1. ' NAIMUDDIN, J.-By these petitions under Article 9 of the Provisional Constitution Order, 1981, the petitioners who are sister and brother inter se have questioned the orders dated 19-8-1980, passed by the District Magistrate, Jacobabad, respondent No, 1, and also the orders dated 23-4-1982 of the Commissioner, Sukkur, respondent No, 2, rejecting the appeal against the orders dated 19-3-1980, whereby the p ^itioners were refused Permanent Residence Certificates.
2. ' The petitioners' case is that the petitioners' father Abdul Majeed is working as Sub-Engineer in the Jacobabad District since 3-7-1953 and in Guddu Barrage Division, Kashmore, District Jacobabad since 16-2-1958.
3. ' The petitioners at the age of 5i years were admitted in Government School, Guddu Barrage, Kashmore, District Jacobabad in Class I and they continuously studied in Kashmore, District Jacobabad right from Class I to Matriculation Examination held by the Board of Secondary Education and passed their Matriculation Examination and now they are studying in Intermediate Science College, Guddu Barrage Colony No, 1, Kashmore.
4. ' They separately applied to the District Magistrate, Jacobabad for issuance of Permanent Residence Certificates for the purpose of admission in Medical College. However, the District Magistrate rejected the applications without holding any inquiry and serving any show-cause notice by his letter dated 19-8-1980. The letter addressed to Miss Rubina one of the petitioners reads as follows :- No, Judl/Dom/12 of 1980 Jacobabad dated 19-8-1980 "To Miss Rubina Majeed D/o Abdul Majeed Qureshi, r/o Colony No, 1, C/o Mukhtiarkar, Kashmore.
5. ' Subject:-Request for Issue of P. R. C.
6. ' Your request for issue of P. R. C. In the light of the reports of Mukhtiarkar Kashmore & S. D. M., Kandhkot and other documents evidence available on this office record has been considered and rejected on the following grounds :-
(1) That you and your father took birth at Sukkur and thereby hold domicile of origin and permanent settlement at Sukkur.
(2) There is no evidence regarding permanent interest/attachment at Guddu Kashmore except only Rs, 5 stamp agreement for puchase of plot.
(3) Mere stay for a number of years for the sake of service/business, trade only does not establish claim for Domicile/P. R. C. For himself or his dependents even as provided in existing instructions.
7. ' You may file regular appeal before the Commissioner, Sukkur against the refusal if you so desire."
8. ' The application of Tariq Majeed was also rejected on similar grounds by a separate letter dated 7- 8-1980.
9. ' Aggrieved by the rejection of the applications the petitioners preferred separate appeals with the Commissioner of Sukkur Division, which were in the first instance, rejected by the Commissioner on the ground that the same were barred by time. But the orders were questioned in constitution petitions and the case were remanded by a Division Bench of this High Court for fresh decision on merits.
10. ' On remand the Commissioner, Sukkur by separate orders, both dated 23-4-1982, also impugned in these petitions, dismissed the appeals, observing that the petitioners were born in Sukkur and so were their ancestors and there was no indication of permanent residence of the petitioners apart from the acquisition of house plot which has been purchased by the father of the petitioners through Rs, 5 stamp paper which was shortly before the request for issuance of Permanent Residence Certificates and was doubtful. He further observed that the request of the petitioners for issuance of Permanent Residence Certificates for admission in medical college was also premature as the petitioners were then away from consideration for admission in medical college.
11. He further observed that one could not rule out that a transfer of the father of the petitioner out of Jacobabad district would materially affect the claim of the petitioners for issue of the P. R. C. From Jacobabad, in which cases the claims seemed to be solely upon the existing service and therefore did not appear to be of permanent nature to entitle the petitioners to issue of P. R. C. Of Jacobabad district. He further observed that the father of the appellants as well as their ancestors were residents of Sukkur and own property there, it would be fair for the father of the petitioners to apply for issuance of P. R. C. From the place where he owned permanent interest actually. The petitioners have therefore, come up in these constitution petitions.
12. ' We have heard Mr. Muhammad Hanif Mangi, Advocate for the petitioners and Mr. Hasan Akber Assistant Advocate-General for the respondents.
13. ' The case first came up before us on 18-10-1982, when we allowed the learned Assistant Advocate- General time to take instructions as according to him he had not until then received instructions.
14. The respondents had not filed any counter-affidavit. Although respondent No, 2 was served with the notice of the petition as far back as 8-7-1982, and respondent No, 1, on 15-7-1982, yet we allowed the Assistant Advocate-General further time to file counter-affidavit and fixed the hearing on 21-10-1982.
15. ' Even on 21-10-1982, he did not file any counter-affidavit but filed parawise comments on the grounds contained in the petitions and not on the entire contents of the petitions.
16. ' It is the case of the petitioners that their father Abdul Majeed Qureshi has been working as Sub- Engineer in District Jacobabad since 3-7-1953, and in Guddu Barrage Division Kashmore, District Jacobabad since 16-2-1958. It is also the case of the petitioners that their father was posted in remote area where there was no maternity facilities and therefore, the petitioners' mother was admitted in a maternity home at Sukkur when Rubina was born in 1963, and Tariq Majeed was born thereafter next year. It is also the case of the petitioners that after attaining the age of about 5i years they were admitted in Government High School, Guddu Colony No,
1. Kashmore in Class I and they were studying in the said School throughout and are now studying in Government College at Kashmore, District Jacobabad. They have annexed certificate issued by the Head Master, Government High School, Guddu in Kashmore and also provisional certificate and marks sheets of Board of Intermediate & Secondary Education, Hyderabad. It is also the case of the petitioners that their other brothers and sisters have been studying at Kashmore.
17. ' It is further the case of the petitioners that the District Magistrate, Jacobabad, respodent No, 1, without holding any inquiry and without serving any show-cause notice rejected the application for issuance of permanent residence certificate by an ex parte order.
18. ' These allegations have not been denied by the Respondents in spite of having been specifically given opportunity. As stated before only parawise comments to the grounds have been filed wherein it is admitted that the petitioners reside at Kashmore where their father stays.
19. ' As regards the allegation of the petitioner that the order was passed ex parte without hearing them, it is stated that the request has been rejected on merits after due inquiry through Mukhtiarkar, Kashmore, Khan Got where the petitioners were allowed full chance of hearing and leading evidence. It is however, admitted that the petitioners' other brothers and sisters are studying at Kashmore.
20. ' It is contended by the _learned counsel for the petitioners that the order is based on irrelevant consideration and the respondents have not duly considered the relevant facts and material. It is further contended that the petitioners were fully qualified for issuance of Permanent Residence Certificate under the Sind Permanent Residence Certificate Rules. It is further submitted that the relevant question for consideration was whether the petitioners were permanent residents of the district from which they applied for grant of Permanent Residence Certificate. It is submitted that the place of birth of the father and the mother of the petitioners or their own place of birth could not be the relevant consideration in this case for what is to be considered under the Sind Permanent Residence Certificate Rules is the place of Permanent residence of the petitioners or their father at the relevant time and not at the time of birth as under the present law only that was the requirement thereof, unless it was proved that the petitioners were residing at the place of birth throughout or unless the petitioners had more than one residence and were residing at both places when the birth place could be of some relevance.
21. ' We agree with the learned counsel for the petitioners. Under rule 6 of the Sind Permanent Residence Certificate Rules what was to be considered in the present cases was whether the petitioners were born in any area forming part of Sind and whether they were permanently residing in the District. All these conditions are fulfilled in the present case.
22. ' We may here quote rule 6 of the Sind Permanent Residence Rules, 1971 : "No person shall be eligible for grant of a certificate in Form 'C unless :-
(i) He was born in any area forming part of Sind and further-
(a) in the case of a person of legitimate birth, at the time of his birth his father was domiciled in Sind, or if he was born after the death of his father, the latter, at the time of his death, was domiciled in Sind, or
(b) in the case of a person of illegitimate birth his mother at the time of his birth, was domiciled in Sind; or
(ii) in the case of a person who was not born in Sind.
23. (a)his parents are domiciled in Sind, and have resided in Sind for a period of not less than 3 years.
24. (b)if his parents are not domiciled in Sind, he is domiciled in Sind, and further has either resided in Sind or has been educated in Sind for a period of not less than 3 years; or
(iii) his father or mother is in the service of the Government of Sind, and has put in not less than one year serve as such."
25. ' From the above-quoted rule it will be seen that even in cases where the person was not born in Sind what is required to be seen is that his parents are domiciled in Sind and have been residing in Sind for a period of not less than 3 years, or if his parents are not domiciled in Sind, he is domiciled in Sind and further he has either been residing in Sind or has been educated in Sind for a period not less than three years or his father or mother is in the service of Government of Sind for not less than one year.
26. ' Now, if the maximum period required under the rule for an applicant not born in Sind but domiciled in Sind, for residence or being educated in Sind, is three years, then for residence in a District in our opinion, could not be more than that.
27. ' Now, it is admitted that the father of the petitioners is not only domiciled in Sind but is residing in Kashmore for the last 29 years. Similarly the petitioners are residing with their father since their birth and are getting education in Kashmore since 1963 or 1964 continuously.
28. ' Further, what is to be considered is 'Permanent Residence' of the petitioners in a district. The expression 'Permanent Residence' has not been defined in the Rules. The expression, 'Permanent Residence' came up for consideration in Taj Muhammad v. Commissioner, Hyderabad Division and 7 others (1), while considering the meaning of the word 'residence', it was observed by Zafar Hussain Mirza, J. Who wrote the opinion of the Court as follows : "7. It is, however, quite clear that "domicile" and "residence" in the context of the present rules are not words of interchangeable meaning. It has been held that "residence" implies some degree of permanence,
(1) 1979 CLC 237 although the word "reside" may mean very different things, in different contexts but applied to natural persons as distinguished from juristic persons like corporations, residence depends on personal facts. Place of birth. Nationality and allegiance are not the tests nor is domicile. Voluntary choice and habitual and repeated action are mainly material, such as making a home, keeping an establishment, pursuing a settled object in or at a particular place."
29. ' Reference was made to a passage from Halsbury's Laws of England, 3rd Edn., Vol. XX, p. 392, which reads as follows :- "The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes, he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode."
30. ' We may refer to a passage from a Full Bench judgment of Lahore High Court in Syed Haider Shah v. Mukhtar Hussain Shah and others (1) : "The word `residence' may be used in two senses, the one denoting the personal habitual habituation, the other constructive, technical and legal habituation. When a person has a fixed abode where he dwells with his family there can be no doubt as to the place where he resides; the place of his personal and legal residence are the same. When on the other hand, a person has no permanent habitation of family but dwells in different places as he happens to find employment, there can equally be no doubt as to the place where he resides; he must be considered as residing where he actually or personally resides."
31. ' So far as the word 'Permanent' is concerned according to Black's Law Dictionary it means, fixed, continuing, lasting, stable, enduring, abiding, not subject to change. Generally opposed in law to "temporary", but not always meaning "Perpetual".
32. ' Examined in the light of the above observations, and the facts and circumstances of this case it can safely be said that the petitioners and their father are permanent residents of Kashmore, District Jacobabad.
33. So far as the question of owning of property at Sukkur is concerned no particulars of any properties are mentioned nor any particulars are mentioned in the order which allegation was denied by the learned counsel for the petitioner. Even in the comments no particulars whatsoever of any such property has been given. Moreover, owning of property at a place other than that of residence may not be proof of permanent residence at the place. In the present case the relevant facts which have not been taken into consideration are that the petitioners' father is residing in Kashmore since 1953, now for more than 29 years. Moreover, the petitioners having been and are being educated in Kashmore. Therefore, there cannot be a better proof and more relevant consideration than these facts for deciding the question of permenant residence of the petitioners.
34. ' As regards the finding that the petitioners' applications for Permanent Residence Certificate were premature, it would suffice to say that the experience
(1) PLD 1963 Lah. 548 has shown that such certificates are not granted immediately on making the applications. But after inquiries by the concerned authorities which takes long time, and some time certificates are not granted till the date for filing applications for admission in Colleges expires much before the grant of certificate. The present case is also one of such cases. In this case the applications were filed in 1980 and were rejected on 7-8-1982 and 19-8-1982, and the order impugned in the appeal was passed on 23-4-1982.
35. ' We therefore, declare that the orders impugned in these petitions have been passed without lawful authority and therefore, of no legal effect and direct the District Magistrate, Jacobabad, respondent No, 1 to issue Permanent Residence Certificates to the petitioners within a week from the date of receipt of these orders.