H. E. TENNEKOON (Commissioner for Registration of Indian and Pakistani Resident

105-NLR-NLR-V-59-H.-E.-TENNEKOON-Commissioner-for-Registration-of-Indian-and-Pakistani-Resident.pdf

Terinekoon v. Duraisamy
4S1
■' .. -.X, [lx the Privy Codxcil ]
1958 ’ JPreseni^y^llord Morton of Hearytoa, Lord Tucker, Lord Cohen,*:/, t '?r.x' Lord Denning and Mr. L. M. D. de Silva.
. -' t -.w*.“*'.
• . ; _ j » .1■- r
H. E. TEXXTEKOOX (Commissioner for Registration of Indian andPakistani, Residents), Appellant-, and P. 3v. DURAISAMY, Respondent
‘ – ■Privy Council Appeal Xo. IS of 1956.
if. C. 517—Application Xo. J. 514
Appetite (Privy Council'J Ordi,.nuce (Cap. So)—Serf ion 3 and Jiule 1 (h) oj Schedule—
• ; * – Civil suits or actions ”—Civil Procedure Code, ss. 5, 6—Courts OrdinanceV C (Cap. 6), s. 2—Charter of 1333, s. 32..-■■
Indian and PaLislani Residents (Citizenship) Act, 2*0. 3 of 1919—Citizenship by■*" ' 1 – registration—Sections C and 22 (as amended by s. I of Act Xo. 3 of 19-50)—
-■“ Perma verity settled in Ceylon ”—Proof of permanent settlement—Evidence
– of change of Indian, domicile not necessary—-Declarations in , “ B Porms ”X ; -^-Evidential value thereof ’..
/' r* – (i) The words “civil suits or actions” in section 3 of the Appeals (PrivyX Council) Ordinance are not limited to proceedings in which one party sues for or. ’ claims something from another in regular civil proceedings. Silvcrline Bus'.-“'Co. Ltd. v. Handy Omnibus Co. Ltd. (195G) 5S X. L. It. 193, partly overruled.
SC >’ .'An appeal to the Supreme Court under section 1-5 of the Tndian and Pakistani.. Residents (Citizenship) Act is a “ civil suit or action in the Supremo Court ”*■'./within] the meaning of section 3 of tho Appeals (Privy Council) Ordinance.
'Accordingly, it is competent to the Supreme Court to grant leavo to appeal to•rrthavPrivy Council on the ground that tho question involved in tho appeal]~is one of “great- general or public importance ” within the meaning of Rule 1(6) of the Schedulo to the Appeals (Privy Council) Ordinance.“ .
r2y "K •.
^vA,*t(u) Section.6 (l) of the Indian and Pakistani Registration (Citizenship) Act],. Xo^.3 of 1949, read with section 22 (as amended by section 4 of Act Xo. 37.-/‘.of 1950), places upon the applicant for registration the burden of proving that- – J ho lias “ permanently settled in Ceylon ” and, “ in addition ”, of proving the /f. matters set out in section 6 (2) . In order to discharge this burden of proof he/- ■_ must supply evidence that at the time of his application ho has the intention of -settling permanently in Ceylon. An applicant provides evidence of this inteh-) ..lion if, having satisfied all the other corditions laid down in the Act, he demons- -t- trates it by electing irrevocably to apply for registration. Such ‘evidence,: -jfhowever, establishes only a prima facie, and not conclusive, case for registration/*/,as a citizen of Ceylcn ; it does not preclude tho Commissioner from coming to a pydecision, after considering all relevar t matters, that at the time of his application'/ . -.the applicant had nob a genuine imertion to settle permanently in Ceylon. /':
Ihe question of proving a change of Indian domicile is not involved in theconsideration of tho evidence that is necessary to prove permanent settlementin Ceylon. ../- -~{ Z. ' ,.
The fact that the applfcanf 'made declarations of temporary residened in Ceylon^ – -in “ B Forms ” for tho purpose of remitting a fov> sums of money to,his depen T . ■ "dants in India.does, not per se negative the fact of his permanent’settlement in ? – ^Ceylon, especially when" the declarations wero not “ fortified and'earried info yyeffect by conduct and action consistent'with the deelared.expression ”/ ./? r –
21iix ..^’
2—J. X. B 51I5-J,-493 (7/55)..
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LORD JIORTOX OF HElTOYTON-^-Tcnhckoon vf Duraisamy.
A 1'-k*?'/''$ > > ’ if? –
/iPPEAL'irom a judgment :of. the Supreme Court reported in
56 N.JDfM':'313..’.
Sir Frank Soslice, Q- G., with M. Solomon, for the appellant.
• -'.-r _
Waller Jayawarclene, with Sirimcvan Amerasinghe, for the respondent.
'Cur. adv. vult.
-t .
Slay 19, 195S. [Delivered by Loud Morton of Hexkvtox]—
This is an appeal from the Supremo Court of Ceylon. It will bo con-venient to refer to the appellant- as “ the Commissioner ” and to thorespondent os “ the applicant
On*the 29th March, 1951, the applicant applied for registration as acitizen of Ceylon, under Section 4 (1) of the Indian and PakistaniResidents (Citizenship) Act, No. 3 of 1949, hereafter referred to as“ the Act ”. His application was refused by Mr. Adihctty, one of theDeputy Commissioners,' on the 25th January, 1954, but an appeal bj^the applicant to the Supremo Court of Ceylon was successful. TheCommissioner now appeals from tho decision of the Supreme Com-t, withthe leave of that Court.
Before counsel for the Commissioner opened the appeal, counsel forthe applicant took a preliminary objection to the jurisdiction of theBoard, on the ground that the Supreme Court had no power to giveleave to appeal to Her Majesty in Council in this case. Their Lordshipsheld that this objection failed, for reasons which will be stated later.
Tho main question in the appeal is whether the Deputy Commissionerwho dealt with this case was justified in holding that the applicant hadfailed to prove that he was “permanently settled in Cc3’lon ”, withintho meaning of section 22 of tho Act (as amended by section 4 of theIndian and Pakistani Residents (C-itizonship) (Amendment) Act, No. 37of 1950).
Tho Act came into operation on tho 5th August, 1949. It makesprovision for granting the status of a citizen of Cejlon to Indian andPakistani residents in Ceylon who are possessed of a special residentialqualification upon the conditions and in the manner therein prescribed.The residential qualification is defined in section 3 as consisting of“ uninterrupted residence in Ceylon ” immediate^-' jnior to the 1st day ofJanuary, 1946, for a period of not less than 10 years (in the case ofa single person) or 7 years (in the case of a married person) combinedwith ".uninterrupted residence in Ceylon ” from the 1st day of Januaxv,1946, until the date of tho application for registration. Continuity ofresidence is to be deemed to bo uninterrupted by Occasional absencesfrom Ceylon not exceeding twelve months in duration on any one occasion.Section 4 of the Act provides that any Indian or Pakistani resident pos-sessed of this residential qualification “ may, irrespective of ago or sexexerciso the privilege of procuring registration as a eitizon of Ceylon for
. * ■
LORD MORTON OF HENRYTON—Tennckoon v. Duraisamy 4S3
himself or herself, and shall be entitled, to make application therefor ’in the manner prescribedv^by the Act.^ .The section further permits theadditional registration of wives and of dependent minor children ordinarily ■resident in Ceylon and, in certain defined circumstances, extends tho .privilege of procuring registration tq widows and orphaned minor childrenof Indian or' Pakistani residents. ‘
.
Section 6 of the Act (as amended by section 3 of tho said Act No. 37of 1950) provides as follows :—.
“ It shall bo a condition for allowing any application for registrationunder this Act that the applicant shall have—_‘
(1) first proved that tho applicant is an Indian or Pakistaniresident and as such entitled by virtue of the provisions of sections3 and 4 to exercise the privilege of procuring such registration, orthat tho applicant is the widow or orphaned minor child of an Indianor Pakistani resident and as such entitled by virtue of those provi-sions to exercise the extended privilege of procuring such registration ;and
in addition, except in tho case of an applicant who is a minororphan under foui*tcen years of age, produced sufficient' evidence .(whether as part of tho application or at any subsequent inquiryordered under this Act) to satisfy the Commissioner that the following■ requirements are fulfilled in the case of the applicant, namely—
(i) that the applicant is possessed of an assured income of a- reasonable amount, or has some suitable business or employ- •meat or other lawful means of livelihood, to support the applicantand the applicant’s dependants, if any ;'
" (ii) where tho applicant is a male married person (not beinga married person referred to in paragraph (a) of section 3 (2) ),•
that his Avife has been ordinarily resident in Ceylon, and, in -addition, that each minor child dependent on him was ordinarily ‘resident in Ceylon while being so dependent;..:
‘*v'-*
that the applicant is free from any disability or incapacity "
which may render it difficult or impossible for the applicant to .live in Ceylon according to tho laws of Ceylon ;'.
that the applicant clearly understands that, in the event
of being registered as a citizen of Ceylon— -•■-
(a) tho applicant will bo deemed in law to have renounced .all rights to the civil and political status tho applicant has had,or would, but for. such registration in Ceylon, have had, under• any Jaw in force in the territory or origin of the applicant
or the applicant’s parent, ancestor or husband, as the case may sbe, and^' _._■ v ■
■(b) in all matters relating ,to or connected – with status,
personal-rights and duties arid propertypn Ceylon* the applicant ‘ •
" ’ will bq subject.•fo tie laws'Sf"Ce^fop??i>v^-' t":*:~ w'
4siLORD MORTON: OF HEKRYYON—2’cnricXoon V. £)ura«arrii/ '
Section 22 of tho Act (as amended by section 4 of the said Act No. 37of 1950J defines an “ Indian or Pakistani resident ” as.
“ a person^—^'.
{a) whoso origin was in any territory which, immediately priorto tho passing of tho Indian Independence Act, 1947, of the Parlia-ment of the United Kingdom, formed part of British India or anyIndian Stato, and …' '
who has emigrated thorefrom and permanently settled inCeylon,'
and includes-^-.
a descendant of any such person;
and.
any person permanently settled in Ceylon, who is a descendantof a person whose origin was in any territory referred to in thepreceding paragraph (a) ; ”
The Act makes provision for the appointment of an officer to beknown as the Commissioner for the Registration of Indian and PakistaniResidents, of Deputy Commissioners and of investigating officers. Appli-cations for registration aze to be addressed to the Commissioner or aDeputy Commissioner and are {o be in a prescribed form containing allrelevant particulars and supported by affidavit. Certified copies ofdocuments may also be submitted. Each application is to be referredto an investigating officer for investigation and report, and the Com-missioner (or Deputy Commissioner) is to take such report into con-sideration izi dealing with the application. Where he is of opinion thatthere is a prima facie case for allowing the .application, he must givepublic notice that, in the absence of any written objection received byhim within a month, an order allowing the application will bo made,and, in the absence of any such objection, the application is to be allowed.If any objection is x-cccived, an enquiry into the nature of the objectionis to be ordered.
Where the Commissioner (or Deputy Commissioner) is of opinion thata jirima facie case has not been established, he must serve on the applicanta notice setting out the grounds on which the application will be refusedand giving the applicant an opportunity within three months to showcause to the contrary^. If no cause is shown, an order refusing the applica-tion is made. If cause is shown, an enquiry is to be ordered, unless theCommissioner (or Deputy* Commissioner) takes the steps he is authorisedto take when there is a prima facie case for allowing an application(s. 9 (3) ).-‘ "
Such enquiry is to be conducted by the Commissioner or a DeputyCommissioner, who is to have all the powers of a District Court to sum-mon witnesses, compel the production – of documents and administeroaths, but the proceedings are to be as far as possible “ free from theformalities and technicalities of tho rules of procedure and evidenceapplicable to a court of law ”, and may be conducted “in any'mannernot consistent with the principles of natural justice, which to him ”
LORD ItORTOX OF HEHRYTOH—Tennel-oon v.^Duraisamy
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(the Commissioner or Deputy Commissioner) “ may seem best adaptedto elicit proof concerning the matters that are investigated At theclose of such an enquiry, the Commissioner (or Deputy Commissioner)must cither tako the steps he is authorised to take whenever there is aprima facie case for allowing an application, or make an order refusing. the application.
Section 15 of the Act provides that an appeal against an order refusingor allowing an application is to lie to the Supreme Court. ''
The applicant applied, on the 29th March, 1951, to be registered underthe Act as a citizen of Cej lon together with his family, stating in hisapplication that he was a married man, an Indian or Pakistani resident,had been continuously resident in Ccjdon during the period of sevenyears commencing on the 1st Jamming 1939, and ending the 31st De-cember, 1945, and from the 1st January, 1946, to the date of the appli-cation, and making a declaration in the terms of section 6 (2) (in) and
of the Act. In his supporting affidavit he deposed that he had been,born in India on the 1st July, 1912, and had been married in April,1932, and that he was employed as Head Clerk at Glentilt Estate, Mas-keli3Ta, having also a share of Rs. 2,000 in boutique Ho. 13, Main Street,Maskeliya. In his covering letter he stated that he camp to Ceylon inMarch, 1931, went back to India for his marriage in April, 1932, andreturned to Ceylon with his Avifc in June, 1934, “ from Avhich time I amcontinually residing in Ceylon with my wife and children. My 4 childrenare all born in Ceylon. .
'' During the aboA e period of our stay in Ceylon, I had been to IndiaAvith my family to see my aged parents and relations on 4 occasions andstayed in India not more than 15 days during each trip, and Are did nobvisit India during 1942-49. ”
The application aa-us supported by a letter from one M. G. E. de Silva,a Justice of the Peace of Maskeliya, aaIio Avrotc that from the 3-ear 1934the applicant and his family had “ been continually resident in Cejdonavith the exception of short leaves AArhicli amounted to not rhore than one .month on each occasion. s>.
In the course of the im-cstigation, the applicant joroduced to theinA-estigating officer a certificate dated ISth August, 1951, from theSuperintendent of BrunsAvick Group, Maskeliya, Avhore he had been 'employed from September, 1934, to September, 1944, stating that“ according to Mr. Duraisamy’s statement, -erifled by the Estate records, .he and his family had been in continuous residence on this estate, except- for short nsits to India for about 15 days once in two -years. ”■
_ On the 2Sth January, 1952, the applicant answered a questionnairestating that the only A-isit he, his Avife and minor children had paidto India or Pakistan since 1st January, 1936-1st January, 1939, Arasa visit to India in April, 1942, for 0110 month to see his mother and hefinrther declared that he had remitted sums of Rs. 70 in May, June andJuly, .1951, to India for his mother. He subsequently stated, in ansAvcr -to an enquiry from the office of the Commissioner for the Registration2*X. 2i. B 5115 (7/5S)-..—.. .
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LORD MORTOX OF HEXRYTOX—Tcnnekoon v. Duraisamy '
of Indian and Pakistani Residents, that these remittances were madounder the estate-group scheme on special permit obtained from theExchange Controller, Colombo, and that he had declared himself onthe appropriate forms of application for this purpose, known as “ B ”forms, to be temporarily resident in Ceylon.
On the 9th September, 1952, R. T. Ratnatunga, a Deputy Commissionerfor the Registra tioji of Indian and Pakistani Residents, gave the applicantnotice that he had decided to refuse his application for registration unlesshe showed cause to the contrary within a period of three months. Thegrounds for such refusal were specified as follows :—
“ You have failed to prove that you had permanently settled inCeylon ; the contrary is indicated by the fact that, in seeking toremit money abroad, you declared yourself to be temporarily residentin Ceylon. ’’
The applicant replied on the 26th September, 1952, stating the purposeof the remittances to be for the maintenance of his mother and twoinvalid sisters, and requesting a reconsideration of his case.
The Deputy Commissioner acknowledged this letter on the Pth October,1952, and stated that an enquiry would be held under section 9 (3) ofihe Act.
At the enquiry, which was held or. the 25th January, 1954, before
Y.D. Adhihetty, a Deputy Commissioner, the applicant gaye evidence■substantially confirming his personal history and circumstances as statedin his application. With regard to his visits to India he said thatthese were not correctly stated in the Superintendent's certificate datedthe ISth August, 1951. “The actual visits I paid to India during thisperiod are in June, 1939, May, 1942, and September, 1949. From thetime I came to Ceylon in 1939, I have paid 6 visits to India up todate
As to the remittances to India, his evidence was as follows :—
“ My mother and sister are dependent on me. From 1935 onwards■ I have been supporting my mother and sister. Before the ExchangeControl I used to send Rs. 25 per month for the maintenance ofmy mother and sister. I applied to the Controller for a permit inDecember, 1949. The Controller sent me a General Permit to theSuperintendent of the estate, and informed me tlia-t I had to remitmoney through tlie Estate Group Scheme. Under this permit I sentmoney to India through the Estate Group Scheme from 1950 Marchabout Rs. 50 a month. I had a renewal permit from 7th April, 1951,authorising me to send Rs. 70 a month. Under this permit I sent three' sums of Rs. 70 a month in Slay, 1951, June, 1951, and in Jufy*, 1951.
I signed ' B ’ Forms under the Estate Group Scheme- for the varioussums I had remitted to India since 1950 through the Estate GroupScheme, and for each remittance I perfected a ‘ B ’ Form wherein 1made a declaration that I was temporarily resident in C-eylon. I ceasedsending money from July, 1951, when I came to know definitely that
T,ORD MORTON" OF HEXRYTON—Tennekoon v. BuraUamy
4S 7
remitting money will affect uiy Citizensliip rights through the Estate
Group Scheme. It is a fact that I declared myself temporarily resident
in Ceylon for the purpose of remitting money to India. ”
At the end of the enquiry the Deputy Commissioner made an orderrefusing the application, upon grounds which will bo considered later,and the applicant appealed to the Supreme Court of Ceylon. Theappeal was first argued before Fernando, A.J., and that learned Judge onthe 6th August, 1951, reserved the case for the decision of two or morejudges as the Chief Justice should determine.-
On the 7th and Sth February', 1955, the appeal was heard by a benchconsisting of Gratiaen, J., and Sansoni, J.
On the ISth February, 1955, the Court delivered judgment allowingthe appeal with costs and directing the Commissioner to take theappropriate steps under the Act on the basis that a prima facie caso forregistration had been established.
The learned Judges in giving their judgment said :—
“ The main provisions of the Indian and Pakistani Residents(Citizenship) Act, ISTo. 3 of 1949 (hereinafter called ' the Act ’), mustnow be examined with special reference to the qualifications pre-scribed for acquiring citizenship by registration. Rearing in mindthe legislative plan as a w hole, we conclude generally that the intentionwas to admit any Indian or Pakistani residing in Ceylon to the privilegeof Ceylon citizenship (if claimed within a stipulated period of time)provided that he satisfied certain tests prescribed by statute forestablishing that his association with the Island could not (or could-. not longer) be objected to as possessing a migratory' or casual character.
“ Tho main question before us relates to the meaning of the words‘ permanently settled in Cey'lon ’ in Section 22 of the Act (as amendedby Section 4 of Act 2Mo. 37 of 1950) which defines an ‘ Indian or Pakis-tani resident ”
’ After reading section 22 and dealing with an argument—not relied'upon' before the Board—as to the effect of the word “ emigrate " in .that section, the learned Judges continued :—.
'‘Section 6 (1), read with Section 22, directly' raises the questionwhether an applicant is 'permanently' settled in Ceylon ’. We there-fore propose to postpone our discussion of Section 6(1) until we
have first examined the other ‘special qualifications and conditionsfor registration prescribed by the Act:‘–
(1) the applicant must possess a minimum qualification of' uninterrupted residence ’ as defined in Section 3 ;‘’.-
‘(2) his wife (if ho is married) and his minor dependent children
(if any) must also possess certain residential qualifications—Section6 (2) (ii) in its recently amended form;….
lie must establish- a reasonable degree of financial stability—Section (6) (2) (i) ;;"*–
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LORD JIOKTOX OF HENRYTOFT—Tcnmkoon v. Duraisamy
'(4) lie must be free from any disability or incapacity of the
kind referred to in Section C (2) (iii) ;-
he must ‘ clearly understand ’ the statutory consequence ofregistration—Section 6 (2) (iv).
One observes in all these requirements an imdei-13-ing decision,to deny Ceylon citizenship to non-nationals whom Parliament forone reason or another would consider unsuitable for that privilege.Hcnco the insistence on the long and ‘uninterrupted’ residence ofthe applicant himself and on the residential qualifications of hisimmediate family (if any) regarded as a unit ; and the further safe-guard that his prospects of useful citizenship were not likely to beendangered by jjoverty or other handicaps. Each of those require-ments, if satisfied, would guarantee a more enduring quality to thetic between the new citizen and tho country which he has electedto adopt, ‘ for better, for worse ’, as his own. ”
Later, the learned Judges observed :.
“ An Indian or a Pakistani residing in Ceylon is in our opinionentitled as of right to exercise the previlege of being registered asa citizen of Ceylon if at the time of his application (made within thorequisite period of time)
lie and his family (if any') possess the residential qualifica-tions respectively prescribed for them by the Act, and he demon-strates his intention to settlo permanently in Ceylon by electingirrevocably to apply for registration ; and
he satisfies all the other relevant conditions laid down in
Section 6 (2) of the Act; and.
the requirement as to ‘ origin ’ in paragraph (a) of the wordsof the definition is satisfied, or he is at least a descendant of a personwhose origin was as aforesaid. ”
Their Lordships agree with the passages just quoted, subject to onequalification. They think that the Supreme Court has gone too far inusing the words “ entitled as of right Section G (1) of the Act, readwith Section 22, places upon the applicant for registration the burdenof proving that he has “ permanently' settled in Ceylon”,, and “inaddition ”, of .proving the matters set out in Section G (2). In orderto discharge this burden of proof he must supply' evidence that at thetime of his application he has the intention of settling permanently'in Ceylon. It would appear from the passage just quoted that in theopinion of the Supreme Court an applicant provides conclusive evidenceof this intention if, having satisfied all tho other conditions laid downin the Act, he ''‘demonstrates” it by electing irrevocably' to apply'for registration. Their Lordships would agree at once that this election,combined with the long and continuous residence in Ceylon which theAct prescribes, and supported as it must he by. an affidavit, affordsstrong evidence that an" applicant has permanently' settled in Ceylon.The decision to apply for citizenship is one of great importance, especially'as it would appear to preclude the .applicant from ever thereafter
LORD MORTOX OF IIEXRYTOX—Tennekoon v. Duraisamy4R9
obtaining Indian citizenship—(see Section 5 (3) of the Indian CitizenshipAct, 1955, and compare Section 11 of that Act), and the Commissionershould certainly attach great weight to the fact that the applicant hassatisfied the conditions set out in paragraphs (1), (2) and (3) in the passagejust quoted from the judgment. This fact, taken b}' itself, is sufficientin their Lordships’ opinion to discharge the initial burden of proof whichlies upon the applicant and to establish a prima facie case for registrationas a citizen of Ceylon ; but they cannot find that this fact precludes theCommissioner from coming to a decision, after considering all relevantmatters, that at the time of his application the ajrplicant had not agenuineintention to settle permanently in Ceylon.*
Their Lordships are, however, of opinion that the Supreme Court wasclearly right in allowing the appeal of the applicant from the decisionof the Deputy Commissioner.
It is plain, from the notice of 9th September, 1952, already quoted,and from the terms of the Order of 25th January, 19of, that the DeputyCommissioner based his refusal of the application entirely upon his viewthat the applicant had failed to prove that he had permanently settledin Ceylon. In their Lordships’ view the approach of the Deputy Com-missioner to the determination of this question was wrong in two importantrespects.
Eirst, he said in the course of his Order—•
“ Applicant’s domicile of origin, is clearly India and there is a pre-sumption that this domicile continues, unless tho applicant has adopteda Ceylon domicile of choice, that is, in other words, he had permanentlysettled in Ceylon. The burden of proof that he had changed hisIndian domicile or, in other words, that lie had permanently settled inCeylon as required by section 6 read with section 22 of the Act, lieson him. ”•-
Their Lordships do not regard the question of proving a “ change of.domicile ” as coming into the matter at all. The burden of provingh change of domicile is indeed a heavy one, as is illustrated by thecase of Winans v. Attorney General1 and many other.cases. The Act-lias made no reference to domicile, but has placed upon, the applicantthe burden of proving that at the time of his application he had an inten-sion to settle permanently in Ceylon. Their Lordship3 have already,‘expressed their view as to the manner in which that burden of proofcan be discharged. They think it likely that the legislature deliberately^refrained from anj- reference to change of domicile, in order to free theCommissioner or Deputy Commissioner (who may not bo a lawyer) from ’
. the responsibility of investigating a question which, as the Judges of theSupreme Court observed “ in most cases would present formidable-obstacles even to an experienced Judge trained in the law v..
Secondly, the Deputy Commissioner concluded his Order by saying :—
the applicant has admitted that he has "made several remittancesto India from March, 1950, to July, 1051, through the Estate Group "
■ Scheme by perfecting 'B’ forms wherein he declared that he was
•1 {190f A. C. 2S7.■ .'"
490
LORD MORTON OF HENRYTON—Tcnnekoon v. Duraisamy
temporarily resident in. Ceylon. The applicant is an educated manand he knew the implications of declaring that he was temporarilyresident in Ceylon. There is clear evidence that the presumptionreferred to above has not been rebutted. On'his own admission hewas temporarily resident in Ceylon at the date of his application.The application is therefore refused. ”
In Boss v. Boss1 Lord Buckmaster observed " declarations as to intentionarc rightly regarded in determining the question of a change of domicile,but they must be examined by considering the person to whom, the pur-poses for which and the circumstances in which the}' are made, and theymust further be fortified and carried into effect by conduct and actionconsistent with the declared expression ”..
I,! the present case the purpose for which the applicant signed Form*• B ” is beyond doubt. His mother and crippled sisters were residentin India and dependent on him. He found that under the Estate GroupScheme there would be difficulties in sending remittances to these relativesif lie stated in Form “ B ” that he was permanently resident in Ceylon.Therefore, to quote his evidence “for each remittance I perfected a* B ’ Form wherein I made a declaration that I was temporarily residentill Ceylon … it is a fact that I declared myself temporarily
resident in Ceylon for the purpose of remitting money to India. ”
In their Lordships’ view documents signed in these circumstances andfor this purpose Averc of little evidential A'alue for the purpose of deter-mining the question before the Deputy Commissioner, especially as the}'Aere not “ fortified and carried into effect by conduct and action consistentAvith the declared expression ”. Apart from the signature of the “B ”Forms no action of the applicant indicated that his residence in Ceylonwas of a temporal}' nature. On the contrary, his conduct throughoutpointed strongly to an intention to settle permanently in that country. Inthese circumstances the Deputy Commissioner aa us not justified in treatingthe statement made on the “ B ” Forms as a sufficient ground for refusingthe application. Their Lordships agree Avith the realistic aucaa- taken insimilar circumstances by Xagalingam, A.C.J., in the case of Thomas v.The Commissioner for Registration of Indian and Pakistani Residents 2.
For these reasons the decision of the Deputy Commissioner cannot stand,and the order made by the Supreme Court should bo upheld.
Their Lordslups now turn to the preliminary objection to their jurisdic-tion, already mentioned. This objection Aias based on tho Appeals (PriA-yCouncil) Ordinance of Ceylon (Cap. So, Vol. II, Legislati-e Enactmentsof Ceylon, p. 420), hereafter referred to as “ The Appeals Ordinance ”,the relcA'ant parts AAvhereof are the following :— ■
“ 3. From and after the commencement of this Ordinance the rightof parties to civil suits or actions in the Supreme Court to appeal toHis Majesty in Council against the judgments and orders of suchCourt shall be subject to and regulated by—
(a) tho limitations and conditions prescribed by the Rules setout in tho Schedule, or by such other Rules as may from time totime be made by His Majesty in Council; and
1 [1930] A. C. 1 al page 6.5 (1953) 55 A'. L. It. 40.
• LORD MORTON OF HENRYTON—Tennekoon v. Duraisamy
401
(jb) such general Rules and Orders of Court as the Judges of the-Supremo Court may from time to time make in exercise of anypower conferred upon them by any enactment for the time being;. in force.”.
and
-“ Raile 1. Subject to the provisions of theso rules, an appeal shall
lie—
.(a) as of right, from any final judgment of the Court, where the
matter in dispute on the appeal amounts to of is of the value of' five thousand rupees or upwards, or where the appeal involves. directly or indirectly some claim or question to or respecting. property or some civil right amounting to or of tho value of five'■' thousand rupees or upwards ; and
..(b) at the discretion of tho Court, from any other judgment of
1the Court, whether final or interlocutory, if, in the opinion of the
'Court, tho question involved in the appeal is one which by reason
of its great- general or public importance or otherwise, ought to besubmitted to His Majesty in Council for decision
Tiio Supreme Court granted leave to appeal to tho Privy Council on theground that its decision involved a question of “ great general or publicimportance ” within the meaning of Rule 1 (6). It was conceded before thoSupremo Court by tho respondent that a question of “ great general orpublic importance ” was involved, but it was argued that no appeal layfrom its judgment, on the ground that an appeal to the Supremo Court- under section 15 of the Indian and Pakistani Residents Citizenship Act wasnot a “ civil suit or action in the Supreme Court ” within tho moaning ofsection 3 of the Appeals Ordinance. The Supreme Court did not accept-. this argument . Tho learned Chief Justice referred to two conflicting linesof decision and allowed the application with some hesitation, observingthat "the question that arises for decision is admittedly one which by reasonof its great importance should bo submitted to Her Majesty in Councilfor decision ”. Mr. Justice Gratiaen said that “ it may bo concededthat the proceedings ” before tho Deputy Commissioner “ did not atthat stage constitute a ‘ civil suit or action ’ ” but “ had no hesitation‘ in reaching the conclusion that the parties to tho appeal were partiesto a * civil suit or action in tho Supremo Court ■■
v: It was argued before thoir Lordships that the learned Judges of tho• Supreme’. Court were wrong, that they had not power to grant leave'to appeal, and that consequently their Lordslnps had no jurisdiction tohear the appeal, unless and until an application to Her Majesty forspecial leave to appeal was successfully made. It is thus necessary toexamino whether. tho proceedings before the Supremo Court wore a‘-‘ civil suit or action ” within the meaning of section 3. There has beena conflict of authority iri Ceylon upon tho point.
493JLORD MORTOX OF HENRYTOK—Tennckoon v. Duraisamy ■
The voids “ civil suit or action ” first occur in section 52 of thoCharter of 1833, which conferred on the subject a right to appeal to.theSovereign. It is in tho following terms :
.“ 52. And We do further grant, ordain, direct, and appoint thatit shall bo lawful for any person or persons being a party or partiesto any civil suit or action depending in tho said Supreme Court toappeal to Us, Our heirs, and successors in Our or Their PrivyCouncil against any final judgment, decree, or sentence, or againstany rule or order made in any such civil suit or action, and havingthe effect of a final or definitive sentence, and which appeals shallbe mado subject to tho rules and limitations following.”.
There follow' a number of rules and limitations designed among otherthings to exclude cases considered of insufficient importance to be thesubject-matter of an appeal to tho Privy Council. It is to be observedthat the section enabled a person, subject to those rules and limitations,to ajipcal as of right to the Sovereign. Section 53, w hich their Lordshipsthink unnecessary to set out here, preserved intact the right of theSovereign to admit appeals from the subject even where the subject couldnot appeal as of right.■
It was argued before tho Supreme Court and their Lordships that acivil suit or action moans a proceeding in which one party sues for orclaims something from another. IsTo doubt the words are properlyapplicable to such cases and they are tho cases to which the wordsaro most frequent.!}-' applied. But it is necessary to enquire whethertho application of the words as they appear in section 52 of the Chartermust be limited to such cases. Their Lordships would make the generalobservation that section 52 of the Charter was granting to a subletlabouring under a sense of grievance tho fundamental right of appealingto tho Sovereign and that, though it would be natural to exclude fromthe range of permissible appeals eases of insufficient importance, it wouldbo difficult to imagino an intention to exclude cases differentiated byreference to the form of the proceedings, regardless of the gravity oftho result occasioned by them. Ancl as section 3 of the Appeals Ordinancesets out tho maimer in which “ tho right of-parties to civil suits or actionsin tho Supreme Court to appeal to His Majesty in Council ” is to boregulated, their Lordships do not doubt that the words “ civil suits oractions ” must be given the meaning which they bore in the Charterof1S33.
Tho meaning of the words “civil cause” was considered bj' thoBoard in the case of Commissioner of Stamps. Straits Settlements v. OciTjong Sicctn1. Tho Commissioner of Stamps, under an ordinance ofthe Straits Settlements, bad certified the amount of duty paj'able ontho estate of a deceased person. The executor of the deceased appealedto tho Supreme Court against the Commissioner’s decision and succeeded.An appeal by the Commissioner to tho Court of Appeal was dismissed.Tho Commissioner applied to tho Court of Appeal for leave to appeal
1 [1033 A. O. 37S.
LORD .MORTOf OF HENRYTOX—Tcnnekoon v. Eniraisamy
493
to His Majesty in Council but' leave -vvas refused on the ground thatit was not competent to that Court to grant leave. Their Lordships’- Board held that this last decision was wrong, and that under the lawof tho Straits Settlements it was competent for the Court of Appealto grant leave to appeal. In arriving at a decision tho Colonial Charter-of IS55 camo under their Lordships’ consideration. Section 5S is to thofollowing effect :.
•
“ 5S. And we do hereby further ordain, that if that East-IndiaCompany or any person or persons, shall find him, her, or themselvesa "grieved by any judgment, decree, order, or rule of the Courtof Judicature of Princo of Wales’ Island, Singapore, and Malacca,in any case whatsoever, it shall bo lawful for him, her, or them toappeal to us, our heirs, or successors, in our Privy Council, in suchmanner, and under such restrictions and qualifications, as aro herein-after mentioned : that is to say, in all judgments, decrees, or deter- .mutations made by tho said Court of Judicature in any civil cause,tho party or parties against whom or to whoso immediate prejudicetho said judgment, decree*, or determination shall be or tend, mayby his or their petition, to be preferred for that purpose to tho saidCourt, pray leave to appeal to us, our heirs or siiccessoi’s, in ourPrivy Council, stating in such petition the cause or causes of appeal
then follow some provisions as to stay of execution and security for costs ;-and finally, upon such provisions being satisfied, the " party or parties^so thinking him, her or themselves to be aggrieved shall bo at liberty toprefer and prosecute ” the appeal.
Lord Macmillan delivering the judgment of the Board said,
“ It is true that the Ordinance in s. SO which deals with appeals ,from decisions of the Commissioner does not confer a right of appealto His Majesty in Council. But the Colonial Charter of 1S5-5 providesfor leave to appeal being granted by the Court of the Colony from‘ all judgments, decrees or determinations made by the said Court ofJudicature in any civil cause ’. And s. 1154 of the Civil ProcedureCode, provides that subject to certain conditions ‘ an appeal shall liofrom the Court of Appeal to His Majesty in Council («) from any finaljudgment or order ’. Wider language it would be difficult to imagine.Their Lordships do not think it necessary to repeat tho reasons adducedby the Chief Justice against excluding the decision of the Appeal Courtin the present instance from the scope of these provisions and content,themselves with expressing their agreement. Tho decision against. which the Commissioner sought to obtain leave to appeal was in theirLordships’ view not a more award of an administrative character but-a judgment or determination; made b3r the Court , in a civil causewithin the meaning of the Charter and a final judgment or order- within the meaning of s. 1154 of the Civil Procedure Code,' and as‘ such the Court could competently have granted leave to appeal fromit to His ^Majesty in Council.” .'
494:
LORD 3IORTOX OF HExvRYTOX—Tenncloon v. Duraisamy
Their Lordships interpret the words “wider language it would be difficultto imagine ” as applying both to the Charter of 1855 and to section 1154* of the Civil Procedure Code. ' . /•■,
Tlio Board was then considering, the words “ civil cause ’’/ but theirLordships see no good ground for drawing any .distinction between these!-words and “ civil action They agree with the observations just quoted,'and they see no good ground for distinguishing the present case fromthe case fust cited. They propose to follow that case, although the decision -was arrived at without the assistance of argument by counsel, and to holdthat the Supreme Court had power to grant leave to appeal in the presentcase. The preliminary objection therefore fails.‘
Reference was made in the course of the argument to the definition ofthe word “ action ” in the Courts Ordinance (Cap. 6, Legislative Enact-ments of Ceylon, Vol. 1, p. 25), and in the Civil Procedure Code (Cap. 8G,Legislative Enactments of Ceylon, Vol. II, p. 423), both of which areearlier in date than the Appeals Ordinance. In each of these earlierOrdinances “action” is defined to mean “ a proceeding for the preventionor redress of a wrong ”. It was argued that the order of the DeputyCommissioner could not be said to be a wrong in the sense that a tort -or a breach of contract can be said to be a wrong, as there was nothingillegal in the action of the Deputy Commissioner. On the other handit was argued that the word “ wrong ” in the definition has a widerconnotation and would include the consequence of an order made bya Commissioner which is wrong though legally made. It is not necessaryfor their Lordships to decide the point. The Charter was granted long,before the two Ordinances mentioned were enacted and, as their Lord-ships have already pointed out, the words “ civil suits or actions ” in thePrivy Council Appeals Ordinance must bear the same meaning as theybore in the Charter.
In addition to the definition of “ action ” (contained in section 5)mentioned above the Civil Procedure Code contains the following insection 6 :.
“ G. Every application to a court for relief or remedy through theexercise, of the court’s power or authority, or otherwise to inviteits interference, constitutes an action ”.
This is what their Lordships think is the meaning of “ action ” in theCharter and in the Appeals Ordinance though, as nail have been seen,they do not found their decision on this section.'
After the application for leave to appeal to the Privy Council hadbeen granted in the present case a bench of five judges (one of whomdissented) in the case of Silverline Bus Co. Ltd. v. Kandy Omnibus Co.Ltd.,1 after a very full and careful review of two conflicting lines ofauthority, decided that an application to the Supreme Court for a writof certiorari was not a “civil suit or action” within the meaning ofsection 3 of the Appeals Ordinance. Counsel for the Commissionerin the present caso did not contend that the decision in the Silverline
1 t,195G) oS Ar. L. Jl. 193.'
WEE R ASOORIYA, J.—The United. India Fire and General Insurance 495
•Co., Ltd. v. Weintnan
case was wron^ : the point actually decided is not before their Lordships,and they have heard no argument upon it. Xt follows, hou ever, frorn theviews which they have already expressed that they cannot accept theview of 23asnayake,.C.J., that the words “ civil suit or action ” in section 3of tho Appeals Ordinance should be limited to a proceeding in whichone party sues for or claims something from another in regular civiLproceedings ”. '*.'. .'
Their lordships will humbly advise Her Majesty that this appealshould be dismissed. The appellant must pay the respondent’s costs,of this appeal.
Appeal dismissed.