MOHAMED SAHIBM, Appellant, and COMMISSIONER FOR REGISTRATION OF INDIAN AND P

059-NLR-NLR-V-64-MOHAMED-SAHIBM-Appellant-and-COMMISSIONER-FOR-REGISTRATION-OF-INDIAN-AND-P.pdf


307
Molutmed Sahib v. Commissioner for Registration of
Indian and Pakistani Residents
1962Present: Tambiah, J.
MOHAMED SAHIB, Appellant, and COMMISSIONERFOR REGISTRATION OF INDIAN AND PAKISTANIRESIDENTS, Respondent
S. C. 100 of I960—Citizenship Case No. C 9933
Indian or Pakistani resident—Application for registration as citizen, after expiry ofprescribed period—Jurisdiction of Commissioner—Indian and PakistaniResidents (Citizenship) Act (Cap. 350), ss. 4, 5—Regulation 3A.
A person, who applies for citizenship under section 4 of the Indian andPakistani Residents (Citizenship) Act after the expiry of the poriod proscribedin section 5, is not entitled to claim that his application is within time merelybecauso he had been described as a dependant of another person in a similarapplication made earlier by the latter within the prescribed poriod.
In view of the imperative provisions of section 5 of the Indian and PakistaniResidents (Citizenship) Act, no officer can authorise a person to apply forregistration under that Act two years after the prescribed date. Even if suchan application has been received the Commissioner has no jurisdiction toontertain it.
308 TAMBIAH, J.—Mohamed Sahib v. Commissioner for Registration of
Indian and Pakistani Residents
Appeal under section 15 of the Indian and Pakistani Residents(Citizenship) Act.
V. Perera, Q.C., with Sharvananda, for the appellant.
Shiva Pasupati, Crown Counsel, for tho respondent.
Cur. adv. vult.
October 10, 1962. Tambiah, J.—
The appellant made an application under section 4 of the Indian andPakistani Residents (Citizenship) Act (Cap. 350) to be registered as acitizen of Ceylon. The application in Form 1A, which contains thenecessary particulars required by the said Act, was signed by the appellanton the 4th of December 1956.
At the inquiry before the Deputy. Commissioner, although he wassatisfied that the appellant had resided in Ceylon during certain periods,nevertheless he called upon the appellant to adduce evidence that theappellant had been resident in Ceylon during the period 1.1.1936-13.12.1943. After inquiry, the Deputy Commissioner refused theappellant’s application on the ground that the appellant had not provedthat he had been resident in Ceylon during the said period.
•
In appeal, the counsel for tire respondent took up the objection that theappellant had not made the application within the time prescribed bylaw to claim the privilege of being registered as a citizen of Ceylon andtherefore the Deputy Commissioner should not have entertained thisapplication nor should this Court entertain it.
Section 5 of the Indian and Pakistani Residents (Citizenship) Act(supra) enacts:
" The privilege or extended privilege conferred by this Act shall beexercised in every case before the expiry of a period of two years reckonedfrom the appointed date; and no application made after the expiry ofthat period shall be accepted or entertained, whatsoever the cause of thedelay ”.
Section 24 of the Indian and Pakistani Residents (Citizenship) Act(Cap. 350) defines the ‘ appointed date ’ as c the 5th day of August 1949 ’.
Therefore, if the appellant’s application is regarded as the applicationin Form 1A, signed by him on the 4th of December 1956, then his applica-tion should not have been entertained by the Deputy Commissioner norshould it be entertained by this Court.
It was submitted on behalf of the appellant that the latter had madean earlier application through his brother, one Mohamed Hussain AbdulCader, son of Maraikarthamby Ivader Sahib Seyedahamedthamby. The
TAMBIAH, J.—Mohamed Sahib v. Commissioner for Registration of Ml)
Indian and Pakistani Residents
application of the appellant’s brother, which was produced by theCommissioner at the request of this Court, was carefully perused by meand I find nothing in it to suggest that the appellant’s brother had madeany application on behalf of the appellant.
The applicant’s brother, by his application dated 4th August. 1951,in. Form 1A, had made a request that he be registered os a citizen ofCeylon under the said Act. In cage II of the application, he stated :
“ I request that, simultaneously with myself, my illegitimate child/eachillegitimate minor child of mine mentioned in paragraph 10 of this appli-cation be registered as a citizen of Cej’ion The cage in paragraph 10of the application has the following printed words : “where the applicantis an unmarried female, the names and dates of birth of any illegitimateminor children of hers, who arc ordinarily resident in Ceylon and depen-dent on her and whose registration she desires simultaneously with herregistration. This cage was left blank by the appellant’s brother. Theappellant’s name is only mentioned in cage 7 in which every applicant isrequired to state the names, addresses and relationship of all dependants.In this cage, the appellant is referred to as the dependant brother, of theapplicant, carrying on business as a partner in premises Nos. 99/4 and 5,Prince Street, Colombo 11.
One of the formal requirements of an application for registration isthat an applicant should mention also the names, addresses and relation-ship of all his dependants. Therefore, the entry of the name of theappellant in cage 7 is one of the particulars which the appellant’s brotherhad to mention in his own application. In no other place is the appellant'sname found in the application made by his brother to indicate that anapplication was made on behalf of the appellant. The only reasonableconclusion which could be arrived at, therefore, is that the appellant’sbrother had made the application dated August 1951 only on. his behalfand not on behalf of his brother, the appellant. In view of this finding,the contention of the appellant’s counsel that the petition, which wasinquired into by the Commissioner was not thepetitiondated4thDecember1956, presented by the appellant, but the petition of his brother, datedAugust 1951, is untenable. The further argument of the appellant’scounsel that the petition filed by the appellant’s brother, on behalf ofhimself as well as on behalf of t he appellant, was adopted by the appellantwhen he filed the petition dated 4th December 1956, also fails. It mustalso be noted that the terms of the petition filed by the appellant dated’December 1956, does not state that the appellant had adopted the earlierpetition by his brother.
The contention of the counsel for the appellant that the appellant wasa minor at the time the appellant's brother made the application datedAugust 1951, is not borne out by the evidence in the instant case. Theappellant, while giving evidence on the 19th of February 1958, statedthat he was twenty-nine years of age. Therefore, on the 19th of February1951, he would have been about twenty-one years of age. No proof has
310 TAMBIAH, J.—Mohamed Sahib v. Commissioner for Registration of
Indian and Pakistani Residents
been adduced before this Court that the appellant was a minor at thetime his brother made the application on his behalf, dated 4th August1951.
Section 3A of the Regulations made under the Indian and PakistaniResidents (Citizenship) Regulations, 1949, states as follows (vide Govern-ment Gazette No. 10,462, dated 10.10.1952, Part I, Section I, Volume Ipage. 1732) :
“(1) The Commissioner shall not entertain an application made byany Indian or Pakistani resident if that application is not in theappropriate form specified for that person in regulation 2 orregulation 3, as the case may be.
Notwithstanding that an application made by any Indian orPakistani resident is not in the appropriate form specified forthat person in regulation 2 or regulation 3, the Commissionermay entertain any such application—
t ■
if it contains all the information and particulars which arerequired to be specified in the form appropriate to thatperson, if and only if, that person on being requested bynotice in writing by the Commissioner to supply theremaining information and particulars appropriate tohis case within one month from the date of the notice,supplies such information and particulars within suchtime ;
? i
f
(ib) if it does not contain all the information and particularswhich are required to be specified in the form appropriateto that person, if and only if, that person on beingrequested by notice in writing by the Commissioner tosupply the remaining information and particularsappropriate to his case "within one month from the dateof the notice, supplies such information and particularswithin such time. ”
As there was no application made on behalf of the appellant by theappellant’s brother, there was no" necessity for the Commissioner even tohave called for particulars from anyone under sub-section 2 (a) or (6)abo vementioned.
The counsel for the appellant also relied on a note, purported to havebeen made by an officer in the Commissioner’s office which reads asfollows :
“ With reference to your interview with the Commissioner on
28.11.56,1 have the honour to request you to see me -with your client
on 3.12.56 at 10 am. at this office ”
Under this note is found another note which reads as follows :
“ Get dependant brother fill in Form 1A ”.
TAMBIAH, J.—Mohamed Sahib v. Commissioner far Registration of 3H
Indian and Pakistani Residents
It was submitted on the appellant’s behalf that the latter note was aninvitation by the Commissioner, or by an officer on the Commissioner’sbehalf, requesting the appellant to regularise the application made on Irisbehalf by his brother, by filling in the proper form. I cannot agree.
In view of the imperative provisions of section 5 of the Indian andPakistani Residents (Citizenship) Act (supra), no officer can authorise aperson to apply for registration under the said Act two years after theprescribed date. Even if any application had been received, the sectionclearly states that it should not be entertained by the Commissioner.
The Indian and Paldstani (Citizenship) Act (supra) confers a privilegeon a person, whose alleged origin is India or Pakistan, to have his nameregistered as a citizen of Ceylon within the limited period prescribed bylaw. A statute which confers a privilege must be strictly construed(vide Maxwell on Interpretation of Statutes (9th Ed.) 298 ; (11th Ed.)p. 345).
The counsel for the appellant, relying on the decisions in Caruppiah v.Commissioner for Registration of Indian and Pakistani Residents1 andS. S. Seyed Ali Idroos v. Commissioner for Registration of Indianand Pakistani Residents 2, submitted that once the issues have been framedby the Commissioner and an inquiry had been proceeded with on thoseissues, it was not open for the Crown to challenge the application on anyother ground. In both the abovementioned cases, the applications weremade within the prescribed time, but the Court in each case held that themere failure to file an affidavit, as required by section 7 of the Act, didnot render the proceedings null and void when there was evidence whichcontained all the requirements of the affidavit. These cases, therefore,stand on a different footing from the one before this Court. In theinstant case, no application has been made, as required by the law, bythe appellant to have his name registered as a citizen of Ceylon.
The counsel for the appellant also urged that, at the most, this was acase of contingent jurisdiction and, if the parties had proceeded on aparticular footing and the inquiry was held, then it was too late in theday to raise any question of jurisdiction. It must however be notedthat the doctrine of estoppel cannot be evoked to render valid a transac-tion which the Legislature has, on grounds of general public policy,enacted shall be invalid (vide Re Stapleford Colliery Co., Barrow's case3)or to give the court a jurisdiction which is denied to it by statute (videGriffiths v. Davies*; J da F Stone Lighting & Radio Ltd. v. Levitt5), or tooust the statutory jurisdiction of the court under an enactment whichprecludes the parties contracting out of its provisions(vide(SoiZey. Butcher a).In my view, the instant case is not one where the tribunal has contingentjurisdictions, but rather one in which it has no jurisdiction since the
1 (I960) 62 A'. L. R. 17.
* (I960) 62 N. L. R. 109.
»(1880) 14 Ch. D. 432 C. A. at p. 441.
4 (1943) 1 K. B. 618 C. A.6 (1947) A. C. 209 H. L.
0 (1950) 1 K. B. 671 C. A.
312 TAMBIAH, J.—Mohamed Sahib v. Commissioner for Registration of
Indian and Pakistani Residents
appellant has made the application, after the prescribed statutory period.It is with regret that I dismiss the appellant’s appeal, since his applicationshould not have been entertained by the Deputy Commissioner nor couldit be entertained by this Court.
On the facts, no doubt, a good deal could be said on behalf of theappellant. The Commissioner has misdirected himself on a number ofmatters, but it is unnecessary for me to go into the facts in view of myfinding that the appellant had not made an application within theprescribed time.
I dismiss the appellant’s appeal with costs fixed at Us. 105.
Appeal dismissed.