M. M. SHAMSUDEEN, Petitioner, and THE MINISTER OF DEFENCE AND EXTERNAL AFFAIRS,

088-NLR-NLR-V-63-M.-M.-SHAMSUDEEN-Petitioner-and-THE-MINISTER-OF-DEFENCE-AND-EXTERNAL-AFFAIRS-.pdf


450
Shamsudeen v. Minister of Defence and External Affairs
Present :L. B. de Silva, J.M. M. SHAMSUDEEN, Petitioner, and THE MINISTER OFDEFENCE AND EXTERNAL AFFAIRS, RespondentS. G. 68—Application for a Writ of Mandamus
e
Citizenship Act, Aro. 18 of 1948—Section 11—Application thereunder—Order ofrefusal—Person wJ o should■ sign such order—Meaning of words “ resident inCeylon throughout a period ”—Mandamus—Writ will not he issued if nopurpose will be served.
When a person applies for registration as a citizen under the provisions ofsection 11 of the Citizenship Act, a letter refusing the application is not a validorder if it is signed by some person for the Permanent Secretary and does notconvey a decision of the Minister.
The words “ resident in Ceylon throughout a period .in Section
11 (1) (6) (1) mean uninterrupted residence in truth and in fact.
A writ of mandamus will not be issued if it will be futile to do so and no
purpose will be served.
*(1922) 4 C. Lr Recorder 133.
a(JP33) 35 N. L. R. 309.
L. B. DE SILVA, J.—Shamsudecn v. Minister of Defence and
External Affaire
431
^APPLICATION for a Writ of Mandamus on the Minister of Defenceand External Affairs.
Ranganathan, with S. Sharvanarvda, for Petitioner.
B. S. Wanasundera, Crown Counsel, for Respondent.
Cur. adv. vvU.
October 23, 1961. L. B. de Silva, J.—
The petitioner applied for registration as a Citizen of Ceylon under theprovisions of section 11 (1) of The Citizenship Act No. 18 of 1948, on theground that his mother was a citizen of Ceylon by descent and that hehad the necessary residential qualification under this sub-section. Hesupported his application with certain documentary evidence.
By the letter (X4) dated 5th February, 1959 on a letter-head of TheMinistry of Defence and External Affairs, the petitioner was informedthat he was not qualified to apply for Ceylon Citizenship under the Actand he was referred to the residential qualifications required by section11 (1) (6) (1) of the Act. This letter was signed by some person for thePermanent Secretary. This letter did not convey a decision of theHon. the Minister on the petitioner’s application.
Under section 11 (2) (a), a person to whom'this section applies, shall beregistered as a citizen of Ceylon on his making an application in thatbehalf to the Minister in the prescribed manner, if he has the qualificationsof section 11 (1) (b) (1).
The petitioner has applied to this Court for a writ of mandamus tocompel the Hon. the Minister to register him as a citizen of Ceylon undersections 11 (2) (a) and 16 of the Act. At the hearing of this application,the learned Counsel for the petitioner only asked for a writ of mandamusto compel the Hon. the Minister to deal with the petitioner’s applicationunder section 11 (2) (a) and to make an appropriate order.
It was urged on behalf of the Respondent that it was not necessary forthe Hon. the Minister to deal personally with applications of this kindand to make orders thereon. He may do so through an official of theMinistry and that the letter (X4) was a valid order under section11 (2} (a) of the Act.
No material was placed before this Court to show that the letter (X4)was written under the authority of the Hon. the Minister and on hisbehalf or that the decision that the petitioner was not qualified to beregistered as a citizen was a decision of the Minister or even of an Officerdirected by the Minister to deal with this matter.
The learned Crown Counsel relied on the case of the Point of AyrCollieries Ltd. y. Lloyd George 1 decided by the Court of Appeal in England.That case referred to an order by a Minister under the Defence (General)
» (1943) Z A. E. R. 54$.
432
Jj. B. DE SILVA, J.—Shamsudeen v. AIinis ter of Defence and
' External Affairs
Regulations, taking control of the Appellant’s undertaking. In thatcase the order was issued in the name of the Minister and was signed bythe Secretary to the Ministry. It was held in that case that orders ofthat nature need not be signed by the Minister, though it was desirableto do so in matters of such importance.
Lord Greene M.R., stated, “ The most that I certainly intended tosuggest was that, in a case of such importance as this, signature by theMinister himself might appear to be more appropriate than signatureby some one on the staff of the Ministry, however highly placed. Thatwas no more than a suggestion and, perhaps, was going outside thefunctions of this Court, but it is certainly not to be taken as suggestingfor one moment that Orders such as these require for their validity thesignature of the Minister himself . I am not speaking of other regulations,such as 18B, as to which different considerations may apply. ”
There may be cases when it is necessary for the Minister himself tosign the order, even if the inquiries themselves may have been conductedon his behalf by Officials of the Ministry. But in the present case, theorder conveyed to the petitioner by the letter (X4) does not even purportto be written on behalf of the Minister.
The issue of a writ of mandamus is within the discretion of Court andwill not be issued if it will be futile to do so. In this case I am satisfiedthat the petitioner has grossly failed to prove that his mother was a citizenof Ceylon by descent.
In support of his application, the petitioner submitted an 'affidavitfrom one Asanaliyar Omakutha that petitioner’s maternal grand-fatherwas a citizen of Ceylon by descent. When he was questioned at theinquiry into this application by an officer of the Ministry, Omakuthasaid that he did not know if the petitioner’s maternal grand-parentscame from India or were bom in Ceylon.
It also transpired at the inquiry held in connection with this applicationthat the petitioner had been away in India for certain periods in 1954,1955 and 1957. He therefore did not have continuous residence in Ceylonfor the required period. Mr. Justice H. hi. G. Fernando held in Mohideenv. The Prime Minister x, decided on 13.6.1961 that the words “residentin Ceylon throughout a period …. ” in section 11 (1) (6) (1) meant
uninterrupted residence in truth and in fact during this period. Irespectfully agree with this finding.
As no purpose will be served by issuing a writ of mandamus in thiscase, I dismiss the application. The petitioner will pay the Respondentthe costs of this application fixed at Rs. .105.
Application dismissed':
1 {1961) 63 N. L..R. 263..