' This is a writ petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, whereby the petitioner seeks to call up and quash the impugned order passed by the learned District Magistrate, Muzaffarabad, dated 13-1-1986 According to this impugned order, the learned District Magistrate, Muzaffarabad cancelled the State Subject Certificate issued in favour of the petitioner earlier on 29-8-1961.
2. The brief facts leading to this Writ Petition are the following :-
(a) That the petitioner Muhammad Yasin obtained the State Subject Certificate First Class (Annexure 'A' with the Writ Petition) which was granted in his favour by the learned District Magistrate, Muzaffarabad on 29-8-1961. It appears that the petitioner was found somewhere either in Azad Kashmir or in Pakistan (Rawalpindi) and then was brought up by Raja Muhammad Yaqoob Khan Kiani, the kind hearted petition-writer of Bagh (A.K.). When this boy (the petitioner) grew up, he submitted an application before the Divisional Forest Officer, Poonch through the Range Officer, Rawalakote on 28-12-1958 that he might be appointed as a Runner in the Forest Department because the applicant (petitioner) was a refugee. In the application, he mentioned that he was a resident of Urusa, Tehsil Uri and that he lived at Poachiot at the time when the said application was moved. He was appointed as a Dak Runner/ Naib-Qasid by the D.F.O., Bagh Forest Division and he served for sometime i,e, up to 1-7-1970 in the Forest Department. As a refugee he got some land allotted in his favour in 1961. This land comprised of survey Nos. 384 and 385 situate in village Paddar Muhammad Ali Khan which was allotted to him by A.R.C. Pooncb. On 22-8-1961, one Jalal Din moved a revision before the learned Commissioner, Rehabilitation to get the allotment in favour of Muhammad Yasin Khan set aside but the learned Commissioner, Rehabilitation dismissed the revision petition, vide his order, dated 21-12-1985 ;
(b) It appears that the whole trouble of the petitioner Muhammad Yasin started due to this allotment. Muhammad Khalid and Muhammad Musa Khan sons of Jalal Din (during the lifetime of their father) moved a revision petition against the order of the learned Rehabilitation Commissioner, dated 20-10-1983 against Muhammad Yasin, the petitioner herein, before the learned Custodian of the Evecuee Property of Azad Jammu and Kashmir. The learned Custodian of the time, Mr. Justice Abdul Majeed Mallick, observed in his judgment, dated 10.6-1984 that Jalal Din, the father of the petitioner, was alive and that he was also an owner in possession of land measuring 104 Kanals. The petitioners Muhammad Khalid and Muhammad Musa Khan sons of Jalal Din, in their review petition moved before the learned Custodian, had claimed that they were local destitutes. The learned Custodian of the time held in his judgment, daded 10-6-1984 that the contention of the sons of Jalal Din was not sustainable because they did not fall within the definition of the term of "Local Destitute". However, a point was raised before the learned Custodian that the status of Muhammad Yasin as a refugee was sub judiee before the learned Rehabilitation Commissioner, and therefore, the learned Custodian observed that the final decision of the learned Rehabilitation Commissioner would necessarily have an effect on the order of the allotment made in favour of M. Yasin ;
(c) The matter, as to whether the petitioner was a refugee from the village Urusa or not took a fairly long time and it was finally decided by the learned District Magistrate, Muzaffarabad (Syed Iftikhar Hussain Qazmi) that the Certificate issued in favour of Muhammad Yasin Khan was not valid, hence it was cancelled by the learned District Magistrate, Muzaffarabad. This order (Annexure B') is the impugned order in this writ jurisdiction and it was passed on 13-1-1986.
3. The petitioner has impeached the order of the learned District Magistrate, Muzaffarabad dated 13-1-1986 (Annexure 'B'), whereby his State Subject Certificate, issued to him on 29-8-1961, was cancelled.
4. Mr. M. H. Naqvi, Advocate the learned counsel for the petitioner, has raised the following points :-
(a) That the impugned order passed by the learned District Magistrate, Muzaffarabad was void ab initio because no opportunity of hearing was given to the petitioner and, therefore, the impugned order was hit by the rule of audi alteram partem. He cited PLD 1977 SC (A J & K) I and submitted that this order is void ab initio also on the ground that the learned District Magistrate had no jurisdiction to pass the impugned order because the jurisdiction to pass such an order vested with the Azad Jammu and Kashmir Council ;
(b) That the Azad Jammu and Kashmir Council has not delegated its powers to the learned District Magistrate, Muzaffarabad through any Notification published in the official Gazette. No doubt, a confidential letter was written from the Azad Jammu and Kashmir Council Secretariat by one Section Officer addressed to Mr. Shahid Hussain Raja, the District Magistrate of the time, whereby the District Magistrate was authorised to "process the case". This letter, dated 23-9-1985 (Annexure 'if) mentions that the certificate of Muhammad Yasin calls for action under rule 11 of the Azad Jammu and Kashmir State Subject Rules of 1980. The argument of the learned counsel for the petitioner is that the rule No, 11 has got nothing to do with the cancellation of the certificate and it only pertains to penalty which is not relevant in this case ;
(c) That the impugned order passed by the learned District Magistrate, Muzaffarabad is mala fide and, therefore, without jurisdiction ;
(d) That the Azad Jammu and Kashmir Council is the original authority to cancel a State Subject Certificate under section 4 of the Azad Jammu and Kashmir State Subject Rules of 1980. It is also submitted that the right of appeal is always provided in a statute but no appeal is provided in the relevant statute or in any rule made thereunder and hence the contention raised from the other side, that the petitioner has got an alternate remedy in the shape of appeal before the Azad Jammu and Kashmir. Council, is not correct. It has been submitted by Mr. MAI. Naqvi, Advocate that there is no alternate remedy available to him under law and that the law is that if there is no efficacious, speedy and inexpensive remedy, available, the writ lies despite the availability of the alternative remedy.
5. Mr. M.H. Naqvi, Advocate for the petitioner has cited the following authorities
(a) On the point of lack cif jurisdiction and void order :- PLD 1973 SC 236,1' PLD 1975 Lah. 825, PLD 1974 SC (Pak.) 139, PLD 1975 Kar. 26, PLD 1975 Kar. 543, and PLD 1980 Lah.
571.
(b) On the point of mala fide action of the learned District Magistrate, Muzaffarabad :- PLD 1965 SC 698, PLD 1965 SC 671, PLD 1973 SC 49, PLD 1974 SC 151, 1980 CLC 508, PLD 1980 Posh. 281, and Syed Akram Shah v. A.K. Government and others 1985 PLC (C S) 711. (c) On the point of audi alteram partem PLD 1959 SC (Pak.) 45, PLD 1964 SC (Pak.) 468, D 1965 SC 90, AIR 1971 A J & K 37, PLD 1974 A J & K 15, PLD 1977 SC (A J & 10 1, PLD 1975 Kar. 25, PLD 1980 Lah. 784, PLD 1982 Azad J & K 64, and PLD 1986 A 3 & K 212.
(e) On the point of alternate remedy :-
(f) PLD 1961 Lab. 479,
(g) PLD 1966 SC 639,
(h) AIR 1971 SC 33,
(i) PLD 1975 Azad J &K 108,
(j) PLD 1980 Kar. 486,
(k) 1981 CLC 1202, and PLD 1959 Kar. 81, PLD 1963 Lah. 575, PLD 1967 SC 294, PLD 1972 SC 279, PLD 1975 SC 214, PLD 1981 Quetta 1, PLD 1984 SC (A J & K).
77.
' Unreported case titled Mumtaz Abbasi v. Raja Abdul Qayyum Khan of the SC of Azad J & K decided on 10-3-1986.
6. On the other hand, Raja Muhammad Hanif Khan and the learned Additional Advocate-General have replied :-
(a) That the petitioner was not condemned unheard because his Advocate Mr. Abdur Rashid Abbasi, Advocate was present on 13-1-1986 when the impugned order was passed ;
(b) That the District Magistrate had got the jurisdiction to cancel the State Subject Certificate under section 6 of the State Subject Act of 1980 as he was the delegatee of the Azad Jammu and Kashmir Council, vide the letter, dated 11th February, 1985 which is at page 28 of the file of the District Magistrate, Muzaffarabad ;
(c) That the objections relating to the jurisdiction of the learned District Magistrate, Muzaffarab id to cancel the State Subject Certificate was not raised before the learned District Magistrate, Muzatiarabad and, therefore, in the light of the authorities ; PLD 19o4 SC 829 and PLJ 1985 SC(AJ & K) 96 Paras. 4 and 6 and page 200 paris. 13, 14 and 15, this objection cannot be raised before the High Court ;
(d) That the order of the cancellation of the State Subject Certificate passed by the learned District Magistrate on 29-8-1961 is not a valid order because it is basei on the recommendation of the NaibTehsildar Rehmatullah Khan who is alive. His statement was recorded by the learned Distirct Magistrates, Muzaffarabad. The statement of Rehmatullah Khan (at page 15 of the District Magistrate's file) shows that he did not make any recommendation in favour of the petitioner Muhammad Yasin ;
(e) That the petitioner has not availed of the alternate remedy which was available to him under rule 10 of the Azad Jammu and Kashmir State Subject Rules, 1980. In this respect, the following authorities were cited :- PLD 1978 Lah. 1331 PLD 1982 Quetta 136 1983 CLC 2159 and PLD 1983 C 182
7. I have heard the learned counsel for the parties and have gone through the file of the case.
8. On the point of alternate remedy, I think that the alternate remedy should be speedy, efficacious and inexpensive as held in P L DA 1983 Lah. 575 para.
8. This para. Is reproduced below :- "The word 'adequate' signifies a concept of a relative nature. It can be comprehended only as a state of correspondence between one thing and another. A thing can be 'adequate', or 'not adequate', to something else, as for example : 'not adequate to the expectations, is language adequate to describe it'; or "adequate to the disease" when something is decribed as being 'adequate's without indicating what it is adequate to, the context must supply that which has been left unstated. The first question in construing the meaning of 'adequate remedy', therefore, is..... "to what has the remedy to be adequate" ? In the context, we think, the answer must be that remedy has to be adequate to the requisite relief, i,e, the removal, or lessening of the cause of distress or anxiety ; the deliverance from that which was burden some. It is evident that the trouble, expense and delay in getting what is wanted are all as much ingredients of the sum total of that which can be described as 'relief' as the substance of that which is wanted. In the words of a well-known Persian proverb- "While the antidote is being brought from Iraq (which, in the context is a metaphor for a distant land), the victim of snake-bite will be dead."
' If a person is suffering with pain that is continuing, and two remedies are available-one that will remove the pain after a few days of treatment and the other that will remove it after a few weeks of treatment,-the second remedy is not 'adequate' to remove that portion of the continuing pain which must be suffered before that remedy takes effect, and which could have been avoided if the first remedy were resorted to. Again, if a remedy is available on conditions, which are next to impossible, the remedy would not be adequate to the relief. Taken in this light, the adequacy of the remedy must be judged in relation to three separate considerations-
(1) the nature and extent of the relief ;
(2) the point of time when that relief would be avilable ; and
(3) the conditions on which that relief would be available-particularly the conditions relating to the expense and inconvenience involved in obtaining it."
9. Unfortunately, the petitioner was a small boy when he was found by a some kind-hearted person but he was fortunate to get the protection of Raja Muhammad Yaqoob Khan Kiani, the petition- writer of Bagh who was a kind-hearted good Musalman and took pity on the boy.. Nobody knows how and from where the petitioner came over to Azad is.Ashmir but one thing is clear that the stand of the petitioner right from the very beginning has been that he belonged to village Urusa, Tehsil Uri which is near to the present Control Line from Chakothi. Perhaps during the troubled times of 1947, when the non-Muslims were fleeing to save their lives from the rush of the brave Mujahedeen towards Kashmir, the petitioner as a boy crossed over to Chakothi and from there perhaps he was taken to Rawalpindi by some kind-hearted man. Another possibility is that the petitioner does not belong to the State at all and came to Rawalpindi from some unknown place and then took refugee in the house of Raja Muhammad Yaqoob Khan Kiani. This is a question of fact and it needs a thorough probe. It is the settled law that the High Court does not investigate into the disputed questions catena of authorities on this point e.g. PLD 1964 SC 260, 1969 SCMR 217, 1970 SCMR 853, 1972 SCMR 47, PLD 1977 Kar. 6, PLD 1978 Kar, 417, 1979 CLC 872, 1981 CLC 971, 1982 SCMR 497, and AIR 1959 Azad J & K 136, 1968 SCMR 118, PLD 1970 SC 29, PLD 1971 SC 498, 1973 SCMR 422, PLD 1976 Kar. 255, PLD 1979 Kar. 212, 465, 1980 CLC 952, 1982 CLC 2217, 1982 CLC 2227.
' Therefore, it is not possible for me to investigate into this fact and I would refrain from saying anything about the stqtus of the petitioner.
10. I think that the Azad Jammu and Kashmir Council has got the jurisdiction to cancel the State Subject Certificate if it was obtained by fraud, misrepresentation or some other like cause. The cancellation order has been passed by the District Magistrate, Muzaffarabad who had no jurisdiction whatsoever to cancel the State Subject Certificate. No provision of law or no rule has been cited before me whereby the learned District Magistrate has been given powers by the Azad Jammu and Kashmir Council to cancel the State Subject Certificate of a person. No delegation of power can be made by a letter. Such a delegation can only be made by some Notification published in the official Gazette or by some provision of law or by a rule made under the Act.
11. As I am remanding the case to the Azad Jammu and Kashmir Council, so I need not give my verdict on all the legal points raised by Syed Mujahid Hussain Naqvi, Advocate. The petitioner or his learned counsel shall be at liberty to raise those legal questions before the Azad Jammu and Kashmir Council.
' Under these circumstances, I accept this Writ Petition and quash the order of the learned District Magistrate, Muzaffarabad, dated 13-1-1986, whereby the State Subject Certificate of the petitioner has been cancelled and remand the case to the Azad Jammu and Kashmir Council to decide the status of the petitioner according to law after hearing the parties.