SYED MANZOOR HUSSAIN GILANI, J.-- As the above captioned petitions, under Section 44 of the Interim Constitution Act, .1974, raise common points of fact and law, these are therefore, decided through proposed judgment.
2. The facts leading to the filing of these petitions are that the petitioners are State Subjects having migrated from Indian Occupied Kashmir, are, residing at different place's in District Muzaffara bad, Azad Kashmir. All the petitioners have been registered by the Rehabilitation Department of Azad Kashmir and have been issued Identity Cards/Ration Cards by the Rehabilitation Department.
Some of the petitioners are undergoing studies in different institutions of Azad Kashmir while others are otherwise living in the Camps. They applied for State Subject Certificates which is a pre- requisite for obtaining Domicile Certificate and Identity Card which forms the basis for securing admission in different education institutions and government departments against reserved seats for refugees and for obtaining passports, but the District Magistrate Muzaffarabad refused to issue the State Subject Certificates and in some cases it did not even entertain the applications of the petitioners on the ground that unless Azad Jammu and Kashmir Council Secretariat issues no Objection Certificates in favour of the petitioners, State Subject Certificates cannot be issuing in their favour. The petitioners have called in question the action of District Magistrate in not issued the certificates in favour of the petitioners and also seek direction to the District Magistrate and Registration Officer Muzaffarabad to issue State Subject Certificate, Domicile Certificates and Identity Cards in their favour.
3. District Magistrate Muzaffarabad, in his comments and subsequently in the written statement, has not denied the assertions made by the petitioners of their being State Subject, having migrated from Indian Occupied Kashmir and taken refuge in Azad Kashmir. It is stated by the District Magistrate that the Board of Revenue Azad Kashmir, had through notification dated 31.8.1995, directed all the District Magistrates to issue State Subject Certificates in favour of all those refugees from Occupied Kashmir, in whose favour Ration Cards have been issued and who fulfill the requirement of State Subject Rules 1980. It is also stated that the Domicile Certificates can be issued in favour of those only who have obtained State Subject Certificates. It is further stated that after the above referred Notification of the Government of Azad Kashmir, the Azad. Jammu and Kashmir. Council, through letter dated 12.12.1995, directed the Azad Kashmir Government to withdraw the same and further directed that all such persons who wish to seek permanent settlement in Azad Kashmir, Shall have to first obtain, NOC from the AJ&K Council Secretariat, in consequence of which, the government of AJ&K was constrained to cancel the earlier notification dated 31.8.1995, hence the District Magistrate is not in position to issue State Subject Certificate in favour of the petitioners in view of Security Risks visualized by the AJ&K Council.
4. Learned advocates appearing for the petitioners contended that the petitioners are admittedly State Subjects and have been registered by the Rehabilitation Department of Azad Kashmir, in whose favour Identity Cards for the purpose of Ration Cards have been issued. They further contended that all those State Subjects who have crossed into Azad Kashmir Territory from Indian Occupied Kashmir have been duly registered in Azad Kashmir after obtaining clearance from all security agencies deployed in Azad Kashmir. It is also contended that most of the petitioners are undergoing studies in Colleges and University of Azad Jammu and Kashmir. It is also contended that the Government of Azad Kashmir has, through a notification dated February 22, 1999, bracketed these refugees with those, settled in Pakistan, for the purpose of allocation of quota in Government service and technical institutions, who are entitled to 25% of total seats, subject to the condition that they possess State Subject Certificate. It is further contended by the learned advocates that State Subject Certificates issued by the authority in Indian Occupied Kashmir are placed on record in some cases besides the school and College Certificates of others. The learned advocates further contended that the State Subjects are presumed to be State Subject when they establish their link with the State of Jammu and Kashmir, irrespective of the fact whether they reside in Azad Kashmir or in Indian-Occupied Kashmir or anywhere else in the world. According to the learned advocates no person can be deprived of the status of State Subject save in .Accordance with law, and none of the State Subjects is required to seek Certificate from any authority for settlement in Azad Kashmir. And once he proves his identity that he is a State Subject, no District Magistrate or any other authority can refuse a State Subject Certificate or Identity Card etc. Learned counsel referred following authorities in support of their contention:-
(1) Ghulam Hussain and 2 others v. Federal Government of Pakistan and others (PLD 1993 SC (AJ&K) 1 53).
(2) Ayyub Aziz and 3 others v. Azad Jammu and Kashmir Council and others (PLJ 1995 AJ&K 33).
(3) Azad Jammu and Kashmir Council v. 'Ajmal Bashir and 6 others (PLJ 1998 SC (AJ&K) 56).
(4) lqbal Razzar Butt v. Abdussalam Butt and 6 others (1998 SCR 387)
5. Learner) Counsel appearing for the respondents contended that State Subject Certificate is a matter which falls within the legislative competence of Azad Jammu and Kashmir Council under item-I of Schedule-III of the Constitution and executive authority for the purpose of same is also vested in Azad Jammu and Kashmir Council, hence, any condition imposed by AJ&K Council, has to be complied.
With and in the absence of obtaining a NOC for settlement in Azad Kashmir, no State Subject Certificate can be issued in favour of the claimants. It is also stated that it is not possible for the District Magistrates to issue State Subject Certificates in favour of any individual. It is further contended that bona fide refugees who have migrated from Indian Kashmir are entitled to every human facility in Azad Kashmir, and one who seeks permanent settlement in Azad Kashmir, he has to be scrutinized by there relevant security agencies as No Objection Certificate by the AJ&K Council depends upon their report. According to learned advocates, as security of the state is involved with respect to these persons, hence the council as well as District Magistrate has to be watchful about the fact. Learned counsel further contended that once the requirements and conditions laid down from time to time by the Azad Kashmir Council are fulfilled, the petitioners are entitled to obtain State Subject Certificate and in consequence thereof Domicile Certificate and National Identity Card.
6. After hearing the learned advocates for the parties, I have gone through documents placed on record by the parties and report of cases referred by the advocates for the petitioners.
7. Perusal of the report of the cases, referred above, reveals that the proposition in hand has been discussed in detail in almost all the above referred cases and no ambiguity is left with respect to the law regulating the issuance of the State Subject Certificates in favour of the petitioners or other persons who have migrated from Indian Held Kashmir to Azad Kashmir. I will reproduce below the law laid down by the superior Courts of Azad Kashmir in various cases.
8. In the case reported as Ghulam Hussain and 2 others v. Federal Government of Pakistan (PLD 1993 AJ&K 153), it is held in para 10, as f ollows:-- "10. The authority to make laws relating to acquisition or loss of State Subject is vested in Azad Kashmir Council under Item I of 3rd Schedule of the Constitution. However, the law defining the various categories of the State subjects remains the same as referred above, And all the laws made or to be made by the Council shalt have to correspond to the above definition and Notifications 'referred therein. Any action of the Council, the GOAJ&K or the GOP derogatory to the above provisions is a nullity."
"11. The events relating to the State of J&K are a matter of public history and every Court has to take judicial notice of the fact that the State was single and compact geographical and political unit till 1947, when a part of the State now named, as ' Azad Jammu and Kashmir' was liberated and the other part of the State is under the illegal occupation of India. The people of the State.As a whole are yet to determine their future status in accordance with the UN Resolutions. Till such time, as the people of the State decide their future under fair and impartial plebiscite to be held under the UN supervision. They shall retain their status of being State Subjects, 'whether they reside in the territories under the control of Indian or of Pakistan or anywhere in the world. It is also a matter of public history that people of the State under Indian occupation travel around the world on Indian Passport, while the people in. Azad Kashmir travel on Pakistani Passport. This temporary arrangement shall, as a matter of fact continue and shall have to continue, till the fate of these unlucky people is finally decided."
It is further held, in para 14 of the judgment, as follows:-- "14. Being a State Subject is a status, not a nationality stricto senso under the contemporary circumstances and this status is not lost by a State Subject by possessing the Passport of any country much less India and Pakistan who are in de facto control of 2/3rd and 1/3rd part of the State. The State Subjects living in either part of the State have no means of travelling around the world except through the Passport of the country where the 'part of their territory actually falls, without prejudice to their status of being State subjects. Discussing the similar proposition as to whether a State Subject travelling on Indian Passport to Azad Kashmir is a' foreigner the Supreme Court of Azad Jammu and Kashmir has set the point at rest in the case reported as "PLD 1993 SC (AJ&K) 112, it is held:- "Next it has been argued by learned counsel for ... That as the appellant was an Indian National he was not entitled to be enrolled as a. Pleader or an Advocate of the High Court. It has been argued that the relevant Legal Practitioners Rules envisage that a State Subject is entitled to be enrolled as a pleader or an advocate subject to the other conditions laid down therein. It has been argued that the question of appellant being a State Subject is not to be resolved in view of Foreigners Act of 1946 rather it is to be determined in view of the relevant law. Under section 2 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the expression State Subject has been defined as under: "State Subject" means a person for the time being residing in Azad Jammu and Kashmir of Pakistan who is a ' State Subject' as defined in the Late Government of State of Jammu and Kashmir Notification No. 1-L/84, dated 20th April, 1927, as amended from time to time.
It is evident from the above Constitutional provision that in case of appellant, the question as to whether he is a State Subject or not is to determined in view of Notification No. 1-L/84 dated 20th April, 1927. The status of the appellant as State subject has not been disputed even by the relator in the memorandum of writ petition. No law has been cited that the appellant ceased to be a State Subject because he had come to Azad Kashmir on Indian Passport. The relevant fact for resolving the point involved is as to whether the appellant was a State Subject and not the question of his nationality in view of the provisions contained in the Foreigners Act or any other law for the time being in force."
The Passport, thus does not determine the nationality of the State Subject, but is a document which legalizes his international travel, without affecting his status of being State Subject."
Para 16 and 18 are also of equal importance which are reproduced below:-- "1 6. What is made out from the above discussion is that a State Subject cannot be deprived of his status of being a State Subject by his obtaining the Passport of India or Pakistan, unless he loses that status by any of the eventualities mentioned in the Notification relating to State Subject .As Issued from time to time; and thus, a State Subject cannot be deprived of his right to reside and settle in any part of the State as guaranteed by Section 4(4)(5) of the Constitution, of course subject to reasonable restrictions. The part of the State under the Indian yoke is a part of the State of Jammu and Kashmir, hence a resident of that part of the State is as good a State Subject as one residing in Azad Kashmir, as none of the two parts of the State is a foreign territory for the other."
"1 8. The objection of the learned counsel for the respondents that the settlement of a person in Azad Jammu and Kashmir is to be ordered under the No-Objection of the Ministry of Interior, GOP, hence the High Court has no jurisdiction is also misconceived. A State Subject needs no certificate of being a State Subject from Ministry of Interior, GOP, as the subject relates to AJ&K Council, which is a part of the Azad Jammu and Kashmir State, and is subject to the jurisdiction of the Azad Jammu and Kashmir Courts in all respects. However, the defence and Security of AJ&K being the responsibility of GOP, the Ministry of Interior, GOP, figures in the affairs to the extent of security concerns of the State and country. If a State Subject from the occupied part of the State entering Azad Kashmir is found involved in any of the activities prejudicial to the interest of Azad Kashmir or Pakistan or is found to be a security risk, he can be proceeded against under law as any other person residing in the liberated territory or in Pakistan. The Ministry of Interior, GOP, has, therefore, a role to play in Azad Kashmir to that extent, and while playing that role, it is preforming its functions in connection with the affairs of Azad Kashmir".
9. In the case of Ayub Aziz and 3 others v. Jammu and Kashmir Council (PLJ 1995 AJ&K 33, it is held; "6. It is well established from the evidence placed on record that the petitioners are citizens of the State of Jammu and Kashmir. By virtue of their status as citizens of the State, they are vested with the right to move and travel through the State, without hindrance and restriction. Likewise, they are vested with the valid right to reside anywhere or in any part of the State, including Azad Jammu and Kashmir. This right is vested in the petitioners by virtue of laws of the State in force in both parts, across the Cease-fire line.
8. In the present case, since the petitioners are legitimate State Citizens, they are free to choose their place of residence in Indian-held part of Kashmir or in Azad Kashmir. Under law, they cannot be forced to go back to Kashmir not withstanding the fact that they have traveled to Pakistan and Azad Kashmir on Indian Passports and Pakistan visa. The mode of travelling by itself does not place an embargo or bar on the vested right of the petitioners. They are free to reside in Azad Kashmir.
9. It is correct that the discretion vests in Home Office Pakistan, to allow a , family to reside in Pakistan but under law, the Pakistan Home Office is not empowered to refuse the State citizens to stay or reside in Azad Kashmir notwithstanding their travelling in Indian Passports. The authority in Azad Kashmir vest in Azad Kashmir Government and, not in Pakistan Home Office. Since the Prime Minister of Azad Kashmir Government has supported the petitioners vide his letter of June 1, 1 994 and the administrative authorities have nothing to say against the petitioner, they cannot be denied their stay in Azad Kashmir."
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10. Following paras, from the case of Azad Jammu and Kashmir Council v. Ajmal Basharat and 6 others (PLJ 1998 SC (AJ&K) 56, are also worth to be reported here:-- "10. It may be observed that the word ' residing' used in the above mentioned definition is not synonymous with the word domicile' as stipulated under section 5 of the Azad Jammu and Kashmir State Subject Act, 1980 which postulates that for being a domicile a person must have been continuously living, in Azad Kashmir for a period not less than 5 years and must also have intention to live permanently in Azad Jammu and Kashmir.
Thus the word ' residing' used in the aforesaid definition does not mean that for invoking the writ jurisdiction of the High Court, a State Subject has to prove that he is a domicile of Azad Kashmir. He has merely to show that he was either residing in Azad Kashmir or, Pakistan prior to the institution of the writ petition, irrespective of the period for which he had been so residing. It would be expedient here to reproduce below the ordinary meanings of the word ' reside' as given in Blacks Law Dictionary so as to elucidate the ,matter further:-- Reside., Live, dwell, abide, sojourn, stay remain, lodge."
Thus, the contention of the learned counsel for the appellant that the petitioners-respondents would not be deemed to be residing in Azad Kashmir as State Subjects when they filed writ petitions has not substance and is hereby repelled.
12. The learned counsel for the appellant has also argued that when the petitioners-respondents came on Visas issued by Pakistan Embassy in Delhi and subsequently came to Azad Kashmir with the permission of the concerned authority of Government of Pakistan, they cannot be allowed permanent stay in Azad Kashmir, even if they are held to be State Subjects.
The mere fact that the petitioners-respondents devised the entry into Azad Kashmir by obtaining Indian passport, visas from Pakistan Authorities and thereafter, the said permission of the Government of Pakistan would not deprive them of permanent stay in Azad Kashmir when they are State Subjects and have right to reside in any part of the State of Jammu and Kashmir as has been held in the authorities, referred to above."
11. As stated above of the subject of Nationality/Citizenship relates to Azad Jammu and Kashmir Council in view of 3rd Schedule of the Constitution, the Council has enforced the Act known as Azad Jammu and Kashmir State Subject Act, 1980 (Act) and made rules under it called as Azad Jammu and Kashmir State Subject Rules 1980 (Rules). The notification I-L/84 dated 20 April, 1927 is the basis of the definition of State Subject in section 3 of the Act. The definition of the State Subject as given in section 2 of the Constitution is as follows:- "2. Definition:-- State Subject means a person for the time being residing in Azad Jammu and Kashmir or Pakistan who is a State Subject' as defined in the late Government of the State of Jammu and Kashmir Notification No. I-L/84, dated the 20th April, 1927, as amended from time to time."
Perusal of the provisions of the Act, rules and the above notification as amended from time to time reveals that a person, who is State Subject within the meaning of above, cannot be refused the certificate nor can be deprived of his right of being State Subject whatsoever the reason may be save as provided by Section 4 of the Act. Provisions of Section 4 of the Act reveal that the competent authority can deprive any person of his State Subject Certificate, it is satisfied that he obtained the same by means of Fraud, False Representation or Concealing any material fact, and in case when it is in the public interest that a person should not continue its State Subject Certificate. In these cases, notice has to be given to the person who obtained State Subject Certificate stating the grounds on which the authority proposes to make an order to deprive the person of his State Subject Certificate.
12. The status of State Subject is a hereditary right and devolves in the similar manner as the right of inheritance in view of Notes II and III of notification 1-L/84 dated 20th April, 1927, which are as follows:-- Note II. The descendants of the persons who have secured the status of any Class of the State Subjects will be entitled to become the State Subjects of the same Class. For example, if A is declared a State Subject of Class 11, his sons and grand-sons will ipso facto acquire the status of the same Class (II) and not of Class I.
Note Ill.-- For the purposes of interpretation of the term 'State Subject' either with reference to any law for the time being in force or otherwise, the definition given in this Notification as amended up to date shall be read as if such amended definition existed in this. Notification as originally issued."
And this status continues in favour of emigrants from the state for two generations under notification 13-L/1989 dated 27th June 1932, which is as follows:-- "No. 13-L/1989. Whereas it is necessary to determine the status of Jammu and Kashmir State Subjects in foreign territories and to inform the Governments of Foreign States as to the position of their national in this State; it is hereby commanded and notified for public information as follows:--
1. That all emigrants from the Jammu and Kashmir State to foreign territories shall be considered State Subject and also the descendants of these emigrants born Abroad for two generations: Provided that, these nationals of the Jammu and Kashmir State shall not be entitled to claim the internal rights granted to subjects of this State by the laws, unless they fulfill the conditions laid down by those laws and rules for the specific purposes mentioned therein."
13. Comparative study of the above provisions of the Act reveals that a State Subject has the inherent right to obtain State Subject Certificate from the competent authority and that authority has no power to refuse the same. The authority is only authorized to cancel the Certificates on the above grounds, not to refuse the same. Issuance of the State Subject Certificate in favour of the State is his right and its cancellation is subject to strict conditions, as visualized by the Act.
14. The petitioners, in these cases, are residing in Azad Kashmir; some of whom have placed on record their State Subject Certificates issued by occupied Kashmir Authority, while all of them have placed on record the Registration/Ration Cards issued by the Rehabilitation Department of AJ&K at the time of their entry in Azad Kashmir from Indian Held Kashmir. Some of them have taken admissions in the Education Institutions of Azad Kashmir and have placed on record their School and College certificates. The District Magistrate has simply to satisfy as to whether they fall within the definition of State Subject as given in Section 2 of the Constitution read with Act and Rules. In the absence of birth certificates, as visualized by rule 4(a)(1), the District Magistrate is obliged to have resort to Sub rule II of Rule 4(a) of the State Subject Rules 1980 and once requirements of sub rule II are fulfilled and it is proved that the person is State Subject, the District Magistrate is bound to issue the Certificate in his favour.
15. As far as the cases of the present petitioners are concerned they have placed on record cogent proof of their being State Subject and in the absence of any proof contrary to it, there remain no reason for the District Magistrate to refuse Certificates in their favour. As far as the contention of the learned advocates for the respondents that Azad Jammu and. Kashmir Council has imposed a condition of obtaining NOC before issuance of the Certificate from the Council Secretariat, the same is of no force for the reason that the Act and-the Rules govern the field not the said notification. Moreover, any notification, rule or -law in derogation of Section 2 of the Constitution, providing definition of State Subject, is a nullity and has to be ignored while issuing the State Subject Certificate by District Magistrate. Similar is the spirit of law laid down in the above referred authorities.
16. The issuance of the Domicile Certificates and National Identity Card depends upon State Subject Certificate. A notification is also issued in this behalf by HQs's O.M. No. Regd. 717/99-(opr-II) dated 13.11.1999 .Stating that identity Cards may be issued to those Kashmiri Refugees who have obtained State Subject Certificate or Citizenship Certificate, issued by the Azad Kashmir Government. This letter has again been circulated to the relevant authorities by the Ministry of Home on 21.12.1999, under No. Regn. 1/99-(OPR), wherein the Director RRC Islamabad is authorized to issue orders for issuance of Identity Cards. The government of Pakistan is clear on the point, while confusion in this regard is created by Azad Kashmir Administration.
17. Under the herein before referred notifications the RRC is authorized to issue the orders' for issuance of Identity Cards to above mentioned persons. Clause IV of the letter issued from Directorate General Registration dated 21.12.1999, which is as follows:--
(IV) Copy of notification issued by Home Department AJ&K regarding permission for permanent settlement in AJ&K. has the tendency of creating further ambiguity, which requires to be clarified as a State Subject whether a refugee or otherwise does not require a certificate of permission for permanent settlement in Azad Kashmir, as being the State Subject is itself a guarantee for a person to settle and reside anywhere in Azad Kashmir under section 4(5) of the Constitution which is reproduced as follows:-- "5. Freedom of movement Subject to any reasonable restrictions imposed by law in the public interest, every State Subject shall have the right to move freely throughout Azad Jammu and Kashmir territory and to reside and settle in any part thereof."
18. Perusal of the above provision reveals that a State Subject needs no permission, from any authority, for settlement in Azad. Kashmir. The person who is a State Subject is entitled to settle anywhere in Azad Kashmir without permission of any authority, as held in the above referred cases.
This provision guarantees the right to every State Subject to move freely throughout Azad Kashmir and to reside and settle in any part thereof. However, if the residence or the stay of a person, at a particular place, is detrimental to the Public interest, entry of State Subject can be excluded' into that particular area but the right of State Subject 'to settle and reside in any part of the State cannot be taken of neither can it be subject to formal permission or notification of the Government.
This provision, perhaps, has not been brought to the notice of the authorities issuing the notification, which requires reconsideration. More-over the registration offices are located all over Azad Kashmir, any of the offices can be authorized to issue the order for Identity Cards. Reference of cases to RRC Islamabad, to issue Id. Cards would further multiply the miseries of already vexed Kashmiri Refugees to undergo loss of time, money, energy and other multiple problems.
The golden principle of " ought to be followed.
19. Outcome of the above discussion is that:--
(1) once a person proves ,that he is a bona-fide State Subject as per definition given in Section 2 of the Constitution read with the Act and the Rules, he is entitled to State Subject Certificate and there is no discretion vested in District Magistrate to refuse the same;
(2) that the registration/Ration Card issued by the Azad Kashmir Rehabilitation Department or any other evidence adduced by a person is sufficient proof of his being State Subject;
(3) that a State Subject needs no permission or notification of the Government for settlement in any part of the State of Azad Jammu and Kashmir in view of fundamental right No. 4(5) of the Constitution;
(4) that no No Objection Certificate is required from Azad Jammu and Kashmir Council Secretariat for issuance of State Subject Certificate, under the constitution . Act and the Rules and < a notification contrary to it is a nullity which has to be ignored;
(5) that a State Subject Certificate does not absolve or immune a person from liability to be proceeded under law, if he is found Security Risk or found involved in the activities prejudicial to the interest of State, but it does not deprive him of the status of State Subject, neither can issuance of the Certificate be subjected to any clearance, except as stated above; (6') and that a state subject who possesses State Subject Certificate is entitled to Identity Card without any certificate/permission for permanent settlement, in view of para (3) above.
20. The result of the above discussion is that both the petitions are accepted in the above stated manner. Copy of the order shall be sent to District Magistrate , Muzaffarabad, with the direction to issue the State Subject Certificates, within fifteen (15) days from the date he receives the order; in favour of the petitioners who fulfill the requirement, as stated above.
21. A copy of the, order shall be sent to the Azad Jammu and Kashmir Council Secretariat to take necessary steps to facilitate the issuance of National Identity Cards and Passports.
No order as to costs.