LORD OAKSEY.—Wirasinha v. Badurdeen
[In the Privy Council]
1952Present: Lord Normand, Lord Oaksey, Lord Reid,Sir Lionel LeachV. L. WFR.ASTTM HA (Commissioner for the Registration of Indianand Pakistani Residents), Appellant, and M. A. C. BADURDEENet al., Respondents
Privy Council Appeals Nos. 34 and 35 of 1951
Indian and Pakistani Residents (Citizenship) A.ct, No. 3 of 19d9—Sections 6 (2) (it)and 22—“ Indian or Pakistani resident ”—“ Ordinarily resident "—“ Whilebeing so dependent
In regard to applications for registration as citizens of Ceylon under theIndian and Pakistani Residents (Citizenship) Act, No. 3 of 1949, an applicantwho is a married mnn permanently settled in Ceylon can he registered as a citizenalthough his wife, though ordinarily resident in Ceylon at the date of hisapplication, has not been so resident for the seven years prior to 1st January,1946, nor at all times since their marriage and his minor children have not beenordinarily resident in Ceylon during the whole period of their dependencyupon the applicant.
-^^-PPEALS from two decrees of the Supreme Court. The judgmentof the Supreme Court in Badurdeen v. Commissioner for the Registrationof Indian and Pakistani Residents is reported in (1951) 52 N. L. R. 354.
Sir Hartley Shawcross, Q.C., with Biden Ashbrooke, for the appellant.
D. N. Pritt, Q.C., with Dingle Foot and Stephen Chapman, for therespondents.
Cur. adv. vult.
October 6, 1952. (Delivered by Lord Oaksey)—
These are two appeals which, though not consolidated, were heardtogether by their Lordships from two decrees of the Supreme Court ofCeylon dated 24th May, 1951 (Basnayake J.) reversing orders of theCommissioner for the Registration of Indian and Pakistani Residents dated7th July, 1950, by which the Commissioner (now the appellant) refused theapplications of the respondents for registration as citizens of Ceylon underthe Indian and Pakistani Residents (Citizenship) Act No. 3 of 1949 (here-inafter referred to as “ the Act ”).
The questions raised in the two appeals are identical in point ofprinciple, namely, whether an applicant who is a married man permanentlysettled in Ceylon can be registered as a citizen although his wife, thoughordinarily resident in Ceylon at the date of his application, has not beenso resident for the seven years prior to 1st January, 1946, nor at all timessince their marriage and his minor children have not been ordinarilyresident in Ceylon during the whole period of their dependency upon theapplicant.
LORD OAKSEY.— Wirasinha v. Sadurdeen
In appeal No. 34 the applicant’s wife had been ordinarily resident withthe applicant for a period of one year and eight months before the dateof his application (on 19th November, 1949) and was so resident at thedate of his application, and his minor children, aged 12, 10 and 5respectively, had been ordinarily resident in Ceylon with him since March,
but had been dependent upon him since their birth. In appealNo. 35 the period of the wife’s ordinary residence in Ceylon was one yearand eleven months before her husband’s application dated 15th November,
and the period of the minor children’s ordinary residence in Ceylonwas for the same length of time, but they had been dependent on him sincetheir births on 13th June, 1940, 23rd December, 1942, and 1st February,1947, respectively.
The question depends upon the true interpretation of the Act andRegulations made thereunder and in particular upon the interpretation ofsections 6 (2) (ii) and 22, which are, so far as material, as follows :—
“ 6. It shall be a condition for allowing any application forregistration under this Act that the applicant shall have—
first proved that the applicant is an Indian or Pakistani resident
in addition, produced sufficient evidence …. to satisfy the
Commissioner that the- following requirements are fulfilledin the case of the applicant, namely—
(ii) where the applicant is a male married person,
that his wife has been ordinarily resident in Ceylon, and inaddition, that each minor child dependent on him wasordinarily resident in Ceylon while being so dependent ; ”“ 22. In this Act, unless the context otherwise requires,—••
* Indian or Pakistani resident ’ means a person—
(а)whose origin was in any territory which, immediately prior to
the passing of the Indian Independence Act, 1947, of the Parlia-ment of the United Kingdom, formed part of British Indiaor any Indian State, and
(б)' who has emigrated therefrom and permanently settled in Ceylon,
and includes a descendant of any such person ; ”.
It was contended on behalf of the appellant Commissioner before theirLordships’ Board, firstly, that having regard to the definition of “ Indianand Pakistani resident ” in section 22 of the Act and the regulations whichrequire the applicant to state the period of ordinary residence in Ceylon
LORD OAKSEY.—Wirasinha v. Badurdeen
of the applicant’s wife and minor children since the 1st January, 1939,it must be taken to be the general policy of the Act that only applicantswho had permanently settled with their families in Ceylon could applyfor citizenship. Secondly, that this policy is carried out in section 6 (2) (ii)of the Act by the provision that the wife of a married applicant musthave been ordinarily resident in Ceylon and that the minor children musthave been ordinarily resident while dependent upon the applicant andtherefore that a male married applicant otherwise qualified cannot beregistered unless his wife has ordinarily resided in Ceylon from the dateof her marriage or since 1st January, 1939, whichever is the later date,and unless his minor children have been ordinarily resident in Ceylonsince the date of their births during the whole period of their dependencyon the applicant.
Their Lordships are unable to accept these contentions. In their opinionthe reasons stated in the able judgments of Mr. Justice Basnayake in theSupreme Court of Ceylon afford the true interpretation of section 6 (2) (ii),which is undoubtedly a difficult section.
It is true that the form prescribed by the Regulations does require astatement by the applicant of the period of ordinary residence in Ceylonof the applicant’s wife and of his dependent children since 1st January,1939, or from the date of the marriage or of birth as the case may be, andthat section 21 of the Act provides that every regulation “ shall be as validand effectual as though it were herein enacted ”. But the mere referenceto the date 1st January, 1939, in the relative form does not, in their Lord-ships’ opinion, make it necessary or proper to read into section 6 (2) (ii)a provision that the applicant’s wife must have been ordinarily residentin Ceylon since that date. For the forms applicable in cases where theresidence of dependents at the date of the application only is admittedto be sufficient, contain a similar requirement (see section 4 (2) (b) and4 (3) and forms I. C. and I. E. for example). Their Lordships agree withMr. Justice Basnayake in thinking that the date to which section 6 (2) (ii)most naturally refers is the date of the application, and that the past tenseused in the words “ has been ordinarily resident ” is quite appropriatewhen speaking of residence at a particular date.
In their Lordships’ opinion there are other insuperable difficulties inthe way of the appellant’s construction. If the words “ while being sodependent” in section 6 (2) (ii) mean “ during the whole period of thechild’s dependence ” it is obvious and is conceded that in the case of achild bom before 1st January, 1939, who had been dependent during thewhole period of his life on his father the section might require that thechild should have been ordinarily resident in Ceylon for a longer periodthan its father. Moreover, section 4 of the Act, which provides ((2) .(a) )that an applicant may procure the registration of his wife in addition tohis own whether or not site herself is possessed of the special residentialqualification which the applicant must possess and the registration of anyminor children who may be ordinarily resident in Ceylon and dependenton him, aDd section 4 (3) (a) which provides that the widow of anyIndian or Pakistani resident who dies after qualifying for registrationmay exercise the privilege of applying for registration which her husbandcould have exercised provided that she has continued to be resident iq
Archbishop of Colombo v. Don Alexander
Ceylon after her husband’s death to the date of her application, butregardless of any previous residence, appear to their Lordships to beinconsistent with the construction of the Act for which the appellantcontends. It would, in their Lordships’ view, be an extraordinaryprovision that the husband should have to prove, for the purpose of hiaown registration, that his wife had been ordinarily resident in Ceylon fora longer period than it was necessary to prove in applying for his wife’sregistration.'
There is no express provision in the Act that the husband’s permanentsettlement in Ceylon must have been achieved in company with his wifeand children or that the minimum period of uninterrupted residencerequired for the husband has any application to his wife or children.
For these reasons, therefore, and for the reasons so clearly stated byMr. Justice Basnayake, their Lordships will humbly advise Her Majestythat both these appeals should be dismissed. The appellant must paythe costs of the appeals.
V.L. WIRASINGHA (Commissioner for the Registration of Indian and Pakistani Resid
LORD OAKSEY.—Wirasinha v. Badurdeen