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Constitutional Petitions Nos. D‑120 and D‑145 of 19831 decided on 20th March, 1983.

Rr. 6 & 8 read with Provisional Constitution Order (1 of 1981), Art. 9‑Petitioners applying for issuance of Permanent Residence Certificate with various documents in support of application‑ District Magistrate dismissing applications ignoring documents and relying on report of Assistant Commissioner ‑‑‑ Appeal to Commissioner dismissed on main ground that petitioners were not born in district for which permanent residence certificate was required holding that under r. 6(1) it was legal necessity‑Held : One of con ditions for grant of permanent residence certificate under r. 6(1) was that petitioner should have born in any area forming part of Sind and not that applicants should have been born in district for which certificate was required‑Case remanded for holding proper inquiry and decision of question afresh.

Miss Mehrun Nissa v. Appellate Committee and another 1978 S C M R 439 rel.

-----R. 6‑Provisional Constitution Order (I of 1981), Art. 9‑Writ Jurisdiction‑‑‑Finding of Tribunals based on no report of Assistant Commissioner without holding proper enquiry, or application of minds to facts of case, without considering documentary evidence produced by petitioners and on misinterpretation of law laid down by Supreme Court‑Orders, held, without lawful authority and cases remanded for fresh decisions.

Khalid Latif for Appellants.

A. Sattar, A. A.‑G. for Respondents.

Date of hearing : 7th, 8th and 13th March, 1983.

.‑The above two petitions are based on simi lar facts and involve common points of law. Hence they shall be decided by this common judgment. Petitioner Millat Sultan in Petition No. D 120/ 1983 is son of Kabiruddin while Miss Tarana Yasmeen, petitioner in petition No. D‑145/1983 is daughter of the same Kabiruddin. Thus, the Petitioners in the two petitions are sister and brother. They had applied to District Magistrate, Sanghar for issuance of Permanent Resi dence Certificates (P., R. Cs.) as they wanted to get admission in Liaquat Medical College, Hyderabad. Their applications were dismissed by the District Magistrate, Sanghar by separate orders dated 1‑11‑1982. Both the petitioners filed appeals before the Commissioner under rule 8 of the Permanent Residence Certificate Rules, 1972 (hereinafter referred to as the P. R, C. Rules'). The learned Commissioner Hyderabad held that since the petitioners were not born in District Sanghar, hence they were not entitled under rule 6 of P. R. C. Rules to get P. R. C. for that District. It appears that on 29‑11‑1982 Assistant Commissioner Sanghar had visited Village Jam Nawaz Ali and made inquiries about the petitioners in the two petitions and submitted a report to the effect that the petitioners and their father Kabiruddin used to reside in Village Jam Nawar Ali at one time but now Kabiruduin is residing with his family at Hyderabad where he is enjoy ing benefits of urban area. On the basis of the inquiry conducted by the District Magistrate and the earlier inquiry conducted by the Assistant Commissioner Sanghar, the Commissioner dismissed the appeals of the petitioners by separate orders dated 17‑1‑1983 and held the orders of the District Magistrate dated 1‑11‑1982 refusing to grant P. R. Cs. to the petitioners.

2. The two petitioners have now challenged the above orders of the District Magistrate and the Commissioner Hyderabad by the above con stitutional petitions.

3. The claim of petitioner Millat Sultan in Constitutional Petition No. D‑120/1983 is that his father Kabiruddin was born on 15‑1‑1929 in Village Jam Nawaz Ali, Taluka Sinjhoro, District Sanghar. He obtained his pri mary education in Village Dhaniparto which is short distance away from village Jam Nawaz Ali. He went to Mirpur Khas for further edu cation. The petitioner's grandfather was employed in P. W. D. and, therefore, was transferred place to place in Sind, who retained his permanent residence in Village Jam Nawaz Ali. The petitioner's father Kabiruddin joined Sind Police and was posted at various places. After his retirement as D. S. P., he settled in 'village Jam Nawaz Ali permanently. As there was no proper arrangement for higher education in the District, hence the petitioner was sent by his father to Karachi and Hyderabad for further studies.

4. On 11‑12‑1974 petitioner's father was granted Domicile Certificate by District Magistrate Sanghar. A national Identity Card was also issued to him on 20th March, 1975 by the District Registration Officer, Sanghar. In the year 1964 petitioner's father was enrolled to the Electoral Roll pertaining to Village Jam Nawaz Ali. The Chairman of the Union Council, Jam Nawaz Ali also certified that the father of the petitioners was per manent resident of Village Jam Nawaz Ali.

5. Two elder sisters of the petitioners were earlier granted P. R. Cs. by the District Magistrate Sanghar for the same village Jam Nawaz Ali, although they had been educated outside Sangnar due to posting of their father at different places in the Police Department. On the basis of P. R. Cs. issued by the District Magistrate in their favour, the two elder sisters of the petitioners were admitted in Medical College, Nawabshah.

6. Petitioner Millat Sultan passed his Intermediate Examination from Hyderabad in the year 19x2 and thereafter he applied for grant of Domicile Certificate to the District Magistrate Sanghar, but his application was rejected. His appeal to the Federal Government against the order of the District Magistrate was accepted and consequently the District Magistrate issued Domicile Certificate to the petitioner of Sanghar District. Thereafter, the petitioner applied for P. R. C. to the District Magistrate, Sanghar, res pondent No. 1. Respondent No. 1 got inquiry held through Muktiarkar about the residence of the petitioner from which it transpired that the petitioner and his father had left Village Jam Nawaz Ali for good and settled at Hyderabad. The relevant observations made by the District Magistrate in respect of permanent residence of the petitioner are as under;

"In the present case the applicants or their father have no perma nent abode in Jam Nawaz Alt Taluka Sinhoro as is evident from the voters list of the subsequent years wherein the names of applicants or their father are not entered. Moreover, they alongwith their father are permanently settled at Hyderabad, since many years."

Hence the District Magistrate rejected the application of the petitioner on 1‑11‑1982.

7. This order was challenged in appeal before the Commissioner Hyderabad Division, who considered all the papers of inquiry held by the District Magistrate. It seems that inquiry was also held earlier by depu ting Assistant Commissioner, Sanghar who had visited Village Jam Nawaz Ali to ascertain the fact of permanent residence of the petitioner. The Assistant Commissioner had visited the Village on 29‑II‑1982 and reported that there was no trace of any house of the petitioner or his father in Village Jam Nawaz Ali. In view of this report the Commissioner, Hyderabad dismissed the petitioner s appeal by his order dated 17‑1‑1983.

8. The case of Miss Tarana Yasmeen, petitioner in Constitutional Petition No. D‑145/1983, is almost identical. She is sister of Millet Sultan and her father Kabiruddin was born on 14‑1‑1929 and she got her education outside Sangbar District because of posting of her father at different places in the Police Department. She passed Intermediate Examination in 1981 from Hyderabad and thereafter applied for Domicile from Sanghar District but it was refused. Her appeal to the Federal Government against that order was accepted and consequently the District Magistrate Sanghar issued Domicile Certificate to her. Thereafter she applied for P. R. C. to respondent No. 1. He held inquiry as in the case of Millet Sultan and passed an order on 1‑11‑1982 rejecting the application.

9. Her appeal before the Commissioner was disposed of in the same manner on the report of Assistant Commissioner Sanghar, as in the case of her brother Millat Sultan petitioner in Constitutional Petition No. D‑120/ 1983.

10. In support of this claim petitioner Millat Sultan has produced his Domicile Certificate showing his place of domicile as Sanghar District (Annexure 'A') Identity Card showing his permanent address as Village Jam Nawaz Ali (Annexure 'B') Certificate of Chairman, Municipal Committee, Tando Adam to the effect that Kabiruddin, the father of the petitioner was listed as a voter in the years 1964 (Annexure C') the form which was filled up for obtaining national Identity Card (Annexure 'E'), National Identity Card of his other brothers and sisters (Annexures F' G' 'H' I', 'J' and K') in which the place of permanent residence has been shown as Village Jam Nawaz Ali and P. R. Cs. of elder sisters of the petitioner Samina Yasmeen and Naghma Yasmeen (Annexures L' and M'). These certificates are dated 12‑2‑1975 and 26‑I1‑1976 respectively in which the permanent residence of Miss Samina Yasmeen and Naghma Yasmeen has been shown as Village Jam Nawaz Ali. He has also produced his Domicile Certifi cate and that of his father Kabiruddin as Annexures R' and S'.

11. Miss Tarana Yasmeen in the other petition had also produced all those documents on which Millat Sultan has relied i. e. her Domicile Certificate and that of her father, her Identity Card and that of her relations, the P. R. Cs. of her elder sisters Samina Yasmeen and Naghma Yasmeen.

12. The orders of the District Magistrate and the Commissioner, Hyderabad in the two petitions have been challenged by Mr. Khalid Latif learned counsel for the two petitioners on the following grounds :‑------

(a) That the Mukhtiarkar had conducted an enquiry into the question of P. R. C. of the petitioners and submitted a report in favour of the petitioners to the District Magistrate through Assistant Com missioner, Sanghar. The District Magistrate and the Commissioner have failed to take into consideration the report of the Mukh tiarkar.

(b) That it was established by documentary evidence that the petitioner's father owned house in Village Jam Nawaz Ali and that their rela tions lived there and were settled there permanently alongwith the petitioners.

(c) That the learned Commissioner has wrongly based his findings on the report of the Assistant Commissioner dated 29‑11‑1982, which could not have been made on that date since the order of the Dist rict Magistrate was dated 1‑11‑1982. Thus, the Assistant Commis sioner could not have conducted inquiry on 29‑11‑1982 when the case had already been decided by the District Magistrate. In fact, according to the petitioners, the Assistant Commissioner had not visited the village at all.

The fact that the Mukhtiarkar had conducted inquiry in the matter of the two petitioners and had submitted report in favour of issuing P. R. C. to the two petitioners, as alleged in ground No. 1 of the memo. of petition, has not been controverted. We had also summoned the papers of the inquiry through 'Mr. Abdul Sattar Shaikh learned A. A.‑General, who was also unable, to controvert this fact, It is surprising that in the short order, which the District Magistrate has disposed of the two ap plications of the petitioners, he has made reference whatsoever to the in quiry held by the Mukhtiarkar although he has referred to the inquiry held by the Assistant Commissioner, to which reference has been made by the Commissioner also in his order deciding the appeals of the peti tioners. It is amazing that the learned District Magistrate has not made any reference even to the several documents which have been quoted above including the P. R. Cs. issued in respect of the two elder sisters Miss Samina Yasmeen and Naghma Yasmeen of the petitioners, dated 12‑2‑1975 and 26‑11‑1976 respectively. A bare perusal of the order of the learned District Magistrate would show that he has neither considered all the evidence placed before him nor did he apply his mind seriously to the matter. He disposed of the two applications mechanically by a short order.

13. The learned Commissioner has also not discussed the various documents produced by the petitioners in support of their claim. He has based his order in both the cases on two grounds. Firstly he has held that since the petitioners were not born in Sanghar District, therefore, ac cording to rule 6 (1) of the P. R. C. Rules, they were not entitled to grant of P. R. C. for Sanghar District. Secondly he has relied on the report of Assistant Commissioner, dated 29‑11‑1982 which, according to the learned Commissioner, was submitted by the Assistant Commissioner during the inquiry held by the District Magistrate in the case of the two petitioners.

14. So far as the birth of the petitioners is concerned, the learned Commissioner has relied on the case of Miss Mehrun Nissa v. Appellate Committee and another (1978 S C M R 439) and held that rule 6 (1) of the P. R. C. Rules has been interpreted by the Supreme Court to mean that an applicant for P. R. C. should have been born in the District for which P. R. C. is sought, although accordingly to the plain language of rule 6 (1), one of the con ditions is that the petitioner should have been born in any area form ing part of Sind in order be eligible to issuance of P. R. C. He has, therefore, concluded that in spite of the plain language of rule 6 (1) to the above effect, an applicant for P. R. C. shall not be entitled issuance of the Certificate if he has not been born in the particular District of Sind for which the Certificate is sought.

15. We are constrained to observe that the learned Commissioner has not properly appreciated the law laid down by the Supreme Court in Miss Mehrun Nissa's case. It has nowhere been held by the Supreme Court that an applicant, in order to be eligible to P. R. C. for a parti cular District, should have been born in that District, nor there are ob servations with respect to interpretation of clause (1) of rule 6 as stated by the learned Commissioner. What was laid down in the above case by the Supreme Court, was that mere issuance of 'Domicile Certificate; in favour of an applicant or applicant's father for P. R. C. would not be sufficient to grant an application for P. R. C., although the fact of Domicile Certificate may be taken as one of the pieces of evidence to be considered for determining the question of P. R. C. It has nowhere been held by the Supreme Court that the words "any area forming a part of Sind" in rule 6 (1) mean the District for which P. R. C. is claimed. The learned Commissioner was, therefore, apparently in error in holding that "in the instant case the appellant was admittedly born at Hyderabad on 3‑7‑1964, and therefore, he is not eligible for grant of P. R. C. of Sanghar District because he did not fulfil condition (i) of rule 6 of P. R. C. Rules". The same observations have been made by the learned Com missioner in the other petition of Miss Tarana Yasmeen. The two appellate orders are in identical language with the exception that the names of the petitioners have been changed. As the above view is based on misinterpretation of the Supreme Court case, hence it cannot be upheld.

16. The next ground for dismissing the appeals of the petitioners was that on 29‑11‑1982 the Assistant Commissioner had visited Village Jam Nawaz Ali during the inquiry conducted by District Magistrate Sangbar and that as a result of his inquiry it transpired that some time the peti tioner's father lived in Village Jam Nawaz Ali, but he had shifted later to Hyderabad for good. Now the District Magistrate himself does not say in his order dated I‑I1‑1982 that he had directed the Assistant Com missioner to hold an inquiry in the matter, although reference has been made by the District Magistrate in the impugned orders regarding the inquiry having been conducted by the Assistant Commissioner. But the Assistant Commissioner could not have conducted inquiry on 29‑11‑1982, when the impugned order by the District Magistrate had already been passed earlier on 1‑11‑1982. We were in doubt about the correctness of the date 29‑11‑1982' quoted by the Commissioner in his order regarding the visit of the Assistant Commissioner to Village Jam Nawaz Ali, there fore, we summoned the original record to verify its correctness. It transpired from the original record that the date of Assistant Commissioner's visit has been mentioned as 29‑11‑1982. It is incomprehensible that th inquiry by Assistant Commissioner should have been made after the District Mag istrate had already decided the case. It has, therefore, been rightly contended by the petitioners in their two petitions that the Assistant Commissioner had not visited the Village at all. Had he visited the village on 29‑11‑1982 then the District Magistrate could not have made reference to his report in his order dated 1‑11‑1982. We have, therefore, no hesitation in holding that the finding of the learned Commissioner based on the so‑called report of Assistant Commissioner, is also founded on misreading of evidence or on no evidence or on evidence which prima facie was fabricated.

17. We are, therefore, satisfied that the cases of the two petitioners have been decided by the District Magistrate and the Commissioner with out holding proper inquiry, without applying their minds to the facts of the case and without giving serious thought to the documentary evidence produced by the petitioners and above all on misinterpretation of law laid down by the Supreme Court.

Consequently we set aside both the orders as having been passed with out lawful authority and remand the case of the two petitioners to the District Magistrate Sanghar to hold proper inquiry and decide the question of their P. R. C. afresh in the light of the observations made hereinabove. Both the petitions are allowed with no orders as to cost.

M. B. A. Petition accepted.

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