Ghulam Mustafa Mughal, C.J.--Beenish Bashi, Petitioner, herein, through this petition filed under Section 44 of the AJ&K Interim Constitution Act, 1974, has challenged the order passed by the District Magistrate Bhimber dated 07.02.2012 whereby the domicile certificate issued in her favour on 31.01.2012 has been cancelled.
Facts necessary for the purpose of decision of the captioned petition are that petitioner, herein, claimed that she is first class State Subject of AJ&K and is resident of village Dewaray Tehsil Barnala District Bhimber. The Azad Jammu & Kashmir government recently established 2 medical colleges in the Azad Jammu & Kashmir and administration of the said colleges invited applications for admission in MBBS. Petitioner, herein, applied against the quota of District Bhimber. Her name was placed at Serial No, 12 of the merit list She was admitted against the quota of District Bhimber in Benazir Bhutto Shaheed Medical College Mirpur. It is stated that petitioner remained out side from her home district due to service of her father, hence, has acquired education from different institutions of Pakistan. It is further stated that father of the petitioner obtained her domicile from District Gujrat as some of the property of the petitioner's family was also located in the said district, however, the said certificate was got cancelled on 07.02.2012. It is alleged that Saleh Azher, Respondent No, 5, herein, resident of village Abowala Tehsil Bernala filed a baseless and frivolous complaint before District Magistrate Bhimber on 01.02.2012 for cancellation of domicile of the petitioner. The Deputy Commissioner deputed SDM Bernala for inquiry, who issued a notice for appearance to the petitioner and also submitted report to Respondent No, 1, who without lawful authority and jurisdictional competence cancelled the domicile of the petitioner vide order dated 07.02.2012 while colorable exercise of powers and in violation of principle of audi-alteram-partum.
It is submitted that action of the respondents is mala-fide, militate against the law and jurisdiction has been exercised by the said respondent on political intervention. It is alleged that order is violative of the Azad Jammu & Kashmir State Subjects At, 1980 and rules made thereunder.
The petition has been contested by the respondents. The stand of the official respondents is that petitioner obtained domicile from District Gujrat and the same was intact when she got another certificate from District Bhimber for the purpose of getting admission in any of the medical college of Azad Jammu & Kashmir. As the certificate from District Bhimber was obtained by practicing fraud and misstatement of facts, therefore, has rightly been cancelled. It is alleged that despite notice petitioner has not appeared and she chooses so because she has nothing to say in her defence.
Respondent No, 7 in her separate written statement has also prayed for dismissal of the petition on the ground that petitioner is not permanent resident of District Bhimber, Azad Jammu & Kashmir and despite of that has obtained certificate from said District, which has rightly been recalled by the District Magistrate Bhimber. It is alleged by her that petition is not maintainable, hence, may be dismissed. Nobody has appeared on behalf of Respondent No, 5, therefore, she was proceeded ex- parte vide order dated 11.05.2012.
Sh. Masood Iqbal, the learned Advocate for the petitioner, interalia, argued that petitioner is a permanent resident of village Dewaray Tehsil Barnala District Bhimber of Azad Jammu & Kashmir where she born, as is evident from the permanent Resident Certificate as well as Birth Certificate issued by the competent authority on 3.1.2012 and 28.12.2011 respectively. The learned Advocate further argued that father of the petitioner was in service and remained posted out-side from his home district, thus, the petitioner obtained education from different institutions located in Pakistan.
As some of the property of the petitioner's family was also situated in District Gujrat, therefore, inadvertently father of the petitioner obtained domicile from the said district on 02.02.2011 which was got cancelled from District Coordination Officer Gujrat on 07.02.2012. Referring to Section 4(2) of the Azad Jammu & Kashmir State Subjects Act, 1980, the learned Advocate submitted that District Magistrate was only empowered to grant State Subjects or Domicile Certificates as delegatee of Azad Jammu & Kashmir Council and he is not vested with the authority to cancel the State Subject or Domicile. It is submitted that for cancellation of the State Subject as well as Domicile the procedure visualized under Section 4 of the said Act has to be followed. He further submitted that in case of the petitioner the learned District Magistrate has acted in hasty manner and has not provided the right of hearing to the petitioner. It is also submitted that the order passed by the District Magistrate Bhimber for cancellation of the domicile certificate was not only mala-fide rather has been passed in colorable exercise of jurisdiction and without lawful authority jurisdictional competence. The learned Advocate contended that District Magistrate while passing the order acted under influence of political dignitees and has not applied his mind independently.
In support of his submission he placed reliance on the following cases.
1. Miss Rakhshanda Aslam vrs. Nomination Board of Azad Jammu & Kashmir and 2 others. (PLD 1985 AJ&K 41);
2. Syed Nadir Shah vrs. District Magistrate, Pishin and another (PLD 1980 Quetta 29);
3. Sultan Khan vrs. Federal Public Service commission (1983 CLC 2803);
4. Saeed Amer vrs. Principal Khyber Medical College, Peshawar and another (PLD 1982 Peshawar 51);
5. Khan Bahadur vrs. Deputy Commissioner, District Kohistan and 3 others. (1992 CLC 395);
6. Raja Aamir Naseem Khan vrs. Federation of Pakistan through Secretary, Establishment Division; Islamabad and 12 others (1992 MLD 126);
7. Ahmad Hasan vrs. Abdullah and 5 others (PLD 1992 Peshawar 1);
8. Miss Rizwana Sarwat vrs, Province of Sindh and others (1990 CLC 1372);
9. Mrs. Shushma vrs. District Magistrate, Thatta and others (1992 CLC 895);
10. Miss Salma Mughal vrs. Election Committee, Bolan Medical College Quetta and others (1993 SCMR 2083).
Mr. Muzaffar All Zaffar, the learned Additional Advocate General vehemently opposed the grant of petition on the ground that petitioner has fraudulently and by suppressing the material facts has obtained the domicile of District Bhimber and the same has rightly been cancelled by the District Magistrate. He argued that the authority, who is competent to issue an order is also competent to re-send, amend and revoke the same. He further argued that petitioner, herein, firstly obtained the domicile from District Gujrat on 02.02:2011 by making a declaration that she will remain there for further future life and the day when she obtained domicile of District Bhimber on '30.01.2012 she was also in possession of the domicile of District Gujrat. He further contended that apprehending some action and for protection of illegal admission, she got the said certificate cancelled on 07.02.2012.
He further contended that petitioner at the time of filing application for nomination has the domicile of both the districts i,e, Bhimber and Gujrat which was illegal. He maintained that ill- gotten-gains cannot be protected in exercise of writ jurisdiction. He alleged that as the petitioner has invoked the extra ordinary jurisdiction with unclean hands, hence, her petition is liable to be dismissed with costs.
Mr. Nasir Farooq, the learned Advocate for Respondent No, 7 while adopting the arguments advanced on behalf of official respondents submitted that petitioner has deprived Respondent No, 7 from her lawful right of admission in MBBS, therefore, the petition may be dismissed with additional costs. In support of his submission the learned Advocate placed reliance on following case law:--
1. Miss Shahida Bano vrs, Mad Govt. and 5 others (1907 SCR 301).
2, Pervaiz Akhtar vrs. Shaikh Rashid Mojeed and 3 others (2000 SCR 452).
We have heard the learned Advocates representing the parties and gone through the record of the case as well as law referred to and relied upon by the learned counsel for the parties.
The proposition which needs resolution is as to whether the petitioner, herein, could legally obtain the domicile from District Bhimber after obtaining domicile from District Gujrat? The question can be answered conveniently because the controversy has been examined by the apex Court of Azad Jammu & Kashmir. In Qamar Afzal vrs. Muhammad Ashfaq Khan and another [PLD 1979 SC (AJK)
96] it was observed that domicile of origin can be abandoned and discarded for domicile of choice by expressing intention to reside at place of domicile of choice. The guidelines are available at Page 98 of the report, which are as under:-- "A person shall be said to be domiciled of a locality where he intends to live permanently and considers that place as his principal or permanent home. 'Domicile' of a person therefore, shall be determined while taking into account the intention of a 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. So in every case the question of domicile is to be decided on the facts of that particular case and no hard or fast rule can be laid down to have a universal definition of the word 'domicile'.
Domicile is of three types:-- (1)Domicile of origin; (2)Domicile of choice; and (3)Domicile of adoption.
What is a domicile of origin and domicile of choice?
The domicile of origin of a person is that which he at his birth acquires from his parents and once it is ascertained in law, it clings to the person until he chooses to divest himself of it by substituting a domicile of choice for the domicile of origin. In the first place, there, is a strongest possible presumption in favour of continuance of domicile of origin and it has been rightly said by Lord Macnaghten that 'its character is more enduring, its hold stronger and less easily shaken off. This observation is found in Private International law by G.C. Cheshire, Fourth Edition, P.
171. Thus, in law a person is presumed to carry the domicile of origin until it is proved that he has abandoned that domicile with the intention to set up at a place permanently with the intention to make that place a permanent home and make a fortune for him. The domicile of choice is 'acquired by combination of fact and intention. The fact is residence and the intention is that the residence should be permanent'. It, therefore, follows that the domicile of origin can be discarded for domicile of choice by intention to reside at the place of domicile of choice permanently. On this score, it would be quite sufficient to have evidence that a person has taken up a habitation in another country other than that of the country of origin with the intention of remaining thereat for an indefinite period to constitute this latter country his domicile of choice. It is thus necessary for making out a case of domicile of choice to prove that a man had taken up his residence in a country other than that of his domicile of origin for an indefinite period so as to make that place his principal home. Though it is difficult in such cases to decide the intention to abandon the domicile of origin in the absence of express declaration yet it is permissible to have an inference on the issue from certain established circumstances and facts whether a person intends to live permanently at the domicile of choice in abandoning the domicile of origin. The intention must be apparent to choose that place in fact as residence and in intention of permanent residence. It would be sufficient on the issue to prove that a man had taken up his residence in a country other than that of his domicile of origin for an indefinite period say, for such a period as would enable him to make his fortune. It is correct that a person may leave his country temporarily to make his fortune and in that case the domicile of origin is retained as he never intended to permanently abandon the domicile of origin and make his home permanently in the domicile of choice but where the intention was 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. To have a finding on the point, the 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 on, the quantum of the movable and immovable assets held by him and his conduct and mental attitude towards his domicile of origin shall provide the guideline and have to be taken into consideration."
In Miss Rakhshanda Aslam and another vrs. Nomination Board of AJ&K (PLD 1986 SC (AJ&K) 1] the principles laid down in Qamar Afzal's case were reiterated by the apex Court.
Fozia Hussain Abbasi's case (1995 CLC 1761) is direct authority on the point. Fact of that case were that Fozia Hussain Abbasi, appellant therein, applied for her nomination in MBBS course against the quota of District Muzaffarabad. Her nomination was challenged on the ground that she could not be nominated against the quota reserved for candidates of Muzaffarabad District because she has abandoned the domicile of the State of Jammu & Kashmir and adopted the domicile of her choice.
She got the domicile certificate from Karachi on 13.10.1994 after obtaining the domicile from District Muzaffarabad on 22.09.1993. The apex Court while referring to case law on the subject including some of the cases referred by Sh. Masood Iqbal, Advocate for the petitioner at Page 1774 observed as under:-- "It is evident from the abovementioned provisions of law that no distinction has been made in cases for issuing domicile certificate if a person who claims to be domicile of Azad Jammu and Kashmir by origin or who seeks the domicile certificate on the ground that he has adopted Azad Jammu & Kashmir as his domicile by choice. The question arises as to whether while issuing the domicile certificate under the aforesaid statutory provisions, the principles of Private International law, referred to above, would also be attracted and if so to what extent. Obviously, for issuance of a domicile certificate under Section 5 of the State Subject Act, 1980 and Rule 7 of the Rules framed thereunder, the conditions precedent for issuing a domicile certificate envisaged in the aforesaid provisions are to be satisfied. The general principle of private International Law on the point would be resorted to only where the law of the land is silent. For instance, there is no definition of word 'domicile' in the law in force in Azad Kashmir; similarly there are no guidelines in the law to determine the intention of a person that he has abandoned the domicile of origin and acquired the domicile of choice. On such points, the principles of Private International Law would be fully applicable. But the statutory requirements that person seeking domicile certificate has been continuously living in Azad Kashmir for five years and intends to live permanently in Azad Kashmir are to be proved. However, in a case of person who is domicile of Azad Jammu & 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 be residing in Azad Kashmir for the purpose of Section 5 of the State Subjects Act, 1980 and rules framed thereunder; he would be denied domicile, certificate 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."
At pages 1775 and 1776 of the same report their lordships have made a comparison of provision contained in Pakistan Citizenship Act, 1951 and Rule 23 of the Pakistan Citizenship Rules, 1952 and provisions contained in the Azad Jammu & Kashmir State Subjects Act, 1980 and rules made thereunder. Finally at Page 1778 of the report it was observed as under:- "Thus, it is evident from the Appendix VIII, reproduced above, that Fozia Hussain, Appellant made a declaration in Form P-1 to the effect that during the remainder of her life, she intended to permanently settle in Pakistan. The appellant does no deny to have obtained the certificate from District Magistrate at Karachi nor any other explanation has been given that the declaration made by her at the time of obtaining the said certificate should not be read against her for any valid reason. Instead, in the written statement filed by her in the High Court, she has contended that the certificate of domicile obtained by her from the District Magistrate, Karachi, does not adversely affect her status as domicile of the Azad Kashmir. It may be observed that at the time of obtaining the certificate from District Magistrate, Muzaffarabad, 22.09.1993, she made a declaration to the effect that she intend to permanently settle in Azad Kashmir in future while making application for obtaining the domicile certificate from District Magistrate, Karachi, she declared that during the remainder of, her life she would permanently settle in Pakistan. She can either permanently settle in Azad Kashmir during the remainder of her life or in Pakistan and not at both places; thus, both the declarations cannot be correct. Obviously, the declaration which she subsequently made before the District Magistrate. Karachi. would prevail and annul the one made in the year 1993 before the District Magistrate. Muzaffarabad."
(Underlinings are ours).
In view of the above said position of law and having regard to the facts of the case we are clear in our mind that order passed by the learned District Magistrate Bhimber, impugned herein, has been passed with the jurisdictional competence because petitioner, herein, admittedly obtained domicile of District Gujrat on 02.02.2011 after accepting the requirements listed in the relevant provisions of Citizenship Act, 1951 and rules made thereunder. She expressed her intention for permanent settlement for future life in Gujrat District. She has obtained the domicile from District Magistrate Bhimber on 30.01.2012 when the domicile certificate issued in her favour by the competent Authority i,e, District Coordination Officer Gujrat on 2.2.2011 was intact, therefore, it can be said that petitioner was in possession of 2 domicile certificates i,e, District Bhimber and Gujrat at the one and the same time and she cannot be domiciled of 2 places. She has got her certificate, issued by the A District Coordination Officer, Gujrat, cancelled on 07.02.2012 which; testifies the issuance of the domicile certificate by District Coordination Officer Gujrat on 02.02.2011 in favour of the petitioner. The abovementioned fact alone is sufficient to justify the stand of the respondents.
The authorities referred to and relied upon by the learned Advocate for the respondents are fully applicable. Iffat Siddique. Sulehria's case (PLJ 2003 SC (AJ&K) 108) is also applicable. The facts of the case were that appellant, therein, obtained domicile from District Muzaffarabad in 1996. She subsequently obtained domicile from District Magistrate Sialkot. She applied for appointment as Assistant Commissioner as refugee settled in Pakistan on the basis of domicile issued by District Magistrate Sialkot. Her recommendations were in process when she got cancelled the certificate issued from District Magistrate Muzaffarabad. Recommendations of the Public Service Commission made in her favour were challenged on the ground that she was not refugee settled in Pakistan, hence, her application against the said quota was not entertainable and resultantly recommendations of the Public Service Commission were illegal and of no legal consequence. It was argued on behalf of the appellant that she has not utilized the certificate issued by District Magistrate Muzaffarabad for any purpose, therefore, notwithstanding the existence of the said certificate her status as refugee settled in Pakistan cannot be objected to. There submissions were repelled by this Court and her petition was dismissed and her recommendations were declared illegal in Writ Petitions No, 373/342/334 and 385 of 2003 decided on 20.11.2002. The apex Court of Azad Jammu & Kashmir refused to grant leave. The relevant observations have been recorded by their lordships in Para 10 of the judgment which are reproduced as under:-- "Keeping in view the above authority the petitioner at the time of applying for the post of Assistant Commissioner was a domicile of Muzaffarabad district which she only surrendered in September 2002 at the time when recommendations in her favour were in progress as such it leaves no doubt that she was not a Jammu and Kashmir refugees settled in Pakistan. The question whether she used the certificate or not would not make any difference in view of the admitted facts that the same exists in her name and its surrender at this stage certainly supports the case of the respondents though the aforesaid point was not raised before the High Court."
The authorities referred to and relied upon by the learned counsel for the respondents i,e, Shahida Bano's case (1997 SCR 301) and Peruaiz Akhtar's case (2000 SCR 452) are also of the same affect.
The petitioner has shown her intention by making a declaration before District Coordination Officer Gujrat that she has adopted Gujrat as permanent place of living and she will live there for her remainder life and without canceling the certificate first she obtained another domicile certificate from District Bhimber. An individual cannot be deemed domiciled of 2 districts or places, therefore, she could not obtain domicile of District Bhimber in presence of the first domicile. The District Magistrate Bhimber was right in exercising the jurisdiction.
The contention of the learned Advocate that District Magistrate was not competent to cancel the domicile Certificate issued on the ground of fraud, misstatement of facts is not tangible in law. Law is well settled that authority who can issue an order has the power to resend, revoke or cancel the same under Section 21 of the General Clauses Act, therefore, it cannot be said that the District Magistrate acted in violation of the rules while passing the impugned order especially so when domicile certificate was obtained by misstatement of facts. We refer to following cases in support of our aforesaid view.
1. Mst. Rehana Aziz vrs. Mst. Shakeela Ashraf and 2 others. [1998 SCR 281],
2. Dr. Muhammad Sarwar vrs. Dr. Muhammad Sharif Chatter & others. [1995 SCR 292].
The contention of the learned Advocate that petitioner has not been heard before passing the impugned order is devoid of any force. A perusal of the record reveals that a notice was issued to the petitioner for the purpose of hearing but she intentionally did not appear before the Magistrate and in the circumstances of the case, in our estimation, she has rightly chosen not appear.
In view of above finding no substance in the petition, it is hereby dismissed.