110-NLR-NLR-V-59-H.-E.-TENNEKOON-Commissioner-for-Registration-of-Indian-and-Pakistani-Residents.pdf
512
LORD MORTON OF' HENRYTON—TenrieJcddnv. Panjan
[In thjs Privy Council]
Present: Lord Morton of Henryton, Lord Tucker, Lord Cohen,-. Lord Denning and Mr. L. M. D. de SilvaH. E. TENKEKOON (Commissioner for Registration of Indian anPakistani Residents), Appellant, and MURUGAPILLAI PAX JAN,
’ Respondent.
Privy Council Appeal No. 23 of 1956
Indian and Pakistani Residents (Citizenship) Act, Iso. 3 of 1049—Sections 6 and £[as amended by section 4 of Act Ho. 37 of 1950)—Application for registratioas citizen of Ceylon—Proof of permanent settlement in Ceylon—Proof of beinan “ Indian or Pakislajii resident —Relevant date.
In an application made by an Indian resident for registration as a citizeof Ceylon, under section 4 (1) of the Indian and Pakistani Residents (CitizenshipAct, No. 3 of 1949—
Held, that, for the purpose of proving permanent settlement in Ceylon, (a. it was not necessary for the applicant to prove a change of Iris Indian domicile(6) too much weight should not be attached to tlio statement as to temporal-;residence in Ceylon made by the applicant in the “ Form M. O. ” which hsigned for the purpose of remitting certain sums of money to India. –
Held further, that tho applicant should prove that he was “anlndian resident”as defined in section 22, at the date of his application and not at the date of thicoming into operation of the Act.
A
AaPPEAL from a judgment of the Supreme Court.
Sir Frank Soskice, Q.G., with 31. Solomon, for the appellant.
G. S. Barr Kumarakidasinyhc, with Mrs. Kshama Fernando, for therespondent.
Gur. adv. vult.
May 19, 195S.[Delivered by Lord Morton of Henrytox]—
This is an appeal from the Supreme Court of Ceylon. It will be con-venient to refer to the respondent as “ the Applicant ”.
On the 2Gth May, 1951, the applicant applied for registration as acitizen of Ceylon, under section 4 (1) of the Indian and Pakistani Resi-dents (Citizenship) Act, No. 3 of 1949, hereafter referred to as “ the ActHis application was refused on the 14th August, 1953, but an appealby the applicant to the Supreme Court of Ceylon was successful. Theappellant now appeals from the decision of the Supreme Court, with theleave of that Court.
LORD MORTON OF 23QEJfRYT02'T—Tennckoon v. Panjan
513
It is convenient to observe at once that the decision of the Commissionerrefusing the application was given five months before the decision of theDeputy Commissioner in the case of Tennehoon v. Duraisamy1, judgmentin which has just been delivered by their Lordships’ Board ; but thejudgment of the Supreme Court allowing the appeal of the applicant inthe present case was delivered a week after the judgment of that Courtin Duraisamy’s case. The applicant in the present ease did not raise anypreliminary objection to the jurisdiction of the Board.•
The relevant provisions of the Act have already been set out in thejudgment of the Board in Duraisamy’s case, and need not be repeated.The question in the present case is whether the Commissioner* who heardthe ease (3fr. V. L. Wirasinha) was justified in holding that the applicanthad failed to prove that he was “ permanently settled ” in Ceylon withinthe meaning of section 22 of the Act, as amended by section 4 of theIndian and Pakistani Residents (Citizenship) (Amendment) Act, Xo. 37 of1950.
The facts in the present case are as follou*s :—
The applicant applied to be registered under the Act as a citizen ofCej'lon on the 26th 3fay, 1051, stating in his application that ho wasa single man, an Indian resident and had been continuously' x-esident inCeylon during the period of ten yeai*s commencing on the 1st January,1936, and ending on the 31st December, 1915, and fi*om the 1st January,19-16, to the date of the application and making a declaration in the tox*msof section 6 (2) (iii) and (iv) of tho Act. In his supporting affidavitho deposed that he had been born at Thathamangalam Village, Ti-iehydistrict, on the 3rd January, 1921, that he was the manager of Eetchumy-pathy Stores, Koslanda, and that lie had resided at Iruwanthampola,Koslanda, from 1936 to 1912, at Egodawatte Estate, Koslanda, from1912 to 1917 and at Lctchumypathy Stores, Ivoslanda, from 1917 to date.
The apjilication was supported by various letters oi certificates speakingas to the said apxilicant’s good character and length of residence in Ceylon.There was, however, no contemporary documentary evidence as to hisresidence in Ceylon from 193G to 1917 but only letters of recent date.
On the 1th April, 1952, tho applicant, in answering a questionnairesubmitted to him, stated that lie had an interest in certain property inIndia, being entitled to a ^ share of the estate of his father (who wasstill living), that he had x>aid visits of one month each to India in 1916and 1917 to see his parents and that ho had remitted money to Indiablit was not certain how many times.
The Investigating Officer rexiorted on the application as follows :—
“ Residence From-1936 (1st Jan.) to date of application.
" 1936 to 1912—The applicant says that he was at IruwanthampolaEstate with his relations. Theio is no documentary evidence to showthat ho was actually living in Ceylon and not in India. Tho three
(1958) 59 N. L. Ji. 481.
514' ' – LORD MORTOX OF HENRYTON—TenheJcoon v: Panjdn ‘:
letters (P.7, 8 and 9) are intended by the applicant to prove his resi-dence during the period 2936 to 1942. -In my opinion this evidenceis highly unreliable.•’
“ From 1942 to 1947.—The applicant says that he was working ata boutique at Egodawatte Estate, Koslanda. He says that he was_there from Aug., 1942, to July, 1947. Unfortunately that boutiqueis now closed down.
“ From Sept. 1947, to the date of his application, he has been atBetchumy Stores, Iruwanthampola. I have examined the booksand I have found that he has resided at the above residence duringthis period.
“ Visits to India. He has made two visits to India, in 1946 and1949, to see his parents. Both visits lasted a month each.
“ Interests in India.—He is entitled to £ share ol his father’s propertywhich is worth Es. 2,000. His parents are now permanently residingin India and the applicant saj s that they do not desire citizenshipas asked for {vide p. 3). Remittances. The applicant has remittedmoney to India but he does not know the exact amount or the occasionshe has remitted. He has remitted Rs. 76 in 1951.-
“ Interests in Ceylon.—He is now the Manager of Letchumy Stores.
• He has contributed Rs. 2,034-10 towards his business in 1951 July ”,
The applicant gave further details of the remittance of Rs. 76 in aletter written to the Investigating Officer on the 23rd July, 1952. Inthis he stated that he had sent to his parents in India Rs. 13 on the31st January, 1950, Rs. 15 on the 2Sth February, 1950, Rs. 23 on the31st May, 1950, and Rs. 23 on the 30th June, 1950, and that these re-mittances had been made under a General Permit dated the ISthDecember, 1949, issued under the Defence (Finance) Regulations. ThisGeneral Permit, which was enclosed in the letter, was in fact a permitissued by the Controller of Exchange, granting authority for the applicantto remit to India a total sum of Rs. 336 in monthly instalments extendingfrom January, 1950, to April, 1951. In the formal application for thispermit, made by the applicant on the 24th August-, 1949, and signed byhim, he had declared himself to be temporarily resident in Ceylon, hadstated that his father, mother, two brothers and sister were dependants,that during tho period 1st July, 194S, to 31st March, 1949, he hadbeen regularly remitting Rs. 25 per month to each of them and that thepurpose of the remittance sought to be authorised was “ Home Expensesat India ”.‘
– It is common ground that the form so signed, though marked “ FormM.O. ” was the same in all relevant particulars as the “ Form B ” referredto in Duraisamy’s case.
On the 9th October, 1952, C. 51. Agalawatte, a Deputy Commissionerfor the Registration of Indian and Pakistani Residents, gave the applicantnotice that he had decided to refuse his application for registration unless
XOItD .MORTON OF IIEXRYTON—Tcnnckoon v. Fcinjan
515
lie showed cause to the contrary within a period of three months. Thegrounds for such refusal were specified as follows :—-
.“ You have failed to prove—•
that you had permanently settled in Ceylon ; the contraryis indicated by the fact that-, in seeking to remit money abroad,you declared yourself to be temporarily resident in Ceylon ;
that you were resident in Ceylon during the period 1st January,19UG, to July, 19-17, without absence exceeding 12 months onany single occasion. ”
The applicant replied by his proctor on the Sth November, 1952,that lie had been unaware of tho implications of the declaration made byhim to the Department of Exchange Control, that he had since hisfirst arrival in Ceylon treated Ceylon as his permanent home and thatsuch had been his intention at the time he made his application forregistration as a citizen of Ceylon, and for these reasons requesting theholding of an enquiry.
The .applicant's application for registration as a citizen of Ceylon wasaccordingly referred for inquiry.
At the enquiry, which was held on 7th July, and the 29tli July, 1953,before V. D. Wirasinha, Commissioner for the Registration of Indian andPakistani Residents, the applicant produced documents, and called evi-dence to show that ho had been continuously resident in Ceylon for therequired period. It would appear from the Commissioner’s Order that heaccepted this evidence. The applicant himself gave evidence in supportof his application, stating in the course of his evidence that he had not. made any remittances to India before obtaining the permit from the Con-troller of Exchange, that the Rs. 76 he had remitted had been sent to hisfather in order to assist in the payment of certain medical expenses andthat since then ho had not made any remittances. With regard to thedeclaration made by him that he was temporarily’ resident in Ceylon, theapplicant’s testimony was that he did not know the meaning of what hesigned, as the form was in English, a language which he did not under-stand.
At the said enquiry there was also received in evidence, at the instanceof the applicant, a copy of the evidence given in another case by A. If.Abeynaike, Deputy’ Controller of Exchange, Colombo. The said Abey-naike deposed that the form of application of the 24th August, 1949,in which the applicant had declared that he was temporarily residentin Ceylon was a form drafted “ on the initiation of the Controller ofExchange ” from whom under the Defence (General) Regulations apermit is required for the remittance of money’s abroad. The saidAbeynaike further deposed that his own practice in the Departmentwas normally’ to accept without further investigation declarations madeby persons temporarily resident in Ceylon as to who their dependantsabroad are, but that declarations from persons permanently residentin Ceylon he would test further, requiring proof of necessity andobligation..-
616- LORD MORTON OFH^OTpN^iPmnetem »/', ^
At the end of the'enquiry the Commissioner made an.6rderrrefusmg;the application, upon grounds which will be considered later^ and the^
applicant appealed to the Supreme Court. ..
The appeal was first argued before Swan, J., and that learned Judge','on the 14th October, 1954, referred it to a fuller Bench. Thereafter it. was argued before a Bench consisting of Gratiaen, J., and Sansoni, J.,together with the appeal in Duraisamy’s case. On the 25th February,1955, Gratiaen, J., delivered the judgment of the Court in the following
terms :—
“ This appeal came up before us on a reference by Swan, J., andwas argued before us together with a similar appeal—S. C. No. 517/54Application No. J 154. It is not denied that if the judgment pro-nounced by us on 18th February, 1955, be correct, the appellant forthe same reasons is entitled to succeed on this appeal. We accord-ingly allow the appeal for the same reasons as those contained inour connected judgment and direct the Commissioner to take appro-priate steps under section 14 (7) of the Act on the basis that a primafacie case for registration has been established to the satisfaction ofthis Court. The appellant is entitled to the costs of this appeal. ”
The appeal S. C. No. 517/54 Application No. J 154 there mentionedis the appeal in Duraisamy’s case, and their Lordships’ comments uponthe judgment of the Supreme Court in that case apply equally tothe present case. In the present case' also they are of opinion that theSupreme Court was clearly right in allowing the appeal.
It is plain that the Commissioner based his refusal of the applicationentirely upon his view that the applicant had failed to prove that he hadpermanently settled in Ceylon.
In their Lordships’ view the approach of the Commissioner to thedetermination of this question was wrong in the two important respects,which they mentioned and discussed in their judgment in Duraisamy’scase in regard to the Deputy Commissioner’s decision in that case. TheCommissioner thought, wrongly, that the applicant had to prove a changeof domicile, and he attached far too much weight to the statement as totemporary residence in Ceylon made by the applicant in the form whichhe signed. Their Lordships’ observations on these two matters inDuraisamy’s case apply equally, mutalis mutandis, to the present case ;but the statement as to temporary residence made by the applicant in thepresent case is of even less evidential value than the statements made byMr. Duraisamy, for two reasons. First, the applicant was illiterate andthe form was filled in in English—a language with which the applicantwas unfamiliar—hy someone else. Secondly, it is obvious that the appli-cant, or the person who filled in the form for him, did not fully under-stand the vital question 7. That question, and the answer to it, were asfollows :—.
7. Nationality :—. •.
If not a Ceylon National—.
(i) State aggregate period of residence in Ceylon :20 years
. Twenty years;••
LORD MOBTON OF HEKRtTO^T—Tennekoon v. Panjan
517
■ (ii) If aggregate period of residence in Ceylon exceeds 10 yearsstate whether temporarily or permanently resident inCej-lon : Temporarily ;
If temporarily resident in Cej'lon state country of permanentresidence and permanent address in that country :M.
Panjan, Letchimipathy Store, Iruwanthampola Hstate,Ivoslanda.
Thus, although the applicant stated, in answer to question 7 (ii) thathe was temporarily resident in Cejdon, in answer to question 7 (iii) hegave an address in Ceylon, thereby indicating that ho was permanentlyresident in that country.„
One more matter should be mentioned in regard to the Commissioner’sOrder. He expressed himself as follows ;—
“ It is pertinent to inquire by what date an applicant should havepermanently settled in Ceylon. Only Indians or Pakistani residentscan procure registration under the Act. In terms of Section 22 ofthe Act, no Indian or Pakistani is an Indian or Pakistani resident unlesshe ‘ has emigrated ’ from his country of origin and e permanentlysettled in Ceylon ’ or unless he is the descendant of such a person,or unless, being himself of Indian or Pakistani origin, he is a person‘ permanently settled in Ceylon ’. The point is whether an applicantor an ancestor of his should have permanently settled in Ceylon atleast by the date of coming into operation of the Act, or whetherit. is sufficient that he had permanently settled in Ceylon by the dateof his application. The Indian and Pakistani (Citizenshije) Act ISTo. 3of 1919, was the result of negotiations between the Governments ofIndia and Ceylon relating to a body of persons whose origin was inIndia and who had permanently settled in Ceylon. What was inissue was the status of a fairly large number of Indian and Pakistaniresidents who were already joermanently settled in Ceylon and thoAct was designed to benefit that body of persons. I am of opiniontherefore that what the Act requires is that an applicant should havepermanently settled in Ceylon not merely by the date of his applica-tion, but at any rate by the date of coming into operation of theAct, namely 5th August, 19-19. ”
In their Lordships’ opinion the provisions of the Act, and in particularthe use of the present tejise in section 6 (1), make it reasonably clear thatan applicant must prove that he is “ an Indian or Pakistani resident ”, asdefined in section 22, at the date of the application. If the relevant datehad been the coming into operation of the Act, there would surety havebeen an express reference to that date in section 6 (1).
For these reasons their Lordships will humbly advise Her Majestythat this appeal should be dismissed. The appellant must pay therespondent’s costs of this appeal.
Appeal dismissed.