061-NLR-NLR-V-71-M.-T.-K.-S.-S.-A.-N.-MOHAMED-SAHIB-Appellant-and-THE-COMMISSIONER-FOR-REGISTR.pdf
LORD PEARSON—Mohamed Sahib v. Commissioner far Registration 200
of Indian and Pakistani Residents
[Privy Council]
1968 Present: Viscount Dllhorne, Lord Morris of Borth-y-Gest,Lord Pearce, Lord Wilberforce, and Lord PearsonM.T. K. S. S. A. N. MOHAMED SAHIB, Appellant, and THECOMMISSIONER FOR THE REGISTRATION OF INDIAN ANDPAKISTANI RESIDENTS, Respondent
Privy Council Appeal No. 9 of I960S. C. 160 of 1960—Citizenship Case No. C 9933
Citizenship—Indian or Pakistani resident-^—Application by him for registration ascitizen of Ceijlon—Requirement that it should be made within the prescribed time—Restriction thereby of jurist iction of both the Commissioner and the SupremeCourt—Indian and Pakistani Residents {Citizenship) A ct, ss. 4 (I), 5, 7, 8, 10,IS, 10, 24.
Reid■ (i) that an application for registration as a citizen of Ceylon under theIndian and Pakistani Residents (Citizenship) Act must be made within the timeprescribed by section 5 of the Act. The provisions of that section are imperativeprovisions restricting the jurisdiction of the Commissioner and consequentlythat of the Supreme Court hearing an appeal from the Commissioner.Accordingly, objection that the application was made out of time may be raisedfor the first timo on appeal.
(ii) that the appellant who applied for citizenship under the Indian andPakistani Residents (Citizenship) Act after the expiry of the prescribed periodwas not entitled to claim that his application was made within time merelybecause his brother had made his own application for registration within theprescribed period and in it he had under the heading in the prescribed Form“ Names, addresses and relationship to the applicant of all dependants " enteredthe name of the appellant. There is no provision in the Act enabling a personto acquire registration for himself and in addition for a dependent brother.
A.PPEAL from a judgment of the Supreme Court reported in(1962) 64 N. L. B. 307.
E. F. N. GrsUiaen, Q.C., with T. 0. KeUocTc, Q.C., and Miss D. Phillips,for the appellant.
M. P. Solomon, for the respondent,
Cur. adv. vult.
October 2, 1968. [Delivered by Lord Pearson]—
This is an appeal by special leave from an order of the Supreme Courtof Ceylon dismissing the appellant's appeal from the Deputy Commis-sioner’s refusal to register the appellant as a citizen of Ceylon under theIndian and Pakistani Residents (Citizenship) Act of Ceylon. Their
266 LORD PEARSON—Mohamed Sahib v. Commissioner for Registration
of Indian and Pakistani Residents
Lordships have been informed by counsel that the appellant is abrother of Seyed Mohamed Shareef, who made a successful appeal to theirLordships ’ Board in a partly similar case (reported in 1966 Appeal Casesat page 47)1; and that on a further inquiry before a different CommissionerSeyed Mohamed Shareef’s application for registration was granted ; andthat the appellant’s other brother Mohamed Hussain Abdul Cader, whois mentioned in the record, succeeded eventually in his application forregistration under the Act.
But the applications of those two brothers for registration under theAct were made within the proper time. In the present case the SupremeCourt has decided that the appellant’s application cannot be entertainedand must be rejected because it was made out of time. The issue in thepresent appeal is whether that decision was correct.
The Act was enacted on 5th August 1949, and it was, as appears fromits long title, an Act to make provision for granting the status of a citizenof Ceylon by registration to Indians and Pakistanis, who had the qualifica-tions of past residence in Ceylon for a certain minimum period. Section4 (1) provided that any Indian or Pakistani resident to whom the Actapplied might, irrespective of age or sex, exercise the privilege ofprocuring registration as a citizen of Ceylon for himself or herself andshould be entitled to make application therefor in the manner prescribed.That was the general provision, but it was subject to special provisionsfor a wife not living apart from her husband and for a minor dependenton his father or his widowed or unmarried mother. Such persons couldnot make separate applications : the husband or father or mother couldprocure registration for himself or herself and additionally for the wife orthe minor. There was also provision for an “ extended privilege ”,whereby on the death of a person qualified for registration his widow or hisor her dependent child could, if certain conditions were fulfilled, apply forregistration. These special provisions of section 4 do not assist theappellant. It is not claimed on his behalf that he was at any relevanttime dependent on his father or mother. He may have been dependenton one of his brothers, but there was no provision in the Act enablinga person to acquire registration for himself and in addition for a dependentbrother.
Section 5 of the Act provided as follows :
“ The privilege or extended privilege conferred by this Act shallbe exercised in every case before the expiry of a period of two yearsreckoned from the appointed date ,* and no application made after theexpiry of that period shall be accepted or entertained,, whatsoever thecause of the delay.”
The “ appointed date ” was defined by section 24 as meaning 5thAugust, 1949. Accordingly the period within which the privilege wasexercisable under section 5 expired on 5th August, 1951.
* (1965) 67 N. L, R, 433.
LORD PEARSON—Mohamed Sahib v. Commissioner for Registration 267
of Indian and Pakistani Residents
Section 7 provided for the making of applications for registration, andsection 8 provided for the verification of applications by investigatingofficers.
Section 10 (which was at one time section 9) provided, so far as isrelevant to this case, as follows :
“ (1) Where, upon the consideration of any application, theCommissioner 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.
(3) Where cause is shown by the applicant within the aforesaidperiod, the Commissioner may …
(a) make an order appointing the time and the place for an inquiryand cause a copy of that order to be served on the applicant;
Section 15 contained provisions as to inquiries, and subsection (4) wasas follows:
“ The proceedings at an inquiry shall as far as possible be free fromthe formalities and technicalities of the rules of procedure andevidence applicable to a court of law, and may be conducted by theCommissioner in any manner, not inconsistent with the principlesof natural justice, which to him may seem best adapted to elicit proofconcerning the matters that are investigated.”
Section 16 provided, so far as is relevant to this case, as follows :
“ (1) An appeal against an order refusing… an application forregistration may be preferred to the Supreme Court in the prescribedmanner by the applicant…
Each appeal under this section shall be preferred within threemonths of the date of the order by means of a petition setting out thefacts and the grounds of the appeal.
I)
The appellant made an application for registration under the Act. Hisapplication was dated 4th December 1956, more than five years after theexpiry of the period referred to in section 5 of the Act.
The Deputy Commissioner served on the appellant a notice dated 5thAugust 1957 stating “ I have decided to refuse your application under thatAct dated 4th December 1950 on the. grounds specified in the Schedulehereto unless you show cause to the contrary within a period of three
268 LORD PEARSON—Mohamed Sahib v. Commissioner for Registration
of Indian and Pakistani Residents
months from the date hereof by letter addressed to me The Schedulewas as follows :
“ You have failed to prove—
That you are an Indian or Pakistani Resident. No evidencehas been offered that your origin or the origin of an ancestor of yourswas in Prepartition British India or an Indian State.
That you were resident in Ceylon from 1.1.36 to 8.6.51 without
absence exceeding 12 months on any single occasion.
*
That you were on the date of your application possessed of anassured income of a reasonable amount or had some suitable businessor employment or other lawful means of livelihood to support yourself.
That you had permanently settled in Ceylon.”
Thus there was in these grounds of refusal set out in the Schedule tothe notice no mention of the application being out of time.
At the inquiry a substantial amount of evidence was adduced in relationto the four issues arising under the four grounds of refusal set out in theSchedule to the notice. On 15th September 1958 the Commissioner gavehis judgment. He. was satisfied under the first issue as to the Indianorigin, and under the third issue as to the appellant’s means of livelihood.He was not satisfied under the second issue as to the alleged extent ofthe past residence in Ceylon and consequently was not satisfied under thefourth issue that the applicant was permanently settled in Ceylon.Accordingly he made an order refusing the appellant’s application tobe registered as a citizen of Ceylon under the Act.
The appellant appealed to the Supreme Court of Ceylon against theCommissioner’s refusal of his application. On the hearing of the appealto the Supreme Court the respondent’s counsel took the objection that theapplication was out of time. Their Lordships have been informed thatsome notice was given, perhaps only very shortly before the hearing, bythe respondent’s counsel to the appellant’s counsel of the intention totake this objection. At any rate it was taken at the hearing and theSupreme Court considered it and held that it must prevail. Tambiah J.in his judgment after referring to the appellant’s application, which wasin Form 1A, and to its date, which was 4th December 1956, and to sections5 and 24 of the Act, said “ Therefore, if the appellant’s application isregarded as the application in Form 1A, signed by him on 4th December1956, then his application should not have been entertained by the DeputyCommissioner nor should it be entertained by this Court At the endof his judgment Tambiah J. said “ It is with regret that I dismiss theappellant’s appeal, since his application should not have been entertainedby the Deputy Commissioner nor could it be entertained by this Court.On the facts, no doubt, a good deal could be said on behalf of the appellant.The Commissioner has misdirected himself on a number of matters, butit is unnecessary for me to go into the facts p view of my finding thatthe appellant had not made an application within the prescribed time
LORD PEARSON—Mohamed Sahib v. Commissioner for Registration 269
of Indian and Pakistani Residents
One of the contentions put forward on behalf of the appellant in theSupreme Court was that the appellant had made an earlier applicationthrough his brother Mohamed Hussain Abdul Cader, because that brotherhad made his own application for registration on 4th August 1951 (justwithin the prescribed period) and in it he had under the heading in theprescribed form “ Names, addresses and relationship to the applicant ofall dependants ” entered the name of the appellant. But this was partof the information which the brother had to give in his own applicationmade on his own behalf, and Tambiah J., speaking of this application,said “ T find nothing in it to suggest that the appellant’s brother had madeany application on behalf of the appellant In the present appeal theapplication of the appellant’s brother was not produced and wasapparently not relied upon. In any case there is no reason to doubt thecorrectness of Tambiah J.’s conclusion.
It was contended in the present appeal that the Supreme Court oughtnot to have considered it to be an established fact that the appellant’sapplication was out of time. It was said that the necessary evidence wasnot available, as the point was raised for the first time on the hearing ofthe appeal in the Supreme Court and; if the point had been raised in thecourse of the inquiry before the Commissioner, it might have appearedthat the appellant had made some earlier application within the prescribedperiod and that the application dated 4th December 1956 was merely anamplification of or supplement to the earlier application. It was also saidthat the maxim “ Omnia praesumuntur rite esse acta ” should be appliedin support of the appellant’s argument, and accordingly that, when theCommissioner entertained an application which on the face it appearedto be out of time, it should be inferred that there were special facts (e.g., anearlier application of or to which this application was a mere amplificationor supplement) which justified him in doing so.
Reference was made to certain notes found in the Commissioner’s Officeand evidently relating to interviews in connection with the application ofthe appellant’s brother Mohamed Hussain Abdul Cader: There was onenote “ Write Mr. Bernard Aluwihare. Reference your interview with theCommissioner on 28.11.56, please see me with your client on 3.12.56 at10 a.m. at this office.” After this there is another note “ Get dependentbrother to fill in Form 1A
Their Lordships are unable to accept the appellant’s contention inrelation to these matters. The plain fact is that the appellant’s applicationis dated 4th December 1956 and there is nothing in it to suggest thatit is an amplification of or supplement to a previous application or thatthere was any previous application. The maxim “ Omnia praesumunturrile esse acta ” can be turned against the appellant, because it must beassumed prima facie that the complete file or complete set of relevantrecords was produced from the Commissioner’s Office and there was notrace of any earlier application. Moreover it is fairly clear that theoffice notes give the clue to jvhat happened. It was observed in November
1**—J 262 (1/69)
270 LORD PEARSON—Mohamed Sahib v. Commissioner for Registration
of Indian and Pakistani Residents
or December 1950, when Mohamed Hussain Abdul Cader’s applicationwas under consideration, that no application had been made by or onbehalf of the appellant, and it was suggested he should then make one.That is the meaning of the words “ Get dependent brother to fill in Form1 A.” The date of the interview at which apparently this suggestion wasmade was 3rd December 1956. On the following day, 4th December 1956,the appellant made his application by filling in Form 1A. The inferenceis that this was his first application. It may well be said that theappellant was misled by this suggestion, evidently emanating from theCommissioner’s office, into making an application which was more thanfive years out of time. This is a matter which affects the questionwhether any order for costs should be made against the appellant, but itdoes not bear upon the issues in the appeal.
It was also contended on behalf of the appellant that the Supreme Courtshould not have considered the respondent’s objection that the applicationwas out of time, because the scope of the iqquiry and of the resulting• appeal was limited to the four issues arising out of the four grounds forrefusal set out in the Schedule to the Commissioner’s notice, and becausethe objection was a new point raised for the first time on appeal. ThreeCeylon cases were cited :
M. K. Marianthony v. Commissioner for Registration of Indian andPakistani Residents l.
Caruppiah v. Commissioner for Registration of Indian and PakistaniResidents 2.
S.S. Seyed Ali Idroos v. The Commissioner for the Registration ofIndian and Pakistani Residents 3.
In their Lordships’ opinion the principles sought to be relied on aresound and well-established, but they are not applicable to the presentcase. The provisions of section 5 of the Act are clear and emphatic, andtheir effect is unmistakable. They are not merely directory provisions.They are imperative provisions and they restrict the jurisdiction of theCommissioner, and consequently that of the Supreme Court hearing anappeal from the Commissioner. It is provided that “ no application madeafter the expity ui that period shall be accepted or entertained,whatsoever the cause of the delay”. A Court must take notice of alimitation of its jurisdiction.
In Davies v. Warwick 4 which was a case under the Rent RestrictionActs, Goddard L.J. said at p. 336 “ The cases cited show that the effectof section 3 of the Act of 1933, which restricts the power of the courtto grant orders for possession', is not to afford a statutory defend© to a.party, but to limit the jurisdiction of the court. If the court of trialor the Court of Appeal finds that the case is one in which it is debarred
1 (1957) 58 N. L. R. 431.» (1960) 62 N. L. R. 109.
* (I960) 62 N. L. R. 17.• (1943) K. B. 329 O. A.
Air Ceylon Ltd. v. Raaanayagam
271
from granting an order for possession, it is the duty of the court to refuseit, even though the statute is not raised by the defendant, because thereis no jurisdiction to grant it
In Snell v. Unity Finance Company Limited1 Diplock L.J. referringto the case of Smith v. Baker and Sons, said :
“ That case was not concerned with points of law which went toeither of those matters which it is the duty of the court itself to takeeven if neither party does, that is, points of law which go (1) to thejurisdiction of the Court or (2) to the illegality of the contract suedupon. It is a clear rule of public polioy that such points should betaken by the court irrespective of the wishes of the parties ; and, ifnot taken by the judge at trial, should be taken of its own initiativeby an appellate court.”
Their Lordships are of opinion that the Supreme Court reached, theright conclusion, and accordingly they will humbly advise Her Majestythat this appeal should be dismissed. There will be no order as to costs.
Appeal dismissed.