' ZAFFAR HUSSAIN MIRZA, J.-We have partially allowed this petition by a short order dated 17-4-1979.
Following are the reasons for the said order.
2. The petitioner Taj Mohammad as well as respondent No, 3 Aslam Parvez, respondent No, 4 Asarmal, respondent No, 5 Rafique Khan and respondent No, 6 Noor Ahmad were all candidates for admission to any one Of the medical colleges in the Province of Sind for the Academic year 1977-
78. According to the petitioner for the aforesaid Academic year there were 43 seats reserved for District Thatta for male candidates in various medical colleges of the Province and in the merit list of the eligible candidates for admission, the position of the petitioner in order of merit was at Serial No,
46. Consequently, the petitioner was not called for interview by the Selection Board and upon an enquiry he came to know that the aforesaid respondents 3 to 6 who according to the petitioner were not genuine permanent residents of Thatta District had managed to obtain permanent Resident Certificates (hereinafter called the P. R. C.'s) from the District. Magistrate, Thatta, respondent No, 2 herein and illegally obtained admission in negation of the right of the petitioner.
The list of selected candidates were declared on 12-3-1978, accordingly the petitioner challenged the orders granting P. R. Cs. To the aforesaid respondents by an appeal under rule 8(1) of the Sind Permanent Residence Certificate Rules, 1971 before the Commissioner, Hyderabad Division, respondent No, 1 herein. The respondent No, 1 after hearing the parties came to take the view that the petitioner's appeal against respondents Aslam Pervez and Asarmal was barred by time and hence did not consider their cases on merits. As regards respondents Rafique Khan and Noor Ahmed, respondent No, 1 affirmed the orders passed by the District Magistrate, Thatta and confirmed the P. R. Cs. Issued in their favour. Consequently, by his order dated 10-7-1978 respondent No, 1 dismissed the appeal of the petitioner as against all the aforesaid respondents Nos, 3 to 6. The petitioner seeks to challenge the legality of the aforesaid older of respondent No, 1 by means of this Constitutional Petition.
3. The case of respondents Aslam Pervaz and Asarmal can be disposed of on the short question whether the respondent No, 1 was right in dismissing the appeal as barred by time. The P. R. C. In the case of respondent Aslam Pervaiz was issued on 16-11-1976 and the appeal against the said order was filed by the petitioner on 14-3-1978 after an apparent delay of 1 year 2 months and 28 days. In the case of Asarmal the P. R. C. Was issued on 6-1-77 and therefore, the appeal was filed 1 year 1 month and 8 days after the said order. Rule 8(1) of the Sind Permanent Residence Certificate Rules, 1971 (hereinafter called the Rules) as amended on 10-11-77 reads as follows :- "8.-(1) Any person aggrieved by the grant or the refusal to grant by the District Magistrate of a Certificate of Permanent Residence in Form 'C' or Form `D' may within 30 days of the grant of the Certificate prefer an appeal to the Commissioner of the Division and his order confirming the order of the District Magistrate shall be final."
' In the impugned order relying on this Rule the learned Commissioner held that the appeal against the aforesaid two respondents was clearly time-barred as it had been preferred after the lapse of more than one year. Upon this view the appeal as against the two respondents was rejected on the preliminary ground of limitation.
4. It was pointed out to us by Mr. Ibrahim Memon, the learned counsel for the petitioner that from the facts it is clear that the said two respondents obtained P. R. Cs. From the District Magistrate long before the date when the applications for admission were invited. Another aspect of the matter on which emphasis was laid was that the District Magistrate while granting the P. R. C. To an applicant cannot and does not issue notice to any other party much less to a person who may eventually be adversely affected by the grant of P. R. C. In fact, rule 4 of the Permanent Residence Certificate Rules which empowers the District Magistrate to grant P. R. C. Does not envisage or provide for a notice to any other party. The proceedings are deafly one-sided and the enquiry provided for in the rule envisages only the hearing of the applicant and no one else.
It cannot, therefore, be denied that the petitioner was not aware of the grant of P. R. C. To the said two respondents at the time the District Magistrate granted them. The question that arises, therefore, is whether the petitioner can be deprived of the remedy of appeal provided for by rule 8 of the said Rules. It cannot be overlooked that the remedial statutes are to be so construed as to advance the remedy and curtail the mischief intended to be remedied by the statute. The learned Commissioner has construed the rule strictly according to the letter of the law by computing the period of limitation from the date of issue of the P. R. Cs. In question and has overlooked the fact that the petitioner had no notice of the grant of the P. R. Cs. In question. In Aliandino v. Fakir Mohammad (1) the Supreme Court of Pakistan had occasion to examine somewhat similar provisions made in section 8(2) of the West Pakistan Board of Revenue Act, 1957, relevant part of which reads as follows : - "8. Review of orders by the Board.-.
(2) Every application for a review of a decree or order under subsection (1) shall be made within 90 days from the date of that decree or order."
' The facts of the case were that after failing to obtain relief from the lower Revenue Authorities the appellant in that case had eventually filed a revision petition before a Member, Board of Revenue, West Pakistan, which was, however, summarily rejected on 31-3-62 in limine, without any notice or hearing afforded to the applicant. The appellant learnt about the facts of his revision on 14-4-63 and thereafter he filed a review petition before the Board of Revenue within 90 days of his knowledge of the revisional order. The Review Petition was dismissed by Member, Board of Revenue on the ground that it was time-barred having been filed beyond the period of limitation of 90 days1 from the date of the order as provided by section 8(2) of the Board of Revenue Act. The appellant challenged the decision by a writ petition which was summarily dismissed and the matter eventually came before the Supreme Court. While considering the correctness of the view as to the limitation Sajjad Ahmad Jan, J., who wrote the majority opinion observed:- "It is clear from these circumstances that the appellant did not know about the result of his revision petition which was decided behind his back until the information received from the Reader on 28th of March, 1963. His review application brought within 90 days from that date was, therefore, within time. In a case where a litigant is kept in dark about the fate of his case, it is wrong to say that for a remedial action against it as provided by law, time would start to run against him from the date of the order and not from the date when he comes to know about it.
' We are, therefore, of the opinion that the appellant's review petition was wrongly dismissed as time-barred and that the learned Judges of the High Courts have not taken this fact into consideration while dismissing the writ petition of the appellant."
On a parity of reasoning, the principles enunciated by their Lordships are fully attracted in the present case and we, therefore, hold the learned Commissioner was not justified in throwing out the appeal of the petitioner against the aforesaid two . Respondents as barred by limitation. We may mention that on being pointed out the aforesaid position of law Messrs Arif Hussain and Imam All Kazi both conceded that the view taken by the Commissioner was not sustainable and agreed that the case may be remanded to him for decision on merits.
5. Taking up the case of Rafique Khan, respondent No, 5, the contention on behalf of the petitioner was that the learned Commissioner misconceived the law by relying on the case of Azizur Rehman v. Domicile Scrutiny Committee in which it was held, inter alia, that P. R. C. Can be granted on the ground of the applicant's parents being domiciled in Sind with continuous residence of more than 3 years and that an applicant can be granted P. R. C. Under one or more of the categories listed in rule 6 of the Rules whichever may suitably apply to him. It was further pointed out that the learned Commissioner accordingly only applied the conditions laid down in rule 6 of the Permanent Residence Certificate Rules and ignored the question of "permanent residence" which is the sole basis for the grant of P. R. C. As provided by rule 4. Reference was made by the learned counsel to Mehrun Nissa Baloch v. Appellate Committee in which a D. B. Of this Court referred to the case of Azizur Rehman cited by the learned Commissioner and held that the Committee was not only bound to consider the Court's observation on rule 6 but also the mandatory requirements of rules 2, 4 and 5 of the said Rules. In the last-mentioned case, the petitioner's claim for P. R. C. In respect of a particular district on the basis of her father's Domicile Certificate under section 17 of the Citizenship 'Act was repelled on the ground that in so far as the Citizenship Act is concerned, Domicile Certificate is granted when the concerned authority is satisfied that the applicant has ordinarily resided in Pakistan for a period not less than one year immediately before the making of the application and has acquired domicile therein. Therefore, domicile of which section 17 speaks of is not of a particular area in Pakistan but of Pakistan (as a whole). The petitioner in this case filed a petition for Special Leave to Appeal before the Supreme Court which was dismissed. The case is reported as Mehrun Nissa Bloch v. Appellate Committee . Repelling the contention that a minor who was living with his father was entitled to a P. R. C. For the District for which his father had a valid Domicile Certificate issued under section 17 of the Pakistan Citizenship Act, 1957, the Court observed :- "This section does not empower any authority much less the District Magistrate to grant a Certificate of Domicile for a District in the Province of Sind or in any other Province. And neither the learned Advocate-General nor Mr. M. I. Memon were able to refer us to any provision of law under which a District Magistrate of the Province of Sind was entitled to issue a parmanent Residence Certificate for a district of that province. Be this as it may, as the learned Advocate-General did not2 3 4 dispute the fact that District Magistrates in Sind were issuing such Certificates, for the purpose of this petition, we would hold that the Certiticate of Domicile of the petitioner's father was at piece of evidence in support of her claim for a Permanent Residence Certificate for District Thatta."
' Their Lordships expressed the view that it was competent for the authorities under the Rules to reject this piece of evidence and prefer other evidence. In this connection rule 4 was referred to which is the most crucial rule for issue of a P. R. C. In this connection it was observed :- "Rule 4 is the key provision in the said Rules, because it is the rule which empowers District Magistrates to issue Permanent Residence Certificates. The Rule appears at first sight to be very wide, because it does not contain any guidelines for the discretion conferred on District Magistrates. But the rule is not really as wide as it appears to be.
' This is for more reasons than one. The first is that the word "residence" is to be found in many Statutes, such as, for example, the Income-tax Act and the Succession Act, therefore, the concept of residence is too familiar to persons well versed in our jurisprudence to require any definition.
Secondly, the information which has to be submitted in an application for a Permanent Residence Certificate contains by implication some guidelines for the exercise of the District Magistrates' discretion under rule 4. Thirdly, the wide powers conferred by rule 4 are curtailed by the restriction imposed on these powers in rules 6 and 7 ......There is absolutely no ambiguity about these rules (rules 6 and 7). They curtail and are intended to curtail the powers confered on District Magistrates under rule 4, and as even if a person is a permanent resident of a District of Sind he is not entitled to a Permanent Residence Certificate unless he can bring his case under these rules. But as the converse does not follow, the Petitioner was not entitled to a Permanent Residence Certificate solely on the ground of her father's domicile in Sind or on the ground that having come of age she is now domiciled in Sind."
' On the aforesaid reasoning their Lordships did not agree with the view taken in Azizur Rehman's case and approved the view taken by the High Court in the case of Mehrun Nissa Baloch.
6. In the light of the cited observations of their Lordships, we entirely agree with the submission of the learned counsel for the petitioner that the learned Commissioner could not decide the case only on being satisfied that the conditions laid down in rule 6 of the Rules were fulfilled by the respondents but he had to examine the question whether on the evidence produced in support of their respective claims, the respondents had established the fact that they were "permanent residents of District Thatta". There is no doubt that the question as to what constitutes permanent residence in a District does present some difficulty in view of, as observed by their Lordships of the Supreme Court, the absence of any the guidelines in that behalf in the rules except what can be spelled out impliedly from the information which has to be submitted in an application for a P. R. C.
7. It is, however, quite clear that "domicile" and "residence" in the context of the present rules are not words of interchangeable meaning. It has been held that "residence" implies some degree of permanence, although the word "reside" may mean very different things in different contexts but applied to natural persons as distinguished from juristic persons like corporations, residence depends on personal facts. Place of birth, nationality and allegiance are not the tests nor is domicile. Voluntar choice and habitual and repeated action are mainly material, such as making a home, keeping an establishment, pursuing a settled object in or at a particular place. In Halsbury's Laws of England (Third Edn., Vol. 20, page 392) the learned Author observe : "The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes, he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode."
' This is so far as the meaning of the word "residence" is concerned, but it will be observed that the requirement of rule 4 is not only residence but "permanent residence". The word "permanent" is defined in Black's Law Dictionary to mean! Fixed, continuing, lasting, stable, enduring, abiding, not subject to change. Generally opposed in law to "temporary", but not always meaning "perpetual". In the same Dictionary the expression "permanent abode" has been defined to mean a domicile or fixed home, which the party may leave as his interest or whim may dictate, but which he has no present intention of abandoning.
8. Before the learned Commissioner it was, inter alia, contended on behalf of the petitioner that respondent Rafique Khan has no residential house in Thatta District and in his application for admission he had shown his address as 'care of Nishat Cinema, Gharo'. On the other hand, on behalf of the said respondent it was contended that the respondent's father had a cinema business at Gharo and that the latter had purchased a plot adjacent to the house where he resided with his family. In support of these contentions documentary evidence of the purchase of plots was produced, but the learned Commissioner without discussing individual cases and without giving separate findings in respect of the various respondents whose P. R. Cs. Were challenged, disposed of the cases by common decision in the following w order:- "The scrutiny of the above 13 cases reveals that all the respondents excepting Mr. Maqsood-ul- Hassan son of Rana Iqbal (Sr. No, iv) are either born in the Thatta District or their parents are domiciled in Sind and they are residing in Thatta District since more than 3 years. The evidence of primary education as produced by the learned counsel for the appellant carries no weight in view of the ruling of High Court as referred to above. I am, therefore, convinced that the aforesaid respondents are quite eligible for grant of P. R. C. Of Thatta District in accordance with the conditions laid down in rule 6 of the P. R. C. Rules."
' It is, therefore, manifest that the learned Commissioner did not apply his mind to the question whether there was evidence to establish the fact that respondent Rafique Khan was a permanent resident of Thatta District. Additionally in para. 5 of the present petition the petitioner has categorically asserted on the basis of various circumstances including the electoral roll for a constituency at Karachi, Telephone connection at Karachi etc., that the said respondent was neither born in Thatta District nor he had ever resided there. No counter affidavit has been filed to controvert these allegations. There is thus no material on our record to verify the correctness of the claim of the aforesaid respondent that he is a permanent resident of Thatta District. It will, therefore, be appropriate that the case of the said respondent be remanded to the learned Commissioner for fresh decision in the light of what has been stated above. Mr. Nooruddin Sarki, learned counsel for the said respondent fairly conceded that such order will be appropriate in the circumstances of the case and that his client was prepared to satisfy the Commissioner about the genuineness of his claim.
9. Coming now to the remaining respondent Noor Ahmed, it was contended by his learned counsel Mr. N. A. Farooqui that his case is distinguishable from that of respondent Rafique Khan inasmuch as there' is abundant evidence on the record that he is a permanent resident of Thatta District and, therefore, we may not upset the order rejecting appeal against the grant of P. R. C. To him. In his case the petitioner in the memo of the petition has alleged that he is residing with his father at Hyderabad and has acquired his entire education there. In respect of his father it was alleged that he is registered as a voter at Hyderabad and is a permanent resident of that place. The learned Commissioner in the impugned order while dealing with his case has referred to the fact that the father of the said respondent owns a pucca house at Chuhar Jamali, Taluka Shah Bunder, District Thatta but at present is residing at Hyderabad for the purpose of his profession as an. Advocate. It was also mentioned that the father of the respondent originally belonged to village Shah Bunder, District Thatta where he was born in 1928 and further that his family members are still residing at Chuhar Jamali. Respondent Noor Ahmad has also filed a counter affidavit in this Court in which he has traced his family background in which he has disclosed that his grandfather Mr. Mohammad Ibrahim Akhund was settled at Shah Bunder in District Thatta but owing to the mass migration of the majority of the population of that Town consisting of Hindus on the establishment of Pakistan, his grand father and his father migrated alongwith other families from Shah Bunder and permanently settled in the Town of Chuhar Jamali. He has further testified that his grandfather was in Government service and after his retirement he came back to Chuhar Jamali in 1961 where he remained until his death. He was then buried in the family graveyard there. Even his father had taken his primary education in District Thatta but now owing to his law practice he is residing at Hyderabad. He has reiterated the fact that his father has a house at Chuhar Jamali. Additionally one of his brothers is buried at Chuhar Jamali and his grandmother and other family members are permanently residing at Chuhar Jamali. He has referred to enquiries made by the Mukhtiarkar and the Assistant Commissioner at the instance of the District Magistrate, Thatta, according to whose report it was found that he is a permanent resident of Chuhar Jamali. The other facts mentioned by him in his counter-affidavit are that his father being the Headman of the Akhund Community attends the community ceremonies, his mother was born in District Thatta, his elder brother married from District Thatta, his other brother has been betrothed in a family at Thatta and his grandfather after his retirement from service had established a flourishing business in groceries and grains at Chuhar Jamali. He also asserted that after his retirement from the profession his father contemplates to return to Chuhar Jamali for the remaining days of his life. No rejoinder affidavit controverting these averments has been filed.
10. Having regard to the above it is quite clear to us that Mr. Aftab Ahmad Akhund, Advocate the father of respondent Noor Ahmad hails from a family which is permanently settled at Chuhar Jamali in the Thatta District which is a very strong presumptive evidence of the fact that he is a permanent resident of that District unless this evidence is rebutted by the petitioner to show that he has abandoned any intention to retain his permanent abode there. The fact that he is residing at Hyderabad is clearly referable to his profession as a lawyer which obviously he cannot pursue at Chuhar Jamali. Perhaps the presumption could have been rebutted if it had been shown that none of the family members remained behind and that the family had disposed of its property there.
However, there appears to be evidence that the father of the said respondent is maintaining a house at his native place which alongwith other circumstances mentioned above, clearly supports the plea that the family has its permanent abode in Thatta District, . We are, therefore, not inclined to disturb the order of the learned Commissioner in respect of respondent Noor Ahmad which appears to be sustainable on the material available on the record of the Commissioner.
11. In the result, we allow this petition partially and hold that the impugned order of the learned Commissioner dated 10-7-78 so far as it relates to respondents 3, 4 and 5 was passed without lawful authority and is of no legal effect. The consequence is that the appeal filed by the petitioner against the P. R. C. Issued in favour of the aforesaid three respondents shall be deemed to be pending and we direct that the learned Commissioner shall decide the appeal after notice to the concerned parties according to law as laid down in the foregoing part of this judgment. As far as the respondent No, 6 is concerned, the petition is dismissed and the ing P. R. C. To the said respondent is maintained. In the circumstances we leave the parties to bear their own costs.
' I. MAHMUD, J.-I agree, Petition partially accepted. PLD 1969 SC 582 PLD 1975 Kar, 10321 2