1995 PLP 259 (CLC)

(a) Chakwal = 6 (b) Jhelum = 4 (c) Rawalpindi (Murree, Kahuta and Gujjar Khan Tehsil only) = 6 RULE

9. These Seats will be in addition to any candidate being admitted on general merit from these districts. The candidates from each of the above 15 Districts are not admitted on general merit will compete within the District for these reserved seats. This is subject to the condition that the candidate has secured at least 50 per cent. marks in F.Sc. (Pre‑Medical). A perusal of these rules show that two seats were reserved for applicants domiciled in Tehsil Kahuta, it being one of the three Tehsils of District Rawalpindi to which six seats were allocated. This allocation has a special purpose behind it which is to compensate students belonging to under developed areas of the District for the disadvantage in schooling or education which handicaps them in competing with students of developed areas. Keeping the purpose of reservations of seats for students/applicants of under developed areas in view, it can rightly be concluded that the seats have been reserved for off spring‑of‑the soil or those who permanently reside in the under‑developed area concerned. The question, therefore, which needs answer is whether Iram Asghar was permanently domiciled in Tehsil Kahuta entitling her admission to Medical College, Rawalpindi against the reserved seats or not. 9. "Domicile" according to Black's Law Dictionary: "The place where the man has his true, fixed, and permanent home and principal. establishment, and to which whenever he is absent he has the intention of returning. Smith v. Smith, 206 Pa. Super. 310, 313 A.2d

94. The permanent residence of a person or the place to which lie intends to return even though he may actually reside elsewhere. A person may have more than one residence but only one domicile. The legal domicile of a person is important since it, rather than the actual residence, often controls the jurisdiction of the taxing authorities and determines where a person may exercise the privilege of voting and other legal rights and privileges. The established, fixed, permanent, or ordinary dwelling place or place of residence of a person, as distinguished from his temporary and transient, though actual, place of residence. It is his legal residence, as distinguished from his temporary place of abode; or his home, as distinguished from a place to which business or pleasure may temporarily call him. `Residence' signifies living in particular locality while "domicile" means living in that locality with intent to make it a fixed and permanent home." Writers on Private International Law agree that it is impossible to lay down an absolute definition of `domicile'. The simplest definition of this expression has been given by Chitty, J. in `Craignish v. Craignish v. Craignish,' (1892) 3 Ch. 180, at P.192 (A), wherein the learned Judge said: "That place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom." (Quoted in AIR 1955 SC 36). Two elements are necessary under the English Law for the existence of a domicile (1) residence of a particular kind, and (2) an intention of a particular kind. There must be both the factum and animus. The residence need not be continuous but it must be definite, not purely fleeting: "`Domicile'..is an idea of law. It is the relation which the law creates between an individual and a particular locality or country": See the observations of Lord Westbury in `Bell v. Mrs. Kennedy' (1868) LR 1 HL SC & Div. 307 (B). In the words of Homes, J. in Bergner and Engel Brewing Co. v. Dreyfus' (1898) 172 Mass 154 (C): `What the law means by domicile is one technically pre‑eminent headquarters, which as a result either of fact or of fiction every person is compelled to have in order that by aid of it certain rights and 'duties which have been attached to it by the law may be determined'." There is distinction between domicile and nationality. This was pointed out by Lords Westbury in `Udny v. Udny' (1869) LR 1 SC & Div. 441 (D) where at p. 457 he observed: "The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions; one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual and may be quite different from his political status. , The political status may depend on different laws in different countries, whereas the civil status is governed universally by one single principle, namely that of domicile, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend: It is settled principle that no man shall be without a domicile and to secure this result the law attributes to every individual as soon as he is born the Domicile of his father, if the child be legitimate, and the domicile of the mother if illegitimate. This has been called the domicile of origin, and is involuntary. Other domiciles, including domicile by operation of law, as on marriage, are domicile of choice...Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time ....There must be a residence freely chosen , ....and it must be a residence fixed for a limited period or particular purpose, but general and indefinite in its further contemplation. It is true that residence originally temporary, or intended for a limited period may afterwards become general and unlimited and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicile is established". (Per Lord Westbury in `Udny v. Udny (D)', pp. 457, 458), see also R. 7 at p.89 in Dicey's Conflict of Laws, 1949 Edn." In para. 44 it is stated: "In a strict and legal sense that is properly the domicile of a person where he has, his true, fixed, permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning". See para. 41 in Story's Commentaries on the Conflict to Laws, 8th Edition. "Two things, then, must concur to constitute a domicile. First, residence, and secondly the intention of making it the home of the party. There must be the fact and the intent ...it is not the mere act of inhabitancy in a place, which makes it the domicile, but it is the fact coupled with the intention of remaining there, animomanendi". (The quotation taken from Radhabai Mohandas, Complainant v. State of Bombay AIR 1955 Bombay 439). Domicile and residence are two different things as observed in case of Muhammad Yar Khan v. Deputy Commissioner, Loralai (1980 SCMR 456). A person may have a permanent domicile at one place and temporary residence at another place. It also follows that a person can change a domicile also and aquire a fresh domicile which is called a domicile of choice. But it may be pointed out that where a person acquires a domicile of choice. burden of proving the same is on a person who asserts it and normally considerable evidence would be required to prove such an intention or such a factum.

10. It is settled proposition of Private International Law that a minor follows the domicile of his parents. In our society this principle can be extended and stated that the children of dependants normally follows the domicile of their parents until they grow up and then may acquire a new Domicile by operation of law as on being married or they may acquire domicile of their choice by settling permanently at a place other than their parents' domicile. But where a person is resident at a place in connection with his employment or other vocation for a definite period of time and not indefinitely, this domicile shall not be permanent domicile but only for a special purpose. In the case in hand Iram Asghar lived with her parents and according to the father's version she studied at Rawalpindi up to class 7th and thereafter she studied in Islamabad. The fair conclusion would be that she was originally domiciled at Rawalpindi but later was domiciled at Islamabad. The circumstances in which she obtained domicile of Kahuta would tend to show that this was for a special purpose only and that was to get admission against a seat reserved for permanently domiciled residents of Kahuta. The contention of the learned counsel that Article 15 allowed her to take residence of her choice at any time is no doubt not without substance but here the question is not of residence but that of a permanent domicile. The claim of Iram Asghar that when she obtained a duplicate domicile certificate she was in fact domiciled in Kahuta, had to be proved beyond any shadow of doubt. The inquiry report has concluded that she was not domiciled in Kahuta to which finding learned counsel has objected on the ground that the order of ADC (G), was quite sketchy but the perusal of inquiry report and material placed with it, casts considerable doubt on the version of Iram Asghar. She has shown herself to be resident of House No.E‑203 but according to record Ch. Abdul Rashid was resident at that house whereas maternal uncle of Iram Asghar with whom she claims to be residing was owner of plot No.203 and not house No.E‑

203. The statement of witnesses before Tehsildar Kahuta were also ambivalent statements. As such the order of ADC (G), Rawalpindi cancelling duplicate domicile certificate issued to Iram Asghar was quite justified. In case of Ishfaq Khan v. Chairman, Nomination Board AJ&K (PLD 1979 Azad J&K 43) a certificate issued on the basis of domicile of choice was cancelled in similar circumstances. In case of Raja Aamer Nasim v. Federation of Pakistan (1992 MLD 126) it was held that a person born at a particular place is deemed to be domiciled there unless it is shown that he with the intention of abandoning the place of domicile left the same. Iram Asghar, therefore, would be deemed to be domiciled at Rawalpindi where her parents resided or she at the most can be deemed to be resident. of Islamabad and not of Kahuta under any circumstances, because in the case of a dependent his domicile is the same as that of his parents and changes with the domicile of a person to whom he/she is, as regards domicile, legally dependent. Iram Asghar has nowhere shown that she was not dependent upon her parents and was as a matter of fact dependent upon her maternal uncle. The statement of the father shows that they have been educating her throughout her life. She lived with them and obviously was dependent on them. Under the circumstances it is held that Iram Asghar was not previously domiciled at Kahuta. She obtained the certificate only for special purpose of getting admission in the medical college and had thus usurped the right of those who belonged to Kahuta. The case‑law relied upon by the learned counsel for Iram Asghar is not of any help to her. In case of Ghulam Yasin and another v. District Magistrate, Kalat and 5 others (PLD 1980 Quetta 23) and case of Saeed Aamer v. Principal, Khyber Medical College, Peshawar (PLD 1982 Pesh. 5) it was held that domicile certificate cannot be cancelled beyond the back of person. In this case she was given adequate opportunity of being heard and her certificate was cancelled after all the legal requirements were fulfilled.

11. Saleha Ibtisam is permanently domiciled in Kahuta. She was entitled to be admitted to medical college but was wrongly deprived by Iram Asghar. As such the petition filed by her is accepted and the Chairman, Admission Committee is directed to accommodate her in the next session of the medical college.

12. Under Clause 17 (d) of the Appendex‑I of the Application for Admission to the Medical College, the applicant is required to solemnly declare that the particulars given in the application are true and if the statement is found to be wrong, the applicant is liable to be expelled from the college. Instruction 5 (v) reads as "Domicile Certificate of the Deputy Commissioner concerned. Domicile Certificate once submitted with the application cannot be changed and shall be considered as final. Any candidate found using domicile of more than one place will be disqualified for admission in a Medical College." Rule 19‑A of the Prospectus of the Government Medical Colleges in the Punjab provides as under: "Such candidates whose particulars, makes, certificates or any other documents submitted with the admission form are found to be incorrect or wrong in any way, or whose authentication is doubtful, will be struck off the College rolls, even if they have been admitted. A student can be removed from the course of his study if incorrect or wrong data have been submitted by such a student, which formed the basis of his admission in the medical college, at the time of admission." The above position makes it clear that an applicant could have used only one domicile certificate. Iram Asghar had used a second domicile certificate which stands cancelled and as such was not entitled to be admitted to the medical college. The duplicate domicile certificate was obtained by misrepresentation and otherwise could not have been used for getting admission in the college, that being the second certificate. Ignoring the fraud or acquiescing in fraud would amount to joining hands in the commission of the fraud. The wrong doing of Iram Asghar cannot be ignored. Her petition is hereby dismissed and the Principal, Rawalpindi Medical College, Rawalpindi is directed to strike her name off the college rolls. A.A./S‑544/L Order accordingly.