K. DURAISAMY, Appellant, and COMMISSIONER FOR REGISTRATION OF INDIAN AND PAKISTA

075-NLR-NLR-V-56-K.-DURAISAMY-Appellant-and-COMMISSIONER-FOR-REGISTRATION-OF-INDIAN-AND-PAKISTA.pdf

Daraisamy c. Commissioner for Heyistration of hulian •313
and Pakistani Residents
1955Present: Gratiaen J. and Sansonl J.K. JJURAISAMY, Appellant, and COMMISSIONER FORREGISTRATION OF INDIAN AND PAKISTANIRESIDENTS, RespondentS. C. 517—Application No. J 514
Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Citizenship byreyistration—Sections 6 and 22 {as amended by Section 4 of Act No. 37 of 1950)—■“ Permanently settled in Ceylon ”—Ceylon (Parliamentary Elections) Amend-ment Act, No. 48 of 1949, s. 4 (1) (a)—Citizenship Act, No. 18 of 1948, as. 4, 5 —Ceylon (Constitution and Independence) Orders-in-Oouncil, 1940 and 1047,s. 20.■
In an application by an Indian Tamil to register him and his wife and minorchildren as citizens of Ceylon—
Held, that under Section 6, read with Section 22, of the Indian and PakistaniResidents (Citizenship) Act, an Indian or a Pakistani residing in Ceylon isentitled as of right to exercise the privilege of being registered as a citizenof Ceylon if at the time of his application (inode within the requisite periodof time)
(1) he and his family (if ..any) possess the residential qualificationsrespectively prescribed for them by the Act, and ho demonstrates hisintention to settle, permanently in Ceylon by electing irrevocably toapply for registration ;-
and (2) he satisfies all the other relevant conditions laid down in Section (2) ofthe Act;'
and (3) the requirement as to “ origin ” in paragraph (a) of the words of thodefinition is satisfied, or, he is at least a descendant of a person whosoorigin was as aforesaid.
Although the concept of “permanent settlement ” involves two dements —tho fact of residence and the intention permanently to remain in Ceylon—tho requisite intention is satisfactorily established by the applicant’s positivedecision to claim registration with a “ clear understanding ” of its implications.Once the practical tests prescribed by the Act have been satisfied, it is notnecessary to decide inferentially whether or not the applicant may be presumedto have acquired a domioil of choice in Ceylon.
^^.PPEAL undor Section 15 of tho Indian and Pakistani Residents(Citizenship) Aot. Listed before two Judges upon a reference byFernando A. J. 11
11. V. Perr.m, Q.C., with Walter Juyawurdene and S. P. Amerusinyhutn,for tho applicant-appellant.—The Commissioner fur the Registration ofIndian and Pakistani Residents says, “ You must first prove that youhave abandoned your domicil of origin ”. The text books say this is net14lvi-
2J. S. l; IUSU&-1,5'J7 (4/55)
314llannsnm'j v. Commissioner for Registration of Indian
and Pakistani Residepls
mi easy matter to prove. The intent of this piece of legislation was todeprive some people of certain rights. It floes cause a great deal ofJtardsHIp to certain people. The Privy Council said in the ease of Kotin leanJ>illai v. Mvdanayake ', “If there was a legislative plan, the plnn musthe looked at as a whole ami when so looked at it is evident in theirLordships’opinion that, the legislature did not intend to prevent IndianTamils from attaining citizenship provided that they were sufficient I vconnected with the island
The expression “ permanently settled ” is one that has hcen previonslvused—Donoughmore and Ron 1 bury Elections Orders-in-Council. Amere declaration by a person that he intended to stay in Ceylon entitledhim to a certificate.
In this case the condition of uninterrupted residence h;us been satisfied.Sections 3 and <3 referred to. The applicant cannot then lie told " Showine first, that you havo abandoned your domicil of origin Section <>
next referred to. The legislation, if fairly administered, is a vervbenevolent, measure, of which no one can complain.
Section 22 referred to. The words “ permanently settled ” in sub-section (h) discussed. Soe also amending Act .‘17 of Moll, Section 4. Thisis a definition and eaimot be said to include a highly complex legal conceptsuch as domicil of choice.
The words “ permanently settled ” have been used in previouslegislation—Nationalisation Ordinance, No. 21 of 1 MOO, Chapter 24.‘1,Section 2 ; Ordor-in-Council 1031—State Councils Elections (l)nuough-inorc Constitution)—Section !) and also Section 7. These indicate thatpermanent settlement is something less than domicil.
In giving the expression “ permanently settled ” a meaning, it ispermissible to consider the earlier use of this expression. The word“ permanent ” is used as opposed to the term temporary. It is notreasonable to expect a person to give his mind for all time and to decideto stay permanently. A person can permanently bo resident in Ceylonalthough he may not have changed his domicil of origin.
The facts were next dealt with.
Counsel then referred to the signing of the “ B ” forms in applviugto the Exchange Controller for authority to transfer money to India.This (picstion has been considered in Thomas v. Commissioner for Registra-tion of Indian and Pakistani Residents2 and in Poravia Pillai v.Commissioner for Registration of Indian and Pakistani Residents a.
T. .S'. Fernando, <!<■■, Acting Attorney-General, with M. Tirurhefeam.Deputy Solicitor-General. H. A. Wijemanne and R. A. W'anasnnilrra.Crown Counsel, for the respondent.—Tho words “ providod they were' •
• (1055) 51 A:. L. It. / at 450.» (1054) 55 A. L. It. 40.
* (1055) 51 N. L. R. 407.
Ruraismny v. Commissioner jor Registration oj Indian8115
and Pakistani liesitlents
sufficiently connected with the island ” in Kodakan Pillai v. Muthirutyake.uro important. See also Section. 22 of Act No. 3 of 15)4!), Section 4 ofAct No. 37 of 1950 and Sections 7 and 9 of the Order-in-Council of 1931.
The expression " permanently settled ” cannot bo given a meaningu itliout any reference to domicil. Seo Lord v. Colvin 1. It is impossibleto acquire a domicil of choice without permanent residence^—Cheshire’sPrivate International Law (4th 6dn.) page 160 ; Hodgson t’. De Iie.au-chesne – : lire von v. Drevon 1 * 3. Tho applicant must prove not merelythat lie lias acquired a domicil of choice, but also that he is permanentlysettled —Dicey : Conflict of Laws (6th edn.) pages 89 to 97 ; lie.ll v.Kennedy4 ; Udny if. Udny s. The lowest that-an applicant mustshow is that he has acquired a domicil of choice—in addition he mustnliow as a matter of fact that he is permanently settled.
The Indian Courts will not accept the position that one can acquirecitizenship by something le8s than a domicil of choice. See Maxwell :Interpretation of Statutes (10th edn.) page 148. Permanent settlementcannot certainly be anything less than domicil of choice—It'mans v.Attorney-Ceneral6 ; Huntley v. Gaskell 7 ; Ramsay v. Liverpool RoyalInjirmary 8 ; May v. May <b Leittian 9 ; Dicey ; Conflict, of Laws (6thedn.) pages 89 to 97.
3 The statements made by the applicant in the “ B ” Forms must beexplained by him ; otherwise it must be taken as a factor against, him.
The Commissioner has not misdirected himself. He has rightly appliedthe test of domicil of choice.
If. V. Pe.re.ra, Q.C., replied.—It is wrong to substitute for “ permanentsettlement ”, domicil The expression permanent settlement ”is a simpler expression than “ domicil ”.
With regard to the cases cited concerning domicil, the question of domicilis tested by some more or less technical rules. The approach is completelydifferent. In the context, “ permanent settlement ” means, “ lie isresiding here in Ceylon with the intention of making Ceylon his permanent,home—for an indefinite period ”. I have not got to begin by rebuttinga presumption. The mode of approach is : are you permanently settled iIn proving a domicil of choice one must displace a domicil of origin.In this case it is not necessary for me to prove tiiat 1 have abandoned mydomicil of origin.
Deputy Commissioners cannot be expected to be aware of the conceptsof domicil. The legislature has used a simpler term.
1 (1859) 28 L.J. (.\.S) Equity 3615 ISO9 L.H. I Scottish Appeals III at HU.
at 365 el seq.*1J0IA.O.2X7 at page290.
1 (IS5X) 12 Moore's Privy Council71906.4.C.56 at page6X.
Cases page 286 at page 330.81930.4.C.58S.
3(1X61) 31 L.J. (X. S.) Equity 129.“1913AllE. It. 116.
4(IX6S) [j. It. 1 Scottish Appeals 307 at
319.
Duraisamy v. Commissioner for Registration of Indian
and Pakistani Residents
The object is to give citizenship rights. A naturalised person does notnecessarily change his domicil. He gets only citizenship rights, e.g., theright to vote.*
Counsel then referred to Section 6 (4) (6). The scheme of the Actcontemplates a postponement of certain rights which are acquired by achange of domicil. This indicates that change of domicil and permanent,settlement are not the same. Otherwise the legislature could have easilysaid so.
Cur. adv. vult.
February 18, 1955.
'J'his is an appeal by an Indian Tamil against an order refusing toregister him and his wife and minor children as citizens of Ceylon underthe Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949.The judgment of this Court upon a reference by Fernando A..1. is nsfollows :—
Sections 4 and 5 of the Citizenship Act, No. 18 of 1948 and Section 4(1) (a) of the Ceylon (Parliamentary Elections) Amendment Act No. 48of 1949 had the effect of disfranchising many Indian Tamils (and in-directly their descendants) in spite of their long residence in Ceylon.In enacting these laws, however, Parliament was exercising“ the perfectly natural and legitimate function of the legislature of acountry to determine the composition of its nationals ” on bona fideconsiderations which did not violate Section 29 of the Ceylon (Constitutionand Independence) Orders-in-Couricil 1946 and 1947. Kodakan Pillni v.Mvdanayake *. The complaint of unfair discrimination against acommunity as such was negatived, inter alia, by the provisions of theIndian and Pakistani Residents (Citizenship) Act No. 3 of 1949, wherebyan Indian Tamil could by application obtain citizenship by registrationand thus protect his descendants, “ provided that he had a certain residentialqualification ” and was "sufficiently connected with the Island”. TheJudicial Committee pointed out in this connection that the migratoryhabits of most Indian Tamils in this Island were facts “ directly relevant,to the question of their suitability as citizens of Ceylon ”,
The main provisions of the Indian and Pakistani Residents (Citizenship)Act No. 3 of 1949 (hereinafter called “ the Act ”) must now be examinedwith special reference to the qualifications prescribed for acquiringcitizenship by registration. Bearing in mind the legislative plan as awhole, we conclude generally that the intention was to admit any Indianor Pakistani residing in Ceylon to the privilege of Ceylon citizenship(if claimed within a stipulated period of time) provided that he satisfiedcertain tests prescribed by statute for establishing that his association withthe Island could not (or could no longer) be objected io as posses*buj% umigratory or casual character. 1
1 (/.7 3 i) 51 N. L. R. 433.
Duraisamy v. Commissioner for Registration of IndianS^;
and Pakistani Residents
The main question before ns relates to the meaning of the word?“ permanently settled in Ctfylon ” in Section 22 of the Act (as amendedby Section 4 of Act No. 37 of 1950) which defines an “ Indian or Pakistaniresident The Section in its amended form reads as follows :—-
“ 22. An Indian or Pakistani resident means a person (a)whose origin was in any territory which immediatelyprior to the passing of the Indian Independence Act 1947of the Parliament of the United Kingdom formed partof British India or any Indian State and (6) who hasemigrated therefrom and permanently settled in Ceylon.
and includes (1) a descendant of any such person and (2) any person,permanently settled in Ceylon, who is a descendant of aperson whose origin was in any territory referred to inthe preceding paragraph (a). ”
The preliminary requirement as to “ origin ” in paragraph (a) presents nodifficulty.
It has been suggested that an applicant must always prove that he“ emigrated ” from his country of origin in the sense that he had left itfrom the very outset with a firm resolve to abandon his domicil there.This could not have been the intention of an enactment designed toachieve a realistic purpose. Be that as it may, the language of theamending Act has virtually dispensed with the qualification of having“ emigrated ” in the strict sense .suggested. An applicant who cannotcome within the ambit of paragraph (a) is now invariably “ included ”in the definition because his father was of Indian or Pakistani “ origin ” ;so that “ emigration ” has- ceased to be, even if it ever was, a vitalqualification.;
Section 6 (1), read with Section 22, directly raises the question whetheran applicant is “ permanently settled in Ceylon. ”. We therefore proposeto postpone our discussion of Section 6 (1) until we have first examinedthe other special qualifications and conditions for registration prescribedby the Act r
a(1) the applicant must possess a minimum qualification of
“ uninterrupted residence ” as defined in Section 3 ;
his wife (if he is married) and his minor dependent
children (if any) must also possess certain residentialqualifications—Section 6 (2) (ii) in its recently amendedform;..
he must establish a reasonable degree of financialstability—Section 6 (2) (i) ;
he must be free from any disability or incapacity ofthe kind referred to in Section 6 (2) (Hi) ;
he must “ clearly understand ” the statutoryconsequences of registration—Section 6 (2) (tv).
•gigDuraisamy v. Commissioner for Registration of Indian
and Pakistani Residents
One observes in all these requirements an,underlying decision to denyCeylon citizenship to non-nationals whom, Parliament for one reason oranother would consider unsuitable for that privilege. Hence the insistenceon the long and “ uninterrupted residence ” of the applicant himself and onthe residential qualifications of his immediate family (if any) regarded as aunit; and the further safeguard that his prospects of useful citizenship werenot likely to be endangered by poverty or other handicaps. Each of theserequirements, if satisfied, would guarantee a more enduring quality tothe tie between the new citizen and the country which he has elected toadopt, “ for better, for worse ”, as his own.
The requirement that the applicant must establish a minimum periodof residence is easily explained. " A presumption of domicil grows instrength with the length of the residence …. A residence may be•so long and continuous as to raise a presumption that is rebuttable only"by actual removal to a new place ”. Cheshire's Private Internationalhaw (4th edition) page 159. Similarly, the fact that a man’s immediatefamily shares his connection with the country of disputed domicil is anextremely relevant factor for consideration. The imposition of thesestatutory standards relieves the investigating authority of the duty ofdeciding by mere legal inference whether1 an applicant’s residence bearsin the circumstances of any particular case a sufficient degree ofpermanency. Equally significant is the requirement that an applicant
clearly understands ” the serious consequences which automaticallyflow from registration under the Act—^-naihely (1) a statutory renunciationof the man’s former political status and (2) the change in civil status whichautomatically results under the rules of private international law from achange of domicil. Here again tHS’legislature has laid down in positiveterms another well-established test of permanency (instead of leavingthe applicant’s intentions to be judicially ascertained by inference).
In ordinary litigation, a man may be held to have acquired a domicilof choice although the far-reaching consequences involving a change of•civil status may never have entered his mind. The Court must then•decide as best as it can whether the circumstantial evidence justifies alegal inference that “ if the question had arisen in a form requiring adeliberate or solemn determination ”, the person whose domicil was indispute would have elected to renounce his former civil status and “ toassume a position for the like purposes as a citizen of another (country) ”—per Wickens V. C. in Douglas v. Douglas *. This formula was approvedand applied by Lord MacNaghten in his notable judgment in Winans v.Attorney-General 2. The local Act has advisedly taken the precaution ofsubstituting a positive for an inferential test. The necessity of “ makingan eleotion between the two countries ” is directly addressed to theapplicant’s mind, and his choice must he deliberately and solemnly madewith a full appreciation of all that the decision involves. If this positive
' {1872) L. R. 12 Rq. 617.* 1904 A. C. 287.
Duraisamy o. Commissioner for Registration of Indian
and Pakistani Residents
310
test is satisfied, there is neither scope nor necessity for probing furtherinto his state of mind in order to ascertain (by inference or perhaps byguesswork) his actual intentions.
An Indian or a Pakistani residing in Ceylon is in our opinion entitledas of right to exercise the privilege of being registered as a citizen ofCeylon if at the time of his application (made within the requisite periodof time).
he and his family (if any) possess the residential qualificationsrespectively prescribed fox them by the Act, and he demonstrateshis intention to, settle permanently in Ceylon by electingirrevocably to apply for registration ;'
and (2) he satisfies all the other relevant conditions laid down inSection 6 (2) of the- Act;-
and (3) the requirement as to “ origin ’’ in paragraph (a) of the wordsof the definition is satisfied, or, he is at least a descendant of aperson whose origin was as aforesaid.
We agree with the Crown that the words “permanently settled inCeylon ” mean nothing less than “ having acquired a domicil of choicein Ceylon ” ; indeed,, they, mean something else as well, namely, thatthe applicant has also m^de a .deliberate decision to renounce his former, political status..,
..''!’. -fjt..
Once these exacting, statutojjy.^ts have all been satisfied, the man’sprevious residence in thi^cquntry assumes (unless it has already done so)the requisite degree of^",perjg^ency ”, and Ceylon has become his“ home His solemn " election between the two countries ” in favourof Ceylon dispels any lurking sqspicion that his association with Ceylonmay be merely casual or migratory.
The concept of ‘‘permanent4 settlement” doubtless involves twoelements, the fact of residence as well as the intention permanently or atleast indefinitely to remain in this country. But in the context’of theAct, the requisite intention is 'satisfactorily established by the' applicant'spositive decision to claim,registration with a “ dear understanding ” of itsimplications. The condition, laid [down in Section 6 (1) is thus fulfilled.The gravity of the consequences of registration must be assumed toprovide an adequate safeguard against an application by a person whodoes not genuinely intend to renounce his former status as a citizen ofhis country of origin.'
It is not difficult to find a logical explanation, indeed a justification,for Parliament’s decision to prescribe its own tests of “ permanency ”.In recent years there h$a been considerable criticism of the difficultiesinvolved in the function of deciding judicially (but without the aid ofstatutory standards) whether or. not a man may be presumed to have
320Duraisamy v. Commissioner for Registration of Indian
and Pakistani ReoSdtnfs
* .
acquired a domicil of choice in the country In which he actually resides.A special Committee appointed by the Lord Chancellor of England in1052 published a report last year recommending the adoption of certainsimple rules contained in a Draft Code (reproduced in the 3rd edition ofSchmitthof’8 ‘ The English Conflict of Laws ’ pages 491-493.) Untilthese or similar reforms are introduced, the Courts must continue “ toinvestigate a man’s actual state of mind rather than rest content with thenatural inference of his long continued residence in a given country ”Cheshire (supra) page 102.
By way of contrast, the administrative machinery provided by theAct has been admirably designed by Parliament to eliminate the tantalis-ing problems which beset the regular Courts in deciding issues of" domicil ”. An application for registration is submitted in a prescribedform in which the applicant sets out the particulars on which he relies toestablish his special residential qualifications and his compliance withthe other onerous conditions precedent to registration. The facts reliedon are in the first instance verified by an investigating officer (notnecessarily required by the Act to possess legal qualifications) who reportsthereon to the Commissioner (who significantly is himself not required topossess legal qualifications). If “ a prima facie ” case for registration hasbeen established, the application is in'due course allowed, unless anobjector can show that “ a prima facie caSe ” does not in fact exist. Alter-natively, the applicant has a furthef opportunity to establish “ a primafacie case ” at an inquiry held by the Commissioner (or one of his Deputies)“ free from all the formalities and technicalities of the rules of procedureapplicable to a Court of law ”. In these proceedings, the Commissioner,though “ subject to the general direction and control of the Minister ”(Section 18), nevertheless performs a judicial function which is confinedto the impartial ascertainment (free from administrative direction of anykind) of the uncomplicated questions of fact specified by the Act.The legislative plan works well and expeditiously so long as it isclearly realised that there is no super-added responsibility to investi-gate extremely difficult mixed problems of fact and law which in moatcases would present formidable obstacles even to an experienced Judgetrained in the law. Those latter difficulties have been describedas follows in Cheshire (supra) at page 156 :—'
“ Once the rfelevance of vague hopes or dim expectations of a returnto the fatherland' is admitted, there is no end to the detail that thejudge must consider. Often he must review the whole history of a man’slife and examine such elusive factors as his fears and aspirations, hishopes and prejudices, his declarations both written and Bpoken. Itfollows that in many cases a practitioner will experience great difficultyin advising his client upon his place of domicil until it has been judiciallydetermined, for the puzzle will be to predict what weight will be givenby a judge to the various factors upon which the question turns. Thereis no common standard, since a fact which appeals to one mind as beingof decisive significance seems of trivial importance to another. Thedesire of Mr. Winans (of Witians v. Attomey-Oeneral) to return to
Duraisamy v. Commissioner for Registration of Indian321;
and Pakistani Residents
-a— — —r-
America in order to. construct anti-British ships impressed LordMacNaghten, but was discarded by Lord Lindley as immaterial. Theresult is that a man's domicil may remain uncertain throughout his life, "
Fortunately the Commissioner and his Deputies (lacking as they do thejudicial experience and equipment of a MacNaghten or a Lindley) neednot stray as amateurs into the complex field of human psychology inorder to determine the red'intentions of an applicant for registration.But, they have no doubt been selected for office because they aresufficiently competent to .dedde whether an applicant has satisfied thepractical but uncomplicaiedtoats ^prescribed by the Act.
– *i
In this view of the matter, the appellant was clearly entitled to succeedin his application. He and his wife have resided in Ceylon since 1034.Their minor children live with them and attend school in this country.He has always enjoyed.the benefits of fixed employment in Ceylon ;his modest savings have been invested here, and he has no ties with Indiaexcept those of natural affection for his widowed mother and his two sisters(whom he dutifully wishes to support). He has ultimately made agenuine decision to cement his long association with this country byclaiming the privileges of Ceylon citizenship with a clear understandingof the consequences which will result from registration. We can conceiveof no better example of the .kind of “ suitable ” person whom Parliamenthad in mind when the Act passed into law. He has satisfied all theonerous statutory conditions proscribed, and the circumstance that,in a very different context, he incorrectly described his residence in thiscountry as “ temporary ” in ord^r to facilitate (in violation of the“ exchange control ” regulations) the forwarding of the usual subsistenceallowances to his mother and his sisters abroad cannot disqualify him.Indeed, even if the question had. arisen for determination by an“ understanding ” judge on the issue of domicil, this isolated circumstancewould have carried no weight in view of the other compelling factorsestablished in his favour. The decision appealed from seems to us tohave been reached in accordance with some pre-determined departmentalformula (evidenced by preliminary orders made in identical language bydifferent officers of the department in different areas) which is notwarranted by the Act. Wd allow the appeal and direct the Commissionerto take appropriate steps under Soction 14 (7) of the Act on the basis thata prima facie ease for registration has boon established to the satisfactionof this Court . The appellant is entitled to the costs of this appeal.
(Sgd.). E. F. N. Gratiaen,
Puisne Justice.
(Sgd.) M. C. Sansoni,
Puisne Justice.
Appeal allowed.