MUHAMMAD NOOR Versus THE DISTRICT MAGISTRATE, PESHAWAR

1. MUHAMMAD YAQUB ALI, J. ‑This appeal by special leave of the Court is against the order of the High Court of 'Vest Pakistan at Lahore dated the 5th of February 197.0, dismissing, in limine Writ Petition No. 315 of 1969, instituted by Muhammad Noor, appellant; calling in question the order of ‑the District Magistrate, Peshawar, dated the 3rd December 1969, whereby Maulvi Muhammad Idris of village Chamkani was directed to remove himself from district Peshawar for' a period of three months. Thebrder was made under section 5(1)(c) of the West Pakistan Maintenance of Public Order Ordinance, 1960, which empowers the District Magistrate.

2. " ... if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to public safety, or public interest or the maintenance of public order, it is necessary so to do, may by order in writing, give any one or more of the following directions, namely, that such person‑

(a) . . . . . . . . . . . .

(b) . . . . . . . . . . . .

(c) shall remove himself from, and shall not return to, any area that may be specified in the order ;

3. The order was made on the ground that Maulvi Muhammad Idris was preaching Punjpiri belief in village Chamkani which is not acceptable to the people of Chamkani and which has created great resentment amongst the people of the village and there was imminent likelihood of breach of peace.

4. The order of the District Magistrate was challenged by the appellant as without lawful authority on the ground that since Maulvi Muhammad Idris was ordinarily resident of village Chamkni, the proviso to subsection (4) of section 5 of the Ordinance precluded the District Magistrate from directing Maulvi Muhammad Idris to remove himself from district Peshawar.

5. A Division Bench of the High Court dismissed the writ petition in the view that Maulvi Muhammad Idris was not ordinarily resident of village Chamkani as he belonged to village Toru, district Mardan, and except the affidavit of the; appellant that he (Maulvi Muhammad Idris) has been residing at Chamkani for the last twenty years there was no other proof of his ordinary residence there.

6. Leave to appeal was granted as admissions made by the) District Magistrate in his parawise report to the writ petition) that Maulvi Muhammad Idris has been residing in village Chamkani for some years and was teaching there in a public religious institution were not given their dug: effect in determining the question of his ordinary residence. The point raised as to, the meaning of the term "ordinarily resident" was also of public importance and there was no decision of the Court on this; point.

7. As noticed above section 5(1)(c) of the West Pakistan Maintenance of Public Order Ordinance XXXI of 1960 empowers the District Magistrate, if satisfied, with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to public safety or public order it is necessary so to do to direct such person to remove himself to any area and not to return to that area for a period of three months. The proviso to subsection (4) of section 5 of the Ordinance, however, places a restriction on the exercise of this power inasmuch as no such order shall be passed by the District Magistrate directing the exclusion or removal from the district. A fortiori if Maulvi Muhammad Idris was ordinarily resident of village Chamkani the impugned order by the District Magistrate dated the 3 rd December 1969, was clearly without lawful authority.

8. The affidavit of the appellant that Maulvi Muhammad Idris was ordinarily resident of village Clianikani for a period of twenty years was supported by parawise report called for by the High Court from the District Magistrate, Peshawar. It is stated in para. 4(a) of the report that Maulvi Muhammad Idris is permanent resident of Toru, district Mardan and "is living in village Chamkani for some years back". In reply to the ground No. 1 of the writ petition it is stated that Maulvi Muhammad Idris by birth and domicile belonged to Mardan though his temporary address was at village Chamkani "where he had been engaged for purposes of teaching and preaching". These admissions were brought to the notice of the learned Judges in the High Court and on the basis of the decision in Syed Haider Shah v. Mukhtar Hussain Shah and others (P L D 1963 Lah. 548), where a Full Bench pointed out the difference between domicile and residence for the purposes of Displaced Persons (Com pensation and Rehabilitation) Act, XXVIII of 1958, it was urged that Maulvi Muhammad Idris though belonging to village Toru was, for the purpose of section 5(1)(c) of the West Pakistan Maintenance of Public Order Ordinance, 1960, ordinarily resident of village Chamkani. The attention of the learned Judges was also drawn to the Monograph, "The Factors of Residence and Domicile". Paragraph 719, page 39:1, Vol. 20, Third Edition, in Halsburys Laws in which the term: "ordinarily resident" is said to connote some habit of life and is to be contrasted with extraordinary, occasional or temporary residence. The learned Judges, however, distinguished this statement on the ground that it was for the purposes of determining liability for income‑tax and profits tax and did not apply to the matter with which they were dealing.

9. In their final analysis the learned Judges concluded:

10. "In the matter with which we are dealing, barring the affidavit of the petitioner, Muhammad Noor, that Maulvi Muhammad Idris has been residing at Chamkani for the last 20 years, there is no other proof that he ordinarily resides there. It is not denied that Maulvi Muhanimad Idrees comes from Toru‑ Mardan district. Section 5(1)(c) empowers the District Magistrate to make the order as has been done in the present case. Since we have come to the conclusion that Maulvi Muhammad Idrees is not ordinarily resident of village Chamkani, the proviso wherein it is laid that in the case of person "ordinarily resident" in the District would not be excluded or removed from the District by the listrict Magistrate, will not be available to Maulvi Muhammad Idrees. In the view we have taken in the matter, we feel that there is no case for issuance of notice and dismiss the writ petition fir limine."

11. The legality of the order of the District Magistrate externing Maulvi Muhammad Idrees from District Peihawar depends on whether he was ordinarily resident of village Chamkani. The facts found are that Maulvi Muhammad Idris though belonging to village Toru, in district Mardan, has been residing in village Chamkani, district Peshawar, for a number of years. He teaches there in a private religious institution and in the words of the District Magistrate he has been engaged there "for purposes of teaching and preaching." His address though described as `temporary' is also at village Chamkani and not village Toru. As stated in the Monograph "The Factors of Residence and Domicile", Vol. 20, Third Edition, page 394, paragraph 71p of the Halsbury's Laws of England : Ordinarily Resident" connotes some habit of life and is to be contrasted wish extraordinary, occasional or temporary residence. The duration of residence therefore does not determine the question. In Stroud's Judicial Dictionary, Third Edition. Vol. 3, page 20?0 "Ordinary Residence" is defined as "usual residence". The illustration given is of---

12. "A merchant who for a long time had carried on business in Madras, where he usually abides, has his "ordinary residence" there, though nearly every year he comes to see his wife and children in the United Kingdom (Turabali v. Inland Revenue Commissioner 42 Sc. L R 15)."

13. Similar instances are quoted in Words and Phrases Judicially Defined by Roland & Hurrows at pages 84 to 86. In Re: Erskine Ex‑P. Erskine ((1893) 10 T L R 32 C A), Re : Bright, Ex‑P. Bright ((1903) 51 9Y R 342 C A) and Gout v. Cimltian ((1922) 1 A C 105 (P C)). In the last‑mentioned case on November 27, 1917, the Cypru Annexation Amendment Order‑in‑Council, 1917, was made in which it was recited that the following persons shall be deemed to have become British subjects under and try virtue of the Cyprus Annexation Order‑in‑Council, 19'14, and the Proclamation of the High Commissioner of March 3, 1913, including any Ottoman subject who was ordinarily resident and actually present in Cyprus on November 5, 1914, shill become British subject. It was argued before the Court of Appeal that upon the facts as sated the plaintiff seas not resident in Cyprus on November 5, 1914, within the meaning of the proclamation and also was not "ordinarily resident" within the meaning of Order‑in‑Council of May 1917. It was further contended that in construing the order the Court should apply the same consideration as in the case of domicile. Their Lordships expressed the opinion that the words "ordinarily resident" cannot be interpreted by such considerations and must be given their usual ordinary meaning". The plaintiff was, no doubt, present in Cyprus on November 5, 1914, as required by the Order‑in Council he had been there with his family for several months and although he went there originally because he was ill and wanted the change of air, he had stayed on and brought his family to live with him after tie had recovered, and he continued to live there for nearly a year after the annexation, carrying on business there and took no steps to retain his Ottoman nationality. In these circumstances their Lordships held that the plaintiff was "ordinarily resident" in Cyprus in November 1914.

14. In Mrs. Annie Besant v. G. Narayaniah and another (AIR 1914 PC41), one of the questions arising for determination before the Judicial Committee was whether the District Court of Chingleput of Madras Presidency had the jurisdiction under section 9 of the Guardians and Wards Act .in respect of infants who were, at the relevant time, being educated in England though their home was in the district of Chingleput. It was held by their Lordships that the infants who had months previously left India with a view to being educated in England could not be ordinarily resident of Chingleput though they had resided there with their parents.

15. The words "ordinarily resident" occurring in the proviso to subsection (4) of section 5 of the West Pakistan Maintenance of Public Order Ordinance XXXI of 1960 must, therefore, be given their ordinary and usual meaning connoting some habit of life and in contrast with extraordinary, occasional and temporary residence. The fact that Maulvi Muhammad Idris was domicile of village Toru, district Mardan, was, therefore, irrelevant in determining whether he was ordinarily resident of village Chamkani, district Peshawar or not. As seen the District Magistrate admitted in his parawise report to the High Court that Maulvi Muhammad Idris has been living in village Chamkani for some years and was engaged in "teaching and preaching in a private religious institution there". It could not, therefore, be said that his residence in that village was extra ordinary, occasional or temporary residence.

16. He was clearly ordinarily resident of village Chamkani and the District Magistrate, Peshawar, could not direct his removal from that district. The learned Advocate‑General appearing for the State frankly conceded this position in law and expressed his inability to support the impugned order of the District Magistrate. In support of his confession he relied upon the decision of Turabali v. Inland Revenue Commissioner, and the Monograph" The Factors of Residence & Domicil" in Halsbury Vol. 20, Third Edition, page 394, paragraph 719, to which references have already been made. The reasons which appealed to the learned Judges of the High Court in dismissing the writ petition filed by the appellant to call in question the order of the District Magistrate, Peshawar, externing Maulvi Muhammad Idris from the district of Peshawar for a period of three months do not, therefore, in law, hold good.

17. We, accordingly, allow this appeal and set aside as without lawful authority the order of the District Magistrate, Peshawar, dated the 3rd December 1969, directing Maulvi Muhammad Idris to remove himself from the district of Peshawar and not to return to that district within a period of three months.

18. In the circumstances we make no order as to costs.

19. S. Q. Appeal allowed.