1978 PLP 439 (SCMR)

(2)

. (a)

. (b)

. This rule has to be read with rule 5 which prescribes different forms of Permanent Residence Certificates for persons seeking admission to educational institutions and for persons seeking employment in public service. Rules 3 and 4 are important were rightly relied upon by tae High Court n the judgment under appeal. They read; "

3. A person desirous of obtaining a certificate of Permanent Residence under these rules, shall make an application in Form 'A' to these rules to the District Magistrate of the area where he is permanently resident, The application shall be accompanied by an affidavit in Form B .

4. If the District Magistrate, on perusal of the application and affidavit, and after holding such enquiry as he deems necessary, is satisfied that the applicant is entitled to a certificate of Permanent Residence for the purpose of admission to an educational institution or recruitment to the Public Service, as the case may be, he shall issue to the applicant such a certificate:' Rule 4 is the key provision in the said Rules, because it the rule which, empowers District Magistrates to issue Permanent Residence Certificates. The rule appears as first sight to be very wide, because it goes not contain any guidelines for the discretion conferred on District Magistrates. But the rule is not really as wide as it appears to be. This is for more reasons than one. The first is that the word "residence" is to be founded in many Statutes, such as, for example, the Income‑tax Act and the Succession Act, therefore, the concept of residence is too familiar to persons well‑versed in our jurisprudence to require any definition secondly the information, which has to be submitted in an application for a permanent Residence Certificate contains by implications some guidelines for the exercise of the District Magistrate's discretion under rule

4. Thirdly, the wide powers conferred by rule 4 are curtailed by the restrictions imposed on these powers in rules 6 and

7. These rules read: "

6. No person shall be eligible for rant of a certificate in Form `C' unless‑ (i) he was born in any area forming a part of Sind, and further‑‑ (a) in the case of a person of legitimate birth, at the time of his birth, his father was domiciled in Sind, or if he was born after the death of his father, the latter, at the time of his death, was domiciled in Sind, or (b) in the case of a person of illegitimate birth, his mother, at the time of his birth, was domiciled in Sind; or (ii) in the case of a person who was not born in Sind‑ (a) his parents are domiciled in Sind, and have resided in Sind for a period of not less than 3 years; or (b) if his parents are not domiciled in Sind, he is domiciled in Sind, and further has either resided in Sind or has been educated in Sind for a period of not less than 3 years; or (iii) his father or mother is in the service of the Government of Sind and has pint in not less than one year service as such. 7.‑‑(1) No person shall be eligible for a grant of a certificate of Permanent Residence to Form 'D' unless (i) he ix a citizen of Pakistan; and (ii; fulfils the conditions at clause (i) or clause (1i) of rule 6. (2) A person who is domiciled in or has acquired a domicile of another Province shall not be granted a certificate in Form `D', unless he renounces such domicile and produces satisfactory evidence before the District Magistrate of such renunciation." There is absolutely no ambiguity about these rules. They curtail and are intended to curtail the powers conferred on District Magistrates under rule 4, and as even if a person is a permanent resident of a district of Sind, he is no entitled to a Permanent Residence Certificate unless he can bring his case under these rules. But as the converse does not follow, the petitions was not entitled to a Permanent Residence Certificate solely on the ground of her father's domicile in Sind or on the ground that having come of age, she is now domiciled in Sind. Mr. M. I. Memon, however, submitted that the issue of a Permanent Residence Certificate fell exclusively under rule 6, but if that had been the intention of the rule‑maker, he would have enacted accordingly. Instead he has conferred the power of issuing Permanent Residence Certificates by rule

4. It is also not irrelevant to point out here that in view of rule 5 a Permanent Residence Certificate "shall specify the district or other local area in Sind of which the holder of the certificate is a permanent resident", and further even if a person can bring his claim under rule 6, he is not entitled to a Permanent Residence Certificate in view of rule 7 unless he is a citizen of Pakistan. Additionally, the consequences of accepting Mr. M. I. Memon's submission would be startling. If learned counsel's submission is accepted, every person domiciled in Sind would be entitled to apply for a Permanent Residence Certificate from any district of Sind. As rightly observed by the learned Judges of the Sind High Court, this would defeat the very object of the requirement that a Permanent Residence Certificate should be for a district of the Province, and it would also reduce the said Rules to absurdity. But absurdity is no material to be attributed to the rule‑maker. Accordingly, in the circumstance discussed, we bold that rule 6 merely curtails the powers conferred on District Magistrate under rule 4, and it does not confer on District Magistrates any independent power to issue Permanent Residence Certificates. We now turn to Azizur Rehman's case. The petitioner in this case had obtained a Permanent Residence Certificate for the district of Badin, but it was cancelled by the Committee on the ground that he had not produced evidence of his place of birth, of the place of his primary education and even of the residence of his family. As according to the learned Judges of the Sind & Baluchistan High Court, the petitioner bad produced evidence to show that his family had its permanent residence in Badin at first sight, this judgment would appear to be distinguishable on the facts. But, as submitted by Mr. M. I. Memon, the learned Judges set aside the Committee's decision not because of the evidence produced by the petitioner of his family's place of residence, but because of the interpretation placed by them on the said rules. They, however, examined only rule 6 and held that the District Magistrate's power of granting a Permanent Residence Certificate was governed exclusively by this rule. After analysing this rule, Rashid, J. (who pronounced the judgment of the Court) observed in paragraph 11 of the judgment: "I have, therefore, come to the conclusion that an applicant for the grant of Permanent Residence Certificate can claim such certificate under one or more of the categories listed in rule 6 of the Rules, which ever may suitably apply to him." Then, so as to leave no doubt about the ratio of the cast, the learned Judge observed in paragraph 22; "The Committee has cancelled the Permanent Residence Certificate granted to the petitioner by the District Magistrate on the sole ground that he failed to produce any evidence of his birth or of primary education. Evidence of primary education is irrelevant for the purposes of grant of Permanent Residence Certificate." There can be few better indicia of the residence of a student than the place of his primary education, and we agree with Mr. M. I. Memon's submission that the ratio of this case is that a person is entitled to a Permanent Residence Certificate if he is domiciled in Sind. As this view is totally inconsistent with that taken in the judgment under appeal, with respect, we venture to think that it would have been better if the learned Judges had, in the instant case, referred the writ petition to a larger Bench. However, we have examined both the judgments with the assistance of the learned counsel and for the reasons which we have given, we are satisfied that rule 6 merely curtails the powers conferred on District Magistrates under rule 4, therefore, with all respect to the learned Judges, we cannot agree with the view taken by them in Azizur Rehman's case and we agree with the view taken in the judgment under appeal. The petition is without merit and is dismissed. Petition dismissed.