Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Syed NADIR SHAH VS Respondent: DISTRICT MAGISTRATE, PISHIN AND ANOTHER
Court Name: Balochistan High Court Judge(s): M. A Rashid, Abdul Qadeer Chaudhry, Mir Khuda Bakhsh Marri Title: Syed NADIR SHAH vs DISTRICT MAGISTRATE, PISHIN AND ANOTHER Case No.:Constitutional Petitions Nos, 54 and 86 of 1979 C. P. No, 54179). Moquim
JUDGMENT
Reported As: PLD 1980 Quetta 29 Result: Petition accepted Judgment JUDGMENT ' MIR KHUDA BAKHSH MARRI, C. J.-These two connected Constitution Petitions are dicected against the cancellation of Local Certificate issued in favour of petitioner Syed Nadir Shah and consequent refusal of Selection Committee to grant him a seat in an Engineering College/University. ' These petitions have come before me for decision as a consequence of difference of opinion between the two learned judges of a Division Bench consisting of Mr. Justice M. A. Rashid and Mr. Justice Abdul Qadeer Choudhary. The former learned Judge accepted the petitions and held that the cancellation of local certificate of the petitioner was without lawful authority, hence the petitioner is entitled to a seat in place of respondent Abdul Hadi who would have to be displaced. On the other hand, Mr. Justice Abdul Qadeer Choudhary dismissed the petitions mainly on the ground that the correctness of the order of the District Magistrate by cancelling the Local Certificate of the petitioner on the basis of material available on the record is difficult to assail as it involves the factual controversy and that despite of fact that no show-cause notice was given to the petitioner, no fruitful purpose will be achieved by remanding the case to the District Magistrate for that purpose at this stage. ' Detailed facts of the case are given in the judgments of both the learned Judges. Briefly speaking, the petitioner Syed Nadir Shah claims to be a local resident of Killi H urumzai, Tehsil and District Pishin. He claims to own a house in the village and some joint property in .The ABADI DEH. He applied on or about 14-5-1976 to the District Magistrate Pishin for grant of local, certificate, after proper inquiry the requisite certificate was issued in his favour. He passed his Matriculation
---
## Page 2
Examination and then joined Science College, Quetta for F. Sc. (Non-Medical Course; which he completed successfully in the year, 1978 securing 563 marks. ' The petitioner claims that during this period he was drawing scholarship as a local of Pishin District and such scholarships are granted to students of a District only after verification and inquiry by the District Magistrate that they are locals of the District concerned. ' The petitioner was a candidate for admission to an Engineering seat. Requirements of eligibility to such candidates, among other things is that he should produce local certificate as well as permanent residence certificate and the petitioner being already in possession of a local certificate (Annexure "A") applied for permanent residence certificate to the District Magistrate which was granted to him on 23-1-1979. ' According to the Provincial Government Policy regatding distribution were eight candidates; the petitioner was at the top of the list on merit basis. Interviews for the grant of such seats were scheduled for 18-3-1979. The petitioner appeared before the Selection Committee and he was told' that his local certificate since has been cancelled. He is stated to have protested at such arbitrary and without notice cancellation of local certificate and he was advised by Member of Selection Committee, the local Deputy Martial Law Administrator, to see the District Magistrate. He attempted to do so but the officer was out of station. As a result he ruched to this Court and filed Constitutional Petition No, 54 of 1979 challenging the cancellation of local certificate. ' The results of the interview were to be annpunced on 21-3-1979. Somehow the announcement was delayed and on '28-3-1979 this Court suspended the order of District Magistrate dated 17-3-1979 cancelling the - local certificate of the petitioner. In spite of this the petitioner was not given any seat in any of the Engineering Institutions and the result was announced on 28-4-1979, Petition No, 86/79 was filed by the petitioner on directions of this Court to challenge the refusal to grant such seat. Parawise comments were called from the District Magistrate, Pishin with regard to the circumstances in which the petitioner's local certificate was cancelled which are as under :-- "`Messrs Syed Abdul Hadi son of Syed Abdul Majid resident of Kill Kakazai Tehsii Pishin and Muhammad Shoaib son of Haji Muhammad Zaman Khan A;hakzai, resident of lnayatullah Karez, Gulistan had approached the undersigned for cancellation of the local certificate of the petitioner. After thorough enquiries it transpired that Abdul Hakim, father of the petitioner, was not a resident of Killi. Hurrarazai, Tehsil Pis hin by birth and was not a alember of a Syed family of Hurromaai, which is recognized tribe of Pishin District. From the Fard-eallaqiat .Produced by the above-named applicarits it is evident that Abdul Hakim was the son of one (ianga Ram caste Patel and was not - a Muslim by origin. The Fard-e-Haqiat further shows that Abdul Hakim (father of the petitioner) owns immovable property in Mehal Khushkaba Yasinzai, Manza Shaldars, Tappa Saddar Karsi, Tehsil Quetta.Copies attached." ' Unfortunately as it appears from the pleadings of the parties and the documents filed therein. The entire controversy was made to revolve about the real paternity of the petitioner i,e, ; whether he is son of Abdul Hakeem Patel. Son of Ganga Ram or of Syed Abdul Hakim Shah of Kill Hurramzai and this controversy was also raised before the District Magistrate by two other candidates who are respondents in this petition after the petitioner having been given earlier local certificate as well as permanent resident certificate, because the respondents wanted the seats for themselves and that District Magistrate as it appears from the above-stated comments, in an unholy caste and without holding any inquiry which it was his primary duty to hold before cancelling the petitioner local certificate, deprived him of a seat which he was entitled, even on merits. ' Normally this Court does not embark upon inquiry in its Constitutional Writ jurisdiction with regard to a factal controversy but here not only a student's entire future career was involved but also his paternity as' well as his right to claim to be a local of the Pishin District and as a consel quence of his other brothers and sisters, and there - being- divergent views consent of all the counsel for the
---
## Page 3
parties examined Abdul Hakeem Patel and his wife Mst. Muhammad Zai, the latter being ill was examined on commission. Both these witnesses were examined and cross-examined by all the Counsel for the Parties. Abdul Hakeem Patel in his statement before this Court, who has been stated by the respondents as the real father of the petitioner instead of Syed Abdul Hakeem Shah, categorically stated that he reached Pakistan in October 1947, from India, his father was a Hindu but his mother accepted Islam when he was about 1-1/2 years old and his father in fact died at that time and when he came to Pakistan he was already a Muslim of 22 years of age. He further stated that Sher Muhammad father of Mst. Muhammad Zai presently his wife, was Chawkidar with him, and he performed "Nikah" with consent of Sher Muhammad with Mst. Muhammad Zai, and at the time of marriage Mst. Muhammad Zai came alongwith three boys namely Syed Zahir Shah, Syed Anwar Shah and Syed Nadir Shah the present petitioner and he adopted them, educated them and is still educating them. He has some evacuee property in Pakistan in lieu of his property in India and some of the property he sold and some he is still selling and he has appointed these three boys as his legal representatives because he has no other male issue. In cross-examination, he submitted that he has no male issue from Mst. Muhammad Zai the mother of present petitioner, except two daughters namely Rukhsana and Rehana who are about five and six years old. He categorically stated that the petitioner Syed Nadir Shah is not his son, but he is son of Syed Abdul Hakeem Shah. Therefore it is quite clear that nothing came out from the cross-examination to show that the petitioner Syed Nadir, Shah is not son of Sved Abdul Hakeem Shah but of Abdul Hakeem Patel, as alleged by the respondents. ' The mother of the petitioner Mst. Muhammad Zai being ill and sick and thus hospitalized was got examined on commission in presence of all the counsel for the parties. She in fact supported the statement of Abdul Hakeem Patel, her second husband on all material points by stating that she was first married to Syed Abdul Hakeem Shah a year before the Partition when she was fifteen (15) years old and this marriage was arranged by his father Sher Muhammad, and her first husband died in Killi Hurramzai. Her first husband had some business at Quetta and also a house and land in Killi Hurramzai. She went on to state that three sons and two daughters were born in first marriage namely Zahir Shah, Anwar Shah and Nadir Shah the present petitioner whereas the names of daughters are Mst. Saecda and Sajida. Zahir Shah was born during the petition days, Anwar Shah two years after Partition and the petitioner Nadir Shah five years after birth of Anwar Shah. As her marriage with Abdul Hakeem Patel, she stated that it took place about fourteen (14) years back and this second marriage was arranged by his father and it was settled at Hurramzai where she was staying, although the marriage took place at Quetta. From the second husband Abdul Hakeem Patel, she stated that she has only two daughters and that all her children from the previous husband and also from the present husband are living with her and with the present husband and since her second marriage she is living at Quetta with her husband. She categorically in cross- examination denied that the three sons mentioned above were born from her second husband Abdul Hakeern Patel and also denied the suggestion that Abdul Hakeem Patel is her first husband. She further denied the suggestion that Abdul Hakeem Shah is the same person as Abdul Hakeem Patel, as The cancellation of local certificate of the petitioner by the District Magistrate, Pishin admittedly is without notice to the petitioner and Mr. Justice M. A. Rashid was right in my opinion to hold that the principle of natural justice has to be observed for the proceedings might result in consequences affecting the person or property or other rights of the parties concerned' and this principle was laid down in Zakir Hussain's ,case (I). ' The District Magistrate, Pishin it appears though to have given a show-cause notice after cancellation of the local certificate, has yet nowhere stated that the show-cause notice was duly served upon the petitioner. The petitioner, however, vehemently denied that such a notice was issued to him, nor any copy of such a show-cause notice has been filed by the District Magistrate,
---
## Page 4
Pishin in this Court. It will not be difficult to assume this contention although very unfortunate on the part of an officer like the District Magistrate, that this was an afterthought simply to cover up the illegality and irregularity which he may have done perhaps unintentionally, which naturally caused unnecessary litigation and heart burning between the young students and their parents. ' In the Division Bench judgment of this Court Shah Baz Khan v. Government of Baluchistan through Secretary, Department of Education, Quetta and 5 others (2) to which I was a party, the procedure was clearly laid down with respect to accepting or :cancellation of Domicile/Local Certificate that :- "Cancellation of Domicile/Local Certificate issued in favour of petitioner after very casual enquiry by District Magistrate, amounted to depriving petitioner of benefit of domicile of Sibi to obtain a seat in Engineering College--and that mere a letter issued by District Magistrate to petitioner to appear before him only after having been informed of filing of a writ petition in matter and, such letter also not served-No proper inquiry being held and, cancellation of Domicile certificate was held illegal and void." ' The circumstances of the present case are not different than cited in the above judgment. The Policy of the Government with regard to the entitlement and allocation of seats to various colleges for the students or Province of Baluchistan is laid down in the Prospectus and the details are given in the judgment cited above. ' Had the District Magistrate perused the judgment and acted upon it, wherein we have observed for their guidance to be very careful in future and follow the law; this situation would not have arisen and the petitioner would not have been deprived of a seat to which he was entitled. ' As to the judgment of my learned brother Mr. Justice Abdul Qadeer Choudhary, I am inclined not to agree with his reasoning and consequently rejection of petitions by him, particularly in view of statements of Abdul Hakeem Patel and Mst. Muhammad Zai and both having been cross- examined by all the counsel for the parties. ' In view of above, I am of the opinion that the local and permanent resident certificate of the petitioner was cancelled illegally without malice and the District Magistrate, Pishin has no jurisdiction to do so in absence of following the procedure laid down under the law. I, therefore, agred with the judgment delivered by my learned brother Mr. Justice M. A. Rashid and hold the petitions be accepted and cancellation of local certificate of the petitioner is without lawful authority and is of no legal effect and as the refusal of the Selection Committee to grant the petitioner a seat in one of the Engineering Institutions was based on the sole ground of cancellation of local certificate, therefore, I direct that the petitioner should be granted such seat now and that as a result respondent Abdul Hadi would be dismissed from the seat. ' I further hold that the petitioner is entitled to costs which should be paid by both the respondents in C. P. No, 54 of 1979. ' M. A. RASHID, J.-These two petitions are directed against the cancellation of Local Certificate issued in favour of the petitioner, and consequent refusal of the Selection Committee to grant him a seat in an engineering College/ University. 2. The petitioner claims to be a local resident of Killi Hurumdai, Tehsil and District Pishin. He claims that he owns a house in that village together with share in joint property of the ABADI DEH. On 14th September 1976, he applied to the District Magistrate for the grant of a local certificate. Accoiding.To the petitioner such certificate was issued in his favour after proper inquiry. After passing his Matriculation Examination he joined Science College, Quetta for FSC (Non-Medical Course). This course was completed by him successfully in the year 1978, securing 563 marks. The petitioner claims that during this period he was drawing a scholarship as a local of Pishin District. He further claims that such scholarship is granted to the students of a District after verification and inquiry by the District Magistrate and that such verification was done by District Magistrate, Pishin in case of petitioner.
---
## Page 5
3. The petitioner was a candidate for admission to an engineering seat. The requirements of eligibility of such candidates, among other things, is that they should produce local certificate as well as permanent residence certificate. The petitioner, already being in possession of a local certificate (Annexure `A'), applied for a permanent residence certificate to the District Magistrate which was granted to him on 23rd January 1979 (Annexure `B'). 4. According to the Government Policy regarding distribution of engineering seats Pishin District was allocated six seats. There were eight candidates and the petitioner was at the top of the list. The interviews for the grant for such seats were scheduled for 18th March 1979. When the petitioner appeared before the selection committee he was told that his local certificate had since been cancelled. He protested at such arbitrary and without notice cancellation, whereupon one of the members of the Selection Committee namely the Local D. M. L. A., telephoned the District Magistrate. But after such telephonic conversation the petitioner was advised to see the District Magistrate. He tried to contact him on the same day but the District Magistrate was out of station. He therefore rushed to the Court and filed Constitutional Petition No, 54 of 1979, challenging the cancellation of his local certificate. 5. The results of the interview for selection against engineering seats were scheduled to be announced on 21st March 1978. Somehow such announcement was delayed and this Court by its orders dated 28th March 1979, suspended the order of the District Magistrate dated 17th March 1979, cancelling the local certificate of the petitioner. But in spite of that petitioner was not granted any ,e at in any of the engineering institutions when the result was announced on 19th April 1979. Under the direction of the Court the petitioner filed a second Constitutional Petition No, 86 of 1979 to challenge the refusal to grant such seat. 6. In his parawise Comments the District Magistrate contends that the original local certificate was granted without proper verification/ inquiry. As regards the cancellation of this certificate the District Magistrate has the following to state :- "Messrs Syed Abdul Hadi son of Syed Abdul Majid resident of Killi Kakazai Tehsil Pishin and Muhammad Shoaib son of Haji Muhammad Zaman Khan, Achakzai, resident of Inayatullah Karez, Gulistan had approached the undersigned for cancellation of the Local Certificate of the petitioner. After thorough enquiries it transpired that Abdul Hakim, father of the petitioner, was not a resident of Killi Hurramzai, Tehsil Pishin by birth and was not a member of a Syed family of Hurramzai, which is a recognised tribe of Pishin District. From the Fard-e-Haqiat produced by the above-named applicants it is evident that Abdul Hakim was the son of one Ganga Ram caste Patel and was not a Muslim by origin. The Fard-e-Haqiat further shows that Abdul Hakim (father of the petitioner) owns immovable property in Mahal Khushkaba Yasinzai, Mauza Shaldara, Tappa Saddar Kansi, Tehsil Quetta. Copies attached." 7. The District Magistrate conceded that no show-cause notice was issued before the cancellation of local certificate. It is bowever contended that a show-cause notice, after such cancellation, was duly 'issued through the Assistant Commissioner, Pishin. The petitioner contends that no such notice has been received by him so far. 8. In his re-joinder to the counter-affidavit of the District Magistrate, the petitioner contends that Abdul Hakeem son of Ganga Ram is not his father but second husband of his mother who married him after the demise of petitioner's father named Syed Abdul Hakeem Shah. It is further contended that the said Syed Abdul Hakeem Shah was a genuine Syed of Hurramzai and a resident of Killi Hurramzai. It is further contended that the petitioner together with his elder brother Zahir Shah owns a house in the said village, where the real paternal uncle of the petitioner is permanently residing. 9. Another circumstance relied upon by the petitioner is that his two elder brothers, namely Zahir Shah and Anwar are also in possession of local certificates, issued by District Magistrate, Pishin;
---
## Page 6
that such certificates have not been cancelled; and that one of them, Zahir Shah, was admitted to the Bolan Medical College on the strength of such local certificate, where he is still pursuing his studies. 10. Respondent Abdul Hadi has taken a stand similar to the one taken by the District Magistrate. Respondent Muhammad Shoaib has not filed any Counter Affidavit nor has he contested the petition at the time of hearing, when Mr. Moquim Ansari, who had undertaken to file power on his behalf on a previous date stated that he had no instructions. 11. The cancellation of local certificate is admittedly without notice. The principles of natural justice have to be observed for the proceedings might result in consequences/affecting 'the person or property or other; rights of the parties concerned'. This is the principle laid down in Zakir Hussain's case (1). However the failure to give prior hearing is fatal to the proceedings only if there is a statutory provision calling for such observance. In cases where there is no statutory requirement of a prior hearing or a show cause, a subsequent hearing, say at the stage of appeal or revision, would cure the initial defect. This is the law laid down in Sind Employees Social Security Institution v. Dawood Cotton Mills Ltd. (2). On the basis of this principle Mr. Hanafi, the learned counsel for the respondent Abdul Hadi, contends that as a show-cause notice was issued to the petitioner subsequent to the cancellation of his local certificate T therefore the initial defect is cured. The District Magistrate only alleges that such notice was issued. He has nowhere stated that the show- cause notice was duly served upon the petitioner. The petitioner, on the other hand, vehemently denies if such notice was ever received by him. The District Magistrate has also not cared to file a copy of this notice so as to enable this Court to find out the contents and the scope of the notice. Nevertheless it is an admitted position that the petitioner has not been heard by the District Magistrate even after the cancellation of his local certificate. 12. Mr. Hanafi also contended that the ,petitioner claiming a show-cause has to show that he had some right which was sought to be deprived of. He relies upon Ansar Ahmad v. K. D. A. (3) and particularly the following observation: "I think there still must be some right which the petitioner is sought to be deprived of and before he could claim the benefit of showing cause". The learned counsel contends that the grant of local certificate did not confer any right, much less a vested right in favour of the petitioner to claim a show-cause notice. The term 'vested right' is not defined in any statute. However there are some judicial pronouncements which throw light on the term. In Mardan Industries v. Government of Pakistan (4) following observations are available : "A question may arise as to what is "vested right". The term "vested right" has not been defined by any statute. The learned counsel for the petitioners invited our attention to the discussion by A. S. Chaudhri, the learned author of Constitutional Rights and Limitations. Among other definitions at page 587 he defined the term thus :- "It is an immediate fixed right of present or future enjoyment, and rights are vested in contradistinction to being expectant or contingent. ' It must be a title to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another." ' In Nabi Ahmad v. Home Secretary (5) their Lordships of the Supreme Court, after examining dictionary meanings of word 'vested', observed :- "A close examination of these meanings and explanation reveals that a vested right is free from contingencies, but not in the sense that it is exerciseable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies, but are the peculiar characteristics of those rights." (1) PLD 1965 SC 90 (2) PLD 1977 SC 177 (3) PLD 1973 Kar. 302 (4) PLD 1965 Pesh. 47
---
## Page 7
(5) PLD 1969. C 599 13. These observations indicate at least one thing that a vested right, in contrast to a contingent right, is a right ready to take effect immediately, to be enjoyed in the present or future. A contingent right is by its nature uncertain and contingent upon the happening of a certain thing or event. A recipient of a local certificate becomes entitled to the enjoyment of certain rights immediately on the grant of such certificate. Most obvious of such rights in this province, is consideration for admission to Professional Educational Institutions. A cancellation of a certificate of this nature deprives the students of such rights. The notice is therefore all the more necessary in case a local certificate is desired to be cancelled. 14. In the absence of a hearing, either prior or subsequent to the cancellation of local certificate and in view of the fact that the cancellation of local certificate has adversely affected the vested right of the petitioner the, cancellation is without lawful authority and is of no legal effect. 15. Mr.…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.