004-NLR-NLR-V-64-N.-K.-K.-SHANMUGAM-Appellant-and-THE-COMMISSIONER-FOR-REGISTRATION-OF-INDIAN-.pdf
Shanmugam v. Commissioner for Registration of Indian
and Pakistani Residents
29
[In the Privy Council]
1962 Present :Lord Radcliffe, Lord Keith ot Avonholm, Lord Hodson>
Lord Devlin and Mr. L. M. D. de Silva
N.K. K. SHANMUGAM, Appellant, and THE COMMISSIONER FORREGISTRATION OF INDIAN AND PAKISTANI RESIDENTS,
Respondent
Privy Council Appeal No. 62 of 1960
Indian and Pakistani Residents (Citizenship) Act No. 3 of 1949, as amended by ActNo. 45 of1952—Sections 6(2) (ii) and 22—Application for registration as a citizenof Ceylon—Requirement of residence in Ceylon of wife of applicant withinthe first anniversary of the date of marriage—Effect of her non-residence becauseof war conditions between 1st December 1941 and 31st December 1945—Proofof permanent settlement—Quantum of evidence of change of Indian domicile—Section 5 of Act No. 45 of 1952—Retrospective effect, on pending proceedings,of amendments introduced by Act No. 45 of 1952—Interpretation Ordinance(Cap. 2)—Section 6(3) (c)—Meaning of the words “ express provision".
(i) The appellant, who made application to be registered as a citizen ofCeylon under the Indian and Pakistani Residents (Citizenship Act), was married!in India on the 16th March, 1944. The wife did not arrive in Ceylon tillOctober, 1945.
Held, that the failure of the wife to commence residence in Ceylon withinthe first anniversary of the date of the marriage, as required by section 6 (2) (ii>of the statute, disentitled the appellant to citizenship. Although the wif»remained in India because of the war conditions prevailing at that time, suchnon-residence in Ceylon could not be construed as interruption of residencewithin the meaning of section 6 (as amended).
Fakrudeen v. Commissioner for Registration of Indian and PakistaniResidents (1955) 57 H.L.R. 111, overruled-
Obiter : In considering whether a person had acquired a permanent settle-ment in Ceylon prior to his application to be registered as a citizen of Ceylonthe tribunal of enquiry would have to investigate and assess virtually the samefacts as those normally regarded as relevant in considering a question of changeof domicile. The respective fields of enquiry necessarily contain the samesorts of facts. The decision of Tennekoon v. Duraisamy (59 N.L.R. 481),however, emphasises that, though facts have to be proved by the applicantjustifying a finding that there was a permanent settlement, it is not requiredthat they should be subjected to the same very strict tests as English law hasapplied to any claim of a changed domicile as, for instance, that strong presump-tion in favour of the retention of the domicile of origin which has notinfrequently been attributed to English decisions on this subject.
(ii) SectionG (3) (c) of the Interpretation Ordinance reads as follows :—
“ Whenever any written law repeals either in whole or part a former writtenlaw, such repeal shall not, in the absence of any express provision to thateffect, affect or deemed to have affected—•
(c) any action, proceeding or thing pending or uncompleted when therepealing written law comes into operation, but every such action,proceeding or thing may be carried on and completed as if there hadbeen no such repeal.”
2*It 3450 (6/C2)
30 LORD RADCLIFFE-—Shanmugam v. Commissioner for Registration
of Indian and Pakistani Residents
*
Held: To be “ express provision ” with regard to something it isnot necessary that that thing should be specially mentioned ; it is sufficientthat it is directly covered by the language however broad the language may bewhich covers it so long as the applicability arises directly from the languageused and not by inference therefrom.
Accordingly, the retrospective effect given by section* 5 (1) of the. Indian,and Pakistani Residents (Citizenship) Amendment Act No. 45 of 1952 to theamendments effectod by the preceding sections of that Act is applicable tothe prosent application which was pending at the time when the Act was passed,although pending proceedings were not specially mentioned in the Act. „ (•
Appeal from a judgment of the Supreme Court.
E. F. N. Gratiaen, Q.C., with Walter Jayawardena, for the applioant-appcllant./,
Dingle Foot, Q.C., with M. P. Solomon, for the respondent.
Cur. adv. vult.
May 7, 1962. [.Delivered by Lord Radcliffe]—
This is an appeal from a judgment dated the 8th day of August, 1958, ofthe Supreme Court of Ceylon dismissing an appeal from an order of theCommissioner for the Registration of Indian and Pakistani Residents{respondent to this appeal) dated the 23rd day of May, 1957, by which he.had refused an application by the appellant to be registered as a citizen ofiCeylon under the Indian and Pakistani Residents (Citizenship) Act No. 3of 1949.
The Act came into force on the 5th August, 1949. It makes provisionfor granting the status of a citizen of Ceylon to Indian and Pakistan iresidents in Ceylon who are possessed of the residential qualificationsspecified in the Act if they satisfy certain conditions set out in it. Theseresidential qualifications and the conditions just mentioned are discussedin the judgment of the Board in the case of Tennekoon v. Duraisqmy1.Their Lordships do not think it necessary to repeat here all that wassaid in that case..
tV
In section 22 of the Act Indian or Pakistani resident is defined thus :
“ * Indian or Pakistani resident ’ means a person—
(а)whose origin was in any territory which, immediately prior tothe passing of the Indian Independence Act, 1947, of theParliament of the United Kingdom, formed part of BritishIndia or any Indian State, and
(б)who has emigrated therefrom and permanently settled in
Ceylon, and includes a descendant of any such person ; ”
* 59 N.L.R. 481 also (1958) A. G. 354.
v/•' '.} un.if
LORD RADCLIFFE—Shanmugam v. Commissioner foie 'Registration 31of Indian and Pakistani Residents.
In section 6 as amended by Act No. 45 of 1052 the following among,other conditions that have to be satisfied appears :
“ 6 (2) (ii) that his wife was uninterruptedly resident in Ceylon froma date not later than the first anniversary of the date ofher marriage and until the date of the application, and inaddition, that each minor child dependent on the appli-cant was uninterrupted^ resident in Ceylon from a datenot later than the first anniversary of the date of thechild’s birth and until the date of the application ; ”
The application was refused by the Commissioner on the grounds that(a) the applicant’s wife had not resided in Ceylon as required by section6 (2) (ii) and (b) that the applicant had not satisfied him that he was“ permanently settled ” in Ceylon as required by section 22. As will beseen from the section permanent settlement by a person in Ceylon is neces-sary before he can claim to be an “ Indian or Pakistani resident Onappeal the Supreme Court affirmed the order of the Commissioner withoutgiving reasons.
The applicant was married in India on the 16th March, 1944. Thewife did not arrive in Ceylon till October, 1945, later than “ the firstanniversary of the date of her marriage Section 6 as amended containsthe following provision:
“ For the purposes of the preceding paragraph (2) (ii), (above) thecontinuity of residence of the wife or a minor child of an applicantshall not be deemed to have been interrupted by reason that she orhe was not resident in Ceylon during the period commencing onDecember 1, 1941, and ending on December 31, 1945, or during anypart of that period, if the Commissioner is satisfied that she or he didnot reside in Ceylon during that period or part thereof owing tospecial difficulties caused by the existence of a state of war. ”
It was argued before the Commissioner and before their Lordships that thewife did not arrive in Ceylon till October, 1945, owing to reasons coveredby the last words of the passage set out above and that for this reasonthe Act excused her absence from Ceylon till October, 1945, although shehad never resided previously in Ceylon.
In the case of Fakrudeen v. The Commissioner for Registration ofIndian and Pakistani Residents 1 this view of the law was taken bythe Supreme Court. The Commissioner rejected this argument sayingamongst other things “ it cannot be said that continuity of residence hasbeen interrupted if a person has never been resident in this countryHis
order as already stated was affirmed by the Supreme Court in this case.Their Lordships are of the opinion that the Commissioner was right. In
1 57 N.L.R. 111.
32
LORD RADCLIFFE—Shanmugam v. Commissioner for Registration
of Indian and Pakistani Residents
Fakrudeen’s case the Supreme Court commenting on the words of the Actrelied on by the appellant said :
“ The legislature here has in mind not occasional absence or mereinterruptions of a period of residence, but non-residence during thewar period, an expression which can fairly include any failure toreside attributable to war conditions, whether or not the period ofnon-residence constituted an interruption of a period of residence.”
With all respect to the Supreme Court their Lordships think that such aview strains language beyond permissible limits.
The Commissioner also held that even if the argument mentioned abovebe accepted he was not satisfied that during the period in question theapplicant’s wife remained in India because of war conditions. He gavetwo reasons for this view, firstly that it was a belated piece of evidencegiven in May, 1957, of a state of things which had never been mentionedbefore. In this he was wrong because the record shows that on the 25thSeptember, 1953, the applicant had said to an investigating officer thatthe delay in bringing the wife over was “ due to special circumstancescreated by the war ”. The second reason was that in his applicationhe had stated that during 1944 and 1945 his wife had resided at No. 9Puppurasa Bazaar. Confronted with this statement the applicant said“ That entry is a mistake—my wife never lived at Puppurasa ”. It isdifficult to see how a positive statement such as that made by the applicantcould be an inadvertent mistake. The Commissioner appears to thinkit was a false statement which the applicant had forgotten having made.There appears to be substance in the Commissioner’s second reason butas on the point in question the Commissioner had made an error of fact(in his view that oertain evidence was belated) their Lordships prefer notto place reliance on his finding. It is not necessary to do so for th e reason,expressed earlier, that the applicant’s wife did not satisfy the provisionsof section 6 (2) (ii). Upon this view alone the application would fail.
There arises, however, a question whether the Act of 1952 affects the *appellant’s application. The application was made in July, 1951, and theprovision set out above relating to the residence of the wife was made byAct 45 of 1952 which also contains provision in section 5 making itretrospective to the following effect:
“ (1) The amendments effected by the preceding sections of this Actshall be deemed to have come into force on the date appointedunder section 1 of the principal Act; and accordingly, but subject tothe provisions of sub-section (3) of this section, the principal Actshall be deemed on and after that date to have had effect, and shallhave effect, in like manner as though it had on that date been amend-ed in the manner provided by this Act. ”
It has been argued that the provision regarding the residence of the wifeis inapplicable to this case. It has been said that the application waspending when Act 45 of 1952 was passed and that by reason of the
LORD RADCLIFFE—Shanmugam v. Commissioner for Registration
of Indian and Pakistani Residents
33
provisions of section 6 (3) of the Interpretation Ordinance (Chapter 2Legislative Enactments of Ceylon) the Act is not applicable. Section 6 (3)is to the following effect:
“ Whenever any written law repeals either in whole or part aformer written law, suoh repeal shall not, in the absence of anyexpress provision to that effect, affect or be deemed to have affected—
(c) any action, proceeding, or thing pending or incompleted whenthe repealing written law comes into operation, but everysuch action, proceeding, or thing may be carried on andcompleted as if there had been no such repeal. ”
Sub-sections (a) and (b) have no bearing on this case.
It is argued that the Act does not contain the “ express provision ”required by the Interpretation Ordinance to make it applicable. TheirLordships do not agree. Upon the meaning of the words “ expressprovision ” Counsel relied upon the case of In re Meredith1 andstated that it must be provision the applicability of .which didnot arise by inference. He argued that there was no “express provision ”as no reference had been made to pending proceedings. Their Lordshipsare of the view that it is correct to state that express provision is provi-sion the applicability of which does not arise by inference. The applica-bility however of the provision under discussion to the present case doesnot arise by inference ; it arises directly from the language used. Thefact that the language used is wide and comprehensive and covers manypoints other than the one immediately under discussion does not make itpossible to say that its application can arise by inference only. To be“ express provision ” with regard to something it is not necessary thatthat thing should be specially mentioned ; it is sufficient that it is directlycovered by the language however broad the language may be which coversit so long as the applicability arises directly from the language used and^not by inference therefrom. The argument fails.
In the circumstances their Lordships do not find it necessary to giveany decision upon the other ground of appeal that was argued beforethem, viz., that the Commissioner had erred in law in his finding thatthe applicant was not permanently settled in Ceylon at the date of appli-cation. It was said that his error consisted in introducing a referenceto “ change of domicile ” into his stated reasons for holding that therewas no permanent settlement.
Their Lordships think however that it may be helpful for the future ifthey make one observation about the decision of the Board in TenneTcoonv. Duraisamy2, which was much relied upon in argument beforethem. In their opinion it would be a misunderstanding to supposethat in considering whether a person had acquired a permanent settle-ment in Ceylon prior to application the tribunal of enquiry would not
1 [iS9$] 67 L.J. 409.2 [1958] A. O. 354. ’
34.
Martin Appuhamy v. Sub-Inspector of Police, Jaffna
have to investigate and assess virtually the same facts as those normallyregarded as relevant in considering a question of change of.domicile. *The respective fields of enquiry necessarily contain the same sorts offacts. The importance of the decision of Tennelcoon v.Duraisamy (supra)is that it emphasises that, though facts have to be proved by the appli-cant justifying a finding that there was a permanent settlement, it isnot required that they should be subjected to the same very strict tests ;as English law has applied to any claim of a changed domicile as, forinstance, that strong presumption in favour of the retention of thedomicile of origin which has not infrequently been attributed to Englishdecisions on this subject.
For the reasons which they have given their Lordships will humblyadvise Her Majesty that the appeal be dismissed. The appellant mustpay the costs of this appeal.
Appeal dismissed.