' NAIMUI5DIN, J.-This constitution petition under Article 9 of the Provisional Constitution Order, 1981 is directed against the order, dated 3rd October, 1982 passed by Mr. Abdullah M. Akhund, District Magistrate Thatta, respondent No. 2, and the order, dated 17th January, 1983, passed by Mr. Abdullah, J. Memon, Commissioner, Hyderabad Division, respondent No. 1 in the following circumstances.
2. It is petitioner's case that he was born on 24th August, 1963 at Thatta where his father has been residing since 1950. On 1st February, 1958 the father of the petitioner joined the service of the Government of Sind and has since been posted at Thatta. He was granted domicile certificate by the District Magistrate, Thatta on 24th February, 1976.
3. The petitioner's mother also entered into the service of the Government of Sind as Primary Sewing Teacher at Thatta and she has been residing there. She has also acquired a plot of land as evidenced by the allotment order, dated 1st January, 1979 (Annexure "E" to the petition).
4. The petitioner got his education right from the primary school to the college at Thatta as evidenced from the copies of the following certificates :
(a) School leaving certificate of Public School, Makli, showing the petitioner getting primary education from 15th January, 1969 to 31st July, 1974.
(b) Certificate of Government Middle Schoolt Makli stating that the petitioner was admitted in the school on 8th August, 1974 and left the School on 11th May, 1977.
(c) Certificate of Government High School, Thatta, showing that the petitioner got education there from 26th May, 1977 to 31st March, 1979.
(d) Certificate of Government College, Thatta, certifying that the petitioner passed H. S. C. Part II (Intermediate) Examination in 1981.
5. Where the petitioner was a student in the Government High School Thatta, he applied to the District Magistrate, Thatta for the grant of a Permanent Residence Certificate of the said district but the District Magistrate informed him that the petitioner then was a student of school and his request was considered as premature, but the application was kept pending.
6. The petitioner has also supported his claim of permanent residence in the District of Thatta by produciug a copy of the certificate issued by the District Magistrate, Thatta to his sister certifying that she was permanent resident of Thatta District since 1967.
' The certificate reads as follows "No. JB/114 OFFICE OF THE DISTRICT MAGISTRATE THATTA AUGUST 15, 1978.
"FORM "C".
' Certificate-1 hereby certify that for the reasons given below Miss Ghazala Yasmeen daughter of Abdul Mohi Khan has her permanent residence at Makli, Taluka and District Thatta, Hyderabad Division, Sind.
' This certificate is granted solely for the purpose of admission to an educational institution in Sind.
Reasons The applicant is residing in this district since 1967.
(Sd.)
Taj Muhammad Qureshi, District Magistrate Thatta."
7. The petitioner also holds National Identity Card issued to him in 1974 showing him to be the permanent resident of the District of Thatta and his address as "90, Hashimabad, Makli, District Thatta".
8. These facts are not denied in the counter-affidavit filed by Ashiq Ali, Reader of respondent No. 1, with the exception that the petitioner was born at Thatta.
9. The petitioner applied for Permanent Residence Certificate for getting admission into the Engineering College, but the District Magistrate rejected the application by the order, dated 3rd October, 1982 on the ground that the face sheet of the service book of the petitioner's father shows that he declared his place of residence as Block No. 211, Quarter No. 1, Nazimabad, Karachi and according to the instructions contained in the Government Memo No. SO-VIII-Reg. (S & G A D)-8- IB)77, dated 25th October, 1975, the place of residence declared by a Government servant at the time of entering into Government service is final and cannot be changed by him during the course of the service and that the staying of the petitioner's father at Thatta was purely temporary and that the petitioner's stay and getting education was also only on account of his father's service and not otherwise, although it is stated in the order that the enquiries made in the matter revealed that the petitioner's father is serving as Darugha in Thatta Drainage, Thatta since 1st February, 1958, and is living in Government Quarter at Makli.
10. The appeal filed against the order was rejected by respondent No.
1. The reasons which weighed with the Commissioner were that the petitioner was born in Karachi on 24th August, 1963, and at the time of his birth his father was domiciled in Karachi District and that the place of residence declared by the Government servant at the time of his entering into Government service is final and cannot be changed by him during the course of his service and that the domicile certificate obtained by the petitioner's father subsequently on 24th February, 1976, could not be taken into consideration in view of the instructions of the Government on which reliance was placed by the Deputy Commissioner, Hyderabad and have been referred to earlier.
11. We have heard Mr. Rehanul Hassan Farooqui Advocate for the petitioner, and Mr. Muhammad Ibrahim Memon, Additional Advocate-General, Sind for respondents Nos. I and 2 and Mr. Kamaluddin Advocate for respondent 'No. 3.
12. The learned counsel for the petitioner submitted that the petitioner's case was governed by rule 6, sub-rule (3) of the Permanent Residence Certificate Rules, 1971 (hereinafter called the Rules), which reads as follows and the petitioner is entitled to claim Permanent Residence Certificate on that basis.
"Rule 6, subrule (iii) his father or mother is in the service of the Government of Sind and has put in not less than one year service as such."
' He submitted that the petitioner's father and mother both are in Government service for about 25 and 12 years respectively and therefore, the petitioner fulfils this condition and therefore, he is entitled to the Permanent Residence Certificate.
13. However, we do not agree for this sub-rule is to be read subject to provisions of rules 2, 4 and 5.
Accordingly, the petitioner has to be a permanent resident of the District for which he applies for Permanent Residence Certificate. Nonetheless in the present case we have no doubt that the petitioner is a permanent resident of Thatta District for he got his education right from 1969 to the time of filing the application for the certificate, at Makli which is in Thatta District and he has been residing with his father at Makli, Thatta, where he is continuously serving the Government of Sind since 1958. In our view these two facts alone are sufficient to establish the petitioner's permanent residence at Thatta, further, there was and is nothing before respondents Nos. 1 and 2 or before us from which an intention to permanently reside at a place other than Makli, Thatta could be gathered. We may here refer to the case of Miss Shamasa A Siddiqui v. Commissioner, Hyderabad Division and another ' (1) which was decided by a Division Bench of this Court consisting of Mr. Justice Abdul Hayee Kureshi, the learned Acting Chief Justice and Mr. Justice K.A. Ghani, wherein the facts were that the petitioner's father was continuously residing at Thatta for a period of 23 years, and where he owned immovable property in the name of his father and where' the petitioner, besides her three brothers and two sisters, got primary education. Although the petitioner's father for the purpose of his medical treatment resided for a period of 5/6 years in Karachi, yet it was held that the petitioner was permanent resident of Thatta District. The present case is much stronger as in the cited case the petitioner's father had resided for 5/6 years for medical treatment in Karachi but in the present case the petitioner's father and mother have been continuously residing at Makli, Thatta. We have already stated that the petitioner's mother has acquired a plot of land in 1971 in the Thatta District which is quite indicative that even after the retirement from the Government service they intend to have their house in Thatta District. Further, the petitioner's father was granted domicile of the Thatta District which is though not a conclusive proof of permanent residence but lends good support to the claim of the petitioner that the petitioner's father was a Permanent resident of that district. Moreover, the petitioners' sister was granted Permanent Residence Certificate by the District Magistrate Thatta which was not cancelled even on objection filed against the same as would appear from the order, dated 26th June, 1979, passed by Fakir Muhammad Dhar, District Magistrate, Thatta, a copy whereof is annexed to the petition.
14. The respondents Nos. 1 and 2 have heavily relied on the declaration made by the petitioner's father while entering into the service of the
(1) 1981 CLC 1264 ' Government of Sind wherein he gave his place of residence of Karachi. Now, firstly, this declaration is not at all a proof of the fact that the petitioner's father was permanent resident of Karachi at the time when the petitioner applied for Permanent Residence Certificate ; secondly, the declaration would be relevant so far as the father of the petitioner was concerned for the purposes for which the Government Memo. No. SO-VIII Reg. (S. & G.A.D.)-8-IB/77, dated 25th October, 1977 was issued and not for the purpose of permanent residence of the petitioner or even of his father as matter of proof of actual permanent residence, thirdly, the father of the petitioner did not apply for a change of address that it could be refused on the basis of the Government instruction referred to above, lastly, the petitioner's father was already granted a domicile certificate which could have been refused, if the Government instructions had any relevancy to the question of permanent residence we must here mention that the respondents Nos. 1 and 2 or the learned Additional Advocate- General did not produce the instructions before us. Indeed the learned Additional Advocate- General at the very outset fairly conceded that he could not support the two impugned orders.
15. The other ground on which the petitioner was refused the certificate was that he was born in Karachi. The place of birth of c a person by itself will not at all be a proof that he was a permanent resident of that place, particularly, when the question arises not at the time of birth but after sometime and in this case after about 19 years.
16. In case of present nature what is required to be considered is the meaning of the expression 'permanent resident' which has not been defined in the rules. It has, therefore, to be considered in the light of its ordinary meaning or the judicial pronouncements. One of us had the occasion to consider this expression in the case of Shamsher Ali v. The Commissioner, Hyderabad and others (C.P. No. D-136 of 1983). We may reproduce the same here.
"23. It came up for consideration in Taj Muhammad v. Commissioner Hyderabad Division and 7 others 1979 CLC 237, wherein 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, although the word "reside" may mean very different things, in different contexts but applied to natural persons as distinguished from juristic persons like corporation, residence depends on personal facts. Place of birth, Nationality and allegiance are not the tests nor is domicile. Voluntary choice and habitual and repeated actions are mainly material, such as making home, keeping an establishment, pursuing a settled object in or at a particular place'."
' Reference was made to a passage from Halsbury's Laws of England, 3rd. End., 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 be may also reside where he habitually lives even if this is a hotel or on a yacht or some other place of abode."
' So far as the term or 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".
' This term was also considered in Henriksen (Inspector of Taxes) v. Grafton Hotel Limited (1942) 2 K B 184, wherein D.U. PARCO, L.J. Relied on a Scottish Judgment wherein Lord Clyde held that `permanent' is a relative term and is not synonymous with "everlasting."
24. Examining the facts of this case in the light of above-mentioned judicial pronouncements we cannot but reach the conclusion that the petitioner was permanently settled at Dhabeji, District Thatta where his father is employed and his residence and with whom the petitioner has been residing since when petitioner's father shifted from Jamesabad, District Tharparkar to Dhabeji, District Thatta and where the petitioner got his primary and middle education. We are unable to find any cogent evidence nor has any been referred to by the learned Additional Advocate- General in support of the finding that the petitioner was temporarily residing at Dhabeji, District Thatta. Such a finding could have been given only if the petitioner or his father has bad his permanent residence elsewhere. No doubt, the petitioner had stayed for some time at Hyderabad for getting college education to avail the facility of boarding and lodging in Khaimkhani's Boarding House but that was purely temporary. The finding is, therefore, based on no evidence. Some support can also be drawn from the reasoning of Zaffar Hussain Mirza, J. In Taj Muhammad v.Commissioner, Hyderabad Division and 7 others 1979 CLC 237, who in paragraph 10 at pages 244 and 245 of the report observed as follows:
10. Having regard to the above it is quite clear to us that Mr. Aftab Ahmed Akhund, Advocate, the father of respondent Noor Ahmad hails from a family which is permanently settled at Chuhar Jamali in the Matta District which is very strong presumptive evidence of the fact that he is a permanent resident of that district unless this evidence is rebutted by the petitioner to show that he has abandoned any intention to retain his permanent abode there. The fact that he is residing at Hyderabad is clearly referable to his profession as a lawyer which obviously he cannot pursue at Chuhar Jamali. Perhaps the presumption could have been rebutted if it had been shown that none of the family members remained behind and that the family had disposed of its property there.
However, there appears to be evidence that the father of the said respondent is maintaining house at his native place which alongwith other circumstances mentioned above, clearly supports the plea that the family has its permanent abode in Thatta District. We are, there fore, not inclined to disturb the order of the learned Commissioner in respect of respondent Noor Ahmed which appears to be sustainable on the material available on the record of the Commissioner 25.-It is admitted fact that the petitioners father was granted Domicile Certificate from District Thatta. No doubt that the petitioner could not get Permanent Residence Certificate on the basis of domicile of his father but it was a piece of evidence in support of petitioner's claim for his permanent residence in District Thatta.
' In Miss Maharunnisa Baloch's case (supra) the Supreme Court had observed that the Certificate of domicile of the petitioner's father was a piece of evidence in support of the claim of the petitioner for permanent residence certificate in the District for which she had applied."
17. We may also here refer to Tariq Majeed v. Districi Magistrate, Jacobabad and another (1), a case decided by the Division Bench, consisting of Mr. Justice Munawwar Ali Khan and one of us namely, Mr. Justice Naimuddin.
' In this case the petitioners who were brothers and sister were denied the Permanent Residence Certificate on the grounds that they were born in Sukkur where their father owned a property in Sukkur. It was observed : "It is submitted that the place of birth of the father and 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."
' It was further observed : "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 have 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 petitioner's father is residing in Kashmore since 1953, now for more than 29 years. Moreover, the petitioners haring been and are being educated in Kashmore. Therefore, there cannot be better proof and more relevant consideration than these facts for deciding the question of permanent residence of the petitioner."
(emphasis supplied).
[Here in italics]
18. We regret to say that by the wrong decision of respondents Nos. 1 and 2 the petitioner seems to have been deprived of his valuable education at least for a year. If the said respondents would have addressed to themselves the one simple question i,e, whether the petitioner could be said to be a permanent resident of Karachi because he was born in Karachi though since 1969 throughout he got his education in Thatta District and since then was residing there and where his parents are employed as Government servants and where they are residing and where one of them owns a plot of land, we are sure, that they would have found one and only answer that the petitioner was not permanent resident of Karachi and could not have been so, simply by his having been born in Karachi.
19. We therefore, declare that the two orders impugned in this constitution petition are without lawful authority and are therefore, of no legal effect and we direct the respondent No. 2 to immediately issue Permanent Residence Certificate to the petitioner from the District of Thatta.
20. We were inclined to award costs of this petition to the petitioner but since the learned Additional Advocate-General at the very outset stated that he would not support the impugned orders, we leave the parties to bear their own costs.