1990 PLP 1372 (CLC)

ABDUL RAHIM KAZI, J.‑‑The case of the present petitioner as given in the petition is that the father of the petitioner had migrated to and permanently settled in Sukkur in the month of September 1947 after the partition of the Indo‑Pakistan Sub‑continent and in the year 1951 he had acquired the domicile certificate of Sukkur being certificate No. P‑1863 dated 24‑7‑1951. On 8‑11‑1951 the father of the petitioner was appointed in the National Bank of Pakistan, a Federal Institution and was posted at Sukkur where the petitioner was born on 28‑1‑1968. The father of the petitioner then acquired a fresh domicile certificate of Sukkur under the provisions of Pakistan Citizenship Act, 1951 which was issued by the District Magistrate Sukkur on 30‑11‑1973 which mentions the name bf the present petitioner alongwith other family members. That in the year 1974 when the petitioner was a student of primary class, her father was transferred and posted at Karachi and then to Gadani and again to Karachi where he is still in service of the said bank. The petitioner being a minor dependent on her father had to keep moving with him from place to place and ultimately passed her Intermediate examination in Science from Karachi. It is claimed in the petition that the petitioner and her father are permanent residents of Sukkur and their abode at Karachi or other places is only temporary, due to the exigencies of service. The petitioner also applied for domicile and permanent Residence Certificate which were granted to her by the District Magistrate, Sukkur on 13‑10‑1986 and 22‑10‑1986 respectively after holding due enquiry. The petitioner also holds National Identity Card issued by the District Registrar, Sukkur. That the petitioner was then granted admission to the M.B.B .S. course at Nawabshah Medical College where she was studying in the Second Year at the time the petition was filed and is now said to be in the Third Year. The respondent No‑3 filed an appeal challenging the Permanent Residence Certificate issued in favour of the petitioner. The said appeal was dismissed by the Divisional Commissioner Sukkur after hearing both the parties vide his order dated 11‑10‑1987. The respondent No.3 also filed the Constitutional Petition No. 287/1987 before this Court challenging the issuance of the Permanent Residence Certificate. This Constitutional Petition was dismissed in limine vide orders passed on 18‑11‑1987. The petitioner contends that she has now been informed through ordinary post vide Order No. GB (D) 3826 of 14‑5‑1989 and Order No. GB (D) 4022 dated 22 5‑1989 that her PRC in forms (C) and (D) have been cancelled. According to the petitioner the envelope containing the said orders was delivered to her through a friend of her father as the address of the petitioner as given on the postal envelope and the orders has been mentioned incorrectly. The petitioner therefore, filed the present petition praying for the following relief: "The petitioner, therefore, prays that: (i) it may be declared that the petitioner's domicile certificate dated 13‑10 1986 and P.R.C. dated 22‑10‑1986 of Sukkur district were lawfully issued to her; and that impugned order dated 14‑5‑1989 issued by the respondent No.2 on the advice of the respondent No.l cancelling her Domicile Certificate and P.R.C. is illegal, improper, mala fide, without jurisdiction, ultra vires, void ab initio, against principles of natural justice and in complete derogation of the right of the petitioner, and are, therefore, of no legal effect. (2). that any other equitable relief to which the petitioner may be deemed entitled in the circumstances of the case may be granted to her; and (3) that costs of the case be also awarded to the petitioner." That the respondent No.3 has filed the counter‑affidavit and has contested the petition. In the counter‑affidavit she has admitted that the petitioner had secured 731 marks while she had secured 730 marks. It is also admitted that she had also filed Constitution Petition No. D‑215 of 1987 challenging the grant of domicile and PRC to the petitioner which was withdrawn as in the meanwhile the respondent No.3 had filed an appeal before the Divisional Commissioner, Sukkur. The case of the present respondent No.3 is that the petitioner is not the permanent resident of Sukkur but for all purposes has shifted to Karachi where the petitioner and her family are residing as the mother of petitioner owns House NoA‑20 Block K‑17, Federal B Area, Karachi and that the house owned by the petitioner's father at Sukkur has since been sold away by him. The other respondents did not file the counter‑affidavit. Subsequently both the parties have placed certain documents on record. We have heard the learned counsel for the parties and the Additional Advocate‑General, Sindh. Mr. A.M. Mobeen Khan the learned counsel for the petitioner has submitted that the earlier Constitution Petition filed by the present respondent No.3 being Petition No. 287/1987 was dismissed by a Division Bench of this Court by an elaborate order and therefore, the same point cannot be agitated in the present petition. He has placed reliance on the case of Ali Muzaffar v. Mst. Amtul Begum and 3 others (1989 S C M R 678). He has referred us to an order of the Wafaqi Mohtasib (Ombudsman) Islamabad passed on 9‑5‑1989 which has been placed on record by the respondent No.3. This order shows that subsequent to the dismissal of C.P. No. D‑287/87 she had filed an appeal before the Wafaqi Mohtasib and the same was disposed of by the said order. The operative part of the order reads:‑ "I am happy that the grievance of the complainant girl has been redressed but this could have been done much earlier if the Deputy Commissioner Sukkur would have known his powers and taken action with reference to letter No.4/98/80‑Citz dated 22‑4‑1984. Equally, the Ministry of Interior which issued such instructions did also not recollect to remind the Deputy Commissioner soon after the complaint was moved. This is why the process took more than six months. Anyhow the complaint is disposed of accordingly having borne fruit." The learned counsel for the petitioner has further submitted that the impugned order dated 14‑5‑1989 shows that her certificate has been cancelled under the advice of the Home Department, Government of Sindh who were not the competent authority nor the Home Department is the appellate or revisional authority under the provisions of the Sindh Permanent Residence Rules, 1977. It has also been urged by the learned counsel that the cancellation of the certificate under the impugned order is without notice to the petitioner. Mr. Muhammad Hanif Mangi, the learned counsel for the respondent No.3 has submitted that the petitioner had shifted away from Sukkur and has obtained the said certificate through fraud and misrepresentation and, therefore, the same was rightly cancelled. He has further' submitted that under the directions of Home Department, after the complaint was made to the Wafaqi Mohtasib, an enquiry was held and it is on account of the outcome of the said enquiry that the certificate of the petitioner was cancelled. He has submitted that the notice of holding of the said enquiry was sent to the petitioner on the Karachi address and the same is deemed to have been received by her. We have given anxious consideration to the submissions of the learned counsel for the parties. At the very outset it may be pointed out that the orders passed by the Wafaqi Mohtasib are not in the nature of any directions but the same show that the complaint of the respondent No.3 seems to have borne fruit and thus the same is disposed of. The matter of issuance of P.R.C. is a provincial matter and does not fall within the ambit of the powers of Wafaqi Mohtasib. It may also be observed that the impugned order is passed by the District Magistrate on the advice of the Home Department. Now the Home Department is Appellate nor Revisional authority and their advice as such would not any legal force. The order passed on 18‑11‑1987 by this Court in No.D‑287/87 shows that order of Divisional Commissioner dismissing the appeal of the present respondent No.3 was maintained order was not challenged in appeal before the Hon'ble Supreme Court and this order had attained the finality and no other officer or authority is competent to pass any order having the effect of nullifying this order. In the case of Ali Muzaffar v. Mst. Amtul Begum (1989 S C M R 678) the Hon'ble Supreme Court has held: "In this petition for special leave to appeal the High Court affirmed the finding of the Additional District Judge and the trial Court that the decision of the High Court in a writ petition earlier brought by the petitioner himself operated as res judicata in this case. After hearing the learned counsel, we are not persuaded that the said finding suffers from any infirmity. Leave to appeal is refused." From the above discussion it can safely be concluded that the Home Department or the District Magistrate Sukkur are not competent to reopen the issue of the certificate issued to the petitioner which has acquired finality in the appeal decided by the Divisional Commissioner which decision has been maintained by this Court in the earlier Constitution Petition filed by the respondent No.3. The other point to be considered in the present matter is as to whether the said enquiry alleged to have been conducted by the District Magistrate is without notice to the petitioner. The petitioner has placed on record the postal envelope wherein she claims that the impugned order was sent to her and that this envelope was given to her by a friend of her father as her correct address has not been mentioned in the envelope. The envelope shows the address. Miss Rizwana Sarwat d/o Syed Shahid Hussain Rizvi H.NoA‑20, Federal `B' Area Karachi. The appellant claims that the Federal B' Area Karachi is divided in a number of Blocks and each Block has house No. A‑

20. According to record her correct address is: House NoA‑20, Block K‑17, Federal `B' Area, Karachi. The petitioner has submitted that the above envelope contained the impugned order and that she had never received any notice before this informing her about the holding of the enquiry. The learned Additional Advocate‑General on enquiry from us has stated that there is nothing on the record to show if any such notice was served on the petitioner. In view of the above position we have no hesitation in holding that the said enquiry is without notice to the petitioner and is violative of the principles of natural justice and cannot be sustained in law. In view of the above discussion we accept this petition and declare that the cancellation of the Domicile and Permanent Residence Certificate of the j petitioner by the District Magistrate Sukkur vide his order dated 10‑ 5‑1989 is without lawful authority and of no legal effect. However, there will be no order as to costs. A.A./M‑1114/K Petition accepted.