' SYED MANZOOR HUSSAIN GILANI, J.---This appeal, with leave of the Court, is filed against the judgment of a learned Single Judge of the High Court dated 22-10-2005 passed at Mirpur in two consolidated Writ Petitions Nos.10 and 11 of 2005.
2. The facts giving rise to the filing of the present appeal are that the appellants as well as respondent No,1 in pursuance of a notice of the Azad Jammu and Kashmir Nomination Board dated 9-8-2004 applied for nomination/admission in the medical colleges of Pakistan. Respondent No,1 was nominated for Ayub Medical College Abbottabad against a seat of district Mirpur on the basis of domicile certificate and permanent residence certificate issued by the District Magistrate Mirpur on 22-7-2003 and 25-9-2003 respectively. The appellants, through separate writ petitions, called in question the nomination of the respondent as well as domicile certificate and the permanent residence certificate issued in his favour by the Nomination Board and the District Magistrate Mirpur respectively, on the ground that respondent's grandfather Karim Bakhsh, who was resident of Chowmakh, Tehsil Mirpur, migrated to Sindh and settled in village Jadoo Pataffi, Tehsil Dherki, District Ghotki, Sindh in 1965 on account of dislocation on construction of Mangla Dam in Mirpur.
The appellants case is that the ancestors of the respondent migrated from District Mirpur and permanently settled in Sindh, the respondent is not the domicile of District Mirpur, where he, his father, or his grandfather do not possess any house, neither did they ever after migration, on account of which, the domicile certificate and the permanent residence certificate issued in favour of the respondent are without lawful authority and nomination to the medical college obtained on the basis of those certificates is equally unlawful. The High Court after consolidating the writ petitions dismissed both holding that the respondent is admittedly a State subject and has never abandoned his place of domicile and mere settlement by allotment of land for being Mangla Dam affectee in some area of Pakistan does not deprive him from acquiring domicile certificate of District Mirpur.
3. The learned Advocate appearing for the appellants, contend that the respondent, his father or grandfather do not own any house in any part of District Mirpur. Although they earlier resided in Mirpur District but on account of construction of Mangla Dam, they permanently shifted to Sindh Province and have settled there. The learned Advocate referred to various documents placed on record, e.g., certificate issued by Union Council Keenjnar District Ghotki regarding residence of Abid Hussain Dar, death certificate of the grandfather of the respondent, succession certificate issued in the name of father of respondent Arif Dar on the death of his father Karim Bakhsh along with a report of Patwari and statements of two persons, copy of voters list pertaining to village Jadoo Pataffi, District Ghotki wherein the names of the parents of the respondents are entered etc. The learned Advocate admitted that the grandfather of the respondent obtained plot No,324 in Sector 4 Dadyal, but no construction is made on the plot which now stands transferred in the name of the legal heirs of Karim Bakhsh which includes the name of father of the respondent as well but the plot is still vacant. The learned Advocate contended that the domicile certificate and the permanent residence certificate is obtained by the respondent by misstatement of facts and by adopting fraudulent means as the only ground on the bias of which the certificate is issued is Plot No,324 allotted in the name of grandfather of the respondent which is vacant and no house is constructed over it, which implies that the respondent never intended to reside or settle in District Mirpur and it is made clear by the documents establishing his residence in Ghotki District of Sindh Province. The learned Advocate while relying upon Miss. Rakhshanda Aslam v. Nomination Board of AJ&K and 2 others PLD 1985 SC(AJ&K) 1, Fozia Hussain Abbasi v. Nomination Board through Chairman Nomination Board AJ&K and others 1995 CLC 1761, Pervaiz Akhtar 'v. Sheikh Rashid Majeed and 3 others 2002 PLC (C.S.) 1425 and Miss. Shahida Bano v. Azad Government and 5 others 1998 CLC 534 contended that unless a person is a resident of a particular place for five years before applying for a domicile certificate, he cannot be admitted to be a domicile of that district.
4. The learned Advocate for the respondent, defended the order passed by the Court below and contended that the respondent and his ancestors have not abandoned the place of their original domicile but were forced to leave their village on account of construction of Mangla Dam. The land in Sindh Province was allotted to them in lieu of the property which had comprised Mangla Dam. He further contended that respondent has all along been in Azad Jammu and Kashmir throughout his academic career where his father is employed in the Education Department. According to him, the forefathers of the respondent never abandoned their place of original domicile and got a plot allotted for construction of the house but for economic compulsions, the house could not be constructed. According to him, the father of the respondent is the holder of domicile of District Mirpur issued in his favour in 1981 and is registered with the National Registration Authority and an identity card has been issued showing his residence in Dadyal and all other documents relating to the service and academic career of the respondent as well as his father relate to Mirpur District of Azad Jammu and Kashmir. On the basis of these documents the learned Advocate contended that notwithstanding the land having been allotted to his grandfather in District Ghotki of Sindh Province, they remain State subjects and the respondent and his father particularly, have never abandoned their place of origin. The learned Advocate also relied upon the authorities referred to by the learned counsel for the appellants.
5. We have considered the arguments in the light of the record and have gone through the law as well as the authorities of this Court interpreting the provisions of law relating to domicile.
6. The fact that respondent's grandfather and his family being dislocated from Azad Jammu and Kashmir on account of construction of Mangla Dam is not denied, and their being State subjects is equally not denied. The grandfather of the respondent Karim Bakhsh, like other displaced persons, was allotted land in Ghotki District of Siiidh Province in lieu of his ancestral property brought in use of construction of Mangla Dam. The fact which emerges from it is that grandfather of the respondent did not sever his connection from place of his residence or domicile, but was compelled by the circumstances to shift to the new place after dislocation. Muhammad Arif Dar, father of respondent No,1 long with other heirs, was transferred the land allotted to Karim Bakhsh in Ghotki District of Sindh after his death. Plot No,324 obtained by Karim Bakhsh in Dadyal Hamlet was also transferred in the name of father of .The respondent along with heirs of Karim Bakhsh on his death. However, his father Muhammad Arif Dar, despite land being transferred to him in Ghotki, remained in Azad Jammu and Kashmir. He obtained State subject certificate and domicile certificate from .District Magistrate Mirpur on 9-11-1981. He is registered with the National Registration Authority in Azad Jammu and Kashmir under National Identity Card No,8301-2199388-7 at the address of House No,324, Sector 4 Khawajgan Dadyal, District Mirpur. House No,324 is in fact plot allotted to his father and otheRs, His birth also took place in Dadyal town of Mirpur District and he is registered as such in Town Committee Dadyal in view of annexure 'RH' placed on record. He got employment in Azad Jammu and Kashmir as Lecturer vide notification of the Government dated 9-4-1985 against quota of District Mirpur. His son Abid Hussain Dar respondent No,1, was born, reared and educated in Azad Jammu and Kashmir. The respondent obtained State subject and domicile certificates as a resident of Dadyal, District Mirpur, in July 2003, and was nominated for M.B.B.S. Course against a seat reserved for domicile of District Mirpur. He is placed at S. No,2 of the merit list for the year 2005, while the appellants find place at S.Nos.9 and 10.
7. There is no doubt about the settlement of his grandfather in Ghotki District of Sindh on account of his dislocation from Mirpur and there is also no doubt that the father of respondent No,1 possesses property at Sindh which he inherited through his father on his death, but there is no denial of the fact that he is a State subject and remained in Azad Jammu and Kashmir throughout. The affidavit placed on record by him, as well as by respondent No,1, unequivocally declares their intention of residing in Dadyal. These facts are also not denied by the appellants, except that respondent's father has not constructed a house in Dadyal on the plot which was initially allotted in the name of grandfather. Of the respondent and now transferred in favour of his descendants which includes father of the respondent. The respondent has, through his father, retained the status of domicile at his native place in Dadyal which is his place of origin.
8. It is a celebrated rule that a person shall be deemed to be citizen/domicile/resident of a place where he originally belongs and this original place of residence shall be admitted to be the place of domicile of a person till he abandons the domicile of origin and adopts or acquires a domicile of his choice. Although the term 'domicile of origin or of choice' are the terms of international law but are commonly used as such to understand their meaning in spite of the fact that the status of citizenship or domicile is now regulated by every country of the world through their Municipal laws, so is the law in Azad Jammu and Kashmir known as the Azad Jammu and Kashmir State Subjects Act, 1980 and. Azad Jammu and Kashmir State Subjects Rules, 1980. Section 5 of the Act and rule 7 of the Rules respectively regulate the issuance of the State subject and domicile certificates.
However, section or the rule do not use the words 'domicile of origin or domicile of choice' by abandoning their domicile of origin. It has to be inferred from the language of the section and the rules. The section and rule are reproduced below:-- Section 5 of the Act: "The Council or any other authority specified by the Council may, upon an application made to it in the prescribed manner containing the prescribed particulars, grant of certificate of domicile to any person in respect of whom it is satisfied that the facts stated in the application are correct and that the applicant has been continuously residing in Azad Jammu and Kashmir for a period not less than five years and intends to live permanently in Azad Jammu and Kashmir."
Rule 7 of the Rules: "(1) Any District Magistrate in Azad Jammu and Kashmir may issue a certificate of domicile in the manner prescribed below:--
(a) An application for a certificate of domicile shall be made in Form 'P' (Appendix III) in duplicate. It shall be accompanied by an affidavit affirming the truth of the statement made in it.
(b) The District Magistrate may demand such evidence as he may consider necessary for satisfying himself that the 'facts stated in the application are correct and that and applicant has been continuously residing in Azad Jammu and Kashmir for a period of not less than five years and intends to live permanently in Azad Jammu and Kashmir.
(2) The District Magistrate shall either reject the application or grant a certificate of domicile in Form `P-I' (Appendix IV).
(3) Any person aggrieved by any order passed under sub-rule (2) may file an appeal with the Azad Government of the State of Jammu and Kashmir within thirty days and the Government may pass such orders as it deems fit."
9. A perusal of the section and the rule reveals that it enables a person to the certificate of domicile, who resides continuously in a place in Azad Jammu and Kashmir for a period not less than five years and intends to reside permanently, but that does not mean that it includes every person. This law shall have to be read in juxtaposition with the corresponding laws regulating the status of State subjects. Thus any person would mean a State subject, who continuously resides at a particular place in a District of Azad Jammu and Kashmir. Although the non-State subjects apparently are not excluded from the definition of the word person if it is literally interpreted, but the purpose and object of the law of the State subjects shall be defeated if the law is not objectively read and interpreted. Similarly, the word 'original domicile' cannot be ignored while interpreting the section as a person who, from his descendants resides at a particular place, has simply to satisfy that he has not abandoned his place of origin, and that is a domicile of origin, coupled with it is his intention to reside there.
10. If a .Person is admittedly a domicile of a particular place by origin, but subsequently denounces that domicile and deliberately acquires a domicile of other district or place, he shall not be considered holding domicile of his origin. Continuous or residence without break is not the essential requirement of the law. The temporary absence howsoever long for managing the property earning livelihood or serving at relations from place of his domicile, does not mean that a person does not reside continuously at a place of his origin, unless it is shown that he has abandoned that domicile by acquiring the similar status at some other place.
11. The judicial pronouncements on the point are very clear and consistent that the domicile of origin remains attached to a person till such time as he not only manifests but carries into effect his intention of abandoning his domicile of origin and acquiring a new. We may place reliance on Superintendent and Rememberance of Legal Affairs, Government of East Pakistan v. Kiran Chandra Dutta PLD 1967 Dacca 627, Muhammad Yar Khan v. Deputy Commissioner-cum-Political Agent, Loralai 1980 SCMR 456, Miss Dur-e-Sameen V. Selection Committee for B.M.C. Through Chairman B.P.S.C. Quetta 1997 SCMR 270, Rakhshanda Aslam v. Nomination Board of Azad Jammu and Kashmir PLD 1985 SC(AJ&K) 1, Fozia Hussain Abbasi v. The Nomination Board (1995 CLC 1761). The leading case on the point from Azad Jammu and Kashmir jurisdiction is Rakhshanda Aslam v.
Nomination Board of Azad Jammu and Kashmir PLD 1985 SC(AJ&K) 1 in which it is laid down that:-- "a person shall said to be domiciled of a locality where he intends to live permanently and considers that place as his principal or permanent home. The 'domicile' of a person, therefore, shall be determined while taking, into account the intention of the person manifested by his conduct to show whether he has adopted a mental attitude to settle down at a particular place permanently and make that place as his permanent home: It is correct that a person may leave his country temporarily to make his fortune and in that event the domicile of origin is retained as he never intents to permanently abandon the domicile of origin and make his home permanently in the domicile of choice, but where the intention is throughout clearly expressed through conduct or circumstances to have an inference that a person never wished to return to the domicile of origin and has selected the domicile of choice for no other purpose than that of trade, settling thereat permanently and also acquired huge property thereat, it shall be said that such person has abandoned his domicile of origin for domicile of choice. Duration of a person's stay at a place other than that of his domicile of origin, the purpose of his stay thereat, the nature of the business he carries, the quantum of the movable and immovable assets he holds, and his conduct an mental attitude towards his domicile of origin shall provide the guideline and have to be taken into consideration."
12. Similar opinion with further elucidation is expressed in a case reported a Fozia Hussain Abbasi v.
The Nomination Board (1995 CLC 1761) in the following words:-- ' in a case of person who is domicile of Azad Jammu and Kashmir by origin, it would not be necessary to prove that he has been actually residing in Azad Kashmir continuously for five years; if he is domicile of Azad Kashmir by origin, the fact that he has been living out of Azad Kashmir temporarily in connection with his business, service or for any other reason, he would be deemed to residing in Azad Kashmir for the purpose of section 5 of the State Subjects Act, 1980 and the rules framed thereunder; he would be denied domicile only if it is shown that he has abandoned domicile of his origin or does not intend to settle in Azad Kashmir permanently in future
13. Applying the above principle to the present case, it is abundandently clear that respondent and his father including his grandfather have not severed the relations from their place of origin. They have not abandoned the idea of remaining domicile of the place of their origin, without loosing he compensatory benefits allowed to thefn in District Ghotki of Sindh Province in lieu of their ancestral property brought under use of construction of Mangla Dam. Neither respondent's father nor he acquired the domicile of Sindh Province, instead, both of them have retained their status of origin.
14. His father obtained domicile certificate of Azad Jammu and Kashmir at a time when there was no dispute like one in hand and he kept respondent with him throughout his academic career in Azad Jammu and Kashmir at different places of his posting with the permanent intention to reside at his place of origin in Dadyal. Nothing is brought on record by the appellants to show that respondent or his father has ever obtained domicile certificate from Sindh which could be the strong proof of his intention of acquiring the domicile of Sindh abandoning the domicile of their origin of Dadyal.
15. In view of the above, the appeal stands dismissed however without any order as to costs in view of the circumstances of the present case.