P L D 2001 Azad J&K 33 (PLP)

18 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 Azad Jammu and Kashmir Council, which is a part of the Azad Jammu and Kashmir State, and is subject to the jurisdiction of the Azad Kashmir Courts in all respects. However, the Defence and Security of Azad Jammu and Kashmir 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 performing 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 (PLD 1995 Azad J&K 1).

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 notwithstanding the fact that they have travelled 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 Dome Office. Since the Prime Minister of Azad Kashmir Government has supported the petitioners vide his letter of June 1, 1994 and the administrative authorities have nothing to say against the petitioners, they cannot be denied their stay in Azad Kashmir".

10. Following paras. from the case of Azad Jammu and Kashmir Council v. Ajmal Basharat and 6 others (1999 MLD 203), 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, the subject of Nationality/Citizenship relates to AV 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 1‑L/84, dated 20th 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. 1‑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 he 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, if it is satisfied that he obtained the same by means of Fraud, False Representation or Concealing any material fact, and in any 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 D 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 II, his sons and grand‑sons will ipso facto acquire the status of the same Class 11 and not of Class

1. NOTE III.‑‑‑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 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/89 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 descendants of these emigrants born abroad for two generations: Provided that, these notionals 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 fulfil the conditions laid down by those laws and rules for die 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 authorizes to cancel the Certificates on the above grounds, not to refuse the same. Issuance of the State Subject Certificate in favour of the State Subject 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 IE occupied Kashmir Authority, while all of them have placed on record their Registration/Ration Cards issued by the Rehabilitation Department of Azad Jammu and Kashmir 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 Sate 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 Certificate and National Identity Card depends upon State Subject C6rtificate. A Notification is also issued in this behalf by HQ's O.M. No. Regd. 7/7/99‑(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 hereinbefore referred Notification the RRC is authorized to issue the orders for issuance of Identity Cards to abovementioned 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 Azad Jammu and Kashmir regarding permission for permanent settlement in Azad Jammu and Kashmir, has the tendency of creating further ambiguity, which requires to be clarified as a State Subject whether 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 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 re‑consideration. Moreover, 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 of RRC Islamabad, to issue Identity 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 out 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 7y 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 possess 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. H. B. T./1.7/AJ&K Petition accepted.