1992 PLP 395 (CLC)

RAZA AHMAD KHAN, J.‑‑By way of this writ petition, Khan Bahadur, the petitioner herein, has invoked constitutional jurisdiction of this Court seeking a declaration to the effect that the impugned order of the Deputy Commissioner, District Kohistan, respondent No.1 herein, whereby he cancelled the duly issued domicile certificate to the petitioner, be held as illegal, unlawful, without lawful authority and mala tide as well as arbitrary with no legal effect on his rights as validly admitted student in Ayub Medical College and as such entitled to continue his studies.

2. Briefly stated, facts giving rise to this petition are that after passing examination in the Pre‑Medical Group and securing 612 marks, the petitioner applied for the. admission in the Khyber/Ayub Medical College against one of the five seats reserved for Kohistan District of N.‑W.F.P. He was placed at serial No.3 of the merit list of the applicants prepared by the Joint Chairman Admission Selection Committee, Khyber Medical College and Ayub Medical College.

3. Earlier the petitioner had applied for domicile certificate with a declaration that he was born of parents who are permanently domiciled in N.‑W.F.P. with particular reference to village Lohi Jalkot, Tehsil Dassu, District Kohistan (hereinafter referred to as "domicile of origin)". This application was referred by respondent No.1. to Naib Tehsildar, Dassu for "verification and report". The latter held an enquiry wherein he examined Yar Khan Chairman Union Council, Dassu and Manawar Khan, Member, Union Council, Goshahi, Narang Shah, Chairman Union Council Gujjar Banda and Malik Alif Said, Chairman Union Council, Jalkot, all of whom affirmed unanimously that Khan Bahadur has been a resident of Jalkot since his ancestors and he also owned immovable ancestral property in the said village of District Kohistan. On the verification of the aforesaid public representatives and after vetting the report of Naib Tehsildar, Dassu, the District Magistrate issued the domicile certificate on 3‑8‑1989 to the petitioner as having been "born of parents who are permanently residents of N.‑W.F.P."

4. Meanwhile Kohistan Students Organisation, respondent No.3 herein, through a complaint before respondent No.1, questioned the authenticity of the domicile 'certificate issued to the petitioner. It was referred to Assistant Commissioner, Dassu, respondent No.2 herein, for conducting enquiry and report. It appears that the Assistant Commissioner, directed the S.H.O. Dassu to conduct the enquiry who, after recording the statements pre and contra, including these of Malook Shah, Chairman Union Council Lohi and one Malik Pirzada, in his final analysis arrived at a conclusion that the petitioner in fact is the resident of Deh Lohi and submitted report to this effect.

5. Accordingly the Assistant Commissioner, Dassu, submitted his report to the respondent No.1 which was, however, found inconclusive in nature. Respondent No.1, referred back the enquiry to the Assistant Commissioner to examine all concerned in Court and then submit the report. The Assistant Commissioner, Dassu again undertook the exercise and submitted his report dated 16‑12‑1990. On the basis thereof respondent No.1 issued the impugned order dated 22‑12‑1990 finding the petitioner as "neither born in nor residing in ;he limits of District Kohistan with the intention of permanent residence there" and consequently cancelled the earlier domicile certificate issued to the petitioner.

6. We have heard Syed Shabir Hussain Shah, Advocate, learned counsel for the petitioner, Mr.Muhammad Ayub Khan, Advocate, learned counsel for respondent No.3, Mr. Muhammad Aslam Khan, learned Assistant Advocate General for respondents Nos.l and 2 and Mr. Ghulam Mustafa Khan, Advocate, learned counsel for respondent No.4 at length. We also perused the relevant available record with their valuable assistance.

7. It is contended on behalf of the petitioner that the conclusions arrived at by respondent No.2 are not borne out by the record inasmuch as the forefathers of the petitioner were admittedly residents of village Lohi Jalkot before their migration to Gilgit and since they still own landed property in the said village they cannot be held to have abandoned their ancestral residence if they have temporarily shifted to other place for the purpose of earning their livelihood and looking after education of their children. At any rate, it was urged that there is no evidence forthcoming to establish that the father of the petitioner has abandoned his domicile of origin nor can he, legally speaking, be held as such. It was further contended that respondent No.1 has based his impugned order on enquiries held by respondent No.2 in a slip‑shod manner and accordingly the impugned order could not be sustained on the ground that neither it is speaking order nor is based on any independent application of mind on the part of respondent No.1. It is finally urged that throughout the enquiry, the petitioner has not been associated with it and the enquiry having been held at his back, he could not be deprived of his vested right without affording him a proper opportunity of being heard.

8. As against this, the learned counsel for the respondents contended that on factual premises the father of the petitioner having left his village for Gilgit, it cannot be said any more that the petitioner is born of the parents who' . were permanently residents of Kohistan or for that matter of N.‑W.F.P. In such a situation the learned counsel are of the view that the impugned order has rightly been passed and the same is not suffering from any such infirmity as to call for interference therewith. It was also asserted that respondent No.1, who is empowered to issue the domicile certificate is equally competent to rescind the same and in doing so he has committed no illegality or irregularity. It is thus urged that the petition is misconceived and is liable to be dismissed.

9. We have given our earnest consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.

10. A reference to the record reveals that the domicile certificate originally issued to the petitioner was duly enquired into after verification of the Tehsildar Dassu, based on the evidence of Chairman and Members of more than one Union Councils.

11. It is also evident from the impugned enquiry report dated 16‑12‑1990, submitted by respondent No.2 herein, that the father of the petitioner was certainly a resident of Lohi Jalkot situated within the area of Kohistan and further that he still held landed property in the village. It is thus obvious that the status of the petitioner and, for that matter, that of his father, as originally domicile of Kohistan District, cannot be disputed. His father, however, seems to have shifted his residence to Gilgit and is reportedly doing business there. , This, however, by itself does not appear to us as sufficient to indicate that he has abandoned his domicile of origin, more particularly when he is still holding his ancestral property therein in token of his adherence thereto. This being so, we are of the considered view, that the enquiry report, as also the impugned order, are misconceived and proceeded on wrong direction.

12. There is yet another aspect of the matter in that despite the domicile certificate being issued administratively, yet, as has been held by this Court in the case of Saeed Aamer v. Khyber Medical College, Peshawar and others (PLD 1982 Peshawar 51), issuing of this certificate creates a right in the holder thereof. A decision of Balochistan High Court (PLD 1980 Quetta 29), where the corresponding nomenclature of such a certificate is Local Resident Certificate, lends support to the aforesaid view and we have no hesitation in re affirming the same as well. But we are amazed to note that in the whole process, which eventually culminated in depriving the petitioner of this vested right of his, he has been rather kept away from the proceedings though, we are of the considered opinion that his association with, and actual participation in the same throughout was all the more necessary in view of the fact that claims and counter‑claims were being made before the Inquiry Officer with regard to authenticity of the domicile certificate earlier issued to him and question of depriving him of his vested right was substantially involved therein. Such a conduct on the part of respondents 1 and 2, prima facie, appears to be against the principles of natural justice and cannot be countenanced with impunity.

13. It is now well‑settled that where a person or body of persons, is empowered to take any decision after ex post facto enquiry/investigation into certain facts which would result in consequences affecting a vested right of another person; then the Courts of law are generally inclined to imply that the power so given is coupled with the duty, cast upon such person or body of persons, to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case. In this connection it is well to keep in mind the following observations made by the Supreme Court in the case of University of Dacca v. Zakir Ahmed (PLD 1965 SC 90):‑‑ "Nevertheless, the general concensus of judicial opinion seems to be that in order to ensure the `elementary and essential principles of fairness' as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and `to correct and controvert any relevant statement brought forward to his prejudice',"

14. In the context of the foregoing, we have no hesitation in holding that the whole proceedings, right from inception when, on the complaint of respondent No.3, the matter was referred to respondent No.2 for enquiry into authenticity of the domicile certificate earlier issued to the petitioner, till the passing of the impugned order whereby the petitioner was deprived of his vested rights by cancelling the said certificate; are violative of the principles of natural justice as embodied in age old maxim "Audi alteram partem" that is to say no one should be condemned unheard.

15. We have also come across an unreported judgment of this Court in the case of Bashirud Din v. Deputy Commissioner, Kohistan etc. (Writ Petition No.1 of 1990), decided on 16‑6‑1991, with almost identical facts; wherein the learned Division Bench of this Court took notice of the .fact that Gilgit, where the elders of the petitioner (therein) appear to have temporarily shifted, "is equally backward area" as District of Kohistan and their Lordships were of the considered view that the impugned order of respondent No.1 cancelling the domicile certificate of the petitioner was without lawful authority and of no legal effect.

16. For the foregoing reasons while the impugned order of respondent N0.1 cannot be sustained in fact as also in law, we hereby declare the said order as illegal, without lawful authority and of no legal effect on the rights of the petitioner to continue his studies on the basis of the domicile certificate issued to him by respondent No.1 vide Office Order No.1353‑DC dated 3‑8‑1989. The writ petition is thus accepted in the terms indicated above with no order as to costs. AA /1273/P Petition accepted.