077-NLR-NLR-V-57-S.-K.-MARIMUTTU-Appellant-and-COMMISSIONER-FOR-REGISTRSTION-OF-INDIAN-AND-PAK.pdf
1956Present: Gratiaen, JT., and Gunasekara, J.
S. K. MARIMUTTU, Appellant, and COMMISSIONERFOR REGISTRATION OF INDIAN AND PAKISTANI
•RESIDENTS, Respondent
S.C. 101—Indian and Pakistani Residents (Citizenship).
Application No. Z 3,079
Indian and Pakistani Residents (Citizenship) Act A'o. 3 of 19-19—Sections 9 and 90—Application for citizenship—Refusal under Section 9—Xotice by registeredpost—Effect of non-delivery—“ Shall be deemed.
A registered letter was posted to an applicant for citizenship informing him,under section 9 (l) of the Indian and Pakistani Jtesidents (Citizenship) Act,
.that unless he showed cause within three months his application would be
refused. As the applicant was temporarily absent from his ptaco of residencethe letter never reached him and was returned to the Commissioner nsunclaimed ,T.
Held, that the words shall be deemed to have been duly served ” in section20 rendered the mere act of posting the registered letter equivalent to personalservice ; accordingly, the proved non-receipt of the letter could not assistthe applicant in re-opening the matter of the refusal of his application forcitizenship.
A-
-iJLPPEAX# under section 15 of the Indian and Pakistani Residents(Citizenship) Act No. 3 of 1949.
N.K. Choksy, Q.C., with Lyn Weerasekara and Maureen Seneviratne,for the appellant".
Walter Jayauardene, for the respondent.
Cur. adv. vult.
February 2, 1956. Gratiaen, J.—
The appellant had made an application on 25th July 1951 for theregistration' of himself, his wife and his children as citizens of Cjeylonunder the provisions of the Indian and Pakistani Residents (Citizenship)Act No. 3 of 1949. The application was in the first instance referredto an investigating officer who furnished his report to the Deputy'. Com-missioner under section 8 (2) (6). The Deputy Commissioner formedthe opinion that a prima facie case for registration had not been establishedand took steps to call upon the appellant to show cause why his applica-tion should not be refused. Accordingly, a notice in the form prescribedby section 9(1) was posted on Sth February 1955 in a registered,letteraddressed to the appellant at Levnas Estate, Koslanda, which was theaddress furnished by him (in his original application and in all subsequentcorrespondence with the department) as his place of residence. Un-fortunately the appellant was temporarily absent from Levnas Estatethroughout February 1955, and the registered letter containing’ thenotice dated Sth February 1955 never reached him. It was returnedto the Deputy Commissioner as “ unclaimed ” on 24th February 1955.Three months later, the Deputy Commissioner made an order undersection 9 (2) refusing the application for registration on the ground thatthe applicant, hacl failed, within the period specified in section 9 (1), toshow cause against the provisional order made against him on SthFebruary 1955.’
Notice of this decision was posted to, and was received by, the appellant .at Levnas Estate, and he promptly applied to the Deputy Commissionerfor the inquiry to be re-opened on the ground that he hacl in fact notreceived the notice dated Stli February, 1955. This application wasrefused and lie now appeals to this Court for a mandatory decree directingthe Commissioner to give him an opportunity to show cause (on themerits) against the refusal of his application for registration.
The prov isions of the Act which must be examined for the purposes ofthis appeal are a.s follows :
Section 9 (1) : Where upon the consideration of any application,the Commissioner is of opinion that a prima facie case has not beenestablished, he shall cause to be served on the applicant a noticesetting out the grounds on which the application will be refused andgiving the applicant an opportunity to show cause to the contrarywithin a period of three months from the date of the notice.
9 (2) : Where no cause is shown by the applicant within the aforesaidperiod, the Commissioner shall make order refusing the applicationand cause a copy of the order to be served on the applicant.
Section 20 : Any order, notice or other document which is requiredby or under this Act to be served on an applicant or on a person wholias lodged an objection shall, where it is not served personally on him,be deemed to have been duly served if it has been sent to him by postin a registered letter addressed to his last known place of residence orof business.
GRATIAE>T, J.—Alarimutlu v. Commissioner for Registration of360
Indian and Pakistani Residents
Mr. Choksv argued, that section 20 merely raises a rebuttable presumptionthat the notice which was posted to the appellant had been received byhim, and that in the present case the initial presumption had, to theknowledge of the Deputy Commissioner,' been conclusively displacedbefore the Order of refusal under section 9 (2) was made in May, 1955.Mr. Jayawardene’s contention, however, is that the mere act of postinga notice in a registered letter to a person’s “ last known place of residenceor of business ” constitutes the statutory equivalent of personal service ;accordingly, the proved non-receipt of the document could not assistthe appellant. The Act does not empower the Commissioner or a DeputyCommissioner to extend the time for showing cause under section 9 (2)if three months have expired since the date of personal service oralternatively, due posting (under section 20).
In some legislative enactments the words “shall be deemed” merelyintroduce a rebuttable presumption, but in other contexts the presump-tion is conclusive. It is “not an impossible conception to deem thata thing happened even when it is known positively that it did nothappen ”. per Romer J, in Batchellor's case a. Such a case arose inThe King v. The Westminster Unions Assessment Committee—Ex parteWooduard -. Section 65 of the Valuation (Metropolis) Act of 1869provided that, in lieu of personal service, any notice under the Act “ maybe served and sent bj' post, by a pre-paid letter …. and ifsent by post, shall be deemed to have been served and received respectivelyat the time that the letter containing the same would be deliveredin the ordinary course of post ”. Lord Reading, C.J., rejected the argu-ment that the section merely raised a presumption of fact until thecontrary was proved. “ It is ”, lie said , “ a presumption of law whichcannot be rebutted by showing that in fact the notice had not beenreceived …. The intention is to treat as a fact something thathas not been established as a fact—even something which can be shownnot to be a fact. ” Lord Justice Denning has explained the term“ conclusive presumption ” in his article entitled “ Presumptions andBurdens 3.“ It is a misuse of language, ” he said ", to speak of any
presumption being conclusive, but the meaning is clear. On proof ofcertain facts, the Court must draw a particular inference, whether trueor not, and it cannot be rebutted. ”
Conclusive presumptions or inferences of this kind sometimes workhardship to the individual, but I am satisfied that Parliament consideredthe application of the rule to be essential to the smooth working of themachinery of the Act now under consideration. In the absence, therefore,of some provision whereby relief may be granted to. an applicant whocan establish that the notice had failed to reach him through no faultof his own, the Courts arc powerless to assist him. I would thereforedismiss the appeal with costs fixed at Us. 105.
Gunasekara; J.—I agree.
A ppcai dismissed.
{1943) Ch. 1G9.i (1917) J K. Ii. 332. .
3 {1943) G1 L. <?. R. 379 at 3S1.