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10. I agree with the learned Advocate‑General that if the order has been passed by any authority having exclusive jurisdiction, in accordance with law, then the bar contained in the relevant enactment, shall positively exclude the jurisdiction of all the Courts, including the High Court, if so is laid down in the relevant Act. But at the same time, it cannot be brushed aside from mind that if the jurisdiction has been exercised by an authority having exclusive jurisdiction in the matter, in an arbitrary, unguided or colourful manner, then the jurisdiction available to this Court under the Azad Jammu and Kashmir Interim Constitution Act, 1974, can be invoked by an aggrieved party. Because any tribunal or authority having exclusive jurisdiction has got no right to over step its limits or bypass clear provisions which it is required to follow in exercise of its jurisdiction.

11. In "Muhammad Tufail v. Abdul Ghafoor" (PLD 1958 SC (Pak.) 201), a dispute of allotment of a shop was resolved by Rehabilitation Commissioner in exercise of his review powers under the Rehabilitation Act. The order was challenged through a writ in the High Court which was accepted by the High Court, resultantly, the other party went in appeal before the Supreme Court mainly on the ground that jurisdiction of all Civil Courts including the High Court was barred by clear provisions contained in the Rehabilitation Act against any order passed by the Rehabilitation authorities. The Supreme Court while rejecting the appeal, upheld the judgment of the High Court by observing as under:‑‑‑ "According to this Section, the jurisdiction of the Civil Court is expressly barred in the case of an order passed by a Rehabilitation Authority under the Ordinance, i.e. in strict conformity with the provisions thereof. Where this is not so, the Civil Court cannot be deprived of its powers of interference. The protection does not cover an order capriciously made or in flagrant breach of the statute giving the protection."

12. In "Abdur Rauf v. Abdul Hamid" (PLD 1965 SC (Pak) 671, a similar point cropped up before the Supreme Court on the strength of Sections 10 and 60 of the Frontier Crimes Regulations. The learned Supreme Court finally resolved the controversy by observing as under:‑‑ "We are quite familiar with the words "under the Act" or "under Chapter ". No order is an order passed "under the Act" if it was not passed in exercise of powers granted by the Act and was therefore without jurisdiction. In a particular Act the words "under the Act" or "under Chapter...:' may not appear and words of similar import may be used. But whatever the phraseology. employed, any provision in an enactment saying that order passed under the enactment or by virtue of the powers conferred by the enactment would not be liable to challenge in a Court of law has reference only to orders passed with jurisdiction. It can be stated as a general rule, without reference to the language used in an enactment, that barring provisions like those with which we are here concerned apply only to orders passed with jurisdiction.

13. In PLD 1964 SC (Pak) 126, the dispute primarily cropped up out of an order of Auqaf Department whereby it has prohibited a religious function in a mosque. The dispute was taken to the Supreme Court where besides other points, the controversy in hand was resolved by observing as follows:‑‑‑ "The Chief Administrator Auqaf and the Manager appointed by him are creatures of a Statute and despite the provisions of the Ordinance shutting out the jurisdiction of the ordinary Courts in respect of orders passed or acts done under the Ordinance the corrective process of the Civil Courts would be available if these functionaries exceed their statutory powers:" In the light of the above survey of case‑law, the unanimous principle which emerges is that if an Authority having exclusive jurisdiction passes an order in excess of the jurisdiction conferred upon it by the statute or fails to act in accordance with the rules or procedure laid down in the statute or its orders are based on misreading or non‑reading of some important evidence then such orders of the Authority having exclusive jurisdiction will stand on no better footing than an order without jurisdiction which may be called in question by invoking extraordinary writ jurisdiction of this Court.

14. Much before these authorities, in Zafar‑ul‑Ahsan v. Republic of Pakistan (PLD 1960 SC (Pak.) 113), the proposition was resolved by the Supreme Court as follows:‑‑‑ "As regards the contention that the order of retirement is not an order under sub‑clause (b) because of the non‑observance of Rule 2 or the omission or refusal of the President to hear the appellant in support of his appeal, the position is precisely the same, viz. that the order must be held to be under sub‑clause (b) of clause (5) of Article 6 of .the Laws (Continuance in Force) Order, even if in following the statutory procedure some irregularity was committed. (If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster, is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omission or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of Law). Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub continent, be treated as an order under the statute.

15. In order to examine the impugned order, as to whether or not it was passed in accordance with the procedure laid down in the Act, it appears necessary to reproduce below the relevant provisions of Section 10 of the Act in extenso:‑‑‑ "

10. Procedure and evidence.‑‑‑(1) A complaint shall be made on solemn affirmation or oath and in writing addressed to the Mohtasib by the person aggrieved or, in the case of his death, by his legal representative and may be lodged in person at the office or handed over to the Mohtasib in person or sent by any other means of communication to the office. (2) xxx xxx xxx xxx xxx xxx xxxx xxxx xxxx xxxx xxxx (3) A complaint shall be made not later than three months from the day on which is not within time if he considers that there are special circumstances which make it for him to do so. (4) Where the Mohtasib proposes to conduct an investigation he shall issue to the principal officer of the Agency concerned, and to any other person who is alleged in the complaint to have taken or authorised the action complaint of a notice calling upon him to meet the allegations contained in the complaint, including rebuttal: Provided that the Mohtasib may proceed with the investigation if no response to the notice is received by him from such principal officer or other person within thirty days of the receipt of the notice or within such longer period as may have been allowed by the Mohtasib. (5) Every investigation shall be conducted in private, but the Mohtasib may adopt such procedure as he considers appropriate for such investigation and he may obtain information from such persons and in such manner and make such inquiries as he thinks fit. (6) A person shall be entitled to appear in person or be represented before the Mohtasib. (7) The Mohtasib shall, in accordance with the rules made under this Act, pay expenses and allowances to any person who attends or furnishes information for the purposes of an investigation. (8) The conduct of an investigation shall not effect any action taken by the Agency concerned, or any power or duty of that Agency to take further action with respect to any subject to the investigation. (9) For the purposes of an investigation under this Act the Mohtasib may require any officer or member of the Agency concerned to furnish any information or to produce any document which in the opinion of the Mohtasib is relevant and helpful in the conduct of the investigation and there shall be no obligation to maintain secrecy in respect of disclosure of any information or document for the purposes of such investigation. Provided that the President may, in his discretion, on grounds of its being a State secret, allow claim of privilege with respect to any information or document. (10) In any case where the Mohtasib decides not to conduct an investigation, he shall send to the complainant a statement of his reasons for not conducting the investigation. (11) Save as provided in this Act, the Mohtasib shall regulate 'the procedure for the conduct of business or the exercise of powers under this Act."

16. In the present case, the Ombudsman's jurisdiction was invoked by one Muhammad Moazzam Khan. Under sub‑rule (3) of Rule 10 referred to above, who was legally bound to bring his grievance in the notice of the Ombudsman within three months from the date he had the notice of the order alleged in the complaint. From the contents of the petition, it is clear that he also participated in the test and interview which were conducted for filling 11 posts of Assistant Sub‑Inspectors of Police. The Ombudsman received his belated complaint and decided the same on merits after taking comments from some police agency. It was argued by the learned Advocate‑General that as the complaint was decided on merits by Ombudsman, therefore, it leads to the' inference that impliedly he had condoned the delay. I am unable to agree with this contention of the learned Advocate‑General for the reason that section 29(2) of the Limitation Act provides that "where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the first Schedule the provisions of Section 3 shall apply as if such periods were prescribed therefor in that schedule." In this case, the learned Ombudsman was not conscious of the question of limitation as such has not taken into consideration this aspect of the case. In similar circumstances, in a case entitled "Ahsan Ali v. District Judge" PLD 1969 SC (Pak.) 173, where the Settlement Commissioner had proceeded on the ground that the Deputy Settlement Commissioner had no jurisdiction to review his order of 10th January 1960. In presence of this order, the Assistant Commissioner on 17th July, 1960 ordered the case to be put up for spot inspection on 19th July, 1960. Finally on 19th July, 1960 he while deciding the dispute on merits observed that disputed shop had already been auctioned. The matter was taken before the High Court without success and the Supreme Court resolved the same as under:‑‑‑ "The burden of proving fraud, it must be remembered, is on the party alleging it and that too by clear and convincing evidence, particularly, where a long period has expired and valuable rights have accrued to the other side. It was, as pointed out earlier in this judgment also the duty of the Additional Settlement Commissioner to apply his mind to the question of limitation and to examine: the facts relating to the claim of respondent No.3 since valuable rights to property were involved. The Settlement Authorities had, we regret to say, not dealt with the case according to law and in the High Court too this aspect of the case was not noticed."

17. Again in "Ata Ullah Malik v. Custodian Evacuee Property" (PLD 1964 SC (Pak.) 236), the same view was re‑affirmed by the Supreme Court of Pakistan when it was observed that mere decision on merits shall not amount that Court has impliedly condoned the delay in filing the petition.

18. In the present case as observed earlier, the Ombudsman was not conscious of the question of limitation as such had not applied his independent mind to it. Without condoning the delay by express order, the Mohtasib was not legally justified in passing the impugned order even on merits.

19. The learned Counsel for the petitioners has rightly argued that Mohtasib has not followed the procedure as he has condemned the petitioners at their back on the basis of the report of some police agency which was contrary to the true facts. This is so as complainant Muhammad Moazzam Khan had admitted before the Mohtasib that he also appeared in test and interview which was conducted for inducting suitable persons as Assistant Sub -Inspectors of Police in Police Department. The principle of audi alteram partem is supposed to be implied in every statute even where the statute does not provide a right of audience unless its application is excluded through express provisions. Under the Act, a person facing accusations can appear personally or through a duly authorized representative before the Mohtasib to defend the accusations. In the present case, the Mohtasib had at no stage, issued any show‑cause notice to the petitioners. In my opinion, the learned Mohtasib failed in his duty as he conducted no inquiry in the matter. Thus the impugned order was passed by Mohtasib in an illegal exercise of jurisdiction. Unfortunately while implementing the order of Ombudsman dated 8th November, 1992, respondent No.1 also offered no opportunity to the petitioners to explain their position. Thus the order passed by respondent No.1 on 3rd of February, 1993 is also bad in law. Because it is settled proposition of law that if basic order is bad, all subsequent orders passed on the basis of that order, are also bad in law and are liable to be struck down.

20. The last point which was raised by the learned Advocate‑General was to the effect that petitioners have not availed alternate remedy before seeking relief through the present petition. No doubt, right of representation before the President has been provided to an aggrieved party under the Act but mere alternate remedy is not sufficient to deprive the aggrieved party from invoking the Constitutional jurisdiction of this Court. .

21. In M/s. S.S. Salar v. Ch. Muhammad Sarfraz and others (PLD 1984 SC AJK 77), the point was dealt with in length in para 14 of the judgment in the following words:‑‑‑ "Next is the point with regard to the availability of an alternate remedy. The adequacy of this remedy ought to be viewed or judged in the terms of comparative speed, expenses, convenience and effectiveness involved in case relief is allowed by the High Court in exercise of its Constitutional jurisdiction. The High Court would generally decline to issue the high prerogative writs in cases where alternative and equally efficacious remedies are available. But then it does not mean that there is any Constitutional bar to the High Court exercising such a jurisdiction or authority. Nor is the rule of alternate remedy inflexible. The fact that the High Court will ordinarily decline to step in where the alternate remedy is available is not due to their want of jurisdiction but for the reasons of expediency Each case is to be decided in light of its accompanying facts and circumstances. The High Court will not hesitate to exercise its extraordinary Constitutional jurisdiction where refusal to do so in its estimation, would prolong, the agony. In view of the peculiar circumstances of this case and considering the nature of the relief claimed therein rejection of the appellants' writ petition by the learned Huh Court was a wrongful exercise of the jurisdiction vested in it under law."

22. As observed earlier, the petitioners were condemned unheard by the Mohtasib as such a void order was given effect by the Inspector‑General of Police who also failed to observe the settled principle of natural justice before implementing the order of Ombudsman, therefore, in circumstances it will not be fair for me to deprive the petitioners from the remedy which under the peculiar circumstances of this case, they are found entitled to.

23. In the light of the above discussion while accepting this writ petition with costs the order passed by Mohtasib on 8th November, 1992 Annexure `H' and the order passed by respondent No.1 on 3rd of February, 1993 Annexure `I' are hereby set aside. AA./21/H.CA. Petition accepted.