016-NLR-NLR-V-60-K.-P.-P.-PILLAI-Appellant-and-COMMISSIONER-FOR-REGISTRATION-OF-INDIAN-AND-PA.pdf
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WEERASOORIYA, J.—Pillai v. Commissioner for
Registration of Indian and Pakistani Residents
Present: Weerasooriya, J.
K.P. P. PILLAI, Appellant, and COMMISSIONER FOR REGISTRA-TION OF INDIAN AND PAKISTANI RESIDENTS, Respondent
8. C. Ill—Citizenship Case No. F679
Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Inquiry thereunder—Procedure—Sections 6 (2) (ii) as amended by Act No. 45 of 1952, 9 (1),9 (3) (a), 14 (4).
Notice under section 9 (1) of the Indian and Pakistani Residents (Citizenship)Act, No. 3 of 1949, was served on the appellant on the 8th July, 1952, requiringhim to prove that,his minor obild was “ ordinarily resident in Ceylon ” in termsof section 6 (2) (ii). Subsequent to the date of the notice, section 6 (2) (ii) wasamended by Act No. 45 of 1952, and, under the amendment, two new groundswere required to be proved by the appellant.
Held, that inquiry under section 9 (3) (a) could not be held unless theCommissioner had previously served on the appellant a fresh notice settingoat the two new grounds.
Appeal under the Indian and Pakistani Residents (Citizenship) Act.
B&nganathan with G. Shanmuganayagam, for the appellant.
S. Wanasundera, Crown Counsel, for the respondent'.
August 27,1958. Weebasookiya, J.—
In this case notice under Section 9 (1) of the Indian and PakistaniResidents (Citizenship) Act, No. 3 of 1949, was served on the appellanton the 8th July 1952. This notice was prior to the amendment ofSection 6 (2) (ii) of the Act by Act No. 45 of 1952, which came intooperation on the 28th November, 1952.
In that notice the ground on which the appellant was informed thathis application would be refused unless he showed cause to the contrarywas set out as follows:—
“ You have failed to prove that your daughter Saraswathie has been
ordinarily resident in Ceylon within the meaning of the Act. ”
To this notice the appellant replied by letter dated the 25th August,1952, purporting to show cause against the refusal of this application.
On the 19th January, 1950, the Deputy Commissioner wrote to theappellant flying his application for inquiry under Section 9 (3) (a) for the20th February, 1956, and stating that he would have to prove that he –
WEERASOORIYA, J.—Filial v. Commissioner for
Registration of Indian and Pakistani Residents
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had “ complied with the requirements stated overleaf The require-ments referred to consisted of two grounds which were quite differentfrom the ground specified in the notice under Section 9 (1) which hadalready been served on the appellant.
The reason for these new grounds was sought to be explained in thefollowing note which was appended to the grounds : “ Since the issue toyou of Section 9 (1) Notice under Act 3 of 1949 on 8.7.52, the Act wasamended by Amendment Act No. 45 of 1952 under which uninterruptedresidence of wife and children of an applicant is required to be established.Vide section 2 of Amendment Act No. 45 of 1952 ”. Thereafter theinquiry took place on 29th February 1956. It was confined to the twonew grounds. After inquiry the Deputy Commissioner made orderrefusing the appellant’s application for registration and the presentappeal is against that order.
Mr. Renganathan who appeared for the appellant submitted that theproceedings before the Deputy Commissioner on the 29th February, 1956,were without jurisdiction, since it was incumbent on the Deputy Com-missioner to have issued a fresh notice under Section 9 (1) (a) setting outthe new grounds before he could have held the inquiry under Section9 (3) (a) in respect of them.
It seems clear on a consideration of the provisions of Section 9 thatno inquiry can be held under sub-section (3) thereof unless the Commis-sioner had previously issued a notice under sub-section (1), and that theinquiry should be confined to the grounds specified in that notice. Ifafter the amending Act No. 45 of 1952 came into operation the DeputyCommissioner decided that an inquiry should be held on the new groundsset out in hisletter dated the 19th January, 1956,he should have issued afresh notice in respect of them under Section 9 (1) and proceeded to fixthe matter for inquiry under section 9 (3) (a), after the appellant hadshown cause. I do not think that sub-section (4) of Section 14 can beconstrued as enabling the Deputy Commissioner to override the expressprovisions of section 9 and evolve a procedure of his own.
would accordingly set aside the order appealed from and remit theproceedings so that fresh steps may be taken under section 9 (1) of theAct notifying the grounds on which the application for registration willbe refused unless cause is shown by the applicant. I also direct that thefresh inquiry, if any, under section 9 (3) be held by a DeputyCommissioner other than the one who made the order appealed from.
The appellant will be entitled to his costs which are fixed at Rs. 105.
Order set aside.