2003 PLP (C (PLC(CS))

(2) that the learned Judge in the High Court after appreciating the evidence on record arrived at a conclusion that the petitioner herein was admittedly a domicile of Muzaffarabad District as such the domicile certificate earlier issued in her favour by 'the District Magistrate, Sialkot was no more in existence and the same was abandoned. The learned counsel referred to the documents, such as application for issuance of domicile certificate to the District Magistrate Muzaffarabad, the statement of the petitioner intending to live permanently at Muzaffarabad Azad Kashmir which proved the fact without any ambiguity that she was a domicile of Muzafffarabad District, therefore, was not entitled to be recommended and appointed against the aforesaid post. Reliance was placed on Fozia Hussain Abbasi v. The Nomination Board and 4 others (1995 CLC 1761) and Qamar Afzal v. Muhammad Ashfaq Khan and another (PLD 1979 SC (AJ&K) 96); (3) that it is incorrect to suggest that respondent No.1 and other respondents (petitioners before the High Court) were not aggrieved persons. The learned counsel contended that the respondents were admittedly Jammu and Kashmir refugees settled in Pakistan, therefore, their rights being adversely effected by the recommendations of the public' Service Commission in favour of the petitioner herein would provide cause of action to them for a Constitutional petition being aggrieved persons; (4) that the petitioner's claim that she surrendered domicile certificate issued from District Magistrate Muzaffarabad was of no avail to her as the sane was not surrendered by herself but an application was moved by her father for the purpose in September, 2002 which even otherwise has no bearing on the resolution made by the High Court. It was added that this would further support the case of the respondent that she was a domicile of Muzaffarabad District and therefore could not contest for the seat reserved for refugees settled in Pakistan; (5) that the assertions of the petitioner for being married with a refugee settled in Pakistan in the year 2001 and thus claiming to be the domicile of Sialkot District on the basis of her husband's domicile has no validity in the eye of law. No such law was in existence to support the aforesaid proposition apart from the fact that she claimed to be married after the test and interview conducted for the purpose; and (6) that the judgment and order of the High Court are based on sound reasons which does not require any interference by this Court of law where no legal ground is urged.

5. I have heard the learned counsel for the parties and also gone through the record. Four writ petitions titled Sh. Rashid Majeed and others Azad Jammu and Kashmir Public Service Commission and others Writ Petition No.373 of 2002, Muhammad Naeem v. Azad Jammu and Kashmir Public Service Commission and others Writ Petition No.342 of 2002 and Amer Mahmood v. Azad Jammu and Kashmir Public Service Commission and others Writ Petition No.334 of 2002 and Raza Muhammad Rathore v. Azad Jammu and Kashmir Public Service Commission and others Writ Petition No.385 of 2002 were decided through a consolidated order. Writ Petition No.385 of 2002 dealing with a different situation was dismissed, hence the order is not under challenge. All the writ petitions were filed to challenge the recommendations made by the Public Service Commission in favour of the petitioner and respondent No. 10 herein. The High Court after conclusion partly accepted the writ petitions holding therein that the petitioner herein was not a Jammu and Kashmir refugee settled in Pakistan as such her recommendations for appointment as Assistant Commissioner against the quota reserved for Jammu and Kashmir refugees settled in Pakistan were illegal and of no legal effect. However, the writ petitions were dismissed to the extent of respondent No. 10 relying upon the judgment reported as Fozia Hussain Abbasi v. The Nomination Board through Chairman and 4 others 1995 CLC 1761 in the following words:‑‑ "The present controversy is to be judged in light of the spirit of law and pronouncement of the Supreme Court, referred hereinabove. Respondents have admitted that they have obtained the domicile of District Muzaffarabad on 15‑10‑1996. The documents appended with the writ petition specially application of Mst. Iffat Siddique made on 5‑10‑1996 and the Certificate issued by the Tehsildar Muzaffarabad on 9‑10‑1996 and her own statement recorded by the concerned officer on 12‑10‑1996 besides the Certificates of her father and family members, as well as voter list of Muzaffarabad appended with the writ petition lead me to the irresistible conclusion that the Domicile Certificate obtained earlier by Mst. Iffat Siddique Salaria has been abandoned by her. It is the requirement of law that for the acquisition of Domicile Certificate there must be a combination of residence and intention of permanent or indefinite residence. Respondent No.4, Mst. Iffat Siddique has fulfilled the aforesaid condition by her own declaration. No person can he domiciled for two places at one time. The same has ruled by the superior Courts in the authorities referred hereinabove. It is said and said with truth that Respondent No.4 has become a prey of her own snare and cannot get rid of it by mere reference to her conduct. In light of the aforesaid document as well as rule of law laid down by the superior Courts, her subsequent declaration is to be prevailed. Though the learned Advocate representing her has attempted to meet the aforesaid situation by referring to various documents and contended that she never took any benefit against the quota of District Muzaffarabad but in view of the clear position of law, acceptance of this explanation will redundant the relevant law as well as dictum of the Supreme Court. The Court has to consider the situation as and when Mst. Iffat Siddique Salaria applied for the post and on that date she was not a refugee settled in Pakistan, therefore, her claim was against law and rules. Recommendations made in her favour against the post of Assistant Commissioner are held bad in law, therefore, are hereby quashed. The contention of the learned Advocate for the respondents that respondent No.4 has married to a refugee settled in Pakistan, therefore; she has practically adopted the Domicile Certificate of a refugee settled in Pakistan and irregularity, if any, stood cured, is also misconceived."

6. The main controversy between the parties relates to the point whether the petitioners is a Jammu and Kashmir refugee settled in Pakistan or a domicile of Muzaffarabad District. It is claimed on behalf of the petitioner that she was issued a domicile certificate in the year 1991 by the District Magistrate Sialkot under the relevant laws that she is a Jammu and Kashmir refugee settled in Pakistan alongwith other family members. However it was admitted that subsequently in the year 1996 she applied for a domicile certificate, which was issued by the District Magistrate Muzaffarabad with her other family members. The petitioner claimed that the domicile certificate subsequently issued from Muzaffarabad was not used by her for any purpose but the domicile certificate issued by the District Magistrate Sialkot in view of the many more documents referred to above was utilised. It was emphasised that all the family members of the petitioner relied upon the certificates issued in her favour and other family members, therefore, mere issuance of the certificate from Muzaffarabad District would not disentitle her, from seeking her rights as Jammu and Kashmir refugee settled in Pakistan.

7. It would be relevant to mention that State Subject and domicile certificate are governed by the Azad Jammu and Kashmir State Subjects Act, 1980 and the rules made thereunder. The relevant section 5 of the Azad Jammu and Kashmir State Subjects Act, 1980 and section 7 of the Azad Jammu and Kashmir State Subjects Rules, 1980 are reproduced hereunder:‑ "Section 5 of the Azad Jammu and Kashmir State Subjects Act, 1980. (5) Certificate of domicile:‑‑‑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 Azad Jammu and Kashmir State Subjects Rules, 1980. (7) Certificate of domicile: ‑‑(1) Any District Magistrate in Azad Jammu and Kashmir may issue a certificate of domicile in the manner prescribed below:‑ (a) Any 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 an order as it deems fit."

8. The perusal of the aforesaid provisions of law reveals that the applicant must be residing for a period of five years in Azad Jammu and Kashmir and intending to live permanently in Azad Jammu and Kashmir. The petitioner herein applied under law and thereafter was issued a domicile certificate which was issued in her favour showing her intention to live in Muzaffarabad permanently in future. The aforesaid domicile certificate was in existence when the petitioner applied for the post of Assistant Commissioner against the quota reserved for Jammu and Kashmir refugees settled in Pakistan on the basis of a certificate issued in her favour by the District Magistrate, Sialkot (Pakistan) in the year 1991.

9. Now the question arises whether the domicile certificate issued by the District. Magistrate Sialkot in the year 1991 in favour of the petitioner was retained or abandoned for the domicile certificate issued subsequently in her favour by the District Magistrate Muzaffarabad in the year 1996. It does not require any discussion as the proposition has largely been discussed by the Supreme Court of Azad Jammu and Kashmir in Fozia Hussain Abbasi's case 1995 CLC 1761 wherein the same has been elaborately resolved in the following words:‑ "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 precedent for issuing a domicile certificate envisaged in the provisions 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 for five years and intends to live permanently in Azad Kashmir are to be proved. 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 be residing in Azad Kashmir for the purpose of section 5 of the State Subjects Act, 1980 and rules framed thereunder; he would be denied domicile certificate 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.Admin/H‑6(15)Sec.I/86, dated 2nd April, 1986. For convenience para 19 of the instructions is reproduced below:‑ The above mentioned paragraph stipulates that if a person belonging to Azad Kashmir by origin, is temporarily absent due to business, service or any other reason, it would not debar him to be nominated out of the quota of seats reserved for the relevant District of Azad Kashmir. However, the question whether any such 'person was living out of Azad Kashmir and had taken up any other domicile by choice or not is to be determined by the concerned authority vested with power of issuing a domicile certificate under law. The aforesaid para merely contains the guidelines for the Nomination Board and the candidates who intend to be nominated against the quota of seats reserved for Azad Kashmir, and are not intended to dispense with requirements laid down in the relevant law. Thus, the contention of the learned counsel for the appellant that in view of the paragraph, reproduced above, the appellant was essentially entitled to be nominated from Muzaffarabad District is not correct because this can only be done if it is proved that she retains her domicile of origin of Azad Kashmir and did not abandon it by adopting domicile of her choice. The other condition necessary for issuance of a domicile certificate under the aforesaid law is that the person seeking a domicile certificate shall satisfy the concerned authority that he intends to permanently settle in Azad Kashmir in future. For instance, if a person is domicile of Azad Kashmir by origin and he did not lose it by adopting domicile of his choice but if such a person does not intend to permanently reside in Azad Kashmir in future, he cannot be issued domicile certificate under the aforesaid law, irrespective of the fact whether such a person is entitled to such certificate in view of the principles recognised by the Private International Law or not. One of the conditions precedent for issuing a domicile certificate is that the person seeking a domicile certificate should satisfy by declaration, affidavit or other means that he also intends to reside in Azad Kashmir permanently in future. Thus, even if a person proves that he has been residing in Azad Kashmir for five years prior to his application for issuance of domicile certificate and is also a domicile of the State of Azad Jammu and Kashmir by origin, he cannot be issued a certificate of domicile under section 5 of the State Subjects Act, 1980, if he says that he does not intend to live in Azad Kashmir in future. A difference between section 5 of the State Subjects Act, 1980 and the provisions of section 17 of the Pakistan Citizenship Act. 1951 .is that in Pakistan a person instead of five years has to prove that prior to making application for domicile, he resided not less than one year; Rule 23 of Pakistan Citizenship Rules, 1952 makes it obligatory for a person seeking domicile certificate that he intends to permanently settle in Pakistan. Thus, for issuing a domicile certificate the condition of permanent settlement is common both in law in force in Pakistan and in Azad Kashmir."

10. Keeping in view the above authority the petitioner at the time of applying for the post of Assistant Commissioner was a domicile of Muzaffarabad District which she only surrendered in September, 2002 at the time when recommendations in her favour were in progress as such it leaves p no doubt that she was not a Jammu and Kashmir refugee settled in Pakistan. The question whether she used the certificate or not would not make any difference in view of the admitted facts that the same exists in her name and its surrender at this stage certainly supports the case of the respondents though the aforesaid point was not raised before the High Court.

11. It was also claimed by the petitioner that she was married in the year 2001 to a person who is admittedly a Jammu and Kashmir refugee settled in Pakistan as such she also gets the same status. I am afraid I cannot agree as the aforesaid assertion does not find support from any law.

12. The learned counsel for the petitioner also argued that all the petitioners (now respondents) in the writ petitions were not aggrieved persons on account of their having joined the proceedings of test and interview without any objection as such were estopped to file any writ petition. The case‑law referred to by the learned counsel titled Abdul Qadir v. Abdul Karim and 4 others (1999 PLC (C.S.) 947) does not lend any support to the case of the petitioner but to the respondents. The relevant observations are reproduced as under:‑ "It is well settled that to qualify as an aggrieved person it is not to be proved that one has a vested right in the strict juristic sense. It is sufficient if an aggrieved person seeking remedy shows that he has some tangible interest in the matter or he will gain some advantage if an illegal order is set aside. On this point we may refer to the cases titled Muhammad Islam v. Abdul Rashid and others (1993 SCR 38), Azad Jammu and Kashmir Government and others v. Muhammad Younus Tahir and others (1995 SCR 166), Residents of Mirpur v. Mayor Municipal Corporation Mirpur and another (1995 SCR 332) and Khurshid Ahmed v. Mohtasib and others (1999 CLC 972). In the light of this principle the facts that the appellant stands permanently absorbed in service upon his confirmation and that he has been virtually displaced from service as a result of the judgment of the High Court gives him locus standi to challenge the judgment of the High Court . We may add that acquiescence and estoppel are two recognized grounds in presence of which jurisdiction based on equity cannot be exercised in favour of a litigant. A common example may be found in the writ jurisdiction of the High Court which is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the making of an order or if he acquiesces in it. He is not allowed to turn round and challenge it."

13. The other authority titled Suleman Ahmad v. Tanveer Ahmed Mir and 3 others (2002 PLC (C.S.) 714), referred to by the learned counsel for the petitioner on the subject of estoppel and acquiescence was also not applicable in view of the distinguished facts. The relevant observations are usefully reproduced as under:‑ "

8. We also agree with the contention of the learned counsel for the appellant that respondent No.1 in pursuance of advertisement, wherein one of the terms and conditions was that if suitable candidates from Muzaffarabad District were not available, the same may be filled up by any suitable candidate from other Districts. The respondent duly participated in the test and interview after going through the terms and conditions of advertisement published by the Public Service Commission and surrendered himself to its jurisdiction. As the respondent could not qualify the test, he was not an aggrieved person to challenge the selection of appellant by filing a writ petition."

14. The learned counsel for the petitioner laid a stress that in view of the instructions issued on 24‑8‑1972, the petitioner remains a domicile of District Sialkot (Pakistan) has no foundation in law; therefore, merits no consideration.

16. The case‑law referred to by the learned counsel for the petitioner for having been discussed in a case titled Fozia Hussain Abbasi v. Nomination Board (1995 CLC 1761), referred to above, is not required to be discussed apart from the fact that the same with its distinct facts is not applicable to the case in hand. In view of the above I do not find any ground to allow the petition for grant of leave which therefore is refused. Consequently the application filed for interim relief also stands dismissed. S.A.K./343/SC (AJK) Leave refused.