P L D 1980 Quetta 29 (PLP)

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 pro6eedings 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 P L D 1965 S C

90. 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, 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 P L D 1977 Quetta 22, 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 of 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 notice and the District Magistrate, Pishin has no jurisdiction to do so in absence of following the procedure laid down under the law. I, therefore, agree 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 cost, 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. According 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 anal that such verification was done by District Magistrate, Pishin in case of petitioner.

3. The petitioner was a candidate for admission to an engineering seat. The requirements of eligibility of such candidates, among other things, are 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 seat 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 Kbushkaba 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 however 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 Gangs 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 Zabir Shah and Anwar are also in possession of local certificates, issued by District Magistrate, Pishin; 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 (P L D 1965 S C 90). 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. (P L D 1977 S C 177). 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 band, 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. (P L D 1973 Kar. 302) 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 (a) 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 (PLD 1969 SC 599) 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."

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. 1n 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. Hanafi contends that in the facts of the present case the petitioner is otherwise not entitled to a local certificate, and while relying upon Rounaq Ali's case P L D 1973 S C 236, the learned counsel contends that it would meet the ends of justice if the Writ prayed for is refused in the present case. This argument is based on the contention that the petitioner is the son of Abdul Hakeem son of Ganga Ram, who being a convert could not be a Syed ; and that as the said Abdul Hakim does- not belong to a recognised tribe of Pishin District therefore his son, the petitioner, was not entitled to a local certificate. In order to dispose of this argument it would be necessary to examine the evidence produced in support of the contention both of District Magistrate and respondent Abdul Hadi, that the petitioner was not entitled to a local certificate. The first document relied upon by the District Magistrate is a certificate issued by District Food Controller, Quatta stating that Zahir Shah son of Abdul Hakeem is an authorised Ration Dealer of Sirki Road, Quetta. Zahir Shah is the eldest brother of petitioner Nadir Shah, Nothing turns on this document so far as the question in dispute is concerned. Annexure ('G') is a photostat copy of Mutation through which Abdul Hakeem son of Ganga Ram Patel was transferred evacuee property in Mahal Khushkiba Lasinzai, Mouza Shaldara Tappa Saddar Kansi, Tehsil Quetta. Annexures 'H', 'J', 'K' and 'L' are Mutations through which Abdul Hakeem son of Ganga Ram Patel has aliented a part of this property in favour of various persons. Annexure 'H' relates to sale of some property in favour of Zahir Shah son of Abdul Hakeem Caste Muslim for the Rs. 80,000. (Eighty thousand). Annexure 'I' is a similar mutation of sale transaction in favour of Anwar Shah son of Abdul Hakeem, Caste Muslim, a third brother of petitioner Nadir Shah. These documents neither indicate the place of origin of petitioner or his brothers, nor determine their parentage. As regards their parentage it may also be noted that the endorsement at the back of these two mutations styled, the seller as Abdul Hakeem Patel but the buyers, Zahir Shah and Anwar Shah respectively, are styled as sons of Abdul Hakeen caste Muslim and not Abdul Hakeem Patel. If Abdul Hakeem shown as father of the two buyers, is the same persons as the seller there should have been no difficulty in designating him as Abdul Hakeem Patel. Documents Annexures 'M' and 'N' are copies of lists of legal heirs of Abdul Hakeem Patel in two different suits filed in the Court of Civil Judge, Quetta in 1976 and 1977. The there brothers, including the petitioner, are shown as legal heirs of Abdul Hakeem Patel. These are the only documents, which indicate that Abdul Hakeem Patel bad claimed these three brothers as his legal heirs and sons respectively. But in the absence of a proper explanation from the petitioner it would not be proper to accept these documents on their face value, as regards parentage of the petitioner.

16. On the other hand the petitioner has filed a copy of Shajra-nasab of Mouza Hurrumzai, Tappa Gangulzai, Tehsil Pishin. According to this Shajra-nasab one Abdul Hakeem Shah is a man from this Mouza and his five lineal ancestors are indicated therein. Annexure 'B' to the rejoinder of the petitioner is a copy of Farde Haqiat from jamabandi of Mouza Hurrumzai Tappa Gangulzai for the year 1971. It shows Khasra No. 215 Khewat No. 41 and Khatooni No. !4 as Abadi Deh. Annexure 'C' to the rejoinder is a map of the house owned by Zahir Shah in Mouza Hurrumzai Tappa Gangulzai. This house is situated in a part of the larger Khasra No.

215. From these documents the petitioner has tried to show that his roots are in Hurrumzai. While the last two items do indicate a connection of the petitioner with Hurrumzai, a connection is yet to be established between the petitioner and Abdul Hakeem Shah, shown in the Shajra Nasab.

17. In effect the determination of the question of localship of the petitioner is dependent upon the determination of his parentage. If he is the son of Abdul Hakeem son of Ganga Ram, then he is not Syed and therefore not entitled to the local certificate. This is because he obtained his local certificate, Annexure 'A', on the basis of being a Syed. On the other hand, as claimed by him, if the petitioner is the son of Syed Abdul Hakeem Shah, the person indicated, in the Shajra Nasab, then he is so entitled. The determination of such a complicated question would require an elaborate inquiry, which is beyond the scope of our constitutional jurisdiction. Even otherwise an attempt to decide the delicate question of paternity, on the basis of inadequate and inconclusive evidence, as has been placed before us, is a perilous task. As a very complicated question is involved therefore the proposition laid down by the Supreme Court in M. Y. Khan v. M. M. Aslam 1974 S C M R 196, would not be available to the petitioner to press this Court to collect evidence for the determination of the parentage of the petitioner.

18. Mr. Yousuf, the learned A. A.-G., while adopting the stand taken by Mr. Hanfi alternately contended that in view of the fact that the origin of the petitioner is not free from doubt therefore the matter may be remanded to District Magistrate for an enquiry. This submission would have been given due weight if the District Magistrate had refused to grant the initial local certificate; because in that case there could have been sufficient material calling for an inquiry in that behalf and the District Magistrate could be directed accordingly. But in this petition we are faced with the situation where the local certificate was duly issued in favour of the petitioner but was cancelled without notice or any inquiry. In the circumstances of the present case alternate prayer of the A. A.-G. cannot be entertained.

19. For the foregoing reasons I would hold that the cancellation of local certificate of petitioner is without lawful authority and is of no legal effect. As refusal of the Selection Committee to grant him a seat in one of the Engineering Institutions was based on the sole ground of the cancellation of his local certificate, we .would further direct that the petitioner should be granted such seat now. The result is that respondent Abdul Hadi would be displaced from his seat.

20. There will be no orders as to costs. ABDUL QADEER CHAUDHRY, J. -I have had the advantage of reading in advance the judgment proposed to be announced by my learned brother. I have my own view in the matter and with due respect to the view of my learned brother, I record my own opinion. There is difference between void and void able orders. Even if a person has not been heard by a Tribunal, it does not mean 'that the order is void. However it is voidable at the instance of the person who is aggrieved by such order. Moreover the principle of natural justice does not demand that person must be heard by a Tribunal simply because that person has produced an order in his favour. Before application of the principle of natural justice that a person should not be condemned unheard, the person seeking the application of this principle must show that he has a vested right or some right has been invested upon him. If there was no right available to such person under any law, custom or usage ; then he is no body to challeng any order which has rescinded the earlier order. If a person had obtained an order favourable to him through misrepresentation, fraud, then the subsequent order made by a competent authority on the basis of same enquiry and material cannot be challenged on the ground that the principle of natural justice has been violated. If the first order has been passed without observing the formalities provided under any law, or no right had accrued to that person, then such an order amounts to an order without Jurisdiction. Therefore if such an order is set aside by some' subsequent order then no notice of show cause is not necessary before setting aside such an order, because, an order without jurisdiction is non-existent in the eye of law. Therefore before challenging the order of an authority that the first order has been set aside without any notice to him, he must show that he had a vested right to obtain the first order. It has been observed in Ansar Ahmad v. Karachi Development ,Authority (P L D 1973 Kar. 302) 1 think there still must be some right which the petitioner is sought to he deprived of before be could claim the benefit of showing cause". In Amanat Ali v. Syed Panah Ali Shah and another ((2) P L D 1973 Lah. 332) it has been observed that the question of issuing show-cause notice to the petitioner in the circumstances, hereinbefore mentioned, did not arise, inasmuch as, the resolution of the Committee being itself void had no status in the eye of law and could be ignored by any competent authority in that respect. 1n Collector, Sahiwal and others v. Muhammad Akhtar ((3) 1971 S C M R 681), it has been observed that: "The Courts in Pakistan have taken the view that where the giving of a notice is provided for by the statute itself, then the failure to give such a notice is fatal and cannot be cured. But where there is no specific statutory provision and reliance is only placed on the principles of natural justice and audi alteram partem, there if at some stage or other the person aggrieved has been given a fair opportunity of representing his 'point of view, then the defect, if any, in the initial order may be deemed to have been cured. Each case will have to be determined on its own facts, if the statutory provision for notice be of a mandatory nature, then an order without any notice would be wholly void ; but if there be no such provision or if the provisions be merely of a directory nature, then wherever a violation of this principle of natural justice tie alleged, the Court may call upon the party alleging the same to prove prejudice before it sets aside the order." Coming to the facts of the present case, the District Magistrate in his comments has categorically stated that the order Annexure `A' passed by the then District Magistrate was passed without making any inquiry. The petitioner has not filed any documents to controvert the contention made by the learned District Magistrate. The District Magistrate then on the basis of inquiry came to the conclusion that the petitioner was not entitled to the certificate issued to him by the then District Magistrate. He has filed documents in support of his order whereby he recalled the previous order. Though the District Magistrate has admitted that no show-cause notice was issued to the petitioner before the cancellation of previous order, butt nevertheless he has stated in the comments, that after canceling the local certificate, a show-cause notice was issued to the petitioner. The petitioner has denied the service of any such notice. But the fact remains that the District Magistrate in his comments has specifically stated that the notice had been issued. Therefore after submission of the comments in this Court, the petitioner became aware of the notice. There is no statutory notice provided in this case, and the notice is required only on the principle of natural justice. There is no special mode of service of notice as contained in Displaced Persons (Compensation and Rehabilitation) Act. The purpose of notice in such cases is only to apprise the person of the order which has been passed or likely to be passed. There is also no special pro forma required for such a notice. After the submission of the comments by the District Magistrate the petitioner had the intimation that he was required by the District Magistrate to appear and show cause against the order passed by him; but the petitioner did not choose to appear before the District Magistrate. In my opinion, in the circumstances of present case an information or intimation to a person amounts to a notice. As he had not appeared before the District Magistrate, therefore, he cannot say that the principle of natural justice has been violated. The learned counsel for the petitioner has submitted that after the passing of an adverse order the notice is only a formality and therefore even if any notice has been issued, that does not validate the adverse order passed by such authority. It is always a question of fact, and if an authority has sealed his mind or the order is mala fide, then such notice may not amount to a proper notice of show cause; but if the authority has left the scope of inquiry open and is prepared to take into consideration the case of that person; in that case even, if a notice has' been issued after the passing of the order, there is nothing bad in it. An argument has been advanced, that as the principle of natural justice has been violated, therefore the proper course for this Court in its extraordinary jurisdiction is to direct that authority to make an inquiry, and this Court should not make the investigation itself in order to reach a just conclusion. There is no dispute with this proposition that generally the High Court sitting in its constitutional jurisdiction does not make any investigation or an inquiry. The appraisal of evidence is always left for the tribunal below. But if the parties have brought on record the entire material on which they base their claim, and there is no necessity of any further enquiry, and the High Court on the basis of material, on record can come to a positive finding, then it cannot be said that the High Court is estopped to consider such material. If the material on record admit of no ambiguity and only one view of the matter is deducible from such material, then it would be futile to direct the lower authority to give its finding on the basis of such material. It would only amount to rigmarole of procedure. It is held in M. Y. Khan v. M. M. Aslam and others 1974 S C M R 196, that there is no bar to the High Court taking evidence or even additional evidence at the writ stage when that evidence is merely taken to consider as to whether the order of the Authority challenged before the High Court is based upon relevant evidence or when the additional evidence is not of a complicated nature. In the present case the parties have produced documents in support of their respective claims and these documents are sufficient to bring to a positive finding. The petitioner has claimed his residence in District Pishini on the basis of two documents. One is Shajra Nasab prepared by some patwari. Even if we accept this document on its face value, it does not establish the connection of the petitioner with said Syed Abdul Hakim son of Ali Jan. Unless the petitioner's connection is established with that person, this document is of no help. The second document is about the existence of a house and some land in the village. A person may acquire properties in different parts of the country, but ownership of a property does not show the intention of the person that he is a permanent resident of that place. The intention has to be gathered from all the circumstances. The petitioner has got education at Quetta. He is living with his parents at Quetta. His brother Zabir Shah has .been appointed A. R. D., Quetta. The documents produced by the respondent have not been denied by the petitioner. Abdul Hakim Patel in these documents has shown the petitioner as his legal heir. (Civil Suit No. 12 of 1976 Annexure `M') and (Civil Suit No. 8 of 1977 Annexure `N'). Anwar Shah real brother of the petitioner has sold a piece of land (Annexure R/K). In this document his brother has given the name of his father as Abdul Hakim Patel and not Syed Abdul Hakim. Abdul Hakim Patel has executed general power of attorney (Annexure 'F') in favour of Zahir Shah the real brother of the petitioner and in this document also he has mentioned him as his elder son. These documents have not been rebutted by the petitioner. In fact there is no document rebutting the contention of the respondent that he is not the son of Abdul Hakim Patel. Therefore on the basis of material available on record it is difficult to hold that the learned District Magistrate has passed the order which is contrary to facts and law. I am therefore of the opinion that even if we assume that a show-cause notice is necessary, no fruitful purpose would be achieved by remanding the case to the District Magistrate. The contention that the brother of the-petitioner had obtained the seat last year from this District is not relevant because at that time it is possible that no body was interested in the seat and no body had any interest in the matter and therefore no enquiry was held. I therefore hold that this petition has no force and the same is consequently dismissed. S, A, H, Petition accepted by majority opinion.