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Petitioner: WAQAS AHMED BAIG VS Respondent: SAMARA MOINHonorable Justice Muhammad Reaz Akhtar Chaudhry and Muhammad Azam KhanMujahid Hussain Naqvi,Kh. Muhammad Maqbool War
2010 C L C 1749
2010 C L C 1749
[Supreme Court (AJ&K)]
Before Muhammad Reaz Akhtar Chaudhry, C. J. and Muhammad Azam Khan, J
Civil Appeal No.58 of 2009
WAQAS AHMED BAIG---Appellant
Versus
SAMARA MOIN and 9 others ---Respondents
(On appeal from the order of the High Court dated 6-3-2009 in Writ Petition No. 812 of 2008).
Civil Appeal No 59 of 2009
MARYAM ALI SHAHEEN and another---Appellants
Versus
SAMARA MOIN and 8 others---Respondents
(On appeal from the order of the High Court dated 6-3-2009 in Writ Petition No.812 of 2008)
Civil Appeals Nos. 58 and 59 of 2009, decided on 7th May, 2010.
(a) Azad Jammu and Kashmir State Subject Rules, 1980---
---- Rr.6 & 10---Azad Jammu and Kashmir Nomination Board Rules, R.20---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Writ petition---Maintainability---Educational institution---Respondents filed writ petition against the appellants in which domicile certificates and permanent resident certificates issued in favour of the appellants by District Magistrate, were challenged---High Court accepting writ petition cancelled domicile certificates and permanent resident certificates issued in favour of the appellants---Appellants in their appeal before the Supreme Court had challenged maintainability of writ petition on the ground that alternate remedy was available to the respondents under State Subject Rules, 1980 and under Azad Jammu and Kashmir Nomination Board Rules, but same having not been availed by the respondents, writ petition was not maintainable---Validity---No doubt the remedy under State Subject Rules, 1980 and R.20 of Azad Jammu and Kashmir Nomination Board Rules, was provided, but appeal before the Government or Azad Jammu and Kashmir Council could not be decided expeditiously, particularly in the circumstances when matter related to nomination in the Professional Colleges; where classes had already started; and time consumed in persuading the remedy by way of appeal before the Government or the Azad Jammu and Kashmir Council would affect the career of both the appellants and respondents---Only adequate and efficacious remedy was filing of a writ petition---Remedy by way of appeal before the Government and Azad Jammu and Kashmir Council was not an adequate and efficacious remedy and the respondents, had only adequate remedy by way of writ petition---Writ petition was maintainable, in circumstances.?
PLD 1997 SC (AJ&K)l; Iqbal Razzaq Butt v. Abdus Salam Butt and 6 others 1999 MLD 261; Attaullah Atta v. Ghulam Bashir Mughal and 5 others 1996 CLC 1551; Fozia Hussain Abbasi v. The Nomination Board through Chairman and 4 others 1995 CLC 1761; Maria Tazarrat and another v. Abid Hussain Dar and 5 others PLD 2006 SC(AJ&K) 10and Miss Rakshanda Aslam and another v. Nomination Board of Azad Jammu and Kashmir through its Secretary, Muzaffarabad and 2 others PLD 1986 SC (AJ&K) 1 ref.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----Ss.42 & 44---Appeal to Supreme Court---Cancellation of domicile certificates---Two appeals had arisen out of the judgment of High Court, whereby High Court had cancelled domicile certificates and permanent resident certificates issued in favour of the two appellants by District Magistrate---Nomination Board was directed to withdraw the nomination of appellants from the Medical Colleges and nominate candidates other than the appellants---Appellant despite being at serial No.1 in merit list, was not given admission on the ground that he was not permanent resident of district concerned---Father of said appellant was born in district concerned and he was brought up and educated in said district---Candidate obtained State subject and domicile certificate from said district; his grandfather was burried in said district and his family had landed property in that district---High Court despite the facts had cancelled domicile certificate and permanent resident certificate duly issued to the appellant by competent authority---On the basis of evidence produced by said appellant, it could safely be held that appellant was permanent resident of the concerned district; and State Subject and domicile certificate and permanent resident certificate, had been correctly issued in his favour after thorough inquiry---High Court, in circumstances, was not justified in declaring that appellant was not a permanent resident of the district ---Judgment of High Court to the extent of said appellant was set aside and writ petition to his extent was dismissed, however it had fully been proved that the other appellant who belonged to refugee family was permanently settled in district other than concerned district---Father of the said candidate was having a business in the concerned district and permanently settled there and intended to reside there in future, was not of any help to her case because intention of a person for choosing a place for permanent residence, had to be gathered from the facts---Person could settle anywhere for earning the livelihood or for business purpose, but that place could not be said to be his permanent place of residence; and on the basis of having business in any place the domicile certificate or permanent resident certificate could not be issued---Contention of counsel for said appellant that her maternal grandmother died and was buried in the concerned district, all her relatives from maternal side were buried there, which had shown her intention to settle permanently in the said district, had no substance---Held, for the purpose of domicile the domicile of the father had to be followed---Domicile could not be claimed on the basis of residence of maternal relatives---Appeal filed by said appellant, had no substance, her appeal was dismissed.?
Miss Rakshanda Aslam and another v. Nomination Board of Azad Jammu and Kashmir through its Secretary, Muzaffarabad and 2 others PLD 1986 SC (AJ&K) 1 and PLD 1997 SC (AJ&K) 1 ref.
Mujahid Hussain Naqvi for Appellant (in Civil Appeal No.58 of 2009) .
Kh. Muhammad Maqbool War for Respondents Nos. 2 and 3 (in Civil Appeal No.58 of 2009).
Asghar Ali Malik for Appellants. (in Civil Appeal No. 59 of 2009) .
Ch. Muhammad Ibrahim Zia for Respondents Nos. 2 and 3. (in Civil Appeal No. 59 of 2009).
Date of hearing: 16th April, 2009.
JUDGMENT
MUHAMMAD AZAM KHAN, J.---These two appeals, by leave of the Court, arise out of the judgment of Azad Jammu and Kashmir High Court dated 6-3-2009, whereby Writ Petition No.812 of 2008 has been accepted, Domicile Certificate and Permanent Resident Certificate (hereinafter referred to be PRC) issued in favour of the appellants by District Magistrate Muzaffarabad have been cancelled. The Nomination Board of Azad Jammu and Kashmir was directed to withdraw the nominations of present appellants from the medical colleges concerned and nominate the candidates out of the petitioners, therein, in plate of the present appellants. Since both the appeals arise out of the same judgment we propose to decide both the appeals through this single judgment.
2. The necessary facts for disposal of present appeals are that respondents Nos. 1 to 5 filed a writ petition in the Azad Jammu and Kashmir High Court stating, therein, that they are permanent residents of District Muzaffarabad. They have passed the F.Sc. pre-medical examination and their names appear at S. Nos.20, 21, 22, 23 and 27 in the list of candidates from Muzaffarabad District for nomination in M.B.,B.S. course for the year 2008-2009. Waqas Ahmed Baig and Maryam Ali Shaheen are at S. Nos. 1 and 2 of the list. It was alleged that grandfather of Maryam Ali Shaheen (Ghulam Muhammad) was resident of Dagor, Tehsil Sanmba, District Jammu prior to 1947. During the War of Liberation he migrated from District Jammu and settled in village Agwal, Tehsil and District Narowal of Pakistan. Her father was born in District Narowal. Admittedly Maryam Ali Shaheen, her father and grandfather are refugees from occupied Kashmir. She and her father with misrepresentation, fraudulent means and with the connivance of the official respondents secured domicile certificate and PRC from District Magistrate Muzaffarabad. On the basis of State Subject and domicile Certificate and PRC obtained from District Muzaffarabad, she applied for a seat reserved for the candidates of District Muzaffarabad for M.B.,B.S. course and the Nomination Board has illegally nominated her for the course. In respect of Waqas Ahmed Baig, it was alleged that he is a member of refugee family who was permanent resident of Balkot, Tehsil Uri, District Muzaffarabad. During the War of Liberation they migrated from Balkot and their grandfather permanently settled in village Sirjiwar, Tehsil Havali, District Poonch. The father of Waqas Ahmed Baig is serving in National Bank of Pakistan who at the time of applying for job in NBP filed a copy of National Identity Card, wherein, his permanent address is shown that of Sirjiwar, District Poonch. Waqas Ahmed Baig has obtained State Subject Certificate, domicile certificate and PRC from District Muzaffarabad with the fraudulent means and with the connivance of the official respondents and on the basis of these documents he applied for admission in M.B.B.S. course as a candidate of District Muzaffarbad. The Nomination Board nominated him against a seat reserved for District Muzaffarabad illegally. The Azad Jammu and Kashmir High Court accepted the writ petition, cancelled the domicile certificate and PRC issued in their favour and directed the Nomination Board of Azad Jammu Kashmir to withdraw their nominations from the concerned medical colleges. It was further directed that the candidates out of the petitioners, in view of merit position, shall be nominated against these seats.
3. Mr. Mujahid Hussain Naqvi, the learned counsel for appellant, Waqas Ahmed Baig, in Appeal No. 58 of 2009 has argued the following points:--
(a) That the writ petition in the High Court was not maintainable because alternate remedy by way of appeal is provided in the State Subject Rules of 1980. Under rule 6 an appeal from the order of District Magistrate is competent before the Government and under rule 10 an appeal can be filed before the Azad Jammu and Kashmir Council, therefore without first availing the remedy of appeal the writ petition was not maintainable. A remedy of appeal before the Government against the order of Nomination Board was available under rule 20 of the Azad Jammu and Kashmir Nomination Board Rules. The petitioners have not filed any appeal, therefore, the writ petition was not maintainable. The objections were filed on the domicile and State Subject Certificates of the appellant before the District Magistrate/Collector Muzaffarabad, which were rejected for want of proof. No appeal was filed against this order, therefore, the writ petition is not maintainable.
(b) That prior to partition appellants grandfather was a permanent resident of District Muzaffarabad. During the War of Liberation he migrated and settled in Muzaffarabad city. He all along remained in District Muzaffarabad. He died and buried in Muzaffarabad. He has no concerned whatsoever with District Poonch/Bagh;
(c) That father of the appellant was born in District Muzaffarabad. He was brought up and educated in District Muzaffarabad. He obtained State Subject and domicile certificates from District Muzaffarabad. Uncles of the appellants have also got State Subject certificates from Muzaffarabad. The appellant was born in Muzaffarabad, brought up and educated in Muzaffarabad. He has also obtained State Subject, domicile certificates and PRC from Muzaffarabad District;
(d) That father of the appellant has constructed a house in Muzaffarabad. The appellant and his father have firm intention of permanently residing in Muzaffarabad; and
(e) That the learned Chief Justice in the High Court has relied upon a copy of Khasragirdawari and a report of some Patwari relating to village Sirgiwar, whereby the father of the appellant has inherited some agricultural land from his mother. He claimed that law on the State Subject and domicile certificate is very much clear that domicile of the father is to be followed. The learned Chief Justice in the High Court at one has declared that for the purpose of domicile, the domicile of father has to be .seen, while on the other cancelled the domicile certificate and PRC on the ground that father of the appellant has inherited some property from his mother in village Sirjiwar, Tehsil Abasspur, District Bagh. He relied upon the President's Reference No. l of 1996 reported in PLD 1997 SC (AJ&K) l and asserted that there is no proof on record that grandfather of the Appellant ever settled in District Poonch/Bagh or ever procured 'the allotment of any evacuee property in District Poonch/Bagh or ever constructed a house over there and resided in District Poonch. The learned Chief Justice in the High Court has relied upon such evidence which was not admissible and on the basis of fabts relating to Maryam Ali Shaheen it was declared that the present appellant is domicile of District Narowal.
4. While controverting the arguments, Khawaja Muhammad Maqbool War, the learned counsel for the respondents Nos. 2 and 3, argued that grandfather of the appellant migrated from Uri and settled in District Poonch/Bagh. He is permanent resident of Tehsil Abbaspur., District Bagh. The father of the appellant has joined the service in National Bank of Pakistan and while joining the service he has filed a copy of National Identity Card wherein his permanent address is entered that of village Sirjiwar, Tehsil Havali, District Bagh, which negates the claim of the appellant that he along with his father is permanent resident of District Muzaffarabad. He contended that copy of Khasragirdawari and certification by the Revenue Officer (Patwari) produced by the petitioner in the High Court sufficiently proved that the father of the appellant has landed property in village Sirjiwar, Tehsil Havali, District Bagh. He contended that appellant is permanent resident of District Bagh. He has got State Subject and domicile certificates and PRC with fraudulent means and with the connivance of the official respondents which were rightly cancelled by the High Court. He contended that the alternate remedy was not an efficacious remedy, therefore, the only remedy available was of writ petition.
5. In rebuttal, Mr. Mujahid Hussain Naqvi, has argued that unattested Photostat copy of National Identity Card purported to be as of Mukhtar Ahmad Baig, father of the appellant, has been attached with the writ petition. In para 7 of the writ petition it was alleged that copy of NIC of Waqas Ahmed Baig is attached herewith, there is no reference of copy of National Identity Card of Mukhtar Ahmed Baig. This document cannot be read in evidence.
6. The learned counsel for Maryam Ali Shaheen in Appeal No. 59 of 2009, Mr. Asghar Ali Malik, firstly argued the point of maintainability of writ petition on similar grounds which were raised by Mr. Mujahid Hussain Naqvi that alternate remedy by way of appeal before the Government, the Azad Jammu and Kashmir- Council under State Subject Rules and before the Government under the Nomination Board Rules has not been availed, hence the writ petition is not competent. On the factual side he argued that it is admitted position that grandfather of the appellant was resident of Sanmba, District Jammu, who migrated during the War Liberation and settled in District Narowal of Pakistan. The father of the appellant was born in District Narowal, who shifted to Muzaffarabad in year 1984. He married at Muzaffarabad in year 1985. The appellant was born in Muzaffarabad. She was brought up and passed all the examinations up to F.Sc. from Muzaffarabad. Her father in 1984 permanently shifted from Narowal to Muzaffarabad and all along been living in Muzaffarabad as a permanent resident. Her father along with the whole family has adopted the Muzaffarabad as his permanent place of residence. The maternal grandmother of appellant and her maternal relatives are buried in Muzaffarabad. The appellant has fulfilled all the requirements of rules on the basis of which domicile certificate, State Subject Certificate and PRC were issued after thorough inquiry. He vehemently contended that the learned Chief Justice in High Court has relied upon the notification dated 24-8-1972 for the purpose of definition of refugees. This notification has been issued for the purpose of District-wise quota in respect of services. It has no nexus with the quota reserved for admission in professional colleges. He also asserted that the judgment is against rule 7 of the State Subject Rules, 1980.
7. While controverting the arguments, Choudhry Muhammad Ibrahim Zia, the learned counsel for respondents Nos. 2 and 3, argued that it is admitted by the appellant that she belongs to a "refugee family who was resident of Sanmba, District-Jammu. Her grandfather migrated from Jammu and settled in District Narowal of Pakistan. He contended that the status of a refugee remains that of a refugee. If a refugee from Indian Occupied Kashmir comes and settles anywhere in Azad Kashmir, he can apply and claim admission against the seats reserved for refugees quota and cannot apply and claim admission against the seat reserved for any District of Azad Kashmir. In the case of appellant he argued that the whole family of the appellant settled in District Narowal of Pakistan. Her father, Muhammad Ali Shaheen, obtained a State Subject Certificate from District Magistrate Muzaffarabad in year 1985. He has shown his permanent address of District Sialkot. Had he been shifted to Muzaffarabad permanently he should have shown his permanent address as that of Muzaffarabad city. Her uncle, Muhammad Javaid Khalid, is permanent resident of Sialkot and settled there, who obtained State Subject Certificate where he has shown his permanent address that of Sialkot and he secured the job against the seat reserved for refugees settled in Pakistan. His other uncle, Muhammad Asif, has also secured the job as Lecturer against the quota reserved for the refugees settled in Pakistan, who is domiciled of District Narowal. The grandfather and grandmother of the appellant are buried in District Narowal. They have landed property which was allotted to her grandfather as refugees in Narowal. From this record it is sufficiently proved that the appellant and his entire family are permanent residents of District Narowal Pakistan and she has obtained the State Subject and domicile certificates and PRC from District Muzaffarabad with misrepresentation, fraudulent means and in connivance with the official respondents. He further argued that in para 4 of the writ petition it was alleged that Maryam Ali Shaheen is permanent resident of District Narowal. In written statement it was admitted as correct. One cannot argue the case against the pleadings. The appellant has based her claim on the ground that her maternal grandmother is permanent resident of Muzaffarabad, she died and is buried in Muzaffarabad and all of her maternal relatives are buried in Muzaffarabad. For determining the domicile of one, the domicile of his father has to be followed as decided by the Supreme Court in President's Reference No. 1 of 1997 reported in PLD 1997 SC(AJ&K)1. The appellant claims the State Subject and domicile certificates and PRC on the basis of domicile of her grandmother. While replying the argument that alternate remedy has not been availed by the petitioners in the High Court, therefore, the writ petition was not maintainable, he contended that the Supreme Court of Azad Jammu and Kashmir in a number of cases has held that alternate remedy of appeal in matters relating to State Subject/domicile particularly in the cases where matter relates to admission in professional colleges is not an efficacious remedy and the direct writ petition is competent. He relied upon the cases reported as Iqbal Razzaq Butt v. Abdus Salam Butt and 6 others 1999 MLD 261 and Attaullah Atta v. Ghulam Bashir Mughal and 5 others 1996 CLC 1551. He further argued that the learned Chief Justice in High Court has correctly relied upon the notification dated 24-8-1972. Elaborating the point he has argued that initially the District quota was fixed only for service purpose and a notification in this regard was issued on 12-3-1972. Later on a notification was issued on 28-10-1996, whereby quota was fixed not only in services, but was also fixed for admission in professional colleges in Pakistan, the definition of refugee adopted through the said notification has correctly been applied. He placed reliance upon the reported cases titled Fozia Hussain Abbasi v. The Nomination Board through Chairman and 4 others 1995 CLC 1761. Maria Tazarrat and another v. Abid Hussain Dar and 5 others PLD 2006 SC(AJ&K) 10 and Miss Rakshanda Aslam and another v. Nomination Board of Azad Jammu and Kashmir through its Secretary, Muzaffarabad and 2 others PLD 1986 SC (AJ&K) 1.
8. The learned counsel for the appellants in both the appeals have called in question the maintainability of writ petition on the ground that alternate remedy by way of appeal before the Government and the Azad Jammu and Kashmir Council was available and without availing the same the writ petition was not competent. Likewise alternate remedy against the order of Nomination Board was available by way of appeal before the Government and without availing the same writ petition was not competent. No doubt the remedy under the State Subject Act/Rules 1980 is provided under rules 6 and 10. Similarly, remedy is also provided against the nomination of candidates in professional colleges under the Nomination Board Rules, but it is our common observation that the appeal before the Government or AJ&K Council cannot be decided expeditiously particularly in the circumstances when matter relates to nomination in professional colleges where classes have already been started and time consumed in persuading the remedy by way of appeal before the Government or the AJ&K Council will affect the career of both the appellants and private respondents, therefore, the only adequate and efficacious remedy is filing of a writ petition. We are fortified in our above view by the judgment of-this Court delivered in the case titled Iqbal Razzaq Butt v. Abdus Salam Butt and 6 others 1999 MLD 261 wherein, it has been held as under:--
"9. No doubt that the State Subject Certificate issued by the concerned authority can be assailed before the same authority for its cancellation and the relevant Act has provided an appeal against the order not only before the Government but Council can also be moved, but the question is as to whether these remedies are adequate and efficacious in nature. It has been held more than once by this Court that the remedy provided by way of appeal under State Subject Act is not an adequate remedy. Similarly the remedy before the District Magistrate as well as the Council is also neither adequate nor efficacious. It is in our common experience that these appeals are not disposed of for years together. In such situation the constitutional jurisdiction of the High Court can be attracted".
In another case titled Attaullah Atta v. Ghulam Bashir Mughal and 5 others 1996 CLC 1551, this Court observed as under:--
"4. In para. 7 of the writ petition it was explained by respondent that the remedies provided under State Subject Rules were not efficacious in the circumstances of the case because considerable time would be consumed in obtaining the decision from the Council or the Government with the result that the recommendations of the Public Service Commission would become "redundant". It was also explained that, apart from challenging the domicile certificate, the recommendation of the Public Service Commission had also been challenged which was only within the competence of the High Court. The High Court accepted the explanation by holding that it was common experience that the grievances of those who availed the remedies under reference were not redressed expeditiously???"
Therefore, we hold that the remedy by way of appeal before the Government and the AJ&K Council was not an adequate and efficacious remedy and the respondents, herein, had only adequate remedy by way of writ petition, therefore, the argument has no force and is repelled.
9. Firstly we deal with the case of Waqas Ahmed Baig. It is an admitted fact that the grandfather of Waqas Ahmed Baig was a permanent resident of Uri in Indian Occupied Kashmir, a part of District Muzaffarabad and after the War of Liberation he migrated from Uri, as such, it is admitted that he is a refugee and a State Subject. The only question remains whether after the migration from Uri he settled in District Muzaffarabad or in Tehsil Haveli of District Poonch at that time,…
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