1998 PLP 534 (CLC)

In case reported as Muhammad Yar Khan v. Deputy Commissioner‑cum‑Political Agent, Loralai 1980 SCMR 456, it has been held as under:‑‑ "It is a well‑settled principle of Private International Law, to which reference is necessary, as 'domicile' has not been defined in the Act, that every person carries the domicile of the country in which he is born: that so long as he does not intentionally and by the exercise of free volition choose the domicile of another country he carries the domicile of his origin; and that to prove that he had acquired another domicile of his choice he must show that he had intentionally taken a decision in that behalf in the sense that he had taken abode therein with the intention of making it his permanent residence. " In case reported as Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan v. Kiran Chandra Dutta PLD 1967 Dacca 627, it has been observed that domicile of origin remains attached to a person till such time he not only manifests but carries into execution his intention of abandoning his domicile of origin and acquires another. The burden heavily lies on the person who alleges that the domicile of origin was abandoned to prove that such a domicile was in fact abandoned. In case reported as Herbert Earnest Tennekoon, Commissioner for Registration of Indian and Pakistani residents v. Puthupatti Kimen Duraisamy PLD 1959 PC 100, it was observed that burden of proving is a heavy and declarations as to the intention are rightly regarded in determining the question of change of domicile but regard must also be had to the circumstances in which such declarations were made; it must be shown that such declarations were taken into effect by conduct and action which was consistent with the declarations with regard to the change of domicile of origin. In case reported as Miss Salma Mughal v. Selection Committee, Bolan Medical College, Quetta 1993 SCMR 2083, the scope of the expression "whether the candidate actually belongs to the district" of which he had produced the domicile certificate was examined and it was observed that the aforesaid expression has very wide connotation; it included residence and native of a certain place. Thus there was no reason to put a strict construction over the said expression, especially when no definition of the same has been given in the relevant prospectus of the concerned college.

4. The learned counsel for the appellant has further argued that respondents Nos. 1 to 3 have admitted paragraph 1 of the writ petition in which it was averred that the appellant was domicile of Muzaffarabad District.

5. Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for respondents Nos. 5 and 6, has submitted that as the appellant no more seeks relief against respondents Nos. 5 and 6, he need not reply the points raised by the learned counsel for the appellant.

6. Raja Shiraz Kayani, the learned Advocate‑General for respondents Nos.l to 3, vehemently opposed the contentions raised by the learned counsel for the appellant. He has argued that the fact that the averments made in paragraph 1 of the writ petition were admitted would not debar the respondents Nos. 1 to 3 from opposing the contentions of the learned counsel for the appellant; because at the relevant time it was not in the notice of the aforesaid respondents that the appellant had obtained a domicile certificate of Pakistan from District Magistrate, Rawalpindi, and that she had also applied for admission to a medical college on the basis of the said domicile certificate. The learned counsel further submitted that it was alleged in paragraph 1 of the writ petition that she was domicile of Muzaffarabad and had obtained the domicile certificate from the District Magistrate, Muzaffarabad, the averment was admitted to be correct because the material facts were suppressed and, thus, it was not in the knowledge of the respondents that the appellant had abandoned the domicile of her origin by adopting Rawalpindi as domicile of her choice. The learned counsel has further argued that it is on the record that the appellant has been residing with her parents at Rawalpindi; her parents shifted to Rawalpindi some decades before, she got domicile certificate from District Magistrate, Rawalpindi, and also sought admission to some medical college on the basis of the same. When she failed to get admission as domicile of Pakistan, she applied for a domicile certificate to District Magistrate, Muzaffarabad, and obtained a domicile certificate by suppressing the above reflected facts.

7. We have given our due consideration to the matter. It may be stated here that this Court, in a case reported as Fozia Hussain Abbasi v. The Nomination Board 1995 CLC 1761, has dealt with the question of a domicile certificate to be issued under the provisions of section 5 of the Azad Jammu and Kashmir State Subjects Act, 1980 read with rule 7 of the Azad Jammu and Kashmir State Subjects Rules, 1980. The question as to what extent the principles of Private International Law would be applicable for determining the domicile of a person when the matter has been regulated by the aforesaid laws was discussed at some length and it was observed that Private International Law would be applicable only to those aspects of the matter on which the law of the land is silent. Thus, the argument that a domicile of origin would stick to a person, when a person changes the domicile of his origin by adopting the domicile of his choice, the domicile of his origin would revive when he leaves the domicile of his choice and returns to the domicile of his origin, is not tenable in view of relevant law on the subject. It would be expedient to reproduce below section 5 of the Azad Jammu and Kashmir State Subjects Act, 1980 and rule 7 of the Azad Jammu and Kashmir State Subjects Rules, 1980:‑‑‑ , Section 5 of the Act:; "The Council or any other Authority specified by the Council may, upon an application made to it in the prescribed manner containing the prescribed particulars, grant a certificate of domicile to any person in respect of whom it is satisfied that the facts stated in the application are correct and that the applicant has been continuously residing in Azad Jammu and Kashmir for a period of not less than five years and intends to live permanently in Azad Jammu and Kashmir." Rule 7 of the Rules: (1) Any District Magistrate in Azad Jammu and Kashmir may issue a certificate of domicile in the manner prescribed below:‑‑‑‑ (a) An application for a certificate of domicile shall be made in Form ' P' (Appendix III) in duplicate. It shall be accompanied by an affidavit affirming the truth of the statement made in it. (b) The District Magistrate may demand such evidence as he may consider necessary for satisfying himself that the facts stated in the application are correct and that the applicant has been continuously residing in Azad Jammu and Kashmir for a period of not less than five years and intends to live permanently in Azad Jammu and Kashmir. (2) The District Magistrate shall either reject the application or grant a certificate of domicile in Form ' P‑1' (Appendix IV). (3) Any person aggrieved by any order passed under sub‑rule (2) may file an appeal with the Azad Government of the State of Jammu and Kashmir within thirty days and the Government may pass such order as it deems fit. "

8. It is evident from the above provisions that no distinction has been made in the law between 'domicile of choice' and 'domicile of origin' for issuing a domicile certificate. If a person has been continuously residing in Azad Jammu and Kashmir for a period of not less than five years and intends to live permanently in Azad Jammu and Kashmir, only he would be deemed to be a domicile of Azad Jammu and Kashmir. Obviously, if any one of the conditions envisaged in law is missing, he would not be entitled to obtain the domicile certificate of Azad Jammu and Kashmir State, irrespective of the fact that he was domicile of the State of Azad Jammu and Kashmir by origin within the meanings of Private International Law. The principles of Private International Law would be applicable only when the law of the land is silent on the point. Thus, until and unless one proves that he has been continuously residing in Azad Kashmir for five years and undertakes to permanently live in Azad Kashmir in future, he cannot be issued a domicile certificate of Azad Kashmir. However, it may be observed that the condition of ' continuously residing' does not mean that he must be physically residing in Azad Jammu and Kashmir; if a person is domicile of Azad Kashmir, he would be deemed to be residing in Azad Kashmir even if he has been temporarily residing out of Azad Jammu and Kashmir due to service, trade or for any other reason. While dealing with this aspect of the matter, it was observed by this Court in case reported as Fozia Hussain Abbasi v. The Nomination Board 1995 CLC 1761 as under:‑‑‑ ....However, in a case of person who is domicile of Azad Jammu and Kashmir by origin, it would not be necessary to prove that he has been actually residing in Azad Kashmir continuously for five years; if he is domicile of Azad Kashmir by origin, the fact that he has been living out of Azad Kashmir temporarily in connection with his business service or for any other reason, he would be deemed to residing in Azad Kashmir for the purpose of section 5 of the State Subjects Act, 1980 and the rules framed thereunder, he would be denied domicile only if it is shown that he has abandoned domicile of his origin or does not intend to settle in Azad Kashmir permanently in future. This concept has been embodied in para. 19 of the Government instructions contained in Notification No. Adnut/H‑6(15)/Sec.l/86, dated 2nd April, 1986. For convenience, para. 19 of the instructions is reproduced below:‑‑‑ In instant case, the appellant is admittedly a State Subject and there is hardly any doubt that before shifting to Rawalpindi, her parents were domicile of Muzaffarabad District; they shifted to Rawalpindi some decades earlier and since then they have been residing there. Whether they had shifted to Rawalpindi permanently or had settled there temporarily is to be seen in the light of the attending circumstances of the instant case. No doubt, according to the principles of Private International Law, the burden of proof lies on the person who alleges that the domicile of origin had been abandoned but in view of the statutory provisions, referred to above, it is for the person who wants to obtain domicile certificate to prove that he or she fulfils the conditions necessary for issuing the domicile certificate. In the instant case, the appellant has been residing alongwith her parents at Rawalpindi for about twenty years and she also got her education at Rawalpindi. She applied for obtaining domicile certificate of Pakistan from District Magistrate, Rawalpindi, and obtained the same for admission to some m0jcal college in Punjab as a domicile of Pakistan. Obviously, in view of rule 23 of the Pakistan Citizenship Rules, 1952, she could not get the said domicile certificate from Rawalpindi without showing that she had been residing at Rawalpindi at least for one year and also giving an undertaking that she would permanently live in Pakistan in future. However, when she failed in her attempt to get admission to some medical college as domicile of Pakistan in view of her merits, she got her domicile certificate of Pakistan cancelled and managed to obtain a domicile certificate of Azad Kashmir from District Magistrate, Muzaffarabad, so as to get admission on its basis out of the quota reserved for the domiciles of Azad Kashmir. After making declaration before the District Magistrate, Rawalpindi, in terms that she in future, would permanently live in Pakistan, she changed her stand and made another declaration before the District Magistrate, Muzaffarabad, to the effect that in future she would permanently live in Azad Kashmir as stipulated under the statutory provisions, referred to above. Assuming for the sake of argument that her second declaration to the effect that she would permanently live in Azad Kashmir was bona fide, she could not be legally issued the domicile certificate by the District Magistrate, Muzaffarabad in view of the law of the land, referred to above, which envisages that prior to the issuance of a domicile certificate she must have been continuously residing in Muzaffarabad for a period of five years. Thus, assuming that she genuinely intended to return to the 'domicile of her origin', she could not be issued the domicile certificate on the basis of principles of Private International Law in view of the aforesaid provisions of the law of the land. Therefore, the contention of the learned counsel for the appellant that the domicile of her origin would revive on her return to Muzaffarabad is not tenable. The principles of Private International Law cannot prevail against the law of land. The principles of Private International Law could be resorted to only if the law of the land is silent on a particular point. A reference may be made to Fozia Hussain's case, referred to above, wherein it was observed as under:‑‑‑ "It is evident from the abovementioned provisions of law that no distinction has been made in cases for issuing domicile certificate if a person who claims to be domicile of Azad Jammu and Kashmir by origin or who seeks the domicile certificate on the ground that he has adopted Azad Jammu and Kashmir as his domicile by choice. The question arises as to whether while issuing the domicile certificate under the aforesaid statutory provisions, the principles of Private International Law, referred to above, would also be attracted and if so to what extent. Obviously, for issuance of a domicile certificate under section 5 of the State Subjects Act, 1980 and rule 7 of the Rules framed thereunder, the conditions are to be satisfied. The general principle of Private International Law on the point would be resorted to only where the law of the land is silent. For instance, there is no definition of word 'domicile' in the law in force in Azad Kashmir, similarly, there are no guidelines in the law to determine the intention of a person that he has abandoned the domicile of origin and acquired the domicile of choice. On such points, the principles of Private International Law would be fully applicable. But the statutory requirements that person seeking domicile certificate has been continuously living in Azad Kashmir are to be proved. " Thus, we are of the opinion that whether case is one of 'domicile of origin' or 'domicile of choice' such status once lost cannot be held to have revived unless the conditions of law of the land are satisfied. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed. A.A./246/SC(AJ&K) Appeal dismissed