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Petitioner: Miss RAKHSHANDA ASLAM VS Respondent: NOMINATION BOARD of AZAD JAMMU AND KASHMIR and 2 others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Sardar Muhammad Ashraf Khan, Abdul Majeed Malik, Qazi Abdul Ghafoor Title:Miss RAKHSHANDA ASLAM vs NOMINATION BOARD of AZAD JAMMU AND
KASHMIR and 2 others Case No.: Writ Petitions Nos.35 and 34 of 1984 Writ Petition No.34 of 1984 Date of Judgment:1984-12-08 Reported As: 1985 CLC 1142 Result: Appeal dismissed Judgment ORDER ' SARDAR MUHAMMAD ASHRAF KHAN, J.--Since both the writ petitions entitled above arise out of the same order of the Azad Jammu and Kashmir Council, and identical questions of law are involved for the decision thereon, we proposed to dispose them of by this single order. 2. Briefly stated the facts leading to the filing of the above writ petitions are that in the various Professional and Educational Institutions of Higher Studies in Pakistan certain number of seats are reserved for the State Subjects of Jammu and Kashmir the allocation against which is made by the Azad Jammu and Kashmir Government through its Nomination Board on the basis of merits from amongst the candidates seeking nomination against such reserved seats. The Azad Kashmir Government has also made distribution of such reserved seats amongst all its four districts and the refugees from Jammu and Kashmir State settled in Pakistan and makes nomination against the quota fixed for each District of Azad Kashmir from amongst the permanent residents of that District on the basis of merits after calling applications for nomination against such seats. A candidate for the nomination against one of the seats reseved for his District in any Educational Institution is required to submit certain documents alongwith his application including the certificate of domicile granted by the District Magistrate concerned which is considered as a proof of his being the permanent resident of the District whose District Magistrate has granted the same. 3. Miss Rukhshanda Aslam and Miss Shamim Ali Mallick, petitioners and Miss Ghousia Bashir, respondent in the above writ petitions submitted their applications to the Nomination Board for the nomination against the seats reserved for the girls of Muzaffarabad District in the Medical Colleges of Pakistan for the M.B., B.S. Course for the year 1983-84. Ghousia Bashir respondent's application
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was unaccompanied by the Domicile Certificate but she applied for the grant of the same to the District Magistrate, Muzaffarabad which was rejected by the said Magistrate vide his order dated 8-11-1983 (Copy Annexure 'E') on the ground of her being the permanent resident of Mirpur District and not that of District Muzaffarabad. 4. Aggrieved by the above order of the District Magistrate, she filed an appeal against it to the Azad Jammu and Kashmir Council which accepted the same, set aside the impugned order of the District Magistrate and directed him to issue the Domicile Certificate to her from the District of Muzaffarabad vide his order dated 20-12-1983 (Annexure 'C') with the Writ Petition No.35 of 1984. As a result of the above order of the Council, the respondent was placed at S.No.3 while Miss Rukhshanda Aslam and Miss Shamim All Mallick, petitioner were shown at S.Nos.6 and 7, respectively on the merits list prepared by the Nomination Board pertaining to the girls candidates for the nomination to the Medical Colleges of Pakistan against the quota reserved for the District of Muzaffarabad. 5. Feeling aggrieved by the above order of the Council, directing the District Magistrate to issue Domicile Certificate to Miss Ghousia Bashir, respondent in the above writ petition, Miss Rukhshanda Aslam, petitioner filed the present writ petition, challenging the validity of the said order. Her writ petition was dismissed by the Single Judge of this Court vide his judgment dated 7-5-1984 but on an appeal by the said petitioner the above judgment was set aside by the Supreme Court and the case was remanded back for fresh decision in the light of observation made in its judgment after hearing the arguments of the learned counsel for the parties. 6. While the writ petition of Miss Rukhshanda Aslam was pending disposal after the remand of the case by the Supreme Court, Miss Shamim All Mallick also challenged the validity of the order of the Council, directing the District Magistrate, Muzaffarabad to issue domicile certificate in favour of Miss Ghousia Bashir, on almost similar grounds as were made the basis of attack in the earlier writ petition mentioned above. 7. We have heard the learned counsel for the parties and have also perused the record of the case. In both the above writ petitions, the validity and legality of the order of the Council directing the District Magistrate, Muzaffarabad to issue certificate of domicile to Miss Ghousia Bashir, respondent has been challenged mainly on the ground that the said respondent being a permanent resident of District Mirpur was not legally entitled to obtain domicile certificate form Muzaffarabad District. 8. In order to appreciate the above contention it appears pertinent to reproduce the relevant provisions of law and the Rules made thereunder governing the issuance of domicile certificates, which are respectively section 5 of the Azad Jammu and Kashmir State Subject Act, 1980 (hereinafter referred as the Act) and Rule 7 of the Azad Jammu and Kashmir State Subject Rules (hereinafter referred to as the Rules) which read as under:- "5. Certificate of domicile.--The Council or any other authority specified by the Council may, upon an application made to it is the prescribed manner containing the prescribed particulars, grant an 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." "Rule- 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
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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 'X' (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." 9. A perusal of the above provisions of the law and the Rules would show that a person is entitled to obtain a certificate of domicile from any District Magistrate of Azad Kashmir if he has been continuously A residing in Azad Jammu and Kashmir for a period of five years and also intends to live there permanently and the District Magistrate is legally bound to grant him the said certificate on his being satisfied that such an applicant fulfils the above conditions and that the facts stated in his application are correct. A District Magistrate has no power to refuse the grant of domicile certificate to an applicant for the same who although fulfils the afore-mentioned conditions but does not reside permanently in his District or at least has not continuously resided there for a period not less than five years for the simple reason that section 5 of the Act read with rule 7 of the Rules made thereunder does not lay down any such condition as pre-requisite for the grant of the domicile certificate. When the question of eligibility to the grant of domicile certificate from District Muzaffarabad to Miss Ghousia Bashir respondent is considered and examined in the light of the above legal position, we are left with no alternative but to hold that she, as a right, was entitled to obtain domicile certificate from the District Magistrate, Muzaffarabad on her applying for grant of the same to her and the District Magistrate, was under legal obligation to issue the same in her favour and by rejecting her application, he had acted unlawfully by failing to do an act which the relevant law enjoined upon him to do. In this view of the matter, it cannot be said that the impugned order of the Azad.Jammu and Kashmir Council either suffered from lack of authority or was illegal and without jurisdiction on the ground that the said respondent was not a permanent resident of Mirpur District. As stated earlier, it was not necessary for her to be a permanent resident of Muzaffarabad District for the purpose of obtaining domicile certificate from the District Magistrate of Muzaffarabad and all that was required from her was to satisfy the District Magistrate that she had been continuously residing in Azad Kashmir for the last five years and intended to live permanently there. Both these conditions were fully satisfied in her case as it is not even disputed by the petitioners in the above writ petitions that she had not lived in Azad Kashmir for a period not less than five years previous to her making the application to the District Magistrate, Muzaffarabad for the grant of domicile certificate or that she does not intends to live permanently in Azad Kashmir and have only taken exception to the impugned order on the ground of her being a permanent resident of District Mirpur where her father resides permanently and owns ancestral property. 10. In view of what has been stated above, we are of the opinion that the domicile certificate granted under the Act is a certificate of domicile for Azad Kashmir and not of its any part or District and the same is to be granted to any person by any District Magistrate of the Azad Kashmir on his being satisfied that such a person has been residing in the territory of Azad Kashmir continuously for the period of last five years with the intention to permanently reside in Azad Jammu and Kashmir and that the other particulars furnished by him in his application are correct. 11. The Division Bench of this Court in 1983 CLC 626 has also come to the conclusion that the domicile certificate granted under the Act is a domicile certificate of Azad Jammu and Kashmir and not of any particular District or place in Azad Kashmir. In the above case it was held that:- "it is obvious from the provisions contained in section 5 read with rule 7, domicile certificate visualized in the said Act and the Rules, is a Domicile Certificate of Azad Jammu and Kashmir and
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not of a particular District or place of it and that the perusal of the prescribed Form-P contained in Appendix-Ill on which the applications for obtaining domicile certificate is to be made also shows that an applicant has to apply for obtaining domicile certificate of Azad Jammu and Kashmir and not of a particular place of it." 12. However, in the said case the Division Bench was of the further view:- "That the place mentioned against the column 'domicile Ki Jaga' in Form P-1 in which the certificate of domicile is issued by the District Magistrate would indicate the place where the certificate holder is permanently settled in the Azad Jammu and Kashmir at the time of issuing the domicile certificate and it cannot be said that would merely indicate the place of resident of the person holding the certificate, even if it is temporary place of residence and not his permanent board or home." 13. The learned Single Judge who previously decided the writ petition entitled 'Miss Rukhshanda Aslam v. Nomination Board' sought support from the above cited decision of the Division Bench for holding that the grantee of the domicile certificate under the Act is a domicile of Azad Jammu and Kashmir and not of any particular part or District of it by referring to only the first mentioned view of the Division Bench namely that the domicile certificate visualized under the Act is a domicile certificate of the Azad Jammu and Kashmir and not of a particular District or place but did not make any reference to the view of the said Division Bench to the effect that the place mentioned against the words 'domicile Ki Jaga' in form P-1 would indicate the permanent place of residence of the holder of the domicile certificate and on account of this omission the Supreme Court on appeal against the said judgment of the learned Single Judge has remanded the case back observing that the Single Judge has misconstrued the decision of the Division Bench and has directed that the said ruling of the Division Bench may be considered by the larger bench if the Single Judge holds the view different from that of the Division Bench. 14. We have thoroughly gone through the judgment of the Division Bench, reported as 1983 CLC 626 with a view to examining its correctness or otherwise. In the said judgment, the learned Judges comprising Division Bench have given two findings. Firstly, that the domicile cetificate visualized in the Act and Rules made thereunder is a domicile certificate of the Azad Jammu and Kashmir and not of any particular District or place and its holder is a domicile of Azad Jammu and Kashmir and secondly, that the place mentioned against the column pertaining to the 'place of domicile' in Form-P-1 would indicates the place where the certificate holder is permanently settled in the Azad Jammu and Kashmir at the time of issuance of the domicile certificate and this entry can be validly relied upon by the Nomination Board or any other authority while deciding the question as to the District in which the certificate holder is permanently settled. 15. In the circumstances of the present case, we are of the view, that the permanent place of resident of Miss Ghousia Bashir, respondent is not very much relevant for the decision of the writ petitions for two-fold reasons. Firstly, the determination of permanent resident of the applicant for the grant of domicile certificate becomes unnecessary in view of our conclusion that neither he is required to be a permanent resident of the District to whose District Magistrate he applies for the grant of the same nor his continuous residence in the said District for a period of five years prior to his making application is needed to make him eligible for obtaining domicile certificate under the Act. Secondly, the validity of the order of the Council whereby the District Magistrate, Muzaffarabad has been directed to issue domicile certificate in favour of Miss Ghousia Bashir, respondent has been made the subject of challenge in the writ petitions and not the certificate, if any, issued by the District Magistrate in persuance of the impugned order of the Council. As a matter of fact, in none of the above writ petitions such a certificate has been mentioned to have been issued by the District Magistrate nor any copy of the same has been filed alongwith it and therefore, when there is nothing on the record to show that whether any domicile certificate by the District Magistrate of
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Muzaffarabad has been issued in favour of the said respondent and if issued, which place of her domicile has been shown in its (Form P-1) relevant column, the question of expressing any opinion as to whether the place of domicile shown in the domicile certificate granted by the District Magistrate in Form P-1 in favour of Miss Ghousia Bashir, respondent is her place of permanent resident or not, does not arise and expression of any such opinion becomes unnecessary. Probably for this reason the lerned Single Judge who decided the writ petition of Miss Rukhshanda Aslam, petitioner did not refer to the view of the Division Bench held in its judgment mentioned above that the place mentioned against the words 'domicile ki jaga' indicate the place where the certificate holder is permanently settled in the Azad Jammu and Kashmir at the time of issuance of the Domicile Certificate. 16. However, in compliance with the directions of the Supreme Court, given in the remand order that the above ruling of the Division Bench should be kept in view and its correctness or otherwise be examined by a larger bench while deciding the writ petition, we have considered the above view of the Division Bench in the light of the relevant law but find ourselves, with due deference to the opinion of the Division Bench, unable to agree with it. 17. In our view, the place mentioned against the column pertaining to the 'place of domicile' in the printed Form P-1, does not denote the place of permanent residence of the grantee of the domicile certificate but it only indicate the place of her ordinary residence in Azad Jammu and Kashmir at the time of the issuance of the said certificate. It appears pertinent here to reproduce the Form-P (Appendix-Ill) which is the prescribed form for making an application for the grant of domicile certificate and Form P-1 (Appendix-IV) in which the domicile certificate is granted by the District Magistrate:- [URDU TEXT] [URDU TEXT] 18. The perusal of Form-P would show that the applicant for the grant of domicile certificate is required to state the place, Tehsil and District of the Azad Jammu and Kashmir where he/she arrived from his/her previous residence alongwith the date of his/her arrival there. In adition to this, she/he is also required to give his/her other particulars such as married/single/widow, name of wife or husband, names of childrens and their ages, trade or occupation and the marks of identification. The domicile certificate granted by the District Magistrate in Form P-1 consists of two parts. In the first part, the District Magistrate grants the certificate of domicile to the applicant after certifying that he fulfils all the conditions which are laid down under section 5 of the Act for the Grant of certificate of domicile and that he is satisfied with regard to the particulars of the grantee of the certificate given in the certificate of domicile. 19. The particulars required to be given partaining to the grantee of the domicile certificate in the domicile certificate are exactly the same which the applicant for the grant of the same is required to mention in his application. Under section 5 of the Act, the District Magistrate may grant certificate of domicile to an applicant, if he is satisfied that the particulars given by him in his application are correct and he has been continuously living in the Azad Jammu and Kashmir for a period of not less than five years with the intention to live there permanently. It is in accordance with this provision of law that a District Magistrate gives the particulars of the holder of the domicile certificate in the second part of the said certificate in Form P-1 after being satisfied that the particulars given by the applicant in his application for the grant of domicile certificate are correct. So, the District Magistrate would be under legal obligation to mention the permanent place of residence of the grantee of the domicile certificate in Form P-1 against the expression to the effect 'place of domicile' only if the applicant for the said certificate is required to state his place of, permenent residence in his application (printed Form-P) for the grant of certificate of domicile but the law under which the domicile certificate is granted does not require such an application to be
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a permanent resident of Azad Kashmir to be eligible for the grant of the domicile certificate and, as stated earlier, the only condition he is to fulfill for the purpose of securing domicile certificate is that he should have been continuously residing for a period not less than five years in the Azad Kashmir with the intention to live there permanently. Thus, when the applicant for the grant of domicile certificate needs not to be the permanent resident of the Azad Jammu and Kashmir at the time of making his application, the question of his mentioning permanent residence against the column to the effect "place of domicile" in his application given in Form P does not arise and consequently the question of District Magistrate's mentining the place of his permentant residence against the similar expression in Form P-1 also becomes out of question. 20. Moreover, under section 5 of the Act, the District Magistrate is not called upon to make any inquiry as to the permanent residence of the person making application to him for the grant of Domicile Certificate and he may grant him the certificate, if he is satisfied that such person had been living in the Azad Jammu and Kashmir for a period of not less than five years and intends to live in Azad Kashmir permanently and thus how would it be possible for the District Magistrate to mention the place of permanent residence of the person to whom he grants the domicile certificate under the said Act when he does not embark upon any such enquiry as to the permenant residence of the applicant for the grant of domicile certificate. 21. The reading of Form-P and P-1 under discussion combindly makes the meaning of the expression 'place of domicile' appearing in column-IV of Form P-1. The person applying for the grant of domicile certificate, to the District Magistrate is to mention the place of his arrival in any Tehsil and District of the Azad Jammu and Kashmir and in our view, it is the place so mentioned by him in his application that the District Magistrate is required to state against the expression 'place of domicile' in the certificate of domicile provided, of course, he is satisfied that the statement of the applicant to that effect is correct. To make our above view clear, we would like to give an example. An applicant for the grant of the domicile certificate stating Chacksawari, Tehsil and District Mirpur as his place of arrival in Azad Kashmir in his application in Form-P, the same place and District would be shown against the column to the effect 'place of domicile' in Form P-1 by the District Magistrate on being satisfied about the correctness of the statement of the said applicant in that respect. 22. There is yet another reason on account of which we are incline to he .d the view that the expression 'place of domicile' under discussior do not mean the place of permanent residence. The words 'domicile and 'permanent residence' are not synonymous and their dictionar meanings are quite different. The domicile and permanent residence ar two different and separate concept specially, when they are considered against the context of the scheme of the Act and the Rules unde which the domicile certificate is granted. 23. As held earlier, in view of the provisions of section 5 of the Act and rule 7 of the Rules, certificate of domicile is a certificate of domicile of Azad Jammu and Kashmir and its grantee need not to be a permanent resident of the Azad Kashmir at the time of applying for the same, when the law does not make compulsory for the person seeking domicile certificate to be a permanent resident of Azad Kashmir at the time of his applying for the same, the contention that the place mentioned against the words 'place of domicile' in the Form P-1 donote place of permanent residence of the holder of the certificate of domicile does not appear to be impressive and wieghty and the expression 'place of domicile' cannot be interpreted to mean the place of permanent residence. The word domicile is to be construed in accordance with its primary and ordinary meaning which by no stretch of imagination, can be inter preted so mean permanent residence. A permanent residence of Azad Kashmir is a domicile of Azad Kashmir but the domicile of Azad Kashmir as contemplated by the Act is not necessarily the permanent resident of Azad Kashmir.
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24. For the reasons stated above, we are of the considered view that the expression 'place of domicile' appearing in Form P-1 (Appendix-IV) does not mean the place of permanent residence and the place mentioned against the aforesaid expression does not denote the place of permanent residence of the grantee of the domicile certificate but his ordinary place of residence at the time of his making application for the said certificate and found to be correct to the satisfaction of the District Magistrate granting the certificate of domicile to him. 25. The learned Single Judge who previously decided the writ petition of Miss Rukhshanda Aslam, petitioner was also of the view, that the said writ petition was not maintainable also on the ground that the decision of the same depended upon the determination of the question as to whether or not Miss Ghousia Bashir,…
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