mughal and Asghar Ali Malik, Advocates, appearing on behalf of respondents, have filed separate written arguments, wherein, it is commonly stated that petitioner No.1, is not a legal person in the eye of law, as it is neither registered as a company under the relevant law nor is a body corporate, rather it is a private association with the only claim of its being registered with Chamber of Commerce and Industry , Muzaf farabad, hence, the said petitioner has no locus standi to file the instant writ petition. They further submitted that the instant writ petition has been filed by petitioners on the basis of partnership deed dated 24.09.2006, which was executed between Syed Anwar Hussain Shah and Mubee na Zameer Naqvi, whereas, writ petition has been filed in name of firm by Syed Anwar Hussain Shah, claiming to be its Chief Executive, hence, the same is not maintainable. They further submitted that business have been transferred by Messrs Shahjee's to ITV, Shahjee's Information Technologies, therefore, petitioners do not have any locus standi to file the instant writ petition. The learned counsel maintained that grievance arose in year 2007, when petitioners were issued notices, however , the instant writ petition was filed on 23.07.201 1, after a lapse of 04 years , therefore, the same is badly hit by laches and suffered, from inordinate delay . The learned counsel contended that petitioners instead of complying with and following law, have been throughout adamant and intransigent by insisting upon claim that they have got NOC from Azad Jammu and Kashmir Government to run cable network, however , did not respect law and apply for a proper license, therefore, writ petition is liable to be dismissed on account of improper conduct of petitioners. The learned counsel finally craved that after 13th amendment in the Azad Jammu and Kashmir Interim Constitution, 1974, the subject of post and telegraphs including telephones, wireless broadc asting and other like forms of communications is within the legislative jurisdiction of Government of Pakistan acco rding to the provisions of Article 31(3) read with third Schedule Part-A of the Azad Jammu and Kashmir Interim Constitution, 1974, therefore, writ petition against the Azad Jammu and Kashmir Council has become infructuou s on account of the aforesaid constitutional amendment, hence, the same is liable to be dismissed. The learned counsel in support of their contentions placed reliance on the following case law:- i. Azad Government of the State of Jammu and Kashmir others v . Haji Summandar Khan others, [1995 MLD 1350 ] ii. Pakistan Diploma Engineers Federation (Regd.), Lahore v. Federation of Pakista n and 9 others , [1987 CLC 2154 ]; iii. Anjuman Araian, Bhera v . Abdul Rashid and others , [PLD 1982 SC 308 ] iv. Anjuman Araian Bhera Vs. Abdul Rashid and 5 others , [PLD 1973 Lah. 500]; v. Pakistan Steel Re-Rolling Mills Association v . Province of W est Pakistan, [PLD 1964 (W . P.) Lah. 138];
8. We have examined written submissions made by the learned counsel for parties and have also examined the record.
9. At the cost of repetition, it is reiterated that this Court in an earlier round of litigation, partly accepted the instant writ petition vide judgment dated 15.09.2 015, by declaring the provisions of section 2(b), sections 3 and 4 of the Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adapta tion and Extension of Functions to Azad Jammu and Kashmir) Act, 2005, as without lawful authority . The Pakistan Electronic Media Regulatory Authority Rules, 2009, which were riot adapted by the Azad Jammu and Kashmir Council, were also set-aside and all the proceedings taken, orders/letters issued by or on behalf of PEMRA were quashed: However , the Azad Jammu and Kashmir Council was directed 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 was, however , dismissed. The respondents, herein, filed Civil Appeal No.122/2016, before the Hon'ble Supreme Court, whereby , points of locus standi competence of petitioners were agitated. The Apex Court remanded the case for decision afresh upon the aforesaid point through judgment dated 08.03.2018. Now we would firstly resolve objection raised on behalf respondents regarding locus-standi and competence of petitioners for filing the instant petition. The petitioner No.1, claimed to be sole representative association of cable s operators in the State of Azad Jammu and Kashmir established through its constitution and registered with Chamber of Commerce and Industries, Muzaf farabad, whereas, petitio ner No.2, is a partnership firm which has been registered as such under the laws of Azad Jammu and Kashmir , hence, right of business of petitioners is directly affected from the Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005, and the Pakistan Electronic Media Regulatory Authority Rules, 2009. It appears that petitioners are first class State Subjects and it is their fundamental right to run a business of their own choice as per law, however , due to provisions of section 2(b), sections 3 and 4 of the Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of functions to Azad Jammu and Kashmir) Act, 2005, petitioners right of business have been affected. Besides that respondents Nos.3 and 4, wrote various letters and even issued show-cause notices and last warning for obtaining new licenses from PEMRA, collection of fee/dues on the basis of the impugned legislation, therefore, it can safely be said that petitioners are directly aggrieved, hence, have locus standi and competence to file the instant Writ petition. The Apex Court in case titled "Rehmat Ullah Khan and 03 others v. Azad Government and 13 others ," (2014 SCR 1385) while interpreting the word "aggrieved person" has observed. that for enforcement of fundamental right of a State Subject and supremacy of law, every State Subject is aggrieved person. The relevant extract recorded at page 1420, of report is as under:- "We have also considered the moot point agitated from both sides regarding the status of appellant to be an aggrieved person. In our view the material factual and legal proposition raised in writ petition along with prayed relief have to be considered for determination of this proposition. The factual proposition raised in this case relates to the constitutionally guaranteed fundamental right of the State Subjects and enforcement of law. Keeping in view the nature of the controversy the question of enforcement of fundamental rights of State Subjects, Supremacy of law, every State Subject in such like matters is aggrieved person."
The same proposition came under consideration before the Apex Court in case titled Azad Government and 2 others v. Syed Tayyab Gilani and 14 others," [2009 SCR 415], wherein, at page 429, of the report, it was opined as under:- "10. The contention of the learned counsel for the petitioners that the respondents do not fall within the definition of "aggrieved persons" has no substance for the reason that not only that person can be considered as an 'aggrieved person', whose vested right has been infringed by an action but it is sufficient if he has a juristic right. It would also be sufficient if he has a right to assail an order , which is illegal and affects his rights. If an act is without lawful authority and a person is adversely affected by such, act, he can seek direction that such act is without lawful authority . The perception that a person can only be termed as an 'aggrieved person' if his vested interests are flouted is an incorrect import and meaning of the word `aggrieved' in the context of writ jurisdiction."
Similarly , a Full Bench of this Court in case titled "Sajjad Hussain Shah and others v. Azad Jammu and Kashmir Council Secretariat through J.S. Counci l Secretariat Sector F-5/2, Islamabad and others (PLD 2013 HC (AJ&K)
34), while interpreting question of locus standi or aggrieved person, has observed that in appropriate cases in which violation of fundamental right is pointed out question of locus standi can be construed liberally but subject to law. The relevant extract is reproduced at page 61 of judgment as follows:- "In view of above stated position of law we hold that question of locus standi or aggrieved person employed in section 4(2) (c) is sine qua non for invoking extraordinary jurisdiction of this Court but in appropriate cases where petition is filed in large interest of society by a lawyer or a State Subject in which violation of fundamental is pointed out then the question of locus standi can be construed liberally but subject to law laid down by the superior Courts in various pronouncements discussed. hereinabove. The objection is therefore, repelled."
The petitioners, therefore, in view of above, have locus standi to challenge the Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Jammu and Kashmir) Act, 2005, and the Pakistan Electronic Media Regulatory Authority Rules, 2009, along with letters etcetera, which directly af fected their fundamental right of business, hence, petition is maintainable.
10. Now, before adverting to other 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 SECRET ARIA T No. C-3/1/2005- AIIAct passed by the Azad Jammu and Kashmir Council on the 30th June, 2005 and Chairman, Azad Jammu and Kashmir Council is hereby published for general information.
ACT VII OF 2005 AN ACT to adapt and enforce the Pakistan Electronic Media Regulatory Authority in Azad Jammu and Kashmir .
WHEREAS it is expedient to provide for the development of broadcast media in Azad Jammu and 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 grassroots 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 flows:-
1. Short title, extent and commencement:- (1) This Act may be called the Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005.
(2) It extends to the whole of Azad Jammu and Kashmir .
(3) It shall come into force at once.
2. Adaptation of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (XIII of 2002).--- (1) 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 far as practicable, be in force in Azad Jammu and Kashmir subject to the following modifications, namely:-
(a) the expressions "Pakistan" and "Federal Government" shall be construed to refer to "Azad Jammu and Kashmir" and "Azad Jammu and 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 and Kashmir Council in Azad Jammu and 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 and Kashmir;
(d) "licensee" means a person to whom the Authority has issued a licence in Azad Jammu and 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 Pakista n Electronic Media Regulatory Authority 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 subsection (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 and 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 notwithstanding anything contained in the Azad Jammu and Kashmir Council Wireless Telegraph Act, 1976 (XI of 1976), the Azad Jammu and Kashmir Council T elegraph Act, 1976 (XIII of 1976), or any other law for the time being in force.
6. 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 provisions or give such directions as appear to it to be necessary for the purpose of removing such difficulty .
Passed by the Azad Jammu and Kashmir Council on 30th day of June, 2005.
Sd/ - SHAUKA T AZIZ CHAIRMAN Azad Jammu and Kashmir Council."
A study of the impugned Act reveals that section 1 relates to short title, extent and commencement i.e. the Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir), Act, 2005, which extend s to whole of Azad Jammu and Kashmir and 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 and Kashmir" and "Azad Jammu and 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 and Kashmir for the purposes of the Act.
The clauses (c) and (d) are relating to the expressions (license) 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 and 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 impugne d Act, after subsection (4) of section 19, new subsection (5) has been added, whereby the Authority shall transfer fifty percent of fees so received from licensees to the Azad Jammu and 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 and Kashmir .
11. Now, we take up the point raised by the learned counsel for petitioners that Azad Jammu and Kashmir Council was not competent to legislate the provisions of the Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of functions to Azad Jammu and 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 and Kashmir Interim Constitution, 1974. The legislative powers have been bestowed to Government of Pakistan as per Article 31(5) of the Interim Constitution, 1974, which reads as under: "31. Legislative Powers.- (1) Subject to Sub-Article (3) the Assembly shall have the power to make laws-
(a) for the territories of Azad Jammu and 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) The Assembly shall have exclusive power to make laws on any matter not enumerated in Part-A of the Third Schedule; and
(3) The Government of Pakistan shall have exclusive powers to make laws with respect to any matter enumerated in 'Part-A' of the Third Schedule.
(4) .....................
(5) ....................
(6) ....................
12. According to Third Schedule of the Interim Constitution, 1974, the Government of Pakistan is empowered to legislate on 32 items. Out of the aforesaid, item number 5 is relevant which is reproduced as follows:- "(5) Post and Telegraphs, including Telephones, Wireless, Broadcasting and other like forms of Communications; Post Office Saving Bank."
A bare reading of =item number 5, 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 Govt. of Pakistan was not competent to legislate on electronic media is repelled.
13. We now take up the next point that functions of PEMRA, setup under the provisions of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, could not be extended to Azad Jammu and Kashmir through the impugned Act, 2005 and powers could not be conferred on its employees. The objection of petitioners is that the aforesaid Authority cannot functions in territorial limits of Azad Jammu and Kashmir . The identical point came under consideration before the Apex Court in case titled Messrs Jabbeer Hotel Mirpur v. Kashmir Council Islamabad and 4 others, [2001 PLC (C.S.) 1 1]. At pages 21 and 22 of the precedent case, 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 and 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 any officer or authority in the Government of Pakistan although they are subordinate to him as Prime Minister .
23. According to the Constitution of Pakistan of 1973 and Azad Jammu and Kashmir Interim Constitution Act, 1974, Azad Jammu and 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 and Kashmir . It is provided in subsection (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 Benefit Act, 1976, contains a provision in subsection (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 and Kashmir . Section 7 lays down that there will be a number of trustees appointed by the Government and that four members shall be those who have been nominated by the Provincial Governments. There is no mention that it will also have a member from Azad Jammu and 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 and Kashmir Council. It follows that Azad Jammu and Kashmir Council could not delegate its functions to the said Institution."
14. The clause (b) of section 2 of the impugned Act is again reproduced herein below:- "2. ......................
(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 and Kashmir Council in Azad Jammu and 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 and Kashmir Government or by Council nor answerable before it. Even the Azad Government of the State of Jammu and Kashmir and Council have 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 Interim Constitution, 1974, to the extent of entrustment of powers to PEMRA established under the provisions of PEMRA Ordinance, 2002 (XIII of 2002).
15. 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 and Kashmir , therefore, provisions of the aforesaid sections while considering as superfluous were omitted. However , in case of establishment of Council Electronic Media Regulatory Authority , or Azad Government of the State of Jammu and Kashmir 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 .
'16. According to section 4 of the impugned Act, after subsection (4) of section 19 of Ordinance XIII 2002, the following new subsection (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 and 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 fee from the licensees transfer fifty percent of the same to the Azad Jammu and Kashmir Council, within 30 days from the receipt of such fee. The aforesaid subsection (5) is also against basic provisions of Interim Constitution , 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.
17. The petitioners have also challenge d 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 and Kashmir Council. The above para reproduced as under:- "25. The license and other regulatory fees have been prescribed under the impugned Act and PEMRA Rules, 2009, which are not adapted through the impugned Act. The PEMRA can not collect this revenue from the State of Azad Jammu and Kashmir and must be stopped from doing so being against the law and the Constitution."
The respondents Nos.1 and 2, have not filed their separate written statemen t, however , relied upon written statement filed by respondents Nos.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 and Kashmir CEMRA, 2005. It is the function of legislative body to adapt 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 and Kashmir Council.
18. The learned counsel for respondents Nos.1 to 5, through written statement referred to and relied upon para 3 of script dated 19.08.201 1, issued by Gene ral Manager (Legal) of Pakistan Electro nic Media Regulatory Authority bearing F . No . 7(1)/C C465/Legal/1 1 dated 19.08.201 1, which speaks as under:- "3. In this regard, a detailed meeting was held with Joint Secretary , Azad Jammu and Kashmir Council in his office and issues concerning implementation of laws and Court Cases were discussed. Thereafter , the proposal of the meeting was submitted to Chairman PEMRA who has been pleased to approve as follows: i. PEMRA while performing its functions in Azad Jammu and Kashmir as an agen t of Azad Jammu and Kashmir Council shall work under the name and style of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority as provided under sections 1 and 2(a) of Azad Jammu and Kashmir Council Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005. Therefore, all correspondence/ notices may be issued under the name and style of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority . ii. Azad Jammu and Kashmir Council Electronic Media Regulatory Authority may perform its function in Azad Jammu and Kashmir under PEMRA Rules, 2002 as adapted by Azad Jammu and Kashmir Council in 2005 as the case for adaptation of PEMRA (Amendm ent) Act, 2007 and PEMRA Rules, 2009 is being taken up with the Azad Jammu and Kashmir Council for adaptation in due course of time;"
According to paragraph i, 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 and Kashmir Council, who are basically employees of PEMRA.
19. The stance of respondents Nos. 6 to 8 that writ petition has been filed without issuing notices to the Government/Of ficers and obtaining permission for filing representative suit as required under sections 80 and 94 of Civil Procedure Code, 1908, is also baseless. According to amended provisions of subsection (2) of section 80 of Civil Procedure Code, where any suit is instituted without notice the plaintif f 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 overruled.
20. The official respondents Nos.1 to 5 in their written statement also referred a civil suit filed by petitioner No.2 against respondents Nos.3 and 4 along with some functionaries of the Azad Jammu and Kashmir , before Senior Civil Judge, Muzaf farabad. The aforesaid suit was ex-parte decreed in favour of petitioner No.2, vide judgment and decree dated 19.05.2008. It appears that against the aforesaid judgment and decree an application filed by the aforesaid respondents Nos. 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 lawfu l 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.
21. The assertion of the learned counsel for respondents 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.
22. The contention of the learned counsel for contesting respondents that after 13th Amendment in Interim Constitution, 1974, writ petition has become infructuous is misconceived. As per Article 51(2) as added by (thirteenth Amendment) Act, 2018, all laws made by the Azad Jammu and Kashmir Council and enforce shall continue to be enforced until amended or altered or repealed by the Act of Assembly etcetera, hence, contention is overruled.
23. However , before parting, it is liable to be observed that after 13th amendment in the Azad Jammu and Kashmir Interim Constitution, 1974, Government respondent if deems necessary or expedie nt in the public interest may with the consent of Government of Pakistan as per Article 19(2), make legislation, which speaks as follows: "19. Extent of executive authority of Government (1). ...............................
(a). ...............................
(b). ..............................
(2). The Government if deems necessary or expedient in the public interest and to secure paramount purpose of social and economic wellbeing of the people of the State, may with the consent of the Government of Pakistan, entrust, either conditionally or unconditionally , to the Government of Pakistan or to any of its subordinate authority including a ministry , division, organization or statutory body or entity of Pakistan, to perform any of such functions within territory of the State as may be prescribed by law .
(3). ..........................
(4). ..........................
A reading of the aforesaid sub-Article (2) of Article 19, makes it abundantly cleat that Azad Government, if deems necessary or expedient in public interest and to secure paramount purpose of social and economic well being of the people of the State, may with the consent of Government of Pakistan, entrust, either conditionally or unconditionally , to the Government of Pakistan or to any of its subordinate authority including a ministry , division, organization or statutory body or entity of Pakistan, to perform any of such functions within territory of the State as may be prescribed by law. The Government-respondent, therefore, through an act of Assembly entrust the functions either to the Government of Pakistan or to any of its subordinate authority , ministry division, organization or statutory body including PEMRA.
24. The crux of above discussion is, that with the observations as mentioned in paragraph No.22, supra, by partly accepting the instant writ petition, the provisions of section 2(b), sections 3 and 4 of the Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of functions to Azad Jammu and Kashmir) Act, 2005, are hereby struck down as without lawful authority , hence, having no legal effect. The Pakistan Electronic Media Regulatory Authority Rules, 2009, which are not adapted by the Azad Jammu and Kashmir Council, are also hereby set-aside. Consequently , all the proceedings taken, orders/letters issued by or on behalf of PEMRA to petitioners for obtaining new licenses and payment of fees and dues etcetera are hereby quashed. The Azad Government of the State of Jammu and Kashmir is, however , empowered to establish its own Authority and appoint its employees for the purposes of enforcement of the aforesaid impugned Act, or may exercise its powers as postulated under sub-Article (2) of Article 19 of the Interim Constitution, 1974. The writ petition to the extent of adaptation of the aforesaid impugned Act is, however , dismissed. No order as to the costs.