T. S. FERNANDO, J".—Idrooa v. The Commissioner for
the Registration of Indian and Pakistain Residents
1960Present :T. S. Fernando, J.
S. S. SEYED ALI IDROOS, Appellant, and THE COMMISSIONERFOR THE REGISTRATION OF INDIAN AND PAKISTANI
S. C. 57—Citizenship Application CC 4698
Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Failure to attachto an application an affidavit as required by Section 7 (1) (b)—Proper stage atwhich effect of such failure should be considered—Scope of an inquiry under-Section 9 (3).
An inquiry under Section 9 (3) of the Indian and Pakistani Residents (Citi-zenship) Act must be limited to the merits of the application and cannot dealwith such matters as the due form of the application. The proper stage atwhich an application which is not in due form should be returned or rejectedis when it is received by the Commissioner.
j/.PPEAL tinder the Indian and Pakistani Residents (Citizenship)
M. S. M, Nazeem, with. M. T. M. Sivardeen, for the applicant-appellant.
Ananda G. de Silva, Crown Counsel, for the respondent.
Cur. adv. vult.
May 30, 1960. T. S. Fernando, J.—
The appellant transmitted to the Commissioner an application forcitizenship which appears to have reached the Commissioner’s office on1st August 1951. On 23rd August 1957 a notice under section 9 (1) ofthe Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949,was sent out informing the appellant that the Deputy Commissionerinquiring into his application had decided to refuse it on certain groundswhich were specified in the notice. On the appellant informing theDeputy Commissioner that he had cause to show against the proposedrefusal, a notice issued to the appellant under section 9 (3) fixing a datefor inquiry and again specifying the requirements in respect of which
T-. S. FERNANDO, J.—Idroos v. The Commissioner for
the Registration of Indian and Pakistani Residents
proof had to be furnished by him. These requirements as they appearedin the notice are reproduced below :—
“1, That you had permanently settled in Ceylon.
That you were resident in Ceylon from 1.1.1936 to 31.8.1951
without absence exceeding 12 months on any single occasion.
That you were on the date of your application possessed of an
assured income of a reasonable amount of had some suitablebusiness or employment or other lawful means of livelihoodto support yourself and your dependants.
That your wife is dead (Death certificate to be furnished).
That the facts and particulars set out in your application is
supported by an affidavit as required under section 7 (1) (b) ofthe Act.
. Birth certificate of your child should be produced. ”
An inquiry was held by the Deputy Commissioner on 16th December1957 and was continued on 10th January 1958, and at the conclusion of theinquiry order was made rejecting the application on the ground of failureto comply with section 7 (1) (6) of the Act. The Deputy Commissionerstated in the course of the order that on the documentary and oralevidence led he was satisfied that the appellant had proved that he pos-sessed al' the qualifications necessary to entitle him to be registered as acitizen under the Act. The application therefore came to be rejected forthe sole reason that at the time he transmitted the application it was notsupported by an affidavit of the applicant as to the facts and particularsset out therein. The reasons set out ji the Deputy Commissioner’s orderimply that these same facts and particulars have now been proved bysworn testimony or by other evidence deemed sufficient by the DeputyCommissioner. The application is required by the statute itself to bein a prescribed form and this prescribed form has relegated the affidavitto a position where it might easily be overlooked.
Learned counsel for the appellant has contended that the provisionin section 7 (1) relating to supporting affidavits is merely directory, and.that time is not the essence of the requirement relating to these affidavits.I am, however, unable to agree that the provision in question is merelydirectory as that will involve placing one interpretation on the word“ shall ” appearing in section 7 (1) when considering its meaning inrelation to clauses (a) and (c) of the said sub-section and a differentinterpretation when considering it in relation to clause (6). Anotherargument of counsel that there is nothing in the statute which preventsthe affidavit or affidavits being furnished at a later date cannot also bemaintained in view of the second part of that very sub-section which
T. S. FERNANDO, J.—Idroos v. The Commissioner for
the Regisli ation of Indian and Pakistani Residents
specifially enables affidavits of persons other than the applicant himselfto be furnished at any time before the disposal of the application.Moreover, in the case now before me it is not suggested that the requiredaffidavit was submitted at any later date.
1 have been referred by learned Crown Counsel to the decision of thiscourt in Marianthony v. The Commissioner for the Registration of Indianand Pakistani Residents 1 in which Sinnetamby J. held that a Commis-sioner holding an inquiry under section 9 (3) has no jurisdiction to inquireinto matters not specified in the notice served on the applicant. CrownCounsel distinguishes that case as being inapplicable here where thenotice specifically mentioned that- one of the matters upon which proofwas required was that the application was supported by affidavit of theapplicant himself. More to the point, however, is a later decision, againby Sinnetamby J.—vide Supreme Court Minutes of 2nd April 1957 inS. C. Appeal No. 58/1. & P. R. (Citizenship) Application No. L. 6320—inwhich he observed that in a series of cases this court has held that aninquiry under section 9 (3) must be limited to the merits of the applica-tion and that in such an inquiry a Deputy Commissioner cannot dealwith such matters as the due form of the application. It would appearfrom the judgment in that case that the question whether there was anaffidavit in due form had there arisen in the course of an inquiry undersection 13 of the Act, but that circumstance has no material bearing uponthe issue in the case now before me. I should, however, add that Sinne-tamby J. observes in the course of the unreported judgment referred toabove that the proper stage at which an application which is not in dueform should be returned or rejected is when it is received by the Com-missioner. I am content respectfully to follow these observations andto apply them to the case now before me, and have the satisfaction besidesof knowing that thereby a man who has furnished to the Deputy Com-missioner proof that he and his son had aU the rigorous qualificationsrequired by the Act to enable them to be registered as citizens does notlose his rights to the valued privilege of citizenship merely because hehas inadvertently failed to comply with a requirement which becomes apurely technical requirement when considered against the background ofthe sworn testimony and documentary evidence he has furnished at theinquiry.
The order rejecting the application is set aside, and the Commissioneris hereby directed to take the other steps required by the Act on the basisthat the appellant has made out a prima facie case for the registrationof his son and himself as citizens. The appellant is entitled to the costsof tills appeal which are fixed at Rs. 105.
Order set aside.
H1967) 58 N. L. R. 43J.
S. S. SEYED ALI IDROOS , Appellant, and THE COMMISSIONER FOR THE REGISTRATION OF