2016 Y L R 2746
[Balochistan]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Ejaz Swati, J
MUHAMMAD IQBAL and another ---Petitioners
Versus
DEPUTY COMMISSIONER DISTRICT LASBELLA and 4 others ---Respondents
C.P. No.71 of 2013, decided on 25th August, 2016.
Pakistan Citizenship Act (II of 1951) ---
----S.17---Domicile certificate, cancellation of ---Principle of audi alteram partem ---
Applicability ---Petitioners assailed order passed by authorities cancelling domicile certificates
issued to them ---Validity ---Proceedings from the inception, initiated in respect of conducting
inquiry of domicile certificates of petitioners, whereby matter was referred to Assistant
Commissioner concerned for inquiry into the authenticity of domicile certificates and till passing
of order in question, had deprived petitioners of their vested rights by cancelling their domicile
certificates ---Such act was violative of principle of natural justice, as embodied in the maxim
audi alteram partem, no one should be condemned unheard--- High Court set aside the order
passed by authorities and matter was remanded for decision afresh after providing opportunity of
hearing to the parties ---Constitutional petition was allowed accordingly.
PLD 1982 Pesh. 51; PLD 1980 Quetta 29 and University of Dacca v. Zakir Ahmed PLD
1965 SC 90 ref.
Sardar Ahmed Haleemi for Petitioners.
Zahoor Ahmed Baloch, Assistant A.G. for Respondents Nos. 1 to 4.
Zahid Muqeem Ansari assisted by Jawad Ahmed Khan for Respondent No.5.
Date of hearing: 1st August, 2016.
ORDER
MUHAMMAD EJAZ SWATI, J. ---The petitioners had challenged the Order dated 17th
January 2013 passed by the Deputy Commissioner, Lasbella (respondent No.1), whereby the
Domicile Certificate dated 23rd July 2012 issued in favour of the petitioner No.1 was cancelled
and consequently the domicile dated 18th October, 2012 in favour of petitioner No.2 was also
cancelled. The relevant order is reproduced herein below: --
"After hearing the both candidates and report from the respective Assistant
Commissioner Sub- Division Bela and undersigned's visit of Mouza Hashangi, it appears
that Mr. Mohammad Iqbal son of Malik Rab Nawaz is not permanently residing in
Mouza Hashangi Tehsil Lakhra, District Lasbela.
NOW THEREFORE, the undersigned is pleased to Order that the Domicile Certificate
No.147/13(6)GB dated 23rd July, 2012, issued in favour of Mr. Mohammad Iqbal son of
Malik Rab Nawaz and consequently in favour of his daughter Miss Fabiha Iqbal
No.1925/13(6)GB dated 18th October, 2012 are hereby cancelled with immediate effect."
2. The learned counsel for the petitioners contended that the very act of the respondent No.1
was illegal, unlawful and without having jurisdiction; that no opportunity of being heard was
provided to the petitioners; that without having any s ubstance and back of law, the impugned
order has been passed on the basis of presumptions, therefore, same is liable to be declared
without lawful authority and having no legal effect.
3. The learned Assistant Advocate General assisted by the learned couns el for respondent
No.5 contended that the petitioner was neither resident of Lasbella nor having any property over
there and he obtained the domicile certificate in fraudulent manner; that the Deputy
Commissioner after conducting inquiry through Assistant Commissioner and providing
opportunity of being heard passed the impugned order, which is based on sound, legal and
factual aspects.
4. We have heard the learned counsel for the parties and perused the record. The domicile
certificates issued in favour of Muhammad Iqbal and his daughter namely Miss Fabiha Iqbal
(petitioners herein) on 23rd July 2012 and 18th October 2012 respectively and the same were
cancelled vide impugned order dated 17th January 2013 on the basis of report of the Assistant
Commissioner Sub- Division, Bella and on the basis of personal visit by the respondent No.1 of
Mouza Hashingi, on the basis whereof the respondent No.1 issued the impugned order finding
the petitioners not residents of Mouza, Hashingi Tehsil Lakhra District Lasbella. The document
annexed along with the petition i.e. mutation entry No. 504 pertaining to the year 2011 indicates
the property in Mouza Hashingi on the name of the petitioner Muhammad Iqbal. The impugned
order passed by the respondent No.1 merely shows that he visited Mouza Hashingi, but it is
nowhere mentioned that the Tehsil record was also examined. Though, the impugned order is
based on the report of the Assistant Commissioner Sub- Division, Bella, but it is silent as to
whether the said Assistant Commissione r issued any notice to the petitioners for joining the
inquiry. The domicile certificates being issued to the petitioners administratively and issuance of
these certificates creates a right in the holder thereof. Reference in this respect is to be made to
the judgments reported in PLD 1982 Peshawar 51 and PLD 1980 Quetta 29.
5. The perusal of record indicates that in the process, which has eventually conducted
depriving the petitioners of their vested rights and they have been kept away from the
proceedings initiated by the Assistant Commissioner. The opportunity of being heard was
necessary in view of the fact that a counter claim was necessary before the investigating officer
with regard to the authenticity of the domicile certificates earlier issued to th e petitioners and the
question of depriving them of their vested rights was substantially involved therein. The
impugned order in the aforesaid circumstances appears to be against the principles of natural
justice. It is well settled that where a person or body of person is empowered to take any decision
in respect of right of others, which involves affecting a right of any person in such eventuality,
the principle of natural justice may apply. In the case of University of Dacca v. Zakir Ahmed,
PLD 1965 SC 90, the Hon'ble Supreme Court observed as under: --
"Nevertheless, the general consensus 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 he 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'."
6. In the aforesaid circumstances, we after considering the impugned order held that the
proceedings from the inception initiated in respect of conducting inquiry of domicile certificates
of the petitioners, whereby the matter was referred to the Assistant Commissioner, Bella for
inquiry into the authenticity of domicile certificates and till passing of the impugned order, the
petitioners had been deprived of their vested rights by cancelling their domicile certificates,
which are violativ e of principle of natural justice, as embodied in the maxim audi alteram
partem, no one should be condemned unheard.
In view of the above, Constitutional Petition No. 71 of 2013 is partly allowed, the
impugned order dated 17th January, 2013 passed by the respondent No.1 is set -aside and the case
is remanded to the Committee concerned to decide the same in accordance with law after
providing opportunity to the parties.
MH/66/Bal Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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