1. ' SARDAR SAID MUHAMMAD KHAN, C.J.,---This appeal has been directed against the order of the High Court dated 21-6-1995, whereby the domicile certificate of the appellant, herein, issued by the District Magistrate, Muzaffarabad, was cancelled and a writ of mandamus was issued to the Nomination Board to nominate respondents Nos.2 or 3 for admission to M.B.,B.S. Course in place of appellant.
2. ' The brief facts of the case are that the appellant, herein, respondents Nos.2 and 3 were the candidates for admission to M.B.,B.S. Course in any of the medical colleges in Pakistan. It may be observed here that the Government of the Sate of Azad Jammu and Kashmir has fixed districtwise quota for making nominations of the candidates to different professional colleges in Pakistan including medical colleges. The appellant, respondents Nos.2 and 3 applied to the Nomination Board constituted by the Azad Jammu and Kashmir Government for the nomination against the seats reserved for Muzaffarabad district. One of the conditions for the nomination to the M.B.,B.S. Course was that the concerned candidates had to produce domicile certificates of the district from which he or she sought the nomination. The appellant and respondents Nos.2 and 3 sought their nominations as domicile of Muzaffarabad district and produced the domicile certificates issued by the District Magistrate. Consequently, a merit list for the nomination was prepared and was approved by the Nomination Board on 2-1-1995. Irani Shahzadi and Nighat Ghulam Rasool, respondents, filed a writ petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 in the High Court challenging the nomination of Fozia Hussain Abbasi, the appellant herein, alleging that her nomination for M.B.,B.S. Course against the reserved quota of seats of Muzaffarabad district was violative of law because she had abandoned the domicile of the State of Azad Jammu and Kashmir and instead adopted Pakistan, as her domicile of choice. It was further alleged that the appellant, herein, and her parents have been putting up in Karachi, are running business and also own immovable property there. It was further alleged that the appellant, herein, got the domicile certificate from the District Magistrate, Karachi, on 13-10-1994 and, thus, she was no more domicile of the State of Azad Jammu and Kashmir and the domicile certificate issued by the District Magistrate Muzaffarabad on 22-9-1993 was no more valid under the relevant law.
3. The writ petition was opposed by the appellant, inter alia, on the ground that the parents of Fozia Hussain, appellant herein, are State Subjects and own immovable property in Muzaffarabad; the copies of the Revenue Record, the voters' list wherein the father of the appellant, Dr. Muhammad Hussain Abbassi, has been entered as a voter, have also been placed on the record. It was denied that the appellant or for that matter her parents had abandoned the domicile of the State of Azad Jammu and Kashmir and adopted Pakistan (Karachi) as domicile of their choice. So far as the certificate of domicile issued by the District Magistrate, Karachi on 13-10-1994 was concerned, it was contended in the written statement that the same did not adversely affect the validity of the domicile certificate issued by the District Magistrate, Muzaffarabad, and that the proceedings for surrendering the said certificate had already been initiated by the appellant, herein,. Subsequently, a copy of the order of the concerned District Magistrate dated 5-4-1995 was also placed on the record which shows that the domicile certificate issued in favour of the appellant was cancelled by the District Magistrate, Karachi, at the request of the appellant. The High Court, after trial, came to the conclusion that as the appellant had abandoned her domicile of the State of Jammu and Kashmir by obtaining the certificate of domicile from Karachi on 13-10-1994, she was no more domicile of Muzaffarabad district and, thus, was not entitled to be nominated against the quota of seats reserved for Muzaffarabad district. Consequently, a writ of mandamus was issued against the Nomination Board as indicated above.
4. ' We have heard the arguments and perused the file. It may be stated that after the appeal has been fixed for arguments, an application was submitted by one Nasra Qadeer through Sardar Rafique Mahmood Khan as her counsel praying that she be impleaded as party in the appeal, because if the appeal was accepted she would be adversely affected; as a result of the judgment of the High Court, she occupied serial No,4 on the merit list but if appeal succeeded, she would be again relegated to serial No,5. As we intended to hear the arguments in this case before the summer break, she was arrayed in the line of the respondents subject to just objections. Raja Muhammad Hanif Khan, the learned counsel for respondents Nos.2 and 3 has contended that she was not a necessary party and her name may be deleted from the line of the respondents. He has argued that she was initially impleaded as party in the High Court but subsequently her name was deleted because she was not found to be a necessary party in the case. The learned counsel has argued that if she had any grievance, she should have come up in appeal against the order of the High Court whereby her name was deleted from the line of the respondents.
5. ' Sardar Rafique Mahmood Khan, the learned counsel for Nasra Qadeer, contended that as the name of Nasra Qadeer was deleted before serving notice upon her, she had no knowledge of the relevant order and, thus, had no occasion to challenge the relevant order.
6. It may be stated that a person who was not a party in the High Court but if a case is made out that he is likely to be adversely affected by the decision of an appeal, he can be impleaded as party in this Court. However, according to the applicant, Nasra Qadeer she is likely to be adversely affected because if the appeal is accepted, she would remain at serial No,5 in the merit list as before but if the appeal is rejected, she would be deemed to have attained serial No,4 in the'merit list. In other words, according to the applicant, she would be affected adversely because the writ petition filed by respondents Nos. 2 and 3 was accepted by the High Court; had the writ petition been dismissed, she would have no grievance. It may be stated that whether a party is 'necessary party' or 'proper party' in an appeal is to be seen in view of the circumstances which prevailed at the. Time of institution of a suit or writ petition and not in the light of judgment of the Court of the first instance.
7. It may be correct that if the appeal is accepted, she may remain at serial No,5 in the merit list as before, but it cannot be said that she was 'necessary party' either in the writ petition or is so in the present appeal merely because the writ petition was accepted by the High Court; at the most she is 'proper party' as being on merit list and cannot be regarded as a `necessary party'. However, as she has already been arrayed in the line of respondents, she would be deemed to be a proper party and not a necessary Party.
8. ' Next, Raja Shiraz Kayani, Advocate, the learned counsel for the appellant, has submitted that the writ petition filed by respondents Nos. 2 and 3 was incompetent because tI e `Vakalatnama' filed alongwith the writ petition, was not signed by Iram Shahzadi and Nighat Ghulam Rasool, respondents.
9. ' In reply, Raja Muhammad Hanif Khan, Advocate, the learned counsel for respondents Nos.2 and 3, has contended that he gave the `Vakalatnama' to the father of one of the petitioners-respondents after filling in the same and directed him to get it signed by the concerned but he failed to do the needful by getting their signatures. But at the time of filing of the writ petition the said defect did not come to his notice due to oversight. However, the learned counsel maintained, when the defect was noted a duly signed `Vakalatnama' was placed on the record. The learned counsel has contended that such a mistake was not fatal to the institution of the writ petition and was merely an irregularity which could be subsequently cured. The learned counsel has relied upon a case of this Court reported as Muhammad Riaz Khan v. Sardar Rahim Dad (PLD 1990 SC (AJ&K) 13), wherein it has been held that if a power of attorney is not signed by a party, his attorney or his counsel due to oversight or inadvertence, the defect is an irregularity which is curable under section 196 of the Contract Act, especially so when the act of the counsel is owned by the party for whom he has acted as counsel. The perusal of the aforesaid authority shows that while giving the aforesaid view, a number of authorities from Pakistan and Indian jurisdiction were considered and relied upon.
10. Thus, we are of the view that the absence of the signatures of the petitioners-respondents on the `Vakalatnama' was merely an irregularity in the circumstances and stood C cured after filing of the duly signed `Vakalatnama'. Hence the argument that the writ petition should have been dismissed due to the absence of their signatures on the `Vakalatnama' has no substance and is hereby repelled.
11. ' Coming to the merits of the case, Raja Shiraz Kayani, the learned counsel for the appellant, has argued that Dr. Muhammad Hussain, the father of the appellant herein, and his family are State Subjects and they own immovable property in Muzaffarabad District as is evident from the copies of the Revenue Record placed on the file; they have been also entered as voters in the voters' list, the copies of which have also been placed on the record. He has contended that the ancestors of the appellant have been residing in Muzaffarabad District since times immemorial and, thus, the appellant is domicile of Muzaffarabad. The learned counsel has further argued that mere fact that the father of the appellant was temporarily residing at Karachi due to his occupational persuits as doctor could not be interpreted to mean that he has abandoned the domicile of his origin and adopted Karachi as a domicile of choice. The learned counsel has further argued that there must be very strong evidence to establish that a person has left the domicile of his origin by adopting a domicile of his choice. To substantiate his contentions, the learned counsel has referred to a commentaries on Private International Law by Cheshire, (11th edition, pages 159 to 161), so far as the question that the appellant had obtained the certificate of domicile from District Magistrate, Karachi, on 13-10-1994 is concerned, the learned counsel maintained that the same would not adversely affect the status of the appellant as the domicile of Muzaffarabad District, especially so when she surrendered the said domicile certificate and it was cancelled by the District Magistrate, Karachi, on 25-4-1995. The learned counsel has also submitted that nothing has been brought on the record that Dr. Muhammad Hussain, the father of the appellant owns any immovable property in Karachi; besides the fact that it has not been denied that the father of the appellant is Administrator of Kashmir Law College at Muzaffarabad and also owned immovable property in Muzaffarabad District as is evident from the Revenue Record. The learned counsel has also referred to para. 19 of the Instructions issued by the Government dated 2-4-1986 according to which the candidates whose parents belong to Azad Kashmir but are residing temporarily in Pakistan in connection with their business or service, would be nominated out of the quota reserved for the respective district of Azad Kashmir. According to the learned counsel, this further shows that temporary residence out of Azad Kashmir cannot be interpreted to mean that the concerned person has forsaken the domicile of his origin. The learned counsel has also maintained that domicile of origin is never destroyed; it only remains in abeyance after the acquisition of the domicile of choice and would revive when the domicile of choice abandoned. The learned counsel has halfheartedly submitted that as the status of a State Subject cannot be renunciated, the status of domicile of origin also cannot be abandoned. He tried to distinguish the cases from Pakistan jurisdiction on the ground that status of citizenship of another country can be acquired by a citizen of Pakistan after abandoning the citizenship of Pakistan but there is no provision in Government Order No,1-L/84, dated 20th April, 1927 to enable a State Subject of Jammu and Kashmir State to abandon his status of being a State Subject.
12. ' Consequently, the status of 'domicile by origin' cannot be abandoned by a State Subject. The learned counsel for the appellant has cited following authorities in support of his contentions:- ' In case reported as Muhammad Ashfaq Khan v. Chairman, Nomination Board, AJ&K Government (PLD 1979 Azad J & K 43), different guidelines have been outlined which are to be considered while deciding as to whether a person has abandoned the domicile of origin and adopted the domicile of his choice. It was observed that the domicile of choice can be acquired notwithstanding that a person has no intention to abandon his domicile of origin. If a person is permanently settled or settled for an indefinite period at a place, he acquires domicile of choice and his domicile of origin remains in abeyance. This case went up in appeal before the Supreme Court of Azad Jammu and Kashmir which is reported as Qamar Afzal v. Muhammad Ashfaq Khan (PLD 1979 SC (AJ&K) 96) in which it was held that there are two types of domiciles, i,e,, domicile of origin and domicile of choice. It was observed that domicile of origin could be discarded for domicile of choice by intention to reside at a place of choice. It was further held that domicile of origin clings to a person until there are sufficient circumstances to hold that he has forsaken such a domicile. The guidelines were laid down by this Court for determining as to whether the domicile of origin has been abandoned or not. It was further observed that domicile of origin remains dormant till the domicile of choice is abandoned or forsaken.
13. ' In case reported as John Oswa ld Horatio Neale v. Mrs. Margaret Eileen Neale (PLD 1957 Dacca 363), it was held that mere residence in a country does not prove a domicile of choice. It was observed that for proving a domicile of choice, it must be proved that the concerned person has adopted the new country as his permanent home and does not intend to go back to the country of his origin. It was further observed that a person continues to retain his domicile of origin until the domicile of choice is acquired and even thereafter the domicile of origin remains in abeyance.
14. ' In Saeed Amer v. Principal Khyber Medical College (PLD 1982 Pesh. 20), it was held that domicile certificate issued under the Pakistan Citizenship Act, 1951 and Rules framed thereunder, is different from the certificate one issued by the District Magistrate in exercise of his administrative capacity.
15. The learned Judge has drawn distinction between two types of domicile certificates, one issued under Pakistan Citizenship Act and the other issued by a District Magistrate in exercise of his administrative powers. It was suggested by the Court that necessary amendment should be made in the Pakistan Citizenship Act so as to remove the ambiguity regarding domicile certificates.
16. ' In case reported as Sultan Khan v. Federal Public Service Commission (1983 CLC 2803), it was held that there are two classes of domicile, one is domicile of origin which is communicated to each person at the time of his birth and other is domicile of choice which every person of full age is free to acquire in substitution for which he possesses. It was further observed that the domicile of choice is voluntary and can be abandoned or changed according to the intention of a citizen; in such eventuality domicile of origin remains in abeyance but is revived after the domicile of choice is abandoned.
17. ' In case reported as Muhammad Yar Khan v. Deputy Commissionercum-Political Agent Loralai (1980 SCMR 456), it was held that the word 'domicile' has not been defined in Pakistan Citizenship Act; it was observed that every person carries domicile of his country in which he is born and so long as he does not intentionally and by exercise of free volition choose the domicile of other country, he carries the domicile of origin with him. It was held that in order to prove that a person has acquired any domicile of choice it must be shown that he lfas intentionally taken a decision in that behalf in the sense that he has taken abode of his choice with the intention of making it his permanent home. The learned Judges, while interpreting Form P-1 observed that columns 5 and 6 in Form P-1 regarding place of domicile and date of arrival in place of domicile are misleading and suitable amendment should be made in law. While dealing with the point it was observed as under:- "Now from the analysis of all these sections, as well as section 17 of the Act what would follow is (1) that 'domicile' and 'permanent residence' are two distinct and separate concepts, although before a person is granted a domicile certificate generally he must show that he had lived in Pakistan with the intention of permanently residing therein; (2) that when a person is granted a domicile certificate he would be deemed to be a domicile of Pakistan and not of a Province or a part of a Province; (3) the fact that a person before making an application for the grant of a domicile certificate had lived in Pakistan would be entitled to persuade the authorities that he had done so with the intention of permanently residing therein and he was entitled to the grant of a domicile certificate; and (4) that a citizen of Pakistan by birth is also essentially a domicile of Pakistan unless, of course, he has lost the said domicile by acquiring another domicile of his choice."
18. ' In case reported as Miss Rakhshanda Aslam v. Nomination Board of Azad Jammu and Kashmir (PLD 1986 SC (AJ&K) 1), dealing with the word 'domicile', the learned Judges observed as under:- "The word 'domicile' is a derivation of Latin word `domus' meaning a home or a dwelling place; its relationship which in law creates between individual and a particular locality or a country.
19. ' A person shall be said to be domiciled of a locality where he intends to live permanently and considers that place as his principal or permanent home. The 'domicile' of a person, therefore, shall be determined while taking into account the intention of the, person manifested by his conduct to show whether he has adopted a mental attitude to settle down at a particular place permanently and make that place as his permanent home. It is correct that a person may leave his country temporarily to make his fortune and in that event the domicile: of origin is retained as he never intends to permanently abandon the domicile of origin and make his home permanently in the domicile of choice but where the intention is throughout clearly expressed through conduct or circumstances to have an inference that a person never wished to return to the domicile of origin and has selected the domicile of choice for no other purpose than that of trade, settling thereat permanently and also acquired huge property thereat it shall be said that such person has abandoned his domicile of origin for domicile of choice. To have a fmding on the point that duration of a person's stay at a place other than that of his domicile of origin, the purpose of his stay thereat, the nature of the business he carries, the quantum of the movable and immovable assets he holds, and his conduct and mental attitude towards his domicile of origin shall provide the guideline and have to be taken into consideration."
20. ' In reply, Raja Muhammad Hand Khan, Advocate, the learned counsel for respondents Nos.2 and 3, controverted the arguments advanced by the learned counsel for the appellant. He has argued that the appellant was born and educated at Karachi and her father is running medical practice at Karachi since long; he has argued that the mere fact that he owns some immovable property in Muzaffarabad district would not imply that he has not abandoned the domicile of Muzaffarabad District and adopted Karachi as domicile of his choice. In alternative, the learned counsel for respondents Nos.2 and 3 maintained that the appellant applied for issuance of domicile certificate to District Magistrate, Karachi, under Pakistan Citizenship Act, 1951 and Rules framed thereunder.
21. The learned counsel particularly drew our attention to rule 23 of the Pakistan Citizenship Rules, 1952 under which an application for issuance of domicile certificate is to be made. The learned counsel argued that under rule 23, an application seeking a domicile certificate is made on Form P-1, according to which the concerned person has to make a declaration that he abandons his domicile of origin and wants to acquire the domicile of Pakistan. The learned counsel argued that at the time of obtaining the certificate, the appellant herein, expressly abandoned the domicile of origin and, thus, even if it is assumed that she or for that matter her parents did not abandon the domicile of origin, earlier, she has expressly abandoned the same when she applied for the issuance of the certificate of domicile from the District Magistrate, Karachi, who subsequently issued the same on 13-10-1994. Thus, on 2-1-1995, when she was nominated by the Nomination Board, she was not a domicile of the State of Azad Jammu and Kashmir as she had expressly abandoned the same by making a declaration before the District Magistrate, Karachi. The learned counsel submitted that a person cannot be domicile of two places at the same time. Thus, at the time when the appellant was nominated against the quota reserved for Muzaffarabad District, she was no more domicile of Azad Kashmir or for that matter Muzaffarabad District. The learned counsel also referred to a book entitled 'Manual of Public International Law' edited by Max Sorensen and submitted that under Universal Declaration of Human Rights of 1948, if a person conducts himself in a manner which is prejudicial to the interest of the State of which he is a national and takes oath or makes a formal declaration of allegiance to another State, he would be deprived of nationality of former State under Article 8 of Universal Declaration of Human Rights. The reference made by the learned counsel for the respondents pertains to the question of nationality and not that of domicile; besides, it is distinguishable on facts.
22. ' We have given due consideration to the arguments advanced at Bar. It may be stated that the question of domicile came under consideration of the superior Courts of Azad Jammu and Kashmir and that of Pakistan, as is evident from the case-law, referred to above. While deciding the question of domicile, the superior Courts have not only taken into consideration the recognized principles of Private International Law on the point but also the law of the land which governs the matter. A reference may be made to the following authorities so as to elaborate the point under consideration:- ' While dealing with the question of continuance and termination of domicile of a person, it has been observed in Note 13 of Corpus Juris Secundum, Vol.28, as under:- "The abandonment or change of domicile is a proceeding of a very serious nature. A domicile once acquired, whether by origin or choice, continues until a new domicile is actually acquired; the acquisition of a new domicile terminates the preceding one at the same instant."
23. ' While dealing with the question of domicile of origin, domicile of choice and the domicile by operation of law, it has been observed in Notes 5, 6 and 7 of Vol.28 of Corpus Juris Secundum as under:-
5. Domicile of Origin: "The law attributes to every individual a domicile of origin, which is the domicile of his parents, or of the head of his family, or of the person on whom he is legally dependent, at the time of his birth. While the domicile of origin is generally the place where one is born or reared, it may be elsewhere.
24. ' The domicile of origin has also been defined as the primary domicile of every person subject to the common law."
6. Domicile of Choice.
25. "A domicile of choice is the place which a person has elected and chosen for himself to displace his previous domicile; it has for its true basis or foundation the intention of the person. A person having more than one residence may choose which of them shall be his domicile, and his choice is final if made in good faith, although he may spend less time at his domicile than at his other residence."
7. Domicile by Operation of Law.
26. "Domicile by operation of law is that domicile which the law attributes to a person, independently of his own intention or actual residence. It is consequential, ordinarily resulting from legal domestic relations, as that of the wife arising from marriage, or the relation of parent and child. Whenever a person does not fix a domicile for himself, the law will fix one for him in accordance with the facts and circumstances of the case; and an infant's domicile will be fixed by operation of law where it cannot be determined from that of the parents."
27. ' While dealing with the question of domicile of choice and that of origin, it has been observed in para 425 of Halsbury's Law of England, fourth edition, Vol.8, as under:- "425. Description of domicile.--The law attributes to everyone at birth a domicile which is called a domicile of origin. This domicile may be changed, and a new domicile, which is called a domicile of choice, acquired; but the two kinds of domicile differ in the following respects;--
(1) The domicile of origin is received by operation of law at birth; the domicile of choice is acquired later by the individual actually moving to another country and intending to remain there indefinitely.
(2) The domicile of origin is retained until the acquisition of a domicile of choice; it cannot be divested, although it remains in abeyance during the continuance of a domicile of choice; the domicile of choice is lost by abandonment whereupon the domicile of origin will revive unless some other domicile is acquired; the domicile of choice is destroyed when it is once lost, but may be acquired a new by fulfilling the same conditions as are required in the first instance.
(3) The domicile of origin is more durable than that of choice, in the sense that it is more difficult to establish a change of domicile when the domicile alleged to have been displaced is one of origin."
28. ' While dealing with the question as to how the domicile of choice is abandoned, it has been observed as under in para. 430 of the aforesaid treatise:- "430. Abandonment of domicile of choice.--A domicile of choice can be lost by abandonment. This process is the exact converse of its acquisition. It is necessary for the propositus to cease to reside in the country of domicile, and also to cease to have the intention to return to it as his permanent home. Absence without the intention of abandonment is of no effect; nor is intention without any actual change of residence. Both the intention and the act must be demonstrated to be unequivocal, though the evidence necessary to establish abandonment is less than that required to establish acquisition.
29. ' It is never necessary that another domicile of choice should be acquired; but in two cases the abandonment of one domicile of choice and the acquisition of another may coincide in point of time: the first being where the same act constitutes the fact of abandoning the old and of acquiring residence in the new; the second where the intention to abandon the old and settle in the new supervenes on actual residence in the new domicile."
30. ' While dealing with the question of abandonment of existing domicile and revival of the domicile or origin, it has been observed in the book entitled `Private International Law' by Cheshire, (11th edition, at pages 160 and 161) as under:- "Abandonment of an existing domicile.--Since a domicile of choice is voluntarily acquired if there is the requisite intention and residence, so it is extinguishable in the same manner, i,e, merely by a removal from the country with an intention not to return and even without acquiring a fresh domicile. The only distinction between acquisition and abandonment is that the latter requires less evidence than the former. 'There cannot be abandonment animo solo ' But the domicile of origin, which in its inception is not a matter of free will but is communicated to a person by operation of law, is not extinguished by mere removal with an intention not to return. It cannot be lost by mere abandonment. It endures until supplanted by a fresh domicile of choice.
31. Revival of the domicile, of origin,--If the domicile of origin is displaced as a result of the acquisition of a domicile of choice, the rule of English law is that it is merely placed in abeyance for the time being. It remains in the background ever ready to revive and to fasten upon the propositus immediately he abandons his domicile of choice."
32. ' Before making a critical appraisal of the question as to whether Muzaffarabad District was the domicile of origin of Fozia Hussain, appellant, and if so whether she abandoned the same because her father had been residing at Karachi and practising medicine since quite some time; and whether she lost the domicile of the State of Azad Jammu and Kashmir by obtaining the certificate of domicile from the District Magistrate, Karachi, it would be expedient to reproduce below the relevant provisions governing the issuance of domicile certificates as contained in section 5 of the Azad Jammu and Kashmir State Subjects Act, 1980 and rule 7 of the Azad Jammu and Kashmir State Subjects Rules, 1980 (hereinafter shall be referred to as State Subjects Act, 1980 and Rules made thereunder):- ' Section 5 of the State Subjects Act, 1980: Certificate of domicile.--The council or any other authority specified by the council may, upon an application made to it in the prescribed manner containing the prescribed particulars, grant a certificate of domicile to any person in respect of whom it is satisfied that the facts stated in the application are correct and that the applicant has been continuously residing in Azad Jammu and Kashmir for a period of not less than five years and intends to live permanently in Azad Jammu and Kashmir." .
33. ' Rule 7 of the State Subjects Rules, 1980:-
7. Certificate of domicile.--(1) Any District Magistrate in Azad Jammu and Kashmir may issue a certificate of domicile in the manner prescribed below:-
(a) An application for a certificate of domicile shall be made in Form 'P' (Appendix III) in duplicate. It shall be accompanied by an affidavit affirming the truth of the statement made in it.
(b) The District Magistrate may demand such evidence as he may consider necessary for satisfying himself that the facts stated in the application are correct and that the applicant has been continuously residing in Azad Jammu and Kashmir for a period of not less than five years and intends to live permanently in Azad Jammu and Kashmir.
(2) The District Magistrate shall either reject the application or grant a certificate of domicile in Form `P-1' (Appendix IV).
(3) Any person aggrieved by any order passed under sub-rule (2) may file an appeal with the Azad Government of the State of Jammu and Kashmir within thirty days and the Government may pass such order as it deems fit."
34. It is evident from the abovementioned provisions of law that no distinction has been made in cases for issuing domicile certificate if a person who claims to be domicile of Azad Jammu and Kashmir by origin or who seeks the domicile certificate on the ground that he has adopted Azad Jammu and Kashmir as his domicile by choice. The question arises as to whether while issuing the domicile certificate under the aforesaid statutory provisions, the principles of Private International Law, referred to above, would also be attracted and if so to what extent. Obviously, for issuance of a domicile certificate under section 5 of the State Subject Act, 1980 and rule 7 of the Rules framed thereunder, the conditions precedent for issuing a domicile certificate envisaged in the aforesaid provisions are to be satisfied. The general principle of Private International Law on the point would be resorted to only where the law of the land is silent. For instance, there is no definition of word `domicile' in the law in force in Azad Kashmir; similarly there are no guidelines in the law to determine the intention of a person that he has abandoned the domicile of origin and acquired the domicile of choice. On such points, the principles of Private International Law would be fully applicable. But the statutory requirements that person seeking domicile certificate has been continuously living in Azad Kashmir for five years and intends to live permanently in Azad Kashmir are to be proved. However, in a case of person who is domicile of Azad Jammu and Kashmir by origin, it would not be necessary to prove that he has been actually residing in Azad Kashmir continuously for five years; if he is domicile of Azad Kashmir by origin, the fact that he has been living out of Azad Kashmir temporarily in connection with his business, service or for any other reason, he would be deemed to be residing in Azad Kashmir for the purpose of section 5 of the State Subjects Act, 1980 and rules framed thereunder; he would be denied domicile certificate only if it is shown that he has abandoned domicile of his origin or does not intend to settle in Azad Kashmir permanently in future. This concept has been embodied in para 19 of the Government Instructions contained in Notification NoAdmin/H-6(15)Sec.1/86, dated 2nd April, 1986. For convenience, para 19 of the Instructions is reproduced below:-- {{URDU TEXT}} The abovementioned paragraph stipulates that if a person belonging to Azad Kashmir by origin, is temporarily,absent due to business, service or any other reason, it would not debar him to be nominated out of the quota of seats reserved for the relevant district of Azad Kashmir. However, the question whether any such person was living out of Azad Kashmir because he had abandoned his domicile of his origin in Azad Kashmir and had taken up another domicile by choice or not is to be determined by the concerned authority invested with power of issuing a domicile certificate under law. The aforesaid para merely contains the guidelines for the Nomination Board and the candidates who intend to be nominated against the quota of seats reserved for Azad Kashmir, and are not intended to dispense with requirements laid down in the relevant law. Thus, the contention of the learned counsel for the appellant that in view of the paragraph, reproduced above, the appellant was essentially entitled to be nominated from Muzaffarabad District is not correct because this can only be done if it is proved that she retains her domicile of origin of Azad Kashmir and did not abandon it by adopting domicile of her choice. The other condition necessary for issuance of a domicile certificate under the aforesaid law is that the person seeking a domicile certificate shall satisfy the concerned authority that he intends to permanently settle in Azad Kashmir in future. For instance, if a person is domicile of Azad Kashmir by origin and he did not lose it by adopting domicile of his choice but if such a person does not intend to permanently reside in Azad Kashmir in future, he cannot be issued domicile certificate under the aforesaid law, irrespective of the fact whether such a person is entitled to such certificate in view of the principles recognized by the Private International Law or not. One of the conditions precedent for issuing a domicile certificate is that the person seeking a domicile certificate should satisfy by declaration, affidavit or other means that he also intends to reside in Azad Kashmir permanently in future. Thus, even if a person proves that he has been residing in Azad Kashmir for five years prior to his application for issuance of domicile certificate and is also a domicile of the State of Azad Jammu and Kashmir by origin, he cannot be issued a certificate of domicile under section 5 of the State Subjects Act, 1980, if he says that he does not intend to live in Azad Kashmir in future. A difference between section 5 of the State Subject Act, 1980 and the provisions of section 17 of the Pakistan Citizenship Act, 1951 is that in Pakistan a person instead of five years has to prove that prior to making application for domicile, he resided not less than one year; Rule 23 of Pakistan Citizenship Rules, 1952 makes it obligatory for a person seeking domicile certificate that he intends to permanently settle in Pakistan. Thus, for issuing a domicile certificate the condition of permanent settlement is common both in law in force in Pakistan and in Azad Kashmir. For elucidating the matter further section 17 of the Pakistan Citizenship Act, 1951 and Rule 23 of the Pakistan Citizenship Rules, 1952 are reproduced below:- Section 17 of the Pakistan Citizenship Act, 1951: "17. The Federal Government may upon an application being made to it in the prescribed manner containing the prescribed particulars grant a certificate of domicile to any person in respect of whom it is satisfied that he has ordinarily resided in Pakistan for a period of not less than one year immediately before the making of the application, and has acquired a domicile therein.
35. ' Rule 23 of the Pakistan Citizenship Rules, 1952: "23 Certificate of domicile.--The Central Government, the Provincial Government or any District Magistrate authorized by the Provincial Government in this behalf may on application made to it in this behalf issue a certificate of domicile in Form P-1 in the manner following:-
(a) An application for a certificate of domicile shall be made in Form 'P' in duplicate. It shall be accompanied by an affidavit affirming the truth of the statements made in it and affirming further that the applicant had not migrated to India after the first day of March, 1947 or that, having so migrated, had returned to Pakistan under a permit for resettlement or permanent return issued by an officer authorized by the Government of Pakistan.
(b) Any authority to whom an application is presented may demand such evidence as it may consider necessary for satisfying itself that the facts stated in the application are correct and that the applicant has been continually resident in Pakistan for a period not less than one year and intends to live permanently in Pakistan (Underlining is ours).
(c) The authority shall pass such orders on the application as it deems fit."
36. ' It may be noted that expression in section 17 "and has acquired domicile therein" does not appear in the 'corresponding provision of State Subject Act, 1980 in force in Azad Kashmir. The connotation of the aforesaid expression has been the subject of consideration by the Supreme Court of Pakistan. While dealing the question, the Supreme Court of Pakistan. Has opined that the said expression only implies that a person seeking domicile certificate has to prove that he resided in Pakistan one year prior to making of the application for domicile and intends to settle in Pakistan permanently in future. The observations of the Supreme Court of Pakistan in case reported as Muhammad Yar Khan v. Deputy Commissioner-cum-Political Agent, Loralai (1980 SCMR 456), are as under:- "Now when the words 'has acquired the domicile therein', are seen in conjunction with the words 'has ordinarily resided in Pakistan for a period of not less than one year', it should be obvious that what the legislature intended to convey thereby was that the applicant having ordinarily resided in Pakistan for not less than a year had now expressed his intention to make Pakistan his permanent place of residence. This indeed can be the only construction which the words `has acquired a domicile therein' can bear, for if the words are construed literally, they would mean that the applicant had already secured domicile in the country in which event what would be the need for him to make an application for the grant of a domicile certificate?"
37. ' It follows from what has been stated above that the expression "has acquired that domicile therein" which appears in section 17 of the Pakistan Citizenship Act, 1951 and is missing in the corresponding law in force in Azad Kashmir 'does not make any difference because in section 5 of the State Subject Act, 1980, it has been clearly laid down that a person seeking domicile certificate shall have to prove that he intends to permanently settle in Azad Kashmir in future.
38. ' Now adverting to the merits of the instant case, it may be pointed out that there is no doubt that the appellant is a State Subject and was domicile of Azad Kashmir by origin. This fact has been admitted even by the respondents in the writ petition filed by them in the High Court. The averment made in para. 2(e) of the writ petition is reproduced as under:- "That the state of affairs mentioned above shows that the respondent No,3 had, by her conduct abandoned her domicile of origin of District Muzaffarabad and has adopted the domicile of choice through her conduct to be that of domicile of Karachi. The respondent No,3 is not entitled to be nominated on the basis of domicile of District Muzaffarabad which she has abandoned by her conduct and the Nomination Board had acted illegally while nominating the respondent No3 for the course of M.B.,B.S."
39. ' The case of the petitioners-respondents in the High Court was that although the appellant by origin was domicile of Azad Kashmir or for that matter Muzaffarabad but she had abandoned the domicile of Azad Kashmir not only because her parents have permanently settled in Karachi but she applied for domicile certificate of Pakistan wherein she clearly made a declaration that she had abandoned the domicile of her origin. According to Form P-1 which is Appendix VIII to the Pakistan Citizenship Rules, 1952, it is incumbent on a person seeking domicile certificate that he or she abandons the domicile of origin. The relevant part of the said form is as under:.
40. "I have been residing continuously in Pakistan for a period of years months immediately preceding this declaration, and I hereby express my intention to abandon my domicile origin in in and with a view to acquire the domicile of Pakistan. I declare my intention to take up my fixed habitation in Pakistan during the remainder of my life." (underlining is ours).
41. ' Thus, it is evident from the Appendix VIII, reproduced above, that Fozia Hussain, appellant, made a declaration in Form P-1 to the effect that during the remainder of her life, she intended to permanently settle in Pakistan. The appellant does not deny to have obtained the certificate from District Magistrate at Karachi nor any other explanation has been given that the declaration made by her at the time of obtaining the said certificate should not be read against her for any valid reason. Instead, in the written statement filed by her in the High Court, she has contended that the certificate of domicile obtained by her from the District Magistrate, Karachi, does not adversely affect her status as domicile of the Azad Kashmir. It may be G observed that at the time of obtaining the certificate from District. Magistrate, Muzaffarabad, on 22-9-1993, she made a declaration to the effect that she intend to permanently settle in Azad Kashmir in future while making application for obtaining the domicile certificate from District Magistrate, Karachi, she declared that during the remainder of her life she would permanently settle in Pakistan. She can either permanently settle in Azad Kashmir during the remainder of her life or in Pakistan and not at both places; thus, both the declarations cannot be correct. Obviously, the declaration which she subsequently made before the District Magistrate, Karachi, would prevail and annul the one made in the year 1993 before the District Magistrate, Muzaffarabad.
42. ' The contention of the learned counsel for the appellant that the domicile of origin clings with the person even after acquiring the domicile of choice and is not destroyed but remains in abeyance is correct; this principle has been approved by the judicial authorities, referred to above. However, in the instant case the question which needs determination is that if the domicile of origin of the appellant has gone in abeyance meaning thereby that she was not the domicile of Azad Kashmir when her nomination for admission against the reserved quota of seats from Muzaffarabad was approved by the Nomination Board, how the same was valid. Even if it is assumed for the sake of argument that the domicile of origin of the appellant did not go in abeyance due to obtaining the certificate of domicile from Karachi, her certificate of domicile issued by District Magistrate, Muzaffarabad, was no more valid due to her declaration made before the District Magistrate, Karachi, that she would permanently settle during rest of her life in Pakistan. Consequently, her previous assurance to the concerned authorities in Azad Kashmir that she would permanently settle in Azad Kashmir stood resiled and her certificate of domicile of Azad Kashmir was rendered ineffective.
43. ' The argument of the learned counsel for the appellant that as there is no provision in Government Order No,I-L/84 dated 20th April, 1929 or in State Subject Act, 1980 envisaging a State Subject to forego his status as citizen of the State of Azad Jammu and Kashmir, he cannot abandon his domicile of the State. It may be observed that the argument of the learned counsel for the appellant is no tenable because the term 'State Subject' which is synonymous with the term 'nationality' has altogether different connotation than that of `domicile'. A person may or not be a citizen of a particular State but he can be domicile of the same and vice versa. Therefore, it is not correct to suggest that the condition which govern the question of being a State Subjects also govern the question of being a 'domicile' of a place. A reference may be made to the Private International Law by Cheshir (11th edition, page 168), wherein it has been observed as under:-- "Nationality represents a man's political status, by virtue of which he owes allegiance to some particular country; domicile indicates his civil status and it provides the law by which his personal rights and obligations are determined. Nationality depends, apart from naturalisation, on the place of birth or on parentage; domicile, as we have seen, is constituted by residence in a particular country with the intention of residing there permanently. It follows that a man may be a national of one country but domiciled in another."
44. ' If the State Subjects Act does not envisage to abandon the status as a State Subject, the question would be governed by the Private International Law. Thus, the contention of the learned counsel for the appellant that the status of a State Subject cannot be abandoned and, thus, the status of domicile can also not be forsaken is not correct and is hereby repelled.
45. ' In the light of what has been stated above fmding no force in this appeal, it is hereby dismissed. In the circumstances of the case no order is made as to the costs.