1. ' ALLAHDINO G. MEMON, J.---We propose to decide the above petitions by this common judgment as the identical point of law is involved in all the petitions.
2. ' The brief facts giving rise to the above petitions are:- '
1. In C.P. No,D-598/1990 (Mrs. Shumsha v. Secretary Home Department and another) according to the petitioner she is permanent resident of Thatta Town. Her father-in-law Mr. Tuljaram Shardha is practising at Thatta Town, and is permanent resident of Thatta Town since more than 20 years.
3. Petitioner was married with Dileep Kumar son of Dr. Tuljaram about five years back and is residing at Thatta, and her husband and father-in-law being member of the family. That the petitioner applied to the District Magistrate; Thatta, for domicile certificate and P.R.C. On the basis of the documents showing her permanent residence of Thatta Town, who was pleased to grant her Domicile Certificate and P.R.C. On 21st December, 1988. Dr. Talja Ram father-in-law of the petitioner was granted domicile certificate by the District Magistrate Thatta in the year 1982. Mr. Dileep Kumar husband of the petitioner who is presently medical student was at Liaquat Medical College, Hyderabad, was also granted domicile certificate and P.R.C. By the District Magistrate, Thatta, in the year 1986. That on the basis of above documents, the petitioner was granted admission in Peoples Medical College Nawabshah in March, 1990, on the basis of open competition and on merit. That all of a sudden petitioner received 'photostat copy of order dated 31st May, 1990 passed by the learned Distirct Magistrate Thatta (respondent No,2) whereby P.R.C. Granted to the petitioner in December, 1988 was cancelled as per orders of respondent No,1 and communicated by respondent No,2. The present petition has been filed against the above order dated 31st May, 1990, cancelling P.R.C. Of the petitioner.
2. In C.P. No,626/1990 (Mrs. Sabra Sultana v. Government of Sindh and others); the petitioner claims to be permanent resident of Thatta district and she was granted P.R.C. On 14-1-1989 by the District Magistrate Thatta Sindh (respondent No,2). That the petitioner was admitted to Ist Year M.BB.S. In Peoples Medical College for Girls Nawabshah on the basis of P.R.C. Issued by learned District Magistrate Thatta. That suddenly on or about 4-6-1990, the petitioner received a photostat copy of the order dated 31-5-1990 passed by the District Thatta whereby the P.R.C. Granted to her on 14-1- 1989 was cancelled under the orders of Home Department. By this petition, petitioner has challenged the above order cancelling her P.R.C.
3. In C.P. No,627 (Haji Mohammad Sultan v. Government of Sindh and others) it is alleged that the petitioner is Government servant and was employed in Government service in the year 1968 at Thatta, and is since then permanently settled at Thatta. The petitioner was employed in Pakistan Tourism Development Corporation and his office is situated at Makli, Thatta Town, the petitioner's name is entered in the electoral list in Thatta District since 1979. The petitioner was granted domicile certificate in the year 1986 by the District Magistrate Thatta. That on 31-5-1990 respondent No,2 District Magistrate, Thatta, passed an order whereby the domicile certificate of the petitioner has been cancelled. The present petition has been filed against the above order cancelling the domicile certificate of the petitioner.
4. In C.P. No,628 of 1990 (Miss Ghazia v. The Government of Sindh), the case of the petitioner is that she has been residing with her father Haji Mohammad Suleman at Makli, Thatta Town since 1968.
4. She was born and educated right from the Primary Education at Thatta. That father of the petitioner was employed in Tourism Development Corporation of Pakistan, at Thatta, since 1968, and has permanently settled at Thatta. That her father was granted domicile certificate on 23-9- 1986, her brother Saeed Mustafa was also granted B.R.C. By District Magistrate, Thatta, and on the basis of which he was admitted in Medical College and has passed M.BB.S. That after passing Part II H.S. Education Examination the petitioner applied for admission in Ist Year professional M.BB.S. For which she was granted P.R.C. By District Magistrate Thatta in the year 1990. That all of a sudden the learned District Magistrate Thatta, respondent No,2, has passed an order cancelling P.R.C. Of the petitioner and domicile certificate of her father. Hence this petition.
5. ' We have heard the learned counsel appearing for the petitioners, Mr. A.A. Mohammadally, learned Additional A.-G. Appearing for the respondents, and have gone through the record.
6. ' It was contended by learned counsel for the petitioners that the orders passed by the learned respondent No,2 were mala fide, illegal and without jurisdiction. It was further contended that the learned respondent No,2 did not hold any inquiry nor applied his independent mind to the facts of the case but has cancelled the P.R.C. And domicile certificate of the petitioners under the directions from respondent No,1 and, therefore, orders passed by him are illegal and are liable to be set aside.
7. It was further contended that the petitioners are permanent, residents of Thatta district. No inquiry was held by respondent No,2 nor any opportunity of being heard was allowed to the petitioners and, therefore, the orders are against the principles of natural justice and fundamental rights and as such are void ab initio.
8. ' Mr. A.A. Mohammadally, learned Additional A.-G. Appearing for the respondents has conceded to the above factual as well as legal position, and has conceded that the impugned orders are liable to be set aside.
9. ' We have considered the contentions and have gone through the record, we have also gone through the comments submitted by the learned District Magistrate Thatta, copy of inquiry report, held by Additional Commissioner-I, Hyderabad Division, Hyderabad, and a letter dated 22nd May, 1990, issued by House Department, Government of Sindh to Deputy Commissioner/District Magistrate, Thatta, directing him to cancel the domicile certificates/permanent residents certificates of the, petitioners, and the order dated 31st May, 1990, cancelling P.R.Cs. And domicile certificates of the petitioners.
10. ' It has been admitted by the learned District Magistrate in his comments that the permanent residence certificates/domicile certificate of the petitioners were cancelled as per orders of Home Department. The inquiry report submitted by the Additional Commissioner-I, Hyderabad Division, Hyderabad, does not show that the petitioners were heard during inquiry held by the learned Additional Commissioner-I, Hyderabad. Letter dated 22nd May, 1990, sent by Home Department, Government of Sindh Deputy Commissioner/District Magistrate Thatta reads as under:- "Sub: Cancellation of Wrong Domicile Certificates and P.R.Cs.
11. ' The undersigned is directed to forward, herewith a copy of enquiry report regarding Domicile Certificates/Permanent Residence Certificates issued from District Thatta, in respect of the persons mentioned in the enquiry report and to state that action against the defaulters, in accordance with the standing law may please be taken and the wrong domicile/permanent residence certificates issued from the District Office, Thatta, may be cancelled forthwith, under intimation to this department at an early date. Sd/ (Abdul Jabbar Qureshi)
12. Section Officer (Civil Defence) Home Department."
13. ' The order passed by the learned District Magistrate on 31st May, 1990, does not show that he had heard the petitioners before passing the impugned order, cancelling PRCs/ Domiciles of the petitioners. The order further shows that the same was passed with reference to the office letter No,S.O. (HDC.(D) 5-25/90 dated 22-5-1990 sent by Secretary, Government of Sindh, Home Department, Karachi.
14. ' It it also an admitted position that no show-cause notice was issued to the petitioners nor they were provided an opportunity of being heard before their P.RCs/Domiciles were cancelled.
1. In the case of Miss Rizwana Sarwar v. Province of Sindh and others (1990 CLC 1372); wherein the Permanent Residence Certificate of the petitioner was cancelled by the District Magistrate on the advice of Home Department that a letter was also written by the Wafaqi Mohtasib (Ombudsman); it was observed by a Division Bench of this Court that: "The matter regarding issuance of the PRC is a provincial subject and does not fall within the ambit of the powers of Wafaqi Mohtasib."
15. ' It was further observed that:- "Impugned order was passed by the District Magistrate on the advice of the Home Department and, therefore, the same had no legal force."
16. ' In the case of Commissioner of Income Tax East Pakistan v. Fazalur Rehman (PLD 1964 SC 410); it was observed by their Lordships of Supreme Court that:- "Mere absence of provision as the notice cannot override the principles of natural justice that an order affecting the right of party cannot be passed without an opportunity of hearing to that party.
17. The maxim "no man shall be condemned unheard is not confined to Courts but extends to all proceedings by whomsoever held which may affect the person or property or other right of the parties concerned in the dispute."
18. ' In the case of Mohammad Zargham Eshaq Khan v. University of Engineering and Technology Lahore (PLD 1988 Lah. 191); it was observed while interpreting well known maxim "Audi alteram partem" that "Right to be heard before one is subjected to any action adversely affecting one's interest is the most ancient grund norm of every civilised legal system known to the mankind from times immemorial and is the inherent inbuilt constituent of the fundamental principle of natural justice, so much so that even ADAM was not condemned unheard for his having eaten the forbidden fruit."
19. ' In the case of Mirza Aslam Baig and another v. Saghir Iqbal (PLD 1988 SC (AJK) 24) it was observed that:- "Maxim audi alterm partem is to be read into the relevant law unless its application is excluded by express words. The duty is cast even on the administrative Tribunals what to talk of the "Courts" to act fairly and with due regard to the principles of natural justice unless specifically exempted from such limitation."
20. In view of the above factual as well as legal position, we are of the considered view the orders passed by the learned District Magistrate cancelling permanent Residence Certificates/Domicile Certificates were passed under the directions from Home Secretary, Government of Sindh, the learned District Magistrate did not apply his independent mind before passing the impugned orders, no show-cause notice was issued to the petitioners nor they were given opportunity of being heard in accordance with the principles of natural justice and fundamental rights. And even the applicants were not heard by Additional Commissioner-I, Hyderabad before submitting his inquiry report to the Home Department. Therefore, we allow the above petitions and declare that the impugned orders cancelling permanent Residence Certificates/Domicile Certificates of the petitioners by the District Magistrate Thatta vide order dated 31st. May, 1990, are illegal against the principles of natural justice and fundamental rights and are without lawful authority and of no legal effect. However, there will be no order as to costs.