SYED MANZOOR HUSSAIN GILANI, J.-- The petitioners, who hail from Neelam Valley Tehsil Authmoquam have filed this petition under Sec. 44 of AJ&K Interim Constitution Act, 1974 for a direction to the respondents to restrain them from recovering the arrears of the loans advanced under different schemas on account of the area having been declared as natural calamities affected area under government notification dated 8.2.19 95.
2. It is stated by. The petitioners that on account of Indian firing, all the communication and other human facilities of the area stand disrupted, destroyed and connection of the area is cut of from other parts of the country and their approach has become inaccessible. It is further stated in the petition that people of the area are not in a position to cultivate their lands or earn livelihood on account of the severity of Indian firing. It is also stated that the government has through notification dated 8.2.1995 which is reiterated on 16.3.1995, declared whole of Neelam Valley as Calamities affected area and the board of revenue is designated. As Relief Commissioner under the AJ&K Natural Calamities (Prevention and Relief) Act, 1976 (hereinafter to be called as Act). The petitioners claim that different loans and other government arrears due against the people of the area are liable to be remitted or recovery thereof be suspended in view of the above-referred notification and condition of the area till the normalcy is restored in the area.
3. The respondents through separate comments and written statement have admitted the issuance of notification declaring the area as calamity affected and also admitted that the Government of Pakistan and Government of Azad Jammu and ,Kashmir have directed to give maximum relief to the people of the area and it is also stated that all the. Outstanding loans are either rescheduled or their recovery is deferred. It is however, stated that as the petition is vague and does not disclose as to which of the petitioners has been made liable to recovery of the government dues, hence the petition is, liable to be dismissed. It is further stated that loans advanced under the agriculture relief act and other loans under which the banking companies are established are regulated by laws enacted by the AJ&K Council, hence the Government of Azad Jammu and Kashmir has no power to issue, any direction or remit the loans as visualized by the natural , calamities act.
4. The learned counsel appearing for the petitioners contended that whole of the Neelain Valley has been declared as natural calamity affected area on account. Of the severity of Indian . Firing and communication and other civic facilities of the area stand either disrupted or destroyed and area stands isolated from rest of the country on account of ,which the petitioners and other people of the area are entitled to all the reliefs visualized under the Act. The learned counsel referring to clause (j) of Sub-Sec. 2 of Sec. 4 of the Act contended that Government under the above provisions of law is bound to remit the loan in whole. The learned counsel further contended that as it has been admitted that the area is affected by Indian firing and the government of Pakistan has also deferred the recovery of loans, hence the Relief Commissioner should remit all the 'loans and, recovery to be made under the Land Revenue Act by the collector.
5. The learned Advocates appearing on behalf of respondents agreed in .Principle that area is severely hit and disrupted and the life of the people of the area stands totally disrupted on account of Indian firing. It is also contended that the loans advanced by the banking companies of Pakistan are beyond the jurisdiction of Azad, Kashmir Government and Relief Commissioner, hence the loans advanced by them cannot be remitted. It is also contended that recovery made under the Land Revenue Act is made under the law enacted or adopted by the AJ&K Council which has not been impleaded as a party, hence the petition is not maintainable.
6. After hearing the learned counsel for the parties, I have considered their respective arguments in the light of pleadings of the parties as well as the law cited at bar.
7. The argument that. Neelam Valley is declared-as natural calamity affected area on account of Indian firing is unquestionable. It is admitted by the learned Advocates appearing for the respondents and the Court also takes judicial notice that life in Neelam Valley area of District Muzaffarabad is disrupted and totally panalized by the barbarities of Indian firing. Most of the people of the area have either migrated to safer parts of Azad Kashmir and Pakistan or are living in the bunkers there to save their lives. It is also admitted that 'Government of Pakistan has directed the relevant authorities and Azad Kashmir Government to either reschedule the loans or defer their recovery in the area as a Matter of policy and it is in fact the most prudent action taken to give relief to the people besides other reliefs which have to be provided by the Government of Azad Kashmir.
8. Alter the declaration of the area as natural calamity affected area, more other steps are required to be taken in view of the Act. These steps are to be taken- by the Relief Commissioner and the actions so visualized by the Act are incidental and ancillary to the declaration of the area as natural calamity affected area. Though the action visualized by sub-sec. (2) of Sec. 4 of the Act are discretionary, but under the circumstances read with other measures taken or adopted by Government of Azad .Kashmir or Government of Pakistan, claim of the inhabitants of the locality through the petitioners is justified and the discretion to be exercised by the Relief Commissioner under the circumstances of the case is, therefore, a mandatory duty vested in him. Relevant provision of sub sec. (2) of sec 4 is as follows:- "(j) to remit in whole or part any government dues payable by any person or in respect of any property affected by the calamity".
'When a diretion in the circumstances of a case advances the cause of justice and public welfare, its exercise is mandatory 'and refusal is a failure to exercise the jurisdiction.
9. The argument of the learned counsel for the respondents that the law under which the loans have been advanced are either enacted or adopted by the AJ&K Council which is not impleaded as a party, hence no order can be passed by the Relief Commissioner or Government of Azad Jammu and Kashmir, is not tenable for the reason that under the scheme of constitution, the AJ&K Council as well as the Assembly have the power to make laws for territories of Azad Jammu and Kashmir and the State Subjects wherever they may be under Sec. 31(1) of the Constitution. The Act under which an area can be declared as natural calamity affected area is within the legislative competence of Azad Jammu and Kashmir Assembly as it does not find place in the third schedule of the Constitution i.e. AJ&K Council Legislative List. The Act promulgated by the Assembly thus has to be enforced by all the agencies in Azad Kashmir, applicable to all the State Subjects wherever they may be, and binding on every authority whoever functions within the territorial limits of Azad Kashmir under any authority of law made by any legislative forum. There is no conflict between the Act or any other law nor is any pointed out. The provisions of the Act visualize the emergent situation to be met by emergency steps. The effect of the orders issued under the Act shall remain in force till the notification declaring the area as natural- calamity affected remains in force or the notification is withdrawn or operation of it is suspended. Thus the power vested in. The Relief Commissioner under the Act override till the notification remains in force. Notwithstanding that, as stated by the learned counsel appearing on behalf of the respondents, the Government of Pakistan has already directed the rescheduling of the loans and suspension of the recovery as a ,matter of policy hence the steps taken in furtherance of the Act do not come in the way of the Relief Commissioner.
10. Under the circumstances of the case, accepting the petition, it is directed that Relief Commissioner shall issue a: notification as visualized by clause (j) of sub-sec. (2) of Sec. 4 of the Act and notification so issued shall remain valid till the notification declaring the area as "natural calamity affected" area, is denotified or withdrawn.