129-NLR-NLR-V-56-V.-PARAMASIVAM-Appellant-and-COMMISSIONER-FOR-REGISTRATION-OF-INDIAN-AND-PAKIS.pdf
514
Paramasivam-v. Commissioner for Registration of Indian and
Pakistani Residents
1955
Present: Gratt&en J.V. PARAMASIVAM, Appellant, and COMMISSIONERFOR REGISTRATION OF INDIAN ANDPAKISTANI RESIDENTS, -Respondent■
S. C. 234—In the matter of an application for registration of an Indianresident as a Ceylon citizen under Act No. 3 of 1949
Indian, and Pakistani Residents (Citizenship) Act No. 3 of 1949—Citizenship byregistration—Residential qualification—Standard of pr°°f required—Quantumof evidence—Power of Supreme Court to order fresh inquiry.
Tho qualifications of a person to be registered as a citizen of Ceylon undertho Indian and Pakistani Residents (Citizenship) Act have to be proved on abalance of probability (as in civil proceedings) and not “ beyond reasonabledoubt ” (as in criminal trial)..
When an appeal is preferred to the Supreme Court by an applicant who hasbeen refused citizenship the Supreme Court has inherent jurisdiction to order,if necessary, a fresh inquiry.
^^PPEAL, under Section 15 of the Indian and Pakistani Residents(Citizenship) Act..
Walter Jayawardene, with S. P. Amarajsingham, for the applicantappellant.
a
H. A. Wijemanne, Crown Counsel, with B. S. Wanasundera, CrownCounsel, for the respondent.J _
Cur. adv. vult.
ORATIAEN J.—Paramasitxtnt *?. Commissioner for Registration of Indian 51 5
and Pakistani Residents
June 23, 1955. Gkatiabn Sr—
This is an appeal by an Indian Tamil against an*order refusing toregister him as a citizen of Ceylon under the Indian and PakistaniResidents (Citizenship) Act No. 3 of 1949. A Deputy Commissionerwho held on inquiry into his application, purporting to aot judicially,decided that the appellant had not established that he possessed therequisite residential qualification, namely, “ uninterrupted residence ”(as defined in the Act) since 1st January 1946.
The appellant, who is unmarried, was born in Ceylon on an estate inthe Kegalla District where his father was employed as a sub-kanganyand his mother as a labourer. He declared in his affidavit that ho hadpaid only one visit to India, in 1949, and the duration of that isolatedvisit (which was confirmed by official documents) admittedly doos notdisqualify him for registration. He also stated that he had never remittedmoney to India at any time. There was no evidence to contradict thoseassertions, or the assertion that he has no dependants in that country.He has also declared in his affidavit that lie owns no property there ofany kind.
The appellant’s evidence at the inquiry was to the effect that, until hewas about 12 or 13 years of age, he lived with his parents on the estatewhere they worker!. Having then apprenticed himself under a tailor atWahakula, he established himself in that trade at the Yataderjya Bazaarwhore ho has lived and been engaged in business ever since 1935. InFebruary 1940 he started a subsidiary trade as a dealer in arecanuts, andit is common ground that sinco 1946 he has also been a licensed rubberdealer in tho same locality. The story, if true, is one of steady progressin business in a specified locality in Ceylon.
The rocorcl of tho proceedings betrayB a lamentable failure on the partof tho Deputy Commissioner to appreciate the nature of his judicialfunctions under the Act. In particular, he grossly misdirected himselfas to (1) tho standard of proof whioh is required whenever an applicant iscalled upon to establish that he possesses the statutory qualifications forclaiming the privilege of Ceylon citizenship, and (2) tho kind of evidenceand the quantum of evidence wiiich may be rocoivecl and accepted asproof of those qualifications.
The appellant had been called upon only to prove that ho was“ resident ” in Ceylon within the meaning of the Act during tho period1936 to 1946. He had apparently satisfied the authorities in all otherrespects as to his qualifications for registration. For instance, I observefrom the record that the Deputy Commissioner, in replying to a depart-mental questionnaire concerning the appellant at the close of the inquiry,specifically stated that “ permanent settlement had been established ”,andsthat tho appellant was “ free from any disability or incapacity whichrendered it difficult or impossible for him to live in-Ceylon according toits laws ”.
Tho burden of establishing a prima facie case of “ residence ” in thiscountry during the relevant period was of course on the appellant. Thisand all other qualifications had to be proved op a balance of probability (as
tinUKATIAEN J.—Paramasmam v. Commissioner for Registration of Indian
and Pakistani Residents.
in civil proceedings) and not “ beyond reasonable doubt ” (as in a criminaltrial). Still less was the appellant required (as some Deputy Commis-sioners imagind) to undertake the impossible task of establishing hisresidence, " with mathematical certainty ” and by documentaryproof, within the geographical boundaries of this Island on everysingle day during the ten-year period which had terminated long beforethe issue arose for adjudication at’all.~
The Act nowhere imposes artificial restrictions of any kind either asto the nature of the evidence which would Suffice to prove the fact inissue or as to the kind of witness who should be ^regarded as reliable. Allthese are matters which must obviously be left to the common sense ofthe tribunal whose duty it is to assess the evidence conscientiously,dispassionately, judicially and without bias. Certainly it is quiteimproper to enter upon a judicial function “ with the verdictpre-determined ”.‘
At a very early stage of the proceedings, the appellant tendered inevidence his books of account which he said would confirm his oraltestimony as to the nature, the scope and the continuity of his businessactivities in Ceylon since about January 1943. The Deputy Commis-sioner, without even a superficial examination of the tendered documents,pronounced that they were of no probative value whatsoever. Therecord reads as follows :—
“ Applicant produces his account books from 1943 onwards, all ofwhich are written in Tamil, and I inform him that I am unable tonccopt them as proof of residence, as he could have been away duringthe period and the books could have been posted by his employees. ”
This was obviously a most unjust conclusion to reach before the entriesin the books (all of which had previously been produced at the preliminaryinquiry before an “ investigating officer *’) had been scrutinised andbefore even the handwriting of the appellant had been tested. Indeed,oven if the books had been entered up by his employees, they might verywell have contained intrinsic evidence that the appellant himself was onthe spot actively and personally ^attending to his business affairs since1943. Moreover, rocords of an established business would often justifythe presumption that the activity had commenced at a much earlier date.
The books having been rejected out of hand, the applicant offered tocall witnesses who oould corroborate hia evidonce from personalknowledge. The Deputy Commissioner 'then made the followingdiscouraging communication to him :—'
“ I inform applicant that unless he can produce documentaryevidence from 1st July 1936 I will not be able to accept oral evidence. ”
The issue having been prejudged, the rest of'the proceedings were but afarce.
The appellant was permitted to cafi. eertgui,'witnesses, but their oralevidence had virtually been rejected in. <Skd.yan.ee. A Sinhalese mancalled Punchi Banda testified that he hac£ known the appellant ever
QRATIAEN J.—ParanutaivcMji^pommiasioner for Registration of Indian517
and Pakistani Residents
since he began to work as a tailor in 1935, but his evidence was consideredworthless because he waB unable in 1954 to specify the “ particular datein 1935 ” when he first met' the appellant. Punchi Banda also statedthat since 1940 the appellant, having prospered in his tailoring business,opened a tailoring shop in 1940 in premises taken on rent from PunohiBanda himself. This evidence was rejected “ without hesitation ” in-accordance with the Deputy Commissioner’s predetermined formula,because no receipts could be produced for the earlier years of the tenanoy,and because the receipts (for which the counterfoils were available) inrespect of the later period were unstamped._
The next witness called was an Indian morcliant who claimed to havebeen a well-known merchant at Yataderiya from'1929 until 1950. Ittranspired, however, that his own application for registration as a Ceyloncitizen was (through no fault of his own) still pending. The appellantwas peremptorily informed that no purpose would be served by allowingthe evidence of this witness to continue. The reason recorded was osfollows:—
“ As the witness has not yet proved his residence in Ceylon, Iam not able to accept his statement that he has been in Ceylon in1935. ”
The last witness called was a Ceylon Muslim doing business in the localitywho claimed to have hired sewing machines to the appellant for a numberof years since 1935 at Rs. 5 a month. The hiring, as far as he couldremember at this distant period of time, commenced in 1935. Theevidence was rejected on the ground that he could not remember “ theparticular month ”. Finally, the probative value of a stamped receipbfor a sewing machine purchased from the Singer Sewing Machine Co.-during the latter part of the ten-year period was ignored.
This is really not the way to discharge the responsible function ofadjudicating upon questions of fact in connection with issues of greatmojnent to non-nationals claiming the privilege of Ceylon citizenshipunder the Act. The credibility of witnesses cannot be assessed by theapplication of rigid departmental formulae, and learned Crown Counselvery properly concedes that the reasons for rejecting the evidence in thisparticular case are quite unsound. I am therefore left to decide formyself as best I can whether, -the evidence on record does establish aprima facie case for registration. If, in the ultimate result, I find myselfunable to reach a conclusion either way on this issue, the only alternativeis to remit the case for a fresh inquiry according to law before anotherDeputy Commissioner.
It was suggested to me at the argument that this Court possesses nojurisdiction under any ciroumstances to order a fresh inquiry becausethe Act does not expressly authorise such a procedure. I do not takesuch a narrow view of the appellate functions of this Court under theAct. We have the power, and in appropriate cases the duty, to order afresh inquiry so as to prevent injustice either to the individual or theState. Let us suppose, for instance, that the conclusions reached by the
SI 8 GRATIAEN J.— Paramaaivam v. Gommiaaiotier for Registration o] Indian-
and Pakistani Resident*
original tribunal on issues of fact were completely vitiated by misdirection,and that the appellate tribunal, not having 'heard and seen the witnesses^was unable in the particular case to reach any safe conclusion on thefacts. It was suggested in argument that in that event this Court,lacking the requisite foundation for deciding whether or not a prima fadecase exists for registration, cannot but dismiss the applicant’s appeal.This would indeed be a travesty of the judicial process ; it assumes that aperson, who may in fact possess the qualifications for Ceylon citizenship-must, notwithstanding the intentions of Parliament expressed in tlie Act.,forfeit this privilege merely because he had been refused a fair hearing by“ an unjust judge I could have understood an argument that in sucha situation this Court should automatically allow the application.But that solution would prove equally unsatisfactory if in certain cases-it results in the registration of a disqualified non-national..
An analogy may be drawn from the jurisdiction of the Court of CriminalAppeal in England which cannot (as in Ceylon) order the re-trial of aperson accused of an indictable offence. Nevertheless, there is inherentpower to quash a conviction and order a venire de novo if the earlierproceedings had amounted to a “ mis-trial ”, that is to say, if, for onevitiating reason or another, there had virtually been no trial at all on thefirst occasion. Under the Indian and Pakistani Residents (Citizenship)-Act of Ceylon, there would be quite as much justification for the exerciseof this inherent jurisdiction in the interests of the individual applicant,because Parliament assumes that an application for registration wouldnot be denied except after a fair and proper statutory inquiry by theCommissioner or by a Deputy Commissioner. Let us consider an extremehypothetical case which I hope will never occur. If the officer vestedwith original jurisdiction under the Act had demonstrably functionednot as an impartial judge but as what Sir Frederick Pollock would call a“ passive registrar of a foregone (executive) decision ”, the reason of thething dictates that the appellate tribunal could, and must, order a freshand (for the first time) a judicial inquiry in accordance with the true intentof the Act. Equally am I convinced that, even in cases which are lessextreme, the same power and the same duty exist whenever justice cannotbe achieved by other means.•
But in the present case I am satisfied, that there is no necessity toinvoke our inherent jurisdiction. There is already sufficient material onthe record to justify the conclusion that the appellant has (by oral anddocumentary evidence which has not been rejected by the original tribunalfor any acceptable reason) made out a prima facie case for registration.Hero is a man who was bom in this country in 1921, and who claims tohave continuously resided (except for one brief visit abroad) andprogressively established himself in business-a particular locality, eversince 1935. If he had in truth lived and.,carried on business in theYatoderiya Bazaar continuously since 1936, he must have-become a veryfamiliar figure to the inhabitants of, the village. If not, the officer who-in the first- instance investigated the appellant’s case under Section 8 ofthe Act ought to have had little difficulty in finding evidence to disprove
de Silva a. The Registrar of Companies
5M>-
this claim. The books of account produced by him contain a series of'entries commencing on 19th December 1912, and their genuineness hasnot been disproved. I find nothing in the record to justify a suspicionthat the Sinhalese witness and the Muslim witness who corroboratedhis evidence were untruthful or had any reason to be partial. I therefore -hold that a prima facie case for registration has been made out, and Tdirect the Commissioner to take aotion under the Act accordingly. It is -of course still open to any member of the public duly objecting to thoappellant’s registration to rebut this prima facie case, upon proper'material, before a final decision is reached. The Commissioner must payto the appellant a sum of Rs. 210 as costs of this appeal.
Application allowed. ■