' This writ petition has been filed challenging the order of nomination of respondent No,3 for the Course of M.B.,B.S. In Medical College of Pakistan, against the seats reserved for domiciles of Muzaffarabad District, on the basis of domicile Certificate which is illegal, without jurisdiction and is ineffective and inoperative against the rights of the petitioner, passed by respondent No,1 on March 10, 1996.
2. The facts as disclosed in the petition are that respondent No,1, the Nomination Board, Azad Jammu and Kashmir, invited applications for admission in M.B.,B.S. Course for the year 1995-96 in different Medical Colleges of Pakistan, against the reserved seats, from the candidates of Azad Jammu and Kashmir and refugees settled in Pakistan. It was also disclosed that the petitioners are State-subjects, as such applied against the five seats resderved from women of domicile of Muzaffarabad District. It was also stated that in addition to the aforesaid five seats, other seat for the woman, out of 10 seats for Azad Jammu and Kashmir, was allocated for Muzaffarabad District, against Which respondent No,3 was nominated by respondent No,1, on the basis of domicile certificate issued by respondent No,2, the District Magistrate, Muzaffarabad. The petitioners claim to be entitled for their nomination against the above seat. The nomination of respondent No,3 was challenged as illegal, without jurisdiction and lawful authority.
3. The respondents in response to the notice issued to them, filed their written statements claiming the writ petition to be not maintainable on the grounds that the petitioners are not aggrieved persons. They were nominated for the course of B.Sc./DEM, Peshawar, as such were not entitled to contest for any further nomination. The petitioners were not entitled to invoke the writ jurisdiction of this Court for having an alternative remedy and also the points raised relate to the facts not amenable to the Constitutional jurisdiction. The dismissal of the writ petition was also claimed on the facts as respondent No,3 was claimed to be a permanent resident of Muzaffarabad (A.K.) and, therefore, the domicile certificate was correctly issued in her favour, as such her nomination was made on the basis of merit.
4. Mr. Muhammad Ibrahim Zia, the learned counsel for the petitioners, raised the following points, in support of his petition:--
(i) That respondent No,3 is not domicile of Muzaffarabad District as, according to the learned counsel, she was nominated against the reserved seat, from Muzaffarabad District, on the basis of domicile certificate issued by respondent No,2 last year. Her nomination was cancelled by the High Court of Azad Jammu and Kashmir and upheld by the Supreme Court, observing thereby that she was not a domicile of Muzaffarabad District;
(ii) that respondent No,2, while issuing the domicile certificate in favour of respondent No,3, acted against the mandatory provisions provided for the purpose, as envisaged in the State Subject Act, 1980 and the rules made thereunder. It was explained that a domicile certificate was issued earlier by the District Magistrate, Muzaffarabad on September 22, 1993 and later on, the above respondent got the domicile certificate from the District Magistrate, Karachi, on October 13, 1994, as such she abandoned the domicile of the State of Jammu and Kashmir and adopted that of District Karachi as domicile of her choice. After the issuance of above-referred domicile certificate from Karachi, the issuance of a second domicile certificate by respondent No,2, is against law and also offends the provisions governing its issuance;
(iii) that the dictum of the Supreme Court of Azad Jammu and Kashmir in the earlier proceedings in a case titled 'Fauzia Hussain Abbasi v. Nomination Board and others (1995 CLC 1761) disentitled respondent No,3 to be nominated against the seat reserved for the domiciles of Muzaffarabad District, upholding the judgment of the High Court in an appeal filed by her against the order of acceptance of writ petition challenging the legality of her nomination as domicile of Muzaffarabad District. Therefore, the nomination on the basis of fresh domicile certificate is illegal and without jurisdiction; and
(iv) that the District Magistrate, Muzaffarabad who was a party in the earlier proceedings, ignoring the observations of the Supreme Court, issued the domicile certificate. It was explained that after abandoning the domicile certificate issued earlier in 1993 and subsequently adopting the domicile of Karachi in 1994, the impugned domicile certificate was issued clearly against the provisions particularly provided in Rule 7 of the Azad Jammu and Kashmir State-Subject Rules, 1980.
5. Controverting the arguments advanced by the learned counsel for the petitioners, Mr. Ghulam Mustafa Mughal, Advocate and Ch. Muhammad Yusuf, Advocate-General, representing the respondents, addressed the following arguments:--
(i) That respondent No,3 is a State-Subject and permanent resident of District Muzaffarabad which is her domicile of origin. It was explained that due to her parents' business engagement, she had to reside temporarily at Karachi but she has no intention to settle permanently there. The domicile certificate was correctly issued under law.
(ii) that on the basis of facts available, the District Magistrate proceeded to issue the domicile certificate which cannot be assailed in writ jurisdiction as the same relates to the question of fact;
(iii) that the alternative remedy of appeal available to the petitioners, was not availed by them, as such the extraordinary jurisdiction of writ petition cannot be invoked for the purpose. The learned counsel while explaining the position, referred to the provisions of abovementioned Rules providing the remedy of appeal;
(iv) that the domicile of origin can never be abandoned. It is only kept in abeyance if a domicile of choice is adopted and is automatically revived on surrendering the domicile of choice;
(v) that the verdict of the Supreme Court of Azad Jammu and Kashmir, reported as 1995 CLC 1761, supports the version of the respondent so far as the revival of, her domicile of origin is concerned; and
(vi) that the petitioners have already been nominated for the course of B.Sc. (D.B.M.), Peshawar, therefore, are not entitled to be nominated for any other course or seat reserved by the Nomination Board.
6. I have heard the learned counsel for the parties and also gone through the record. The parties are not at variance on the following points:-
(i) That respondent No,3, Miss Fauzia Hussain Abbasi is resident of Muzaffarabad District, as such her domicile of Origin is of Muzaffarabad;
(ii) that respondent No,3 was issued a domicile certificate by respondent No,2, in the year 1993, on 22-9-1993;
(iii) that respondent No,3, later on, got issued a domicile certificate from the District Magistrate, Karachi, on 13-10-1994;
(iv) that the certificate issued by the District Magistrate Karachi, referred to above, was abandoned by respondent No,3, on 20-4-1995;
(v) that a fresh domicile certificate was issued by respondent No,2, in favour of respondent No,3, on 11-11-1995;
(vi) that the nomination of the above respondent last year by the Nomination Board as domicile of Muzaffarabad, was held to be cancelled by the High Court and the same was upheld by the Supreme Court vide its judgment dated 16-7-1995: and
(vii) that the point raised with regard to non-maintainability of the writ petition in the written statement, on the ground that the petitioners are not aggrieved persons, was abandoned by the counsel for the respondents and similarly the point of alternate remedy available to the petitioners, was also not pressed.
7. It is essentially required as to what domicile is. The definition of domicile is not given either in the State Subjects Act, 1980 or the rules made thereunder of 1980. The word "domicile" attracted the attention of the different jurisdictions. The proposition came also under discussion before the Supreme Court of Azad Jammu and Kashmir, in a case titled "Miss Rakhshanda Aslam v.
Nomination Board of Azad Jammu and Kashmir" (PLD 1986 SC(AJ&K) 1) Dealing with the word "domicile" the learned Judge 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. 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 even 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 elected 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 finding on the point duration of 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 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."
8. In another case titled "Qamar Afzal v. Muhammad Ashfaq Khan" (PLD 1979 SC (AJ&K) 96), the learned Judges of the Supreme Court while dealing with the words "domicile", gave the following verdict at page 98 of the report:-- "---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. 'Domicile' of a person, therefore, shall be determined while taking into account the intention of a 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. So, in every case the question of domicile is to be decided on the facts of that particular case and no hard or fast rule can be laid down to have a universal definition of the word 'domicile'.
' Domicile is of three types:
(1) Domicile of origin;
(2) Domicile of choice; and
(3) Domicile of adoption.
' What is a domicile of origin and domicile of choice?
' The domicile of origin of a person is that which he at his birth acquires from his parents and once it is ascertained in law, it clinges to the person until he chooses to divest himself of it by substituting a domicile of choice for the domicile of origin. In the first place, there is a strongest possible presumption in favour of continuance of domicile of origin and it has been rightly said by Lord Macnaghten that 'its character is more enduring, its hold stronger and less easily shaken off'. This observation is found in Private International Law by G.C. Cheshire, Fourth Edition, p.171. Thus, in law a person is presumed to carry the domicile of origin until it is proved that he has abandoned that domicile with the intention to set up at a place permanently with the intention to make that place a permanent home and make a fortune for him. The domicile of choice is 'acquired by combination of fact and intention. The fact is residence and the intention is that the residence should be permanent'. It, therefore, follows that the domicile of origin can be discarded for domicile of choice by intention to reside at the place of domicile of choice permanently. On this score, it would be quite sufficient to have evidence that a person has taken up a habitation in another country other than that of the country of origin with the intention of remaining thereat for an indefinite period to constitute this latter country his domicile of choice. It is thus necessary for making out a case of domicile of choice to prove that a man had taken up his residence in a country other than that of his domicile of origin for an indefinite period so as to make that place his principal home. Though it is difficult in such cases to decide the intention to abandon the domicile of origin in the absence of express declaration yet it is permissible to have an inference on the issue from certain established circumstances and facts whether a person intends to live permanently at the domicile of choice in abandoning the domicile of origin. The intention must be apparent to choose that place in fact as residence and in intention of permanent residence. It would be sufficient on the issue to prove that a man had taken up his residence in a country other than that of his domicile of origin for an indefinite period say, for such a period as would enable him to make his fortune. It is correct that a person may leave his country temporarily to make his fortune and in that case, the domicile of origin is retained as he never intended to permanently abandon the domicile of origin and make his home permanently in the domicile of choice but where the intention was 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 finding on the point, the duration of a persons'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 carried on, the quantum of the movable and immovable assets held by him and his conduct and mental attitude towards his domicile of origin shall provide the guideline and have to be taken into consideration."
9. While dealing with the point of domicile of origin and domicile of choice, it was observed by this Court in a Division Bench case titled "Muhammad Ashfaq v. Chairman, Nomination Board and another" (PLD 1979 Azad J&K 43), as under:-- "While dealing the question of domicile, the actual residence and intention to reside at a place permanently or for an indefinite period, are to be taken into consideration. The domicile of choice is acquired even if there is no intention on the part of a person to abandon his domicile of origin. If a person has settled at a place permanently or for an indefinite period, he acquires the domicile of choice and as soon as he acquires it, the domicile of origin remains in abeyance during the continuance of a domicile of choice and during the period of such abeyance he is deemed to be a domicile which he acquires by his choice. The intention to reside permanently or for an indefinite period is to be gathered from the circumstances of each case and there are no hard and fast rules to ascertain such an intention."
10. The point also came under discussion before the Lahore High Court in a case titled 'Sultan Khan v. Federal Public Service Commission (1983 CLC 2803) and the following observation was made:-- "---In law there are two main classes of domicile, one is the domicile of origin which is communicated by operation of law to each person at the time of his birth and the other domicile of choice which every person of full age is free to acquire in substitution for that which he possesses.
The domicile of choice is voluntary and can be abandoned or changed according to the intention and permanent residence of a person while domicile origin remains in abeyance during that period and can be revived."
11. 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 (referred to by the Supreme Court (AJ&K) in Fauzia Hussain Abbasi's case) 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."
' 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.
The domicile of origin has also been defined as the primary domicile of every person subject to the common law.
6. Domicile of Choice: ' 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.
' 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."
12. While dealing with the question of domicile of choice and that of origin, it has been observed in para.425 of Halsbury's Laws 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 docmicile of choice; it cannot be divested, although it remains in abeyence 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 once of origin."
13. While dealing with the question as to how the domicile of choice is abandoned, it has also 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 porosities 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 his 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 Tess than that acquired to establish acquisition.
' 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."
14. While dealing with the question of abandonment of existing domicile and revival of the domicile of 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.
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 abandones his domicile of choice."
15. While dealing with the point of domicile of origin and domicile of choice and their abandonment, the Supreme Court of Azad Jammu and Kashmir gave the following verdict in a case titled "Fauzia Hussain Abbasi v. Nomination Board and others" (1995 CLC 1761) at pages 1774 and 1778:-- ''....--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 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.
' 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."
16. Considering the points admitted between the parties, the controversy confines to the points as follows:--
(i) Whether respondent No,3, after adopting the domicile of her choice i,e, Karachi, did not remain to the domicile of Muzaffarabad which is her domicile of origin?
(ii) Whether the requirements of issuance of domicile certificate as provided in the State Subjects Act, 1980 and the rules made thereunder of 1980, are not satisfied, as such issuance of a second domicile certificate cannot be maintained in law?
(iii) Whether a domicile of origin after adopting the domicile of choice, remains in abeyance and is automatically revived after surrendering the domicile of choice?
(iv) How far the judgment of the High Court upheld by the Supreme Court, with regard to the cancellation of the nomination of respondent No,3, for the last year, binds her for any other nomination, including the one in dispute?
17. On the basis of law discussed above, it can safely be resolved that the domicile of origin after adopting the domicile of choice, remains in abeyance during that period and is revived on abandonment of domicile of choice.
18. Respondent No,3. Herein who is admitted to be a domicile of Muzaffarabad by origin, after abandoning her domicile of choice, applied for a fresh domicile from Muzaffarabad which was issued in her favour. The condition laid down to stay for a period of 5 years, is not applicable to her in the circumstances as her domicile of origin is Muzaffarabad which revives after surrending the domicile of choice.
19. The objection taken by the learned counsel for the petitioners on the ground of cancellation of nomination on the basis of domicile of Muzaffarabad last year by the Supreme Court, has no substance as the nomination was cancelled in view of the fact that at the time of nomination, respondent No,3's domicile was in abeyance and she voluntarily adopted the domicile of her choice, i,e, Karachi. Therefore, the learned Judges in the Supreme Court came to the conclusion that at the relevant time she was not domicile of Muzaffarabad, as such, was not entitled to be nominated, but here the position is otherwise as she has abandoned the domicile of choice and got issued a domicile certificate from Muzaffarabad which even otherwise issued initially had revived.
20. In view of the above discussion, the writ petition is found to have no substance in it which is hereby dismissed.