012-NLR-NLR-V-55-P.-A.G.-THOMAS-Appellant-and-COMMISSIONER-FOR-REGISTRATION-OF-INDIAN-AND-PAKI.pdf
40
ISTAGAIjINGAM A.C.J.—Kadramer v. Cassim
1953Present: Nagalingam A.C.J.P.A. G. THOMAS, Appellant, and COMMISSIONER FORREGISTRATION OF INDIAN AND PAKISTANI RESIDENTS,Respondent =S.C. 56—Appeal under section 15 (1) of the Indian and PakistaniResidents (Citizenship) ActIndian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Section 3—Application for registration as citizen of Ceylon— Quantum, of evidence—Costs_In an application for registration as a citizen of Ceylon under tlie Indianand Pakistani Residents (Citizenship) Act—
Held, (i) that the single circumstance that the applicant had made declarationsof temporarv residence in <E B Forms 11 for the purpose of remitting two sums■ of money should not be permitted to have an over-riding effect over all otherconsiderations.
(ii) that the descendant of a person who has been registered as a citizen ofCeylon on the ground of permanent settlement is entitled to a^ certificate of•registration without proof that he himself has permanently settled in Ceylon.Costs to be taxed as in an action in Class V in the District Court.
NAG Alin GAM A.C.J.—Thomas v. Commissioner for Registration
*of 'Indian and Pakistani Residents
41
Appeal under section 15 (1) of the Indian and Pakistani Residents(Citizenship) Act, No. 3 of 1949.
N. K. Choksy, Q.C., with E. R. S. R. Coomaraswamy, for the appellant.
M.Tiruehelvam, Crown Counsel, for the respondent.
Cur. adv. vult.
August 26, 1953. Nagat.tngam A.C.J.—
This is an appeal from an order of the Commissioner for the Registrationof Indian and Pakistani Residents refusing the application of the appellantfor registration as a citizen of Ceylon under Act No. 3 of 1949.
The Commissioner has accepted the evidence adduced by the appellantin regard to the continuity of his residence in Ceylon within the meaningof and as required by section 3 of the Act, but the ground on whichthe refusal was based by the learned Commissioner is that he is notsatisfied “ that the applicant had permanently settled in Ceylon ”.Learned counsel for the appellant has urged that the decision of thelearned Commissioner is erroneous not only in regard to the question ofpermanent settlement but also in regard to the question of law thatarises in the ease, independently of any question of permanent settlementof the appellant.
In so far as the facts are concerned, there can be little doubt that avery strong prima facie case has been made out by the appellant. Hewas bom in Ceylon ; he was educated in Ceylon, excepting for a periodof two years in India ; his parents are in Ceylon ; he was married inCeylon ; his wife has continued to live in Ceylon; his child was born inCeylon, and the child has also continued to live up to the date of appli-cation in Ceylon ; furthermore, he has been employed continuouslyin Ceylon ever since he became employable. He has no interest inIndia in the sense of being possessed of any property there, and it isequally true to say that he has no interest in Ceylon in the same sense.So far as acquisition of any property in Ceylon is concerned, he hasreferred to the fact that he is a young man twenty-six years of age andhas not reached that stage in life when as a result of his own exertions,he could be expeeted to have accumulated sufficient wealth to makeinvestments of any kind. What is yet a still stronger factor is that hisfather has been granted a certificate of registration and so has one ofhis brothers, while the application of another brother is yet pending.
As against all these facts and circumstances, what has been regardedas sufficient to turn the balance against the appellant has been thestatement by the appellant that he is a temporary resident in two appli-cation forms, referred to as “ B Forms ” for the purpose of remittingtwo sums of money, of Rs. 60 and Rs. 25 in February and Decemberof the year 1949. He has made no other remittances even subsequently.The appellant ^vhen called for an explanation in regard to the descriptionof himself as a temporary resident in Ceylon, stated that he had notmade that statement 'with a view to “ give up his Ceylon citizenship ,rbut as far as he knew “ the only course left at that time was to remitthrough B Form where the necessary declaration had to be made
42 NAGALINGAM A.C.J.—Thomas v. Commissioner for Registj ation
of Indian and Pakistani Residents
meaning thereby that that was an integral part of the form ^ nd that thatwas the only form available to him to be used, especially in circumstanceswhich were rather urgent, in regard to the first sum remitted by him,which was in the nature of an assistance to his sister who was very ill;the other sum, it is said, was in the nature of a Christmas gift.
It has been urged on behalf of the appellant, and it has not been•controverted by learned Crown Counsel, that the appellant could not•describe himself as a citizen of Ceylon before he was registered, and tillthat registration was effected the only course open to him was to applyin Form B which contains the statement that the applicant is a temporaryresident in Ceylon. The learned Commissioner has, however, takenthe view that this statement was not only a false statement but a falsestatement to the knowledge of the appellant, so much so that his conductindicated that “ he could hardly have had much regard for the laws ofthis country ”, and as the appellant had also failed to establish that hehad been “ associated with any local social service organization or anylocal public life ”, whatever these may mean in relation to the appellant,he made order refusing the application.
Be that as it may, one of the Deputy Commissioners seems to have takena slightly different view in regard to the explanation offered by theppellant, for on 10th June he made a minute which rims as follows :“2. Re permanent settlement I think his explanation in para. 2overleaf merits favourable consideration. He has made only tworemittances. For this purpose he had no other alternative except tosign the B. Forms. ”—
which to my mind is a realistic view of the situation.
While there cannot be the slightest doubt but that a statement of anApplicant that he is only a temporary resident, though made it be forthe sake of acquiring any benefit, however small, should be carefullyweighed and weighted as heavily as all the surrounding circumstanceswould permit to the fullest allowable extent, it must not, however, bedeemed to be the sole factor or criterion having such an over-riding effectover every other circumstance and fact so as to outweigh the cumulative-effect of all other considerations—see the case of Doucet v. Geoghegani.
It seems to me, therefore, that the learned Commissioner should nothave allowed the single circumstance of declarations of temporaryresidence made in the circumstances in which they were made to be thedeciding factor in refusing the appellant’s application.
I do not, however, wish to rest my judgment on this ground alone.There is the point of law that has been raised and which has not beenadequately met by counsel for the respondent. Under the Act as first•enacted, an Indian resident meant a person who fell under one of twodifferent categories : (1) an Indian who had emigrated from India andpermanently settled in Ceylon ; (2) a descendant of such a person.An amendment widening the class of persons, by introducing a third•category, who would be entitled to claim the benefit of the Act wasintroduced by the amending Act No. 37 of 1950, but as it hasc little or noimpact on the question before me, I shall not advert to that amendment,i (1878) L. R. Ch. D 441.
NAGVliXISrGAM A.C.J.—Thomas v. Commissioner for Registration 43
»of Indian and Pakistani Residents
Mr. Chok^y contends that in view of the fact that the father of theapplicant has been registered as a citizen of Ceylon as a person falling■under category (a), the applicant is a person therefore who falls nndercategory (6), and as such entitled to-he regarded as an Indian residentwithin the meaning of the Act without his having to establish that hehad himself permanently settled in Ceylon. The facts upon which thecontention is based are not in dispute. That the applicant’s father wasborn in India, that he emigrated from there to Ceylon and that he haspermanently settled in Ceylon is established by the certificate of regis-tration issued to him. The appellant, therefore, being a descendant ofa person who falls under category (a) is himself entitled to be regarded asan Indian resident to whom the privileges conferred by the Act extend.
Mr. Tiruehelvam sought to meet this argument by putting forwardin indignant tones the hypothetical case of an applicant who, he said,may be the son of a person registered as a citizen of Ceylon Tinder category
but who has made his home in Bombay, and postulated the questionwhether such an applicant should be granted a certificate of registration. as a citizen of Ceylon without proof of permanent settlement ; and heproceeded to posit that such a person may claim the dual benefits ofIndian and Ceylon citizenship.
If everything that counsel implies by his deductions be correct, sucha case may present a difficulty, but it does not establish that the simplewords “a descendant of any such person ” have therefore to be givena meaning other than what the words plainly and literally connote.He himself did not venture to suggest what other meaning he was preparedto give them, but he however thought that in order to prevent such acalamity as the one he had visualised the words should be qualified bysome such phrase as “ who has permanently settled in Ceylon
I find it difficult to limit the scope of these words in this manner.Mr. Tiruehelvam has given no adequate reason for so qualifying them,in particular when it is borne in mind that the necessity for permanentsettlement has been emphasized in regard to the first category of personsand the third category introduced by the amending Act, but no suchrequirement has been added to the second category which appears bothin the principal and the amending Ordinances. To my mind, thereis good reason for the legislature making such a differentiation. Wherea person under category {a) obtains a certificate of registration, he canand is entitled to exercise the privileges conferred by the Ordinanceon behalf of his minor children who would then be entitled to be registeredas citizens of Ceylon. In the case of children who are majors, theparent is not entitled to make an application on their behalf for theobvious reason that, the children being majors, they are entitled to maketheir own decision with regard to an application for registration, andif they decided to have themselves registered the legislature apparentlydid not intern? that they should have to surmount any obstacles whichtheir minor brothers or sisters would themselves not have to negotiate.
If one looks at the problem from this point of view, one can quite■ appreciateVhy a descendant of a person who is registered under categoryi (a) should be given the right to claim registration without b’eing compelled
44
Sujfragam Rubber and Tea Co., Ltd. v. JUvhsin
to establish, the fact of permanent settlement. In the illustration givenby Mr. Tiruchelvam, assuming that a son of a person wlio has beenregistered under category (a) and who has made his home in Bombaymakes application for a certificate of registration, then by virtue of theprovisions of the Ordinance he would on registration in Ceylon as acitizen lose whatever rights of citizenship he may have had in anyother country, so that even the difficulty which Mr. Tiruchelvam envisagedcannot arise.
I am therefore of opinion that the true construction is that where anapplicant is a descendant of a person who has been registered undercategory (a) it is not necessary for him to establish that he himself haspermanently settled in Ceylon. The fact that he is a descendant ofsuch a person is all that need be established before applying for regis-tration, subject to the other requirements of the Act for effectingregistration.
I therefore set aside the order of the learned Commissioner andsubstitute for it an order that a prima facie case has been made out byappellant for allowing his application, and direct the Commissioner to-take the further steps necessary under the Act. The petitioner willalso be entitled to the costs of his application, which will be taxed by theRegistrar as if it were an action in Class V in the District Court.
Order set aside.