This constitutional petition is directed against the order dated 4-5-1989 passed by the District Magistrate, Dera Ghazi Khan, cancelling the domicile certificate of the petitioner.
2. The brief facts of the case are that the. Petitioner claimed to be a member of Buzdar tribe commonly known as Tumman Buzdar settled in the tribal belt of Dera Ghazi Khan. The petitioner passed his F.Sc. Pre-Engineering Examination in the year, 1988, securing 672 marks (with NCC). He applied for domicile certificate from the tribal area of Dera Ghazi Khan. After obtaining the reports of Patwari Halqa, Girdawar, Naib Tehsildar and Defedar Bharthi. The Tehsildar, the District Magistrate granted domicile certificate of tribal area of Dera Ghazi Khan to the petitioner on 29-3- 1988.
3. The petitioner applied for admission to the Bachelor Degree Course for the Session 1988-89 in the University of Engineering and Technology, Lahore, through the Commissioner, Dera Ghazi Khan, claiming his entitlement to the special seats reserved for the tribal areas. The Commissioner made a recommendation in favour of the petitioner through memorandum dated 11-12---1988. The petitioner received the call from the University on 1-2-1989 and after payment of the dues, was admitted to the Bachelor Degree Course for the Session 1988-1989.
4. Khuda Bakhsh, respondent No. 2, moved an application before the District Magistrate stating therein that the petitioner was not a resident of tribal area; and that he had managed to obtain the domicile certificate of the said area on wrong and collusive reports. Thereupon, a notice was issued to the petitioner by the District Magistrate to show cause as to why his domicile certificate be not cancelled. The petitioner appeared before the District Magistrate and could not furnish any satisfactory proof regarding his residence in the tribal area. The District Magistrate also held an inquiry obtained fresh reports from the Field Staff and finally cancelled the domicile certificate vide his order dated 4-5-1989.
5. This petition was admitted to regular hearing primarily to examine the authority/competence of the District Magistrate to cancel the domicile certificate. After admission of the petition to regular hearing, Khuda Bakhsh was allowed to be impleaded a4 respondent No. 2 in the petition vide order dated 7-6---1989.
6. I have heard the learned counsel for the petitioner and respondent No. 2. The learned counsel for the petitioner laid great stress on his legal objection that the District Magistrate was not competent to cancel the domicile certificate. According to the learned counsel, the said power vested in the Central Government by virtue of the provisions of rule 30 the Pakistan Citizenship Rules, 1952.
According to the learned counsel there was nothing to show that the said power was ever delegated to the District Magistrate under section 18 of the Pakistan Citizenship Act, 1951. On the other hand, the learned counsel for respondent No. 2 raised a preliminary objection that the petitioner was guilty of suppressing a material fact that he had filed a civil suit for obtaining the same relief, claimed in this petition, which was pending in the Court of the Civil Judge, Dera Ghazi Khan. The present petition was filed when the stay order was vacated by the Civil Judge. The petitioner obtained another order from this Court for suspension of the impugned order by deliberately suppressing the factum of pendency of the suit. Regarding the le ga1 objection raised by the learned counsel for the petitioner. The learned counsel for respondent No. 2 pointed out that by virtue of the letter No. 4/98/80-Citz. Dated 22-4-1984 attached to the written statement, the District Magistrate had the authority to cancel the domicile certificate issued by him. The said letter was issued from the Ministry of Interior Government of Pakistan, Islamabad. It was based on the opinion of the Law Division which was to the effect that the powers of cancellation not only lay with the Federal Government but also with the District Magistrate in his capacity as the authority competent to issue the domicile certificate. The learned counsel for respondent No. 2 clarified that by virtue of the provisions of section 21 of the General Clauses Act, the authority competent to pass an order, issue notification, etc., was competent to amend, very or rescind the same.
7. It is regrettable that the petitioner approached this Court with unclean hands. He deliberately suppressed the fact that he had filed a civil suit for the same relief which had been claimed in the present writ petition. Till the conclusion of his arguments, the learned counsel for the petitioner did not say a single word about the pendency of the civil suit. When the objection was raised by the other side, then the learned counsel for the petitioner merely said that the petitioner had told him that the civil suit had been withdrawn. Assuming to be so, this Court was entitled to have full knowledge of the facts of the case. If the learned counsel for the petitioner was aware of the institution and the subsequent withdrawal of the suit, he ought to have brought this fact to the notice of the Court. The petitioner is personally present in the Court and states that on 24-5-1989, he had left an application with his learned counsel for withdrawal of the suit. It may be mentioned that the writ petition was instituted on 16-5-1989 when, admittedly. The suit was pending in the trial Court. The learned counsel for respondent No. 2 has emphatically denied the claim of withdrawal of the suit by the petitioner. Incidently, Mr. Muhammad Ishaque Khan, Advocate, the learned counsel for respondent No.2, in the trial Court happened to be present in the Court today. He made a statement at the bar that the suit had not been withdrawn till today. The learned counsel for the petitioner tried to argue that mere pendency of the civil suit was no bar to the entertainment of a writ petition, particularly, when the impugned order was without jurisdiction. I would have considered this contention of the learned counsel had the factum of institution of the civil suit been honestly brought to the notice of the Court. Under the circumstances, I am not inclined to exercise my discretionary powers under Article 199 of the Constitution of Pakistan in favour of the petitioner.
8. Even otherwise, this petition involves controversial questions of fact which cannot be properly adjudicated upon in the exercise of the powers under Article 199 of the Constitution. The question as to whether the petitioner is a resident of the tribal belt of Dera Ghazi Khan or not can suitably be determined by the trial Court after recording evidence of the parties. I refrain from expressing any opinion regarding the competence of the District Magistrate to cancel the domicile certificate issued by him under the law. This question can also be attended to by the learned Civil Judge before whom the suit filed by the petitioner is pending.
9. For the foregoing reasons! I find no merit in this petition and dismiss the same with costs.
H.B.T./A-794/L