KHAWAJA MUHAMMAD SAEED J.---Supra titled appeals, with leave of the Court, are directed against the judgment passed by the High Court on 12-6-2002. As the common questions of law and facts are involved in both the appeals, therefore, these are disposed of through this single judgment.
2. Relevant facts, briefly stated, are that the appellants, who are the domicile of Mirpur District, obtained mobile phone connections from respondents Nos.5 and 6, the Telecommunication Companies, duly registered in Pakistan. It appears that the appellants on the basis of these mobile phone connections started running P.C.O's. Respondents No.7 and 8 wrote a letter to respondent No.2 requesting him to register criminal cases against the appellants for operating and using the mobile phones within the limits of Mirpur District without obtaining the licence from the Azad Jammu and. Kashmir Council. Feeling aggrieved from the conduct of respondents No.7 and 8 and also apprehending the registration of criminal cases against them, the appellants filed writ petitions in the High Court which were dismissed by the High Court through consolidated judgment under challenge in the present appeal.
3. Mr. Abdul Majeed Mallick, the learned counsel for the appellants, argued that respondents Nos.7 and 8 are running telephonic system in Azad Jammu and Kashmir under the permission of the Azad Jammu and Kashmir Government which after the promulgation of the Interim Constitution Act, 1974 has lost its jurisdictional competence because under Schedule-III the matters relating to telegraphs including telephone, wireless, broadcasting and other like forms of communications, Post Office, Saving Bank have been given within the exclusive jurisdictional competence of the Azad Jammu and Kashmir Council for being included at serial No.2 of the Azad Jammu and - Kashmir Council Legislative List. The same argument was raised by the learned counsel before the High Court. He further argued that there are complaints about the efficiency of telephonic system being run by respondents No.7 and 8, therefore, the people of District Mirpur are constrained to obtain mobile phone connections from duly registered companies based in Pakistan. Respondents Nos.7 and 8 without improving their faulty telephonic system were not justified in law to direct the Superintendent of Police Mirpur to register criminal cases against the holders of mobile phones or refrain the appellants from using mobile phones. According to the learned counsel, under the fundamental right enshrined in the Interim Constitution Act, 1974 no restriction can be imposed upon a State subject to run a lawful business of his own choice.
4. While controverting the arguments of the learned counsel for the appellants, Chaudhry Jehandad Khan, the learned counsel for respondents Nos.7 and 8, argued that his clients are running telephonic system in Azad Jammu and Kashmir under an agreement executed between the Azad Jammu and Kashmir Government and his clients. He further argued that under the provisions of the Wireless and Telegraphy Act, 1933, the authority to grant permission exclusively vests to the Azad Jammu and Kashmir Government, therefore, without the prior permission of the Government, the telephonic --facility or any other system cannot be started in the Azad Jammu and Kashmir. He further argued that the appellants on basis of mobile phone connections obtained by them from different telecommunication companies based in Pakistan are running P.C.O's and are causing huge loss to the Government revenue. The learned counsel further argued that his clients, therefore, being duly authorised by the Government were justified in law to issue notices to the appellants to refrain from availing mobile phone facility in District Mirpur and were also justified to direct the S. P., Mirpur to register the criminal cases against them for running P.C.O's within the limits of District Mirpur. He further argued that mobile phone connections obtained by the appellants can be utilized by them within the limits of Pakistan territory as those has been obtained by them from duly registered companies based in Pakistan. According to him, the appellants are not aggrieved persons as none of them has been authorised by the Azad Jammu and Kashmir Government to use or run P.C.O's through these mobile phones, therefore, the judgment of the High Court, according to the learned counsel, is in accordance with law.
5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. It is pertinent to mention here that during the course of arguments we repeatedly inquired from the learned counsel for the parties as to whether after the enforcement of Interim Constitution Act, 1974, any law has been enacted by the Azad Jammu and Kashmir Council to regulate the possession and operation of wireless apparatus including telephonic system because after the enforcement of the Interim Constitution Act, 1974 it was within the jurisdictional competence of the Azad Jammu and Kashmir Council to enact law or accord its approval by carrying necessary amendments in it to meet the requirement contained in the provisions of the Interim Constitution Act. Their reply was in negative. Later- on when we ourselves searched the relevant law, we found that the Azad Jammu and Kashmir Council has enacted Wireless Telegraphy Act in 1976.
This was authenticated by the Chairman, Azad Jammu and Kashmir Council on 26th of December 1976 and was then published in the official Gazette under the provisions of this Act no person can possess any wireless telegraphic apparatus within the territorial limits of Azad Jammu and Kashmir without the license of Azad Jammu and Kashmir Council issued under the above referred Act. It is within the jurisdiction of the Azad Jammu and Kashmir Council alone to issue license subject to such payment as may be prescribed and the word 'prescribed' has been defined as 'prescribed' by rules framed under section 9 of the said Act. Without the license issued by the Azad Jammu and Kashmir Council if any person is found in possession of any wireless telegraphic apparatus, such person can be punished in the case of first offence with rigorous imprisonment which may extend to 6 months or with fine which may extend to 1000 rupees or with both and in case of second and subsequent offence with rigorous imprisonment for a term which may extend to .One year or with fine which may extend to 2,000 rupees or with both. Admittedly all the appellants after the enforcement of the Act of 1976 were bound to obtain license for operating telephonic system in Azad Jammu and Kashmir from the Azad Jammu and Kashmir Council. As no license has been obtained by them from the said Council, as required under the provisions of the Act of 1976, therefore, they cannot be termed as aggrieved' persons who could maintain a writ. The appellants, therefore, should refrain from operating any P.C.O in District, Mirpur or any other part of Azad Jammu and Kashmir without obtaining due permission from the Azad Jammu and Kashmir Council.