' FAIZ MUHAMMAD KHAN, J.-By this constitutional petition Javed Iqbal assails the order dated 7-7- 1983 made by the Principal, Khyber Medical College, Peshawar (respondent No, 1) and the order dated 12-6.1983 made by the District Magistrate, Abbottabad (respondent No, 2), whereby his admission in the Khyber Medical College and the domicile certificate granted to him were, respectively, cancelled.
2. The facts of the case, in brief, are that the petitioner was granted on 1-10-1980 a domicile certificate by the District Magistrate, Abbottabad. On the basis of that certificate he was admitted in the first year M.B., B.S. Class in Khyber Medical College, Peshawar. Subsequently, however, as a result of an inquiry held behind his back, the domicile certificate of the petitioner was cancelled by the District Magistrate, in consequence whereof his admission in the Medical College was also cancelled. He challenged both the orders by way of writ petition filed in this Court, which was registered as W.P. No, 359 of 1981. That writ petition, alongwith other connected writ petitions, was decided by this Court on 30-11-1981 by a consolidated judgment in case reported as PLD 1982 Pesh.
51. In respect of the petitioner it was therein held that since his domicile certificate was cancelled by the District Magistrate without affording him. An opportunity of being heard, the order made by the District Magistrate and the order of the Principal Khyber Medical College founded thereon could not be maintained ; hence were set aside. It was further directed by the High Court that the District Magistrate concerned should serve the petitioner with proper notice and after conducting a thorough and detailed inquiry should again pass appropriate orders in accordance with law.
Consequently, the Deputy Commissioner, Abbottabad served the petitioner with a notice on 8-2- 1982 calling upon him to show cause as to why his domicile certificate, bearing No, 25217 issued to him on 1-12-1980, having been obtained fraudulently by cheating the officer/official of Revenue Department and Illaqa Magistrate, should not be cancelled. Reply to this notice was submitted by the petitioner through Mr. Abdullah Jan Mirza, Advocate. The Deputy Commissioner authorised EAC-IV, Abbottabad to hold detailed inquiry into the matter, which was accordingly done. The petitioner and his father while participating in those proceedings produced before the Inquiry Officer witnesses of their choice. The Inquiry Officer also examined Syed Pir Muhammad Shah, Member Union Council Jangi, Akbar Khan, `Sarbarah Lambardar', and Muhammad Rustam Girdawar Acquisition, Abbottabad. On conclusion of the inquiry proceedings the Inquiry Officer submitted to the Deputy Commissioner Abbottabad a report to the effect that the domicile certificate issued to the petitioner was not genuine because he obtained the same by practicing fraud and misrepresentation of facts, thus recommending its cancellation. The Deputy Commissioner, Abbottabad, in his capacity as District Magistrate, while accepting those recommendation, by order dated 124-1983, again cancelled the domicile certificate, earlier mentioned, issued to the petitioner. Consequently, his admission in the Khyber Medical College was again cancelled by the Principal, Khyber Medical College, Peshawar, vide order Annexure 'O. Both these orders are impugned herein, as already mentioned.
3. Mr. Raza Ahmad Khan, Advocate/Deputy Attorney-General appeared on behalf of the petitioner.
Mr. Amirzada Khan, Advocate-General appeared on behalf of the respondents. We have heard their arguments and have carefully gone through the record placed on file with their assistance.
4. The first contention of the learned counsel for the petitioner is that the inquiry to be conducted in this case was a judicial inquiry and not an administrative exercise, and for that reason it should have been held by the District Magistrate in his capacity as such and not as Deputy Commissioner, even though both these offices happened to be possessed at the relevant time by one and the same person. The learned counsel contends that even the entrustment of the inquiry to EAC-IV was by the Deputy Commissioner, Abbottabad in his capacity as suc.1 and not as District Magistrate.
That being so, the learned counsel contends, the inquiry directed and conducted in this case, being not by the persons competent in law, was of no legal consequence ; hence brought no legal effect.
The orders founded thereon, being without legal basis, were of no legal effect, the learned counsel contends. The learned Advocate-General, however, contends that the inquiry conducted in this case for ascertaining the truth as to whether or not the petitioner was a bona fide resident of Abbottabad District was not a judicial inquiry but was an administrative exercise, as held by this Court in Saeed Amir's case (1), by which decision petitioner's own writ petition was disposed of and in consequence whereof this inquiry was conducted. He further contends that the misdiscription of his designation by the officer concerned while directing the inquiry made no difference as the same officer occupied at the same time
(1) P L 13 1982 Pesh, 51 both the offices of District Magistrate and Deputy Commissioner, Abbottabad. We find substance in the arguments of the learned Advocate-General. The Deputy Commissioner, Abbottabad was also functioning as District Magistrate and while deputing EAC-IV to hold inquiry, which was also of an administrative nature, he would be deemed to have made the order in his capacity as District Magistrate, no matter while mentioning his designation in the order he expressed it to be Deputy Commissioner. This objection being merely of technical nature is without substance.
5. The next contention of the learned counsel for the petitioner is that while disposing of the previous writ petition (W. P. No, 359/81) filed by the petitioner herein, copy of the decision available on the record, the High Court directed the District Magistrate concerned (Abbottabad) to `hold thorough and detailed inquiry and then pass appropriate orders in accordance with law'. The learned counsel contends that this direction was specific and clearly meant that the District Magistrate, Abbottabad was himself to conduct this inquiry as a 'persona designata' and could not delegate this function to EAC-IV, as was done by him. The inquiry conducted by EAC-IV, the learned counsel suggests, was therefore, a nullity and the consequences flowing therefrom being without legal basis were of no legal effect. The learned Advocate-General contends that the interpretation put by the learned counsel for the petitioner on the language used by the High Court in last paragraph of the judgment, referred to above, is not correct. He contends that the order of the High Court is not to be read as meaning that the District Magistrate concerned was himself to hold inquiry into the matter, because had such been the intention of the High Court, a specific direction to that effect could have been given by it in the said judgment. We find ourselves in agreement with the learned Advocate-General. The order of the High Court cannot be read as meaning that the District Magistrate was himself to hold inquiry into the matter of the domicile of the petitioner.
Since no law or rule is available in this context, as already held by this Court in the said judgment, the inquiry was to be held in accordance with the normal practice prevalent in the province for the grant of domicile certificates. That practice undisputedly is that when any Magistrate is satisfied, on information or material placed before him, that a person applying for the grant of domicile(' certificate is a bona fide resident of the District concerned, then he signs] the certificate in the form in vogue, already indicated in Saeed Amir's case, and forwards it to the District Magistrate for countersignature, having obtained which the certificate becomes complete and effective for the purpose it is issued. It is, therefore, clear that the initial burden of being satisfied as to the genuineness of the claim of the person applying for the grant of domicile certificate lies on the Magistrate who signs the certificate. That being so, in our opinion the Magistrate working in a District, and EAC-IV appointed in this case for 'holding inquiry was certainly working s as a Magistrate in the District, would even of his own be competent to initiate and hold inquiry in a case where the domicile certificate wrongly issued to a person requires to be cancelled, subject to a final decision to be made by the District Magistrate. He would certainly be so competent when so directed by the District Magistrate. The Deputy Commissioner, Abbottabad, who would be deemed to have made order as a District Magistrate, was, therefore, competent to entrust the impugned inquiry to EAC-IV and the proceedings held in that inquiry, the report submitted by EAC-IV Magistrate to Deputy Commissioner/District Magistrate and the orders, founded thereon, by the District Magistrate Abbottabad cancelling the domicile certificate of the petitioner were all with lawful authority and could not be struck down on this ground. This argument of the learned counsel for the petitioner is also without substance.
6. The learned counsel for the petitioner also contends that there was no sufficient evidence before the Inquiry Officer or before the District Magistrate to reach the conclusion that the petitioner was not the resident of Abbottabad District and that the domicile certificate already obtained by him was the result of misrepresentation of facts. The learned counsel submits that this being a case of no evidence, the report submitted by EAC-IV to the Deputy Commissioner/District Magistrate, Abbottabad and the impugned order made by him cancelling the domicile certificate of petitioner, having been based thereon, was without lawful authority and of no legal effect, and so was i.He order made by the Principal, Khyber Medical College which resulted in displacement of the petitioner from the College. The learned Advocate-General contends that the law is well settled that the decision made by a forum/tribunal of exclusive jurisdiction is not open to review by this Court in its constitutional jurisdiction where no violation of any law or rule of mandatory nature or of any decision of a superior Court is made by such forum/tribunal. He contends that in this case the District Magistrate neither violated any mandatory provision of law or rule, nor the law laid down by superior Courts. He also con- c tends that the High Court in its constitutional jurisdiction cannot enter upon re-appraisal of evidence produced before a lower forum/tribunal, when that evidence has been duly considered by such forum/tribunal in determining the controversy before it. His argument is that the mere fact that the decision by the forum/tribunal of competent jurisdiction is erroneous is no ground for disturbing that decision by the High Court in its constitutional jurisdiction. In support of his arguments the learned Advocate-General relies on Muhammad Hussain Munir and others' case (1), Muhammad Sharif and another's case (2) and Abdur Rehman Bajwa's case (3). The learned Advocate-General further submits that even the evidence recorded by the Inquiry Officer (EAC-IV) clearly established that the petitioner was not the resident of Abbottabad District and that the domicile certificate earlier obtained by him was the result of misrepresentation of facts. We do not dispute the proposition of law propounded by the learned Advocate-General that in the circumstances mentioned by him the writ jurisdiction is not invocable. Law on these points is well-settled by the decisions of the Supreme Court already referred to. His other contention also has force that in constitutional jurisdiction re-appraisal of evidence, in order to arrive at a conclusion which may be different from the one reached by the forum/tribunal of exclusive jurisdiction on a question of fact or even of law, is not resorted to unless the party seeking such re-appraisal is able to convince the Court that the forum/Tribunal having jurisdiction to determine the controversy between the parties had D failed to consider the evidence placed before it, or had proceeded on considerations extraneous to the matter before it. It is undisputable that a domicile certificate is granted by the District Magistrate in the manner already indicated by us. This authority exclusively vests in him. An authority competent to grant a certificate is also competent to cancel it if it is established before it that while obtaining such certificate fraud was practised upon it or mis-statement or misrepresentation of facts was
(1) PLD 1974 SC 139 (2) PLD 1981 SC 246
(3) PLD 1981 SC 522 made before it. That being so, the District Magistrate, Abbottabad had the jurisdiction to deal with the matter of cancellation of domicile certificate issued by him to the petitioner. There is nothing on the record to suggest that while dealing with this matter and making the impugned order he violated any mandatory law or rule, or any dictum of the superior Courts. The rule laid down by the Supreme Court in the authorities already referred to is also applicable to cases of this nature. As for the evidence brought before the Inquiry Officer, even if we were to reconsider it in our constitutional jurisdiction, the conclusion reached by him and the District Magistrate could have been reached on its basis. The petitioner and his father sta.Ed before the Inquiry Officer that they were residing in Multan where the petitioner received his entire education. The father of the petitioner was also doing business in Multan. They were not owning any immovable property at Abbottabad. They only come to Abbottabad for spending summer season. It has also come in their statements that while at Abbottabad the father of the petitioner earned livelihood by selling grams. It was highly doubtful, if not unbelievable, that one who earned livelihood by selling grams would afford to shift his family from Multan to Abbottabad to spend summer seasons over there. Then, the, mere spending of a few months in a year at a Hill station like Abbottabad E would not confer upon the person concerned the domicile of Abbottabad.I The Inquiry Officer (EAC-IV), who was entrusted with the inquiry gave cogent reasons for arriving at the conclusion reached by him. His recommendations were accepted by the District Magistrate. So, the view taken by the authorities concerned was possible in the light of the evidence produced before the Inquiry Officer. When such be the position, the High Court would not substitute its view for the view formed by the authorities concerned. The arguments of the learned counsel for the petitioner are without substance.
7. The other contention of the learned counsel for the petitioner is that before passing the impugned order the District Magistrate should have afforded to the petitioner an opportunity of being heard, and since it was not done, the order made by the District Magistrate, cancelling the domicile certificate of the petitioner, being violative of the principle of natural justice, was of no legal effect. This argument is also without substance. The record shows that the petitioner and his father had fully participated in the inquiry conducted by Inquiry Officer and had also led evidence before him. The petitioner could not, therefore, have any grievance in this regard. There is no law or rule or practice to the effect that in such like situations the District Magistrate, before passing order, has to give F personal hearing to the person affected by the order. The exercise being of administrative nature and the petitioner having fully participated in that exercise, it was not necessary for the District Magistrate to give personal hearing to the petitioner before making the impugned order.
8. The last argument of the learned counsel for the petitioner is that the District Magistrate, Abbottabad neither applied his mind to the facts of the case, nor himself considered the evidence produced before the Inquiry Officer, and by subordinating his authority to that of the Inquiry Officer, mechanically accepted his recommendations. We have carefully gone through the order made by the District. Magistrate. In our opinion, it was not an order made in mechanical manner. The District Magistrate considered the evidence produced before the Inquiry Officer and while keeping that evidence and the conclusion reached by the Inquiry Officer on its basis in view, he himself took an independent decision in the matter. His order is a speaking order and is not open to challenge on this ground.
9. In the result, there is no merit in this writ petition, which is hereby dismissed. We would, however, make no order as to costs.