ALI HUSSAIN QAZALBASH, J.-We have heard Petitions Nos. :--
(i) W. P. No. 193 of 1981 (Saeed Amer v. Principal Khyber Medical College etc.)
(ii) W. P. No. 209 of 1981 (Miss Ruqia Farooqi v. D. C. Swat).
(iii) W. P. No. 211 of 1981 (Muhammad Nasrullah v. Principal Khyber Medical College etc.)
(iv) W. P. No. 221 of 1981 (Miss Uzma Masaud v. Principal Khyber Medical College etc.)
(v) W. P. No. 251 of 1981 (Miss Shaheena Sanobar v. D. M. Kohat).
(vi) W. .P. No. 287 of 1981 (Qalab Hussain Shah v. N.-W. F. P. Etc.)
(vii) W. P. No. 277 of 1981 (Hidayatullah Farooq v. D. C. Peshawar).
(viii) W. P. No. 293 of 1981 (Aminul Haq v. Principal Khyber Medical College etc.)
(ix) W. P. No. 303 of 1981 (Nasir Ikram v. Principal Khyber Medical College etc.)
(x) W. P. No. 359 of 1981 (Javed Jqbal v. Principal Khyber Medical College etc.)
(xi) W. P. No. 236 of 1981 (Miss Nabia Malik v. Principal Khyber Medical College etc.)
(xii) W. P. No. 249 of 1981 (Taimoor Aziz Khan v. N.-W. F. P.)
(xiii) W. P. No. 250 of 1981 (Haroon Aziz Khan v. N: W. F. P.)
(xiv) W. P. No. 372 of 1981 (Miss Naghmana Shama v. Principal Khyber Medical College) together, the reason being that the admissions allowed to all the petitioners in the Khyber Medical and Ayub Medical Colleges were re-called because of the cancellation of the domicile certificates issued to each of the students by the District Magistrates concerned.
2. The common question involved in all these cases is whether the petitioner were issued domicile certificates under the Pakistan Citizenship Act and the. Rules made thereunder and, if so, whether the District Magistrate was competent to cancel the same in case the domicile certificates had been obtained by a petitioner through misrepresentation and fraud without following the provisions of rule 26 ?.
3. Lengthy arguments were addressed by the learned counsel for the petitioners and the learned Advocate-General for the respondents. Mr. Zahoorul Haq, Advocate was also heard for respondent No. 3 in Writ Petition No. 209/81.
The case of the learned counsel for the petitioners is that the issuance of a domicile certificate and its cancellation is dealt with only under the Pakistan Citizenship Act of 1951 and the Rules made thereunder as there exists no other law. Obviously, therefore, the domicile certificates issued to the petitioners were under the above quoted law. Similarly they submitted that if in a case it is established that a domicile certificate has been obtained by a person by misrepresentation and fraud, action against him has to be taken under the said Act and the rules made thereunder. In support of their above contentions the provisions of sections 17 and 21 of the Act and rules 23 and 26 of the Rules were repeatedly read and extensively explained. They further submitted that in almost all the cases in hand the District Magistrate of the District concerned has either without any notice or after a slipshod and sham inquiry has cancelled the domicile certificates issued to the petitioners which in view of the provisions of rule 26, he legally could not do and thus the orders of cancellation of the domicile certificates are one without lawful authority. Reliance is placed on PLD 1971 Lah. 367, PLD 1978 Quetta 17 and PLD 1977 Quetta 22 and score of others.
As against the above contentions, the learned Advocate-General submitted that from the arguments advanced by the learned counsel for the petitioners it has become apparent that they have badly misconceived the law on the sub--ject. He submitted that the certificates in question are not domicile certificates as envisaged by the Pakistan Citizenship Act, 1951 and the Rules made there--under. They are simply permanent resident certificates which the District Magistrate of the area concerned can issue in the exercise of his administrative powers. These certificates have thus been wrongly described as domicile certificates on the Forms and in the prospectuses of the two Colleges. He further submitted that if after obtaining such a certificate it is brought to the notice of the concerned District Magistrate that a person has obtained the said certificate by misrepresentation or fraud, the same authority is fully com--petent to cancel or recall the same under section 21 of the General Clauses Act. As to the right of hearing to the persons concerned, the learned Advocate-General submitted that these certificates are not issued in pursuance of any law, the same do not create any right in the person concerned and, therefore, can be cancelled without any notice, in case the authority is satisfied that the same had been obtained by misrepresentation or fraud. Reliance in this respect was placed by him on PLD 1980 Quetta 29 and PLD 1973 Kar. 130.
Lastly, he vehemently contended that in almost all the cases every effort had been made by the local administration to serve the person concerned with a notice before passing the order of cancellation. The record would show, be submitted, that in some cases the petitioners concerned did appear before the Inquiry Officer either through his/her duly authorised attorney, father or brother and participated in the inquiry proceedings. In some cases, the petitioners had not given the correct addresses and, therefore, it was not possible to locate them on the given addresses and, therefore, they were proceeded against in their absence. In this view of the matter, he submitted the petitioners have no reason to complain that the certificates were cancelled at their back and without any notice to them.
5. After hearing the learned counsel for the parties at great length, we now proceed to dispose of the matter in the light of their respective arguments.
The Pakistan Citizenship Act is a brief Act. It also carries Rules and Appendices etc., etc. Before the enactment of this Act, the status of a citizen of Pakistan was not known, therefore, in order to determine the status of a citizen of Pakistan, this Act was promulgated. In the present case, we are not concerned with the other provisions of the Act and the Rules made there--under except section 17 and section 21 of the Act read with rules 23 and 26 of the Rules. The learned counsel for the petitioners have heavily relied on the above provisions of law and they have tried to bring the certificates as having been issued to their clients under the Citizenship Act.
6. According to the Act, an application for the grant of domicile certificate is made under section 17 on Form (P) (Appendix VIII) to the Federal Government or its delegatees and the requisite certificate is issued by competent authority in case the applicant fulfils the requirements of rule 23 of the Rules. The penalty in obtaining a domicile certificate on furnishing false information is provided for under section 21 of the Act and the procedure to prosecute a person who obtains a domicile certificate on the basis of false information has been prescribed under rule 26.
In order, therefore, to appreciate the case of the petitioners in its true perspective, we reproduce the provisions of section 17 of the Act, rule 23 of the Rules and of course Appendix VIII (Form P) on which an application for the grant of domicile certificate is made:- "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 Certificate of domicile.-"The Central Government, the Provincial Government or any District Magistrate authorised by the Provincial Government in this behalf may on application made to it in this behalf issue a certificate of domicile in Form `P' in the manner following :-
(a) An application for a certificate of domicile shall be made in Form "P" in duplicate. It shall be accompanied by an affidavit affirming the truth of the statements made in it and affirming further that the appli--cant bad not migrated to India after the first day of March, 1947 or that having so migrated, had returned to Pakistan under a permit for resettlement of permanent return issued by an Officer authorised 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 fact 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."
"Appendix VIII (Form `P').
Application for a certificate of Domicile in Pakistan.
To Sir, I----son of----------aged------resident of-----hereby state that I was formerly the resident of - -------------- Distt ------I have arrived in--Tehsil------Prov/Admn ;-----------in Pakistan on----------day of- - 19 I have been residing continuously in Pakistan for a period of-years months immediately preceding this declaration, and I hereby express my intention to abandon my domicile of origin in and with a view to acquire the domicile of Pakistan. I declare my intention to take up my fixed habitation in Pakistan during the remainder of my life.
I further affirm that I had not migrated to India and returned to Pakistan between the 1st March 1947 to the date of this application except on a valid Visa No.Datedissued by the Pakistan Passport Office at Other particulars are given below :- Married/single/widow/widower.
Name of wife or husband.
Name of children and their ages.
Trade or occupation.
Marks of identification.
I do solemnly affirm that the above statement is true to the best of my knowledge and belief.
Signature Place Date.
Attestation Designation.
Place and Date."
From the careful perusal of the above provisions and Appendix VIII (Form P) it will become crystal clear that the domicile certificate envisaged and issued under the above Act are meant for a class of persons who originally are not the citizen of Pakistan, have migrated to this country after the partition of A India, during the specified period, have abandoned their domicile of origin and having ordinarily resided in Pakistan for a period of not less than one year with the intention of residing therein permanently in order to acquire, citizenship of Pakistan (section 6 of the Act). The obtaining of domicile certi--ficate is reiterated in section 8 of the Act and again in section 10 of the Act. Thus it is only these particular categories of persons who are required to obtain domicile certificates in respect of their domicile in Pakistan in the form and manner as prescribed for under the Citizenship Act and the Rules made thereunder.
7. The origin of the certificates (subject-matter of these writ-petitions) are not known and none has been brought to our notice except that the learned Advocate-General maintained at the bar that these certificates are permanent resident certificates having been issued by the various District Magistrates in exercise of their administrative authorities.
The idea behind the issue of the certificates in dispute is quite obvious. The people of this Province are admittedly less fortunate in term of education and career opportunities etc. As compared to the people of other Provinces o Pakistan, it had, therefore, become a common practice that people from outside the Province of N: W. F. P. Used to come to this province and used to obtain admission in its Educational Institutions and secured jobs in its various Departments with the result that the people of this Province used to be deprived of these opportunities. In order, therefore, to arrest this tendency and to protect the rights of the people of this Province, it was decided that person who either seeks admission in an Educational Institution or wants to secure employment in the Government or semi-Government Organisations of this Province must obtain a certificate (described as domicile certificate) from the district administration establishing that he is the permanent resident of N.-W. F. P. For obtaining such a certificate a proper form has been pres-- cribed which reads as under :- Domicile Certificate I declare that I am born of parents who are permanently domiciled in N: W. F. P. Having been born/settled in this Province.
I was born at village/Mohallah-------Tehsil-------District SIGNATURE OF THE APPLICANT DATED Pursuant to the declaration-----filed by Mr.---------s/o- --domiciled in North-West Frontier Province. It is hereby certified that the said --is born of parents who are permanent resident of the North-West Frontier Province having been born/settled within it.
I have satisfied myself from personal/my knowledge/verification that the above declaration is true and certify accordingly.
This----day of -19 Countersigned.
MAGISTRATE IST CLASS.
DISTRICT MAGIS IRATE.
The local administration then makes an inquiry into the claim of the applicant and if the same is found correct, the certificate as prescribed in the form is attested by the Illaqa Magistrate and countersigned by the District Magistrate concerned. It is then, that on the strength of this certificate a student, as of right, claims an admission to an Educational Institution in his own Province or in the Educational Institution of other Provinces where seats are allocated or reserved in respect of the students of the N.-W. F. P. On reciprocal basis and exactly the same is the case with the person who intends joining Government or semi-Government Organisation in his own Province or in the Department of the Federal Government.
8. There is a basic and fundamental difference between the domicile certificate envisaged in the Citizenship Act and the one under discussion. In case an applicant applies for a domicile certificate under the Citizenship Act, he has to express his intention on Oath of permanently residing in Pakistan thereby abandoning his domicile of origin whereas in the domicile certificate in question no such intention of residing permanently in the province of which domicile is obtained is required to be expressed at all by the granted thereof.
9. Admittedly, none of the petitioners had applied for, and obtained the domicile certificate for his domicile in Pakistan except in Writ Petition No. 277/81. Every one of the petitioners, excepting Hidayatullah, had applied for and been able to secure a domicile certificate in respect of his/her residence in the Province of N.-W. F. P. Further it is not the case of any of the petitioners, except the petitioner in Writ Petition No. 277/81, that he had applied for the grant of a domicile certificate under section 17 of the Act and the Rules made thereunder.
From the above it will become apparent that these certificates are issued for absolutely a different purpose and are not confined to special category of persons enumerated in the Citizenship Act.
Any resident of N.-W. F. P. Can secure this certificate provided he can establish that he is a resident of this Province i. e. N.-W. F. P., we may, therefore, agree with the contention of the learned Advocate-General that these certificates have been issued by the various District Magistrates in the exercise of their administrative authorities.
10. Before dealing with other points of controversy between the learned counsel for the parties, we may observe that we have presently two types of domicile certificates in the field, the one issued under the Pakistan Citizen--ship Act and the other issued by the Magistrate of the District in his administrative capacity. Though the scope and purpose of the two certificates is different and distinct but both of them are called domicile certificates and a confusion is created. This confusion does not end here. The Law Depart--ment of the Government of N.-W. F. P. In its latest communication bearing No. EXA (30)8-1/71 dated 18-9-78 addressed to the District Magistrate and the Commissioners termed the certificate in question as ordinary domicile certificate. The Government of Sind has named it as Permanent Resident Certificate whereas the Government of Baluchistan calls it as Local Resident Certificate. We on our part cannot suggest any name for such certificate but hope that the Provincial Government would consider the desirability of making necessary legislation to resolve the controversy and confusion once for all in the light of the above observations. 1n doing so the Provincial Government would be at liberty to lay down the necessary terms and conditions, and in issuing such certificates, the terms and conditions so laid down, shall be strictly followed so as to minimise the chances of its misuse.
11. Having held that the certificates in question have been issued under the administrative authority by the concerned District Magistrate and not under any other law, we at the same time hold further that the issuance of these certificates have created right in the writ petitioners for; admittedly the petitioners got admissions in the two Medical Colleges on the production of these certificates and other documents as required under) paras.6 and 7 of the Ayub and Khyber Medical Colleges respectively. There is no denial of the fact that the admission of the petitioners were re--called by their respective principals on the cancellation of their domicile certificates by the concerned District Magistrates thereby depriving the petitioners of their rights to acquire education which is guaranteed under the constitution, therefore, it will be absurd to contend that these certificates did not create any right in the petitioners. These have created a vested right in the petitioners, notwithstanding their issuance in the exercise of administrative capacity. Reliance in this respect is placed on the majority view expressed in PLD 1980 Quetta 29 wherein it has been held:- "A recipient of a local certificate becomes entitled to the enjoyment of certain rights immediately on the grant of such certificate. Most obvious of such rights in this Province, is consideration for admission to professional Educational Institutions. A cancellation of certificate of this nature deprives the students of such rights. The notice is, therefore, all the more necessary in case a local certificate is desired to be cancelled."
The learned Advocate-General has also relied on the minority view of the above authority for our consideration but we are not inclined to subscribe to its view.
In cases where any right is created in a person in pursuance of an administrative order even then before its rescission, service of notice is a condition precedent and in this regard, we have a chain of authorities. For instance in PLD 1959 SC, it has been held:- "The rule of justice embodied in the maxim ; audi alteram parten ; `No man shall be condemned unheard' is not confined to proceedings before Court and extends to all proceedings, by whosoever held, which may affect the person or property or other right of the parties in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the rights of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceeding though administrative in form."
In PLD 1965 SC 90, their Lordships have held at page 103:- "What these principles of natural justice are it is not possible to lay down with any exactness, for, they have been variously defined in various cases, as was pointed out by the Judicial Committee in the case of the University of Cylon v. Fernando Tuker, L. J. Said in Russel v. Duke of Norfolk (1949)t Al.
ER 109 `the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth'. Nevertheless the general consensus of judicial opinion seems to be that, in order to ensure the `elementary and essential principles of fairness' as a matter of necessary implica--tion, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and . . . . . . ".
In the circumstances the contention of the learned counsel for the petitioners that before the cancellation of the domicile certificates, which have created rights in the petitioners, notice upon them in this regard was a condition precedent must prevail and that of the learned Advocate- General is repelled. The authority reported in PLD 1973 Kar. 132 and relied upon by the learned Advocate-General is distinguishable from the facts of the instant cases.
11. Now we would see whether any notice to show cause as to why the domicile certificates be not cancelled was issued to the petitioners and whether there existed any evidence to establish that the petitioners had obtained the certificates in question on furnishing false and fake information justifying the District Magistrates concerned to cancel the certificates. To resolve these points, we have to advert to the facts of each petition brought on the record.
12. W. P. Nos. 372/81, IP3181 and 308/81.-In these cases no inquiry, whatsoever, has been conducted nor any notice before the cancellation of the certificates was issued to any of the petitioners. The District Magistrates of the area concerned had cancelled the domicile certificates on the report of the local police or the Special Police which in the eyes of law is against the principle of natural justice. Therefore, the orders of the District Magistrate cancelling the domicile certificates and those of the Principal Khyber Medical College, Peshawar cancelling the admission of "the petitioners are to be set aside.
13. W. P. Nos. 211, 251, 293, 287, 236 and 359/81.-In these cases no notice, whatsoever, has been served upon any of the petitioners and their domicile certificates have been cancelled at their back by the District Magistrate concerned without affording an opportunity of being heard to the petitioners. Therefore, the orders of the District Magistrates cancelling the domicile certificates of the petitioners and that of the Principal Khyber Medical College, Peshawar cancelling the admission of the petitioners are to be set aside.
14. W. P. No. 209/81.-In this case, the petitioner appeared before the Inquiry Officer through Muhammad Hanif a son of Amic Habibullah, resident of Jor, Police Station Matta, her duly authorised special attorney. The father of the petitioner also appeared before the Inquiry Officer.
The state--ments of the witnesses from both the sides were recorded by the Inquiry Officer. The .
Petitioner also placed a photostat copy of Nikahnama of her parents which is Exh. P. W. 1/2 on file showing that the Nikah of her parents was performed in November, 1948,, in village Mian Mira, District Swat. The petitioner also placed a partition deed in respect of the partition of the property between her paternal grandfather and his brother. This deed is dated 11-5-46 which is Exh. P. W. 1/3.
Taking into consideration the material on record, we are not inclined to agree with the finding arrived at by the Inquiry Officer that the petitioner is not the resident of Swat. We, therefore, hold that the District Magistrate has acted illegally in cancel--ling the domicile certificate of the petitioner by his order dated 21-4-81. Similarly the order of cancellation of call for admission passed by respondent No. 2 is without lawful authority and both the orders are to be set aside.
In this case we, however, find that another girl, namely, Miss Shahnaz Nadir daughter Of Nadir Khan (respondent No. 3) has been admitted in the Khyber Medical College in place of the petitioner and has been attending the College regularly, therefore, in the interest of justice, it is desirable that respondent No. 3 should not be dislocated.
1-5. W. P. No. 221/81.-In this case, the statements of the father of the petitioner and other witnesses were recorded but there is nothing in rebuttal to suggest that the domicile certificate was obtained by the petitioner by fraudulent means, therefore, the District Magistrate has acted illegally in cancelling the domicile certificate of the petitioner. Thus the order of the District Magistrate D. I.
Khan dated 16-5-81 and that of the Principal Khyber Medical College, Peshawar dated 21-5-81 are to be set aside.
16. W. P. No. 249 and 250/81.-In these petitions, the petitioners in person 4id not participate in the inquiry proceedings. Before the Inquiry Officer, however, in Writ Petition No. 249/81, Haroon Aziz, brother of the petitioner appeared. His statement along with the statements of other witnesses was recorded by the Inquiry Officer and similarly in Writ Petition No. 250/81, Abdul Aziz Baber father of the petitioner Haroon Aziz Khan; appeared and his statement along with other witnesses was recorded. We have gone through the statements of the witnesses recorded in these cases and found that the material exists which establishes that the petitioners are born of the parents who are the permanent residents of Dera Ismail Khan District. A photostat copy of Mutation No. 542 attested on 31-8-81 has also been placed on record which shows that the petitioners have purchased land in their own names for the construction of a house. In this view of the matter, the District Magistrate has acted illegally in cancelling the domicile certificates of the petitioners, therefore, the order of the District Magistrate cancelling the domicile certificates and that of the principal cancelling the admission of the petitioners are to be set aside.
17. W. P. No. 277/81.-In this case the certificate of domicile was issued under section 17 of the Pakistan Citizenship Act and the Rules made thereunder on the prescribed form. In this case no inquiry has been held but a show-cause notice was served upon petitioner No. 1 by the District Magistrate, Peshawar and on receipt of his explanation dated 25-6-81 the District Magistrate vide his memo. Dated 13-7-81 cancelled his domicile certificate. In doing so the District Magistrate has failed to follow the provi--sions of rule 26 of the Rules framed under the Citizenship Act. This being the position the impugned order dated 13-7-81 is void and a nullity in the eyes of law. Petitioner No. 2 was neither served with a show-cause notice nor any inquiry was conducted against her.
Therefore, the District Magistrate has acted without lawful authority in cancelling the domicile certificate and the order of the District Magistrate cancelling the domicile certificate of the petitioner No. 1 and that of the Principal Khyber Medical College Peshawar cancelling the admission of petitioner No. 2 are to be set aside.
18. In view of what has been stated above, we accept Writ Petitions Nos. 209/81, 221/81, 249/81, 250/8 t and 277/81. The orders of the District Magistrates of the District concerned cancelling the domicile certificates of the petitioners in these writ petitions and that of the respective Principals of the Medical Colleges cancelling the admissions of these petitioners are hereby set aside.
As for Writ Petitions Nos. 372/81, 193/81, 308/81, 211/81, 251/81, 293/81, 287/81, 236/81 and 359/81 are concerned, these petitions are also accepted, the orders of the District Magistrates concerned whereby the domicile certificates of the petitioners were cancelled and those of the principals cancelling the admission of the petitioners are hereby set aside. Since proceedings against the petitioners were taken at their back and without affording any opportunity of being heard to them.
The District Magistrates concerned are, therefore, directed to serve the petitioners with proper notices, conduct a thorough and detailed enquiry and pass appropriate orders in accordance with law.
We, however, do not pass any order as to costs.