H. N. Q. FERNANDO, J-—Mohideen v. The Prime Minister and Minister 263
for Defence and External Affairs
1981Present: H. N. G. Fernando, J.P. M. K. MOHIDEEN, Petitioner, and THE PRIME MINISTER ANDMINISTER FOR DEFENCE AND EXTERNAL AFFAIRS,
S. G. 29f 1961—In the matter of an Application for a Writ of Mandamusunder Section 42 of the Courts Ordinance
Citizenship Act, No. 18 of 1948—Section 11 (1) (b) (i)—Resident throughout a periodof seven years
In an application by a person to be registered as a citizen of Ceylon underthe provisions of section 11 (1) (f) (i) of the Citizenship Act No. 18 of 1948 thequalifying period of residence in Ceylon immediately preceding the date ofthe application must be shown to have been uninterrupted. Casual absenceduring the qualifying period would interrupt the acquisition of thequalification.
1 APPLICATION for the issue of a writ of Mandamus directing the PrimeMinister and Minister for Defence and External Affairs to register thepetitioner as a citizen of Ceylon.
K. Palasuntheram, for petitioner.
Mervyn Fernando, Crown Counsel, for respondent.
Gur. adv. vuU.
June 13, 1961. H. N. G. Fernando, J.-—
This is an application for an order in the nature of a writ of Mandamusdirecting the Prime Minister and Minister for Defence and ExternalAffairs to register the petitioner as a Citizen of Ceylon. The petitioner’sapplication for citizenship was made on the basis of section 11 (1) (6) (i)of the Citizenship Act, No. 18 of 1948, on the ground that the petitioner’smother was a person who if alive would have been a citizen of Ceylonby descent.
The Permanent Secretary to the Ministry by his letter of 23rd March1960 informed the petitioner that the application cannot be considered“ as you do not have the necessary residence qualification, i.e. seven yearsuninterrupted residence in Ceylon immediately prior to the date ofapplication The language employed in this letter is slightly incorrect,but the ground of refusal intended to be stated was quite obviously thatthe applicant had not (in terms of the section) been resident in Ceylon“ throughout a period of seven years immediately preceding the dateof Mb application”.
264 H. N. G. FERNANDO, JT.—Mohideen v. The Prime Minister and Minister
for Defence and External Affairs
The petitioner has been the holder of a temporary residence permilfrom 1952, if not earlier, and the Visas on the permit establish tha1he visited India on at least three occasions, that is, in 1952, 1954 anc1955, so that he was not in fact physically resident in Ceylon during th«entirety of the seven years prior to his application for citizenship. Counsehas relied on several decisions, relating mainly to Tax and Franchisematters, to the effect that a person may be properly regarded as beingresident in some place or country notwithstanding absence therefromeven for long periods, and also that for certain purposes a person may beregarded as being resident in more places than one. But I do not findthose decisions of assistance in interpreting the statutory provisionnow under consideration. Primafacie, the expression “ resident through-out a period of seven years ” must be taken to mean resident withoutany absence whatever, and there is nothing in the context to indicatethat a more liberal meaning was intended or should be accepted.I cannot agree with the contention that, in laying down as a permanentcondition applicable to the grant of citizenship to an alien, the Legis-lature could not reasonably have intended that casual absence duringthe qualifying period would interrupt the acquisition of the qualification.
In Kodakan Pillai v. MudanayaIce1 the Privy Council pointed out thatthis 1948 Act and the Indian and Pakistani Residents Citizenship Act,No. 3 of 1949, should be considered together as laying down the policyof the Legislature on the question of citizenship rights. The last-mentioned Act in laying down the qualification for citizenship by virtueof residence prior to the date of the enactment required that an applicantshould have been uninterruptedly resident for a specified period, butnevertheless expressly provided that temporary absence for periods notexceeding twelve months should not be regarded as an “ interruption ”.Such an exception was reasonable and to be expected in the contextof legislation applicable to persons who had been resident in Ceylon beforethe time of the enactment. The absence of such an exception in the1948 Act confirms me in the opinion that the Legislature, in prescribingthe qualification for future registration as a citizen, forewarned that thequalifying period of residence must be in truth and in fact uninterrupted.
The application is refused, with costs fixed at Its. 105.00.
1 (1953) 54 N. L. R. 433.
P. M. K. MOHIDEEN, Petitioner, and THE PRIME MINISTER AND MINISTER FOR DEFENCE A