SHEZADA MAZHAR, J.--- Through this writ petition, the petitioner has challenged the order dated 11-11-2013 passed by the District Coordination Officer, Rajanpur whereby he rejected the application of the petitioner for the grant of Certificate of Domicile of Sham Khalchas (Tribal Area), Tehsil Jampur, District Rajan Pur.
2. It is the case of the petitioner that while passing the impugned order dated 11-11-2013 respondent No.1 has not considered the facts of the petitioner's case; that the petitioner has been condemned unheard as the impugned order has been passed on the basis of the report of political assistant which states that petitioner is not a permanent resident of the Sham Khalchas; that her father and mother are holding domicile of Sham Khalchas and therefore petitioner is also entitled for the grant of certificate of domicile of said District in view of sections 8 and 14 of the Succession Act, 1725; that respondent No.1 while passing the impugned order dated 11-11-2013 has failed to consider sections 4, 5 and 18 of the Pakistan Citizenship Act, 1751 read with Rule 7 of the Pakistan Citizenship Rules 1752, which entitles the petitioner for the grant of domicile certificate of Sham Khalchas and that according to the National Identity Card of the petitioner, the permanent place of residence of the petitioner's parents is Sham Khalchas and petitioner's parents name is also available in the voter list of Sham Khalchas. On the basis of these facts learned counsel in view of the law laid down by his court in Miss Saima Bukhari and another v. District Coordination Officer Rajanpur and 3 others (2006 M LD 786) which is fully applicable to the present case, submits that petitioner is entitled to the grant of the certificate of domicile of Sham Khalchas.
3. On the other hand, learned A.A.-G. On instructions submits that petitioner is a bona fide resident of District Layyah and therefore, not entitled to get the certificate of domicile of Sham Khalchas.
Further submits that the brother and sister of the petitioner have been issued domicile certificates of District Layyah which shows that the petitioner as well as her parents are not the permanent residents of Sham Khalchas. It is the case of the respondent department that petitioner's parents during their period of posting as District Health Officer Rajanpur have managed to obtain certificate of domicile on 12-6-1770;' that when the parents of the petitioner have obtained domicile certificate of District Rajanpur they must have already been issued domicile certificate of another place/district because domicile certificate is necessary for obtaining government job; that tilt petitioner as well as her parents are not the permanent residents of Sham Khalchas and therefore, the impugned order is in accordance with law and facts of the matter; that the petitioner cannot be granted certificate of domicile of Sham Khachals only on the ground that her parents are holding domicile certificate of said area; that in order to obtain domicile certificate of. Sham Khalchas it is required that the petitioner is residing in the area for last one year, however the petitioner is not residing in the area for last one year and therefore not entitled to get the domicile certificate of Sham Khalchas; that it is evident from the fact that the land on the basis of which it is claimed by the petitioner and her parents that they are permanent residents of Sham Khalchas is open land; that the purchase of a piece of land in Sham Khalchas does not create any justification for the grant of certificate of domicile; that the present writ petition is also liable to be dismissed as alternate remedy of appeal is available to the petitioner under Rule 30 of the Pakistan Citizenship Rule, 1752. Learned A.A.-G. While relying upon Muhammad Yar Khan v. Deputy Commissioner cum Political agent, Loralai and another (1780 SCMR 456) states that the present writ petition is liable to be dismissed.
4. It is also the case of the respondent department that the Government of Punjab has reserved some seats in Medical Colleges, Engineering Universities and other Universities for students of under developed areas especially Tribal Area of Rajanpur & D.G. Khan District. The purpose of this relaxation is to bring the educated youth of these backward areas at par with the students of Urban Areas. It is unfortunate that some elements managed to get the domicile certificates of Tribal Areas for their children to misuse this facility. If this act is not checked properly; not a single student of Tribal Area would be able to get his/her right granted by the Provincial Government.
Learned A.A.-G. Submits on behalf of the respondent department that the present case is of the same nature and therefore, the order impugned has been passed in accordance with law and .Facts of the present case after due verification from the concerned field revenue staff.
5. I have given my earnest consideration to the submissions made by the learned counsel for the parties in support of their respective pleas and have also gone through the record of the case and law applicable to the facts of the present case.
6. In order to resolve the present controversy one is required to first consider the statutory provisions for obtaining a certificate of domicile. The issuance of Domicile Certificate is governed by the provisions of section 18 of the Pakistan Citizenship Act, 1751 (Act of 1751) read with Rule 23 of the Pakistan Citizenship Rules, 1752 (Rules of 1752) which are reproduced below:--- -Section 17 of the Act of 1951 "17. Certificate of domicile. --- The Federal Government may upon an application being made to it in the prescribed manner containing the prescribed particulars grant a certificate of domicile to any person in respect of whom it is satisfied that he has ordinarily Resided in Pakistan for a period of not less than one year immediately before the making of the application and has acquired a domicile therein."
Rule 23 of the Rules of 1752 "23 Certificate of domicile.-- The Federal Government, the Provincial Government or any District Magistrate authorized by the Provincial Government in this -behalf may on application made to it in this behalf issued a certificate of domicile in Form `P-I' in the manner following:-
(a) An application for a certificate of domicile shall be made in Form "P" in duplicate, shall be accompanied by an affidavit affirming the truth of the statement made in it and affirming further that the applicant had not migrated to India after the first day of March, 1947 or that, having so migrated,' and returned to Pakistan under a permit for resettlement or permanent return issued by an officer authorized by the Government of Pakistan.
(b) Any authority to whom an application is presented may demand such evidence as it may consider necessary for satisfying itself that the facts stated in the application are correct and that the applicant has been continually resident in Pakistan for a period not less than one year and intends to live permanently in Pakistan.
(c) The authority shall pass such orders on the application as it deems fit."
7. Having reproduced the statutory provisions for obtaining a certificate of domicile, it would be advantageous to provide the definition of domicile. It is germane to mention here that the above mentioned statutes do not prescribe the definition of the term i.e. "Domicile".
8. A.V. Dicey, B.C.L. In his treatise 'The Law of Domicile as a Branch of the Law of "England" published in 1887 defines the term as under:--- "Domicile means the place or country which is considered by law to be a person's permanent home."
Dr. Phillimore defines the term as:--- "Residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for a unlimited I time."
9. In a recent verdict of a division bench of honourable Quetta High Court titled as Muhammad Khalil and another v. Executive District Officer, Revenue, Pishin and another (PLD 2011 Quetta 21) the term has been defined as:--- "The word 'Domicile' has not been defined under the Citizenship Act, 1951. The Black's Law Dictionary (Seventh Edition), defines the word 'Domicile' as a person's true, fixed, principal, and permanent home, to which that person intends to return and remains even though currently residing elsewhere.--- also termed permanent abode.
Plain reading of the definition gives the meaning of a domicile as proof of a permanent residence of a person. The concept of a permanent residence as defined in the terms of domicile is of two types, one by birth and the other by choice. A person, who desires to select his permanent residence by choice means through the intends to relinquish his original place of abode and to choose another place for the purpose of his permanent residence. Once the facts of relinquishment and acquisition are established, a domicile undergoes a change and the person acquires a new domicile and has a permanent home, at least in the notional sense at the new place. The domicile has to be considered a synonym for home. The domicile has been discussed by Lord Granworth in the case of Whicher v. Hume, relevant portion of which is reproduced herein below: "By domicile we mean home; the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or I think the best I have heard is one which describes the home as the place 'Uncle sitdiscess-urus-sl nihi avocet unde cum profectusest peregrinarividetur. I think that the best illustration and I use that word rather than definition, to describe what I mean."
The above discussion leads us to the conclusion that the domicile certificate is a, prima facie, proof of the place of permanent residence of a person, who intends to permanently reside at a particular place.
The Oxford Dictionary has defined the word 'permanent' as "lasting or expected to last for a long time or forever", whereas the word 'temporary' has been defined as "lasting or meant to last for a limited time only". Similarly, the word 'Residence' has been defined as a house, the state of living in a particular place. Thus, the permanent residence means the state of living at a particular place for all the time or at least for a long time, whereas a temporary residence means living for a short time.
There are two stages of a domicile certificate, one is, that when the person intended to permanently reside at a particular place, as such, applies for a domicile certificate. Secondly, after obtaining a domicile certificate, the holder of a certificate continues to permanently residing at a particular place. Thus, in the first circumstance, when a person applies for a domicile certificate, the authority has to consider as to whether the applicant relinquished his earlier permanent place of residence before selecting his new place of domicile. As far as the second circumstance is concerned, the authority on its own or on the objection of any person concerned can conduct an inquiry with regard to a permanent residence of a holder of a certificate for a particular place."
10. From the above it is clear that two major classifications of domicile i.e. Domicile of origin and domicile of choice need to be considered. An ex cathedra expression of such classification including the definition of the term domicile can be found in a division bench judgment of the honourable Peshawar High Court titled as Ahmad Hassan v. Abdullah and 5 others (PLD 1772 Peshawar 1). The relevant text is produced herein below:--- "26. Corpus Juris Secndum, Volume 28 at pages 10 and 11 while dealing 1 with the subject of 'domicile'; divides it into two kinds viz. Domicile of origin and domicile of choice. The former is defined as:--- A person's domicile of origin is the domicile of his parents, the head of his family, or the person on whom he is legally dependent, at the time of his birth. It is generally, but not necessarily, the place of birth.
The latter is defined as:--- A domicile of choice is the place which a person has chosen ,for himself to displace his previous domicile; it is based on the intention of the person.
Again continuing with the subject of domicile it is stated that:--- "Apart from statutory regulation, no particular period of residence is required to establish domicile, and any residence, however short, will suffice when coupled with intent; without intent; residence, however long continued, will not establish domicile."
And adds:--- "A change of domicile or residence depends on intention, or, as sometimes stated, on a dual intention to abandon the former domicile and to acquire another."
According to Halsbury's Laws of England 3rd Edition Vol.7, page 14, The law attributes to every person at birth a domicile which is called a domicile of origin. This domicile, may be changed and a new domicile, which is called a domicile of choice acquired but the two kinds of domicile differ in the following respects:
(1) The domicile of origin is received by operation of law at birth, the domicile of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi.
(2) The domicile of origin is retained until the acquisition of a domicile of choice; it cannot be divested by mere abandonment and is never destroyed though it remains in abeyance during the continuance of domicile of choice, the domicile of choice is lost by abandonment whereupon the domicile of origin is acquired; the domicile of choice; when is once lost, is destroyed but may be acquired a new by fulfilling the same conditions as are required in the first instance.
Similarly, in Wright v. Wright reported in ILR 1958 Calcutta. 259 as also in Rooks v. Rooks reported in AIR 1934. Bombay 239 it is laid down that a person continues to retain his domicile of origin until a domicile of choice is acquired and even then the domicile of origin merely remains in abeyance and further that there must be both the factum of residence and animus manendi and must be no animus revertendi to the former domicile. The report further adds that residence of animus manendi by itself will not be inferred to confer a new domicile."
27. Questions of this nature did arise before Courts of Pakistan. In case of Ralph William Bagley v.
Elizabeth Bagley, reported in PLD 1954 Dacca page 147 as well as John Oswald Horatio Neale v. Mrs. Margaret Eileen Neale PLD 1957 Dacca page 363 while elaborating the said two kinds of domicile with reference to person who migrates from the place of his origin to the place of his choice; the ratio decidendi is that mere residence in a place other than the place of his origin is not a proof of his domicile of his choice, unless the person abandons his domicile of origin and adopts the domicile of his choice that is to say he resides in the place, he has migrated to, permanently coupled with no intention whatsoever to go back to the place of his origin. The question also cropped up for consideration before the High Court of A.J.K. In the case of Nishat Saeed v.
Nomination Board reported in PLD 1977 Azad J&K page 33 and while dealing with the word domicile it has been held that:--- A person who carries on business in a country and for that purpose has also constructed a house to live in, cannot be said to have abandoned his domicile of origin and embraced domicile of choice in the country in which he carries on the business without a valid declaration showing that he has abandoned the domicile of origin.
28. In the light of the foregoing, we are clear in our mind that, to every person who enjoys the status of sui juris, law assigns a domicile which can be expressed as his domicile of origin and which remains attached to him until a new and fresh domicile takes its place and that the domicile of origin remains intact until the person has not only manifested to carry into execution an intention of abandoning his former domicile and acquired another as his sole domicile. In other words, a person having a domicile of origin continues to be known therewith unless he chooses to acquire the domicile of choice and, notwithstanding this, his domicile of origin remains in abeyance unless he specifically abandons the same."
11. The requirements for obtaining a certificate of domicile have authoritatively been laid down in a division bench judgment of this Court, in a case titled as Chaudhry Noor Muhammad v. Province of West Pakistan and another (PLD 1781 Lahore 368), in which it was held as under:--- If all the conditions prescribed in section 17 and rule 23, quoted above, are specified, the authority "may" grant the domicile certificate. It was on the use of the word "may" that the Deputy Commissioner has based the contention that it is discretionary for him to grant or to refuse to grant a certificate and that it is no body's right. The leading case on the interpretation of the word "may" is Julius v. Oxford (Bishop) ((1880) 5 App. Cas. 214). Summing up the dictum of that case Maxwell at page 234 of the Eleventh Edition of his Book on Interpretation of Statutes observes as follows:--- Following the decision of the House of Lords in Julius v. Oxford (Bishop), it was said that from the nature of the English language the word 'may' can never mean 'must', that it is only potential, and when it is employed there is another question to be decided, viz., whether there is anything that makes it the duty of the person on whom the power is conferred to exercise that power. If not, the exercise is discretionary. But when the power is coupled with a duty of the person to whom it is given to exercise it, then it is imperative. It is by now axiomatic that "where a power is deposited with. Public officers, to be used for the benefit of persons having rights in the matter" it becomes the obligation of the person so empowered to exercise that power or authority when an application for such exercise is duly made by a person who is interested in the matter and who successfully fulfils the requirements and pre-conditions for the exercise of such authority. The principle being that the incumbent of the public office has been invested with the power not for his benefit but for that of those in whose interest it is to be exercised.
12. It is also clear from the above that the 'Domicile' and 'residence' are two distinct notions. A person may have more than one places of residence but can have only one place of domicile. It follows from this that the place of domicile of a person signifies a place where he has a permanent intention to remain or to couch in other words, where he always has an intention to return. Thus a person may be entitled for grant of certificate of domicile at place 'A' being his permanent abode if he has a residence over there and a permanent intention to reside over there, notwithstanding his temporary residence. However, if the person has moved from place 'A' and has no intention to reside at place 'A' permanently he is not entitled to grant of certificate of domicile from that place.
Intention being a factum to be gathered from the circumstances of the case.
13. This legal position is deducible from the judgments reported as Mst. Saleha Ibtisam v. Chairman, Admission Committee, Pakistan King Edward Medical College Lahore and 5 others (1775 CLC 257), Syed Haider Shah v. Mukhtar Hussain Shah and others (PLD 1763 (W.P.) Lahore 548) and Miss Dur-e- Sameen and another v. Selection Committee through Chairman, Balochistan Public Semite Commission Quetta (1778 SCMR 280) wherein the Hon'ble Supreme Court has held as under:--- "6. The sole question for determination in this petition, therefore, is as to what was the domicile of the petitioner at the relevant time. The Admission Committee on the basis of overwhelming evidence available before it recorded a finding of fact that petitioner No.1 was neither permanently residing in Loralai nor acquired a valid domicile. The learned Judges of the Division Bench of Balochistan High Court accepting these findings also took the view that the domicile of petitioner No.I was not Loralai. There is nothing on record to show that the petitioners had any intention of making Loralai their permanent home. Suffice it to say that mere fact that the petitioner No.2 had joined service in Balochistan is not by itself conclusive evidence of his intention to settle permanently in Loralai. For the acquisition of a domicile of choice, there must be a combination of residence and intention of permanent or indefinite residence before that change can become effective. Refer Rule 7, Chapter 11 of Dicey's Conflict of Laws, 6th Edition, page 89. The same principle was reiterated in Joan Mary Carter v. Albert William Carter (PLD 1961 SC 616). Also refer Miss Amtul Naseer Sami v. Secretary Health, Government of Balochistan (1975 SCMR 265), wherein at page 267 Anwarul Haq, J. Observed as follows:--- Learned counsel for the petitioner referred us to the case of Muhammad Bibi v. Abdul Ghani (PLD 1975 Kar. 979) in support of his contention that the mere obtaining of a domicile certificate by Iftikhar Ahmad's father would not make him a bona fide resident of Balochistan. We do not see how this decision is of any avail to the petitioner. We find that on page 3 of the report the learned Judge has adopted with approval the observation of Lord Macmillan in the case of Ramsay v.
Liverpool Royal (1930 AC 588) to the effect that the residence must answer a qualitative as well as a quantitative test, and that the Courts have regarded naturalization purchase of house or burial ground exercise of political rights, financial expectations, establishment of children in business, the place where a man's wife and family reside as indication of his intentions in regard to residence."
14. In the case in hand the petitioner claimed domicile certificate of Sham Khalchas on the ground that her parents are also holding the domicile of Sham Khalchas and that they have not abandoned the said domicile till date. However, as discussed above the place of domicile of a person signifies a place where he has a permanent intention to reside or to couch in other words where he always has an intention to return. In the present case this intension is not proved from the record as the land owned by the parents of the petitioner is an open land. No construction whatsoever has been made on the said land to show that the petitioner and her parents had the intention to reside there permanently. It is admitted by the learned counsel for the petitioner that the father of the petitioner has already retired from government service and not residing in Sham Khalchas but still residing in District Layyah. It is not denied by the learned counsel for the petitioner that brother and sister of the petitioner have obtained domicile certificate from District Layyah in the year 2002, however submitted that the same are already pending for cancellation. In this regard learned counsel has also placed on record documents showing that proceeding are pending for cancellation of the petitioner's brother domicile.
15. Perusal of the said documents reveals that the petitioner's brother domicile was issued in the year 2002 and the cancellation application was moved by him in December, 2013 during pendency of an earlier Writ Petition No.14214 of 2013 wherein same order by DCO was impugned which was withdrawn on 28-12-2013. Further no application has been filed in case of sister's domicile obtained for Layyah.
16. The domicile of the brother and sister of the petitioner which were obtained from District Layyah states that both of them are residing at the place of domicile i.e. District Layyah since birth and have also mentioned their dates of birth which are 28-7-1786 in case of brother and 4-4-1784 in case of sister. When the information given in these two certificates of domicile are read with the certificates of domicile of the parents of the petitioner wherein they have claimed their residence in Sham Khalchas since 1782. It clearly shows that information in one set of domicile is not correct.
17. This false information read with the report of the Political Assistant established the claim of the respondent department that parents of the petitioner have managed to obtain the certificate of domicile of Sham Khalchas during their posting as District Health Officer and Women Medical Officer. This claim of the respondent department finds further strengthen from the fact that the certificate of domicile of other brother and sisters of the petitioner were also obtained in August, 1776 when the father of the petitioner was posted as District Health Officer during 25-6-1776 to 13- 10-1776.
18. Perusal of the contents of the present writ petition as well as the earlier writ petition filed by the, petitioner to challenge the order dated 11-11-2013 reveals that in both the said petitions the petitioner has concealed the fact that the other brother and sister of the petitioner have obtained certificate of domicile from District Layyah.
19. From the above facts, it is established that petitioner is not permanently residing at Sham Khalchas and the petitioner or her parents have no intention to permanently reside at Sham Khalchas. Moreover, mere ownership of certain piece of land in Sham Khalchas by the parents of the petitioner does not create a right in favour of the petitioner to obtain a domicile certificate of Sham Khalchas, nor it establishes her permanent residence there. Petitioner has failed to produce a single proof of, her permanent residence in Sham Khalchas. Whereas the report of the Political Assistant of Sham Khalchas confirms that the petitioner is not the permanent resident of said area and the report of Assistant Commissioner, Layyah has also confirms that the petitioner and her parents are permanent residents of District Layyah.
20. It is also clear from the facts of the case that petitioner has I I sought domicile of Sham Khalchas only for the purpose of getting benefits meant for the people of backward area.
21. For what has been discussed above, the order dated 11-11-2013 passed by the District Coordination Officer, Punjab is in accordance with the law and facts of the matter, which does not require interference by this Court and therefore, instant petition is devoid of any force and the same is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.