081-NLR-NLR-V-58-P.-ANNAMALAI-Appelant-and-THE-COMMISSIONER-FOR-REGISTRATION-OF-INDIAN-AND-PA.pdf
T957 Present : H. N. G. Fernando, J., and T. S. Fernando, J.P.ANNAMALAI, Appellant, and THE COADIISSIONERFOR REGISTRATION OF INDIAN AND PAKISTANI. RESIDENTS, Respondent
Citizenship Case No. 159 of 1956
In the matter of an Appeal under Section 15 of the Indian and Palis la…
Residents (Citizenship) Act
Indian and Pakistani Residents (Citizenship) Act, Ato. 3 of 1019—Application forregistration—Order of refusal—Procedure that must be followed—Power ofSupreme Court to order jresh inquiry—Sections 9, 10, 11, 19, 13, 14 (9) and(O. 15.
An order refusing an application for registration under the Indian andPakistani Residents (Citizenship) Act will not bo valid if it is made only afterholding nil inquiry in purported pursuance of section 13 and without compliancowith the procedure prescribed in section 9. In such a case the Supremo Courtcan, by virtue of the appellate jurisdiction conferred by section 15, orderthat the proper steps bo taken*.
Obiter : The power to hold 'an inquiry undor section 13 cannot bo exorcisedat any stage after the publication of a statutory notice under section 10.
ATIPPEAL under Section 15 of the Indian and Pakistani Residents(Citizenship) Act.
Walter Jayawardena, with M. SanmuganatJian, for the aiiplieanfc-appellant.
J.IF. Subasinghe, Crown Counsel, for the respondent.
Cur. ado. vult.
February 12, 1957. H. N. G. Fskxaxdo, J.—
This appeal raises a question of some difficulty and importanceconcerning the procedure which should be followed in the considerationand disposal of applications for Registration under the Indian andPakistani Residents (Citizenship) Act, No. 3 of 1949. The first stepin the procedure (prescribed by section 8) is that an application shall onreceipt be referred to an investigating officer for a report in which thatofficer will inter alia set out a statement of facts and conclusions relevantto the application ; his report must be taken into consideration when theapplication is dealt- with. It is necessary to set out the text of sections 9to 12 of the Act, and of sub-sections (6) and (7) of section 14 before Irefer to the point in dispute. (References to tlio Commissioner ” ineach case should be construed as being applicable to the Deputy
Commissioner who deals with the particular application.)
: ■ . 0 .
* This ruling was subsequen th, confirmed in Atohamed Ali v. Commissioner for Reg-istration of Indian and Pakistani Residents (Citizenship Case No. 2-5-5, ApplicationNo. C 4607, S. C. Alenulcs of Alarch 2S, 19-57).—JSd.
“s. 9.(1) "Where, upon the consideration of any application, tho
Commissioner is of opinion that a prima facie case has notbeen established, he shall cause to bo served on the applicanta notice setting out the grounds on which the application "willbo refused'and giving the applicant an opportunity to showcause to the contrary within a period of three months fromthe date of the notice.
Where no cause is shown by the applicant within thoaforesaid period, the Commissioner shall make order refusingthe application and cause a copy of tho order to be served onthe applicant.
Where cause is shown by the applicant within theaforesaid period, the Commissioner may either—
(а)make an order appointing the time and place for an
inquiry and cause a copy of that order to be servedon the applicant ;or
(б)take the steps he is hereinafter authorised to take
whenever there is a prima facie case for allowingan application.
s. 10. Where, upon the consideration of an application, theCommissioner is of opinion that there is a prima facieease for allowing the application, he shall give public noticein the prescribed manner that an order allowing the appli-cation will be made unless any written objection to the makingof such order together with a statement of the grounds orfacts on which such objection is based, is received by him fromany member of the public within a period of one month fromtho date on which the notice is published.
•s. 11. Where no objection is received in response to the noticewithin the period specified therein, the Commissioner shallforthwith make an order allowing the application.-
12. Where any objection is received within the period specifiedin the notice, the Commissioner shall make order appointingthe date and the place for an inquiry into the matter of thoobjection..
A copy of such objection and of the statement referred to insection 10 and of the order shall in every case be served onthe applicant..
«. 14.(6) Save as otherwise provided in sub-section (7), at tho
close of an inquiry the Commissioner shall make order allowingor refSs ing the application, or give notice of the date on whichhe proposes to make such order. "Where he gives'such noticehe shall make the order oii that date.
-(7) At the close of an inquiry held in pursuance of section &
(3){a) or of section 13, the Commissioner shall either—
(or-) take the steps he is hereinbefore authorised to takewhenever there is a pritna- facie case for allowingan application j.or
(&) make order refusing the application. ”
No difficulty should be experienced in understanding and followingthe procedure which is contemplated in sections 9 to 12. If the Com-missioner forms the opinion that a prinia facie case has not been estab-lished, notice must issue on the applicant stating the grounds on whichthe application will bo refused and affording ail opportunity for causeto be shown to tho contrary within three months; if no such cause isshown the application is refused ; but if cause is duly shown the Com-missioner will either fix the matter for inquiry or else if he now thinks aprima facie case to be established, will take further steps accordingly.It will be seen that tho applicant has a right under section 9 to knowwhether and why it is proposed to refuse his application and to show causewhy it should not be refused, and that the Commissioner cannot makean order of refusal until he (the Commissioner) performs his correspondingduty. If after that duty is performed, cause is shown within the pres-cribed time, the Commissioner cannot refuse the application except afterinquiry appointed in pursuance of section 9 (3) («) ; the only alternativeto such an inquiry is that the Commissioner will change his mind anddecide for the time being that the application should be granted.
Sections 10 t-o 12 deal with the case converse to that contemplated insection 9. Where his opinion is that a prima facie case fs'established,lie will give public notice of the intention to allow the application andany member of the public can object to the allowance within one monthof the notice ; if no objection is received the Commissioner must allowtho application ; but if objection Is duly received then again lie mustappoint a date for inquiry into the objection. These sections also applywhen the Commissioner forms a favourable opinion after cause is shown,or an inquiry is held, under section 9.
It will bo bccu from this examination of the sections to which I havealready referred that an order of refusal can only be mado in the caseswhich for convenience I enumerate in the following paragraphs :—
(i) Where, after notice of intended refusal is served under section 9(3) (a), the applicant fails to show causo in response to thenotice (section 9 (2)).
Wiiere, after cause is shown and after the inquiry referred toin section 9 (3) (»), the Commissioner decides to refuse theapplication (section 14 (7) (6)).
Where the Commissioner has published a notice under section 10of his intention to allow the application and objection has beenduly made, and, after the inquiry held in pursuance of section 12into that objection, the Commissioner decides to refuse thoapplication (section 14 (6)). (This stage may bo reachedif tlie Commissioner’s opinion was favourable to the applicantcither upon his first consideration, or upon cause having beenshown, or upon inquiry under section 9 (3) (a) into the causeshowm.)
I should add that there is probably another ground for refusalcontemplated in these sections, namely that after a time hasbeen appointed for an inquiry under section 9 (3) (a) the appli-cant fails to appear at the inquiry and to support the cause hodesires to urge in favour of his application.
The substantial complaint of tho appellant in the present case isthat the order refusing his application was not made in any of thecircumstances which I have mentioned above and was therefore invalid.What has occurred in this case and in certain others, the appeals in whichhave been laid by pending our decision, is that the Deputy Commissionerrefused the application without taking the steps prescribed in the pro-visions of the Act to which I have so far referred, but only after holdingan inquiry in purported pursuance of section 13, which is in the followingterms :—
13. Where, in considering any application, tho Commissioneris of opinion that any matter or matters arising therefromor connected therewith should be further investigated, hemay of his own motion order an inquiry and specify in theorder each matter which is to be inquired into and the dateand the place appointed by him for the inquiry.”
Notice was served on the applicant informing him that his applicationw as fixed for inquiry under section 13 ; an inquiry was held in pursuanceof that notice, and after the inquiry the Deputy Commissioner made areasoned order refusing the application.
The submission for the appellant has been that an order of refusalcannot lawfully be made if the only step taken by the Deputy.
Commissioner was to hold such an inquiry. * Crown Counsel on the otherhand has contended that section 13 empowers the Commissioner to takeaction under it in considering an appli cat ion, that is to say at a stagebeforohe comes to form either tho adverse opinion referred tip in section 9 orflic favourable opinion referred to in section 10. In this contention thereference in section 13 to a matter being further investigated would meanan investigation further to that conducted by an investigating officerunder section £>. In other words Crown Counsel argues that when anapplication is being considered, the Deputy Commissioner, if ho findshimself unable to reach a prima facie conclusion either way can conductan investigation by means of an inquiry under section 13 and act uponthe result of that inquiry ; the provisions of sub-section (7) of section 1-iwould apply at the termination of the inquiry and tho Commissionerwould thereupon have the duty cither to take further action bjr publicnotice under section 10 or else to refuse the application.
: If such had been the Legislature’s intention, section 13 seems to boout of place ; if it was contemplated that an inquiry ho held by the Com-missioner in order merely to supplement the investigation already con-ducted under section S by ail investigating officer, one would have expectedto find that intention set down in the section which immediately followedsection 8. But that is not the only consideration against CrownCounsel’s view, nor do I consider it an important consideration. Far moreimportant is the consideration that in that view the Commissioner canby deciding.to hold an inquiry under section 13 render inapplicable thoexplicit and important provisions in section 9 which ensure that ail appli-cation will not bo refused except in the circumstances which I haveenumerated earlier, the essential prerequisite for refusal being the noticeot intended refusal on specified grounds and the opportunity to show causeagainst a refusal within three months of the notice. I find myself quiteunable to subscribe to the view that in enacting section 13 tlie Legislatureintended to qualify in any way the conditions precedent to an order ofrefusal which it had already laid down explicitly in section 9. Thisopinion in reality concludes the argument on the part icular question raisedin this appeal as to the validity of the present order of refusal ; but asthe mat ter lias been fully argued we should, I think, examine section 13with a view to interpreting the intention of the Legislature as to theapplication of the section.
In principle there would be no objection to the holding of an inquiryby the Commissioner before he forms an opinion whether or not a prhnafacie ease lias been established ; indeed it may be desirable in someeases that particular matters be thus investigated at an early stage,lienee it is not at first sight-unreasonable to suppose that section 13 con-templates an inquiry being held prior to the making of a tentative orderunder section 9 or section 10, as the ease may be. What renders such asupposition unreasonable, however, is the provision ip. sub-section (7)of section H which compels the Commissioner at the termination of1 an inquiry under section 13 to make an order of refusal.where the materialtlicii before-him hiis not in his opinion established a priina facie ease..
Of course if the opinion formed by the Commissioner upon an inquiryis favourable to the applicant and the step of publishing notice of anintention to allow the application were to be taken, no inconsistency withthe other sections, and no prejudice to an applicant or even to the publicwould arise. Bub this consideration is of little or no importance or assis-tance having regard to tlie fact that sub-section (7) of section 1-1prescribes the alternative stop of refusal which for reasons already statedwould create both inconsistency and injustice. I hold therefore that aninquiry wider section 13 cannot precede, or be held in substitution for, theprocedure envisaged in section 9. Whether, however, an inquiry, whichis not in purported pursuance of section 13, into any relevant matter, canhe conducted by the Commissioner in order to assist him to reach one ofthe two alternative opinions referred to in section 9 and section 10respectively, is a question which I do not consider it necessary to examine.
Can then the Legislature have intended an inquiry under section 13to be held after the procedure envisaged in section 9 or in section 10has been followed ? Let me consider first the ease where an inquiry hasbeen fixed under section 9 (3) {«) and has been concluded. Sub-section
of section 14 requires the Commissioner to make his order at the closeof t-hc inquiry or upon a date which ho must fix at the close of the inquiry.
If lie makes the order forthwith there would clearly seem to be no scojjethereafter for action under section 13 ; if, however, he only appoints adate for liis order, a course which would be taken whenever the mind ofthe Commissioner is not made up at the close of the inquiry under section 9(3) (a), an occasion may arise for the utilisation of the power conferredby section 13. Thus if some matter had been overlooked, or notadequately investigated at the first inquiry, then section 13 would fulfil anuseful purpose in providing for the further investigation of that matterbefore the ultimate order is made under sub-section (7) of section 14.
No difficulty or prejudice would to my mind arise from this constructionsince the alternative orders, one of which must be made at thetermination of the inquiry under section 13, arc the same as would haveto be made after the inquiry under section 9 (3) («). In passing I shouldmention that I doubt whether the making of the ultimate order can bythis means bo postponed beyond the date originally fixed by I hoCommissioner at the close of the inquiry under section 9 (3) (a).
.I have also to consider whether there would be scope for the utilisationof section 13 in a similar manner in a case where an inquiry has beenheld under section 12 into an objection duly lodged after the notice undersection 10. The holding of an inquiry under section 13 into some mat terafter order has been reserved under sub-section (C)'of section 14 in aninquiry into an objection may in some instances be desirable for the sum:reasons to which I have referred in the preceding paragraphs, .But Iexperience some difficulty in so construing the statute for the reason thatone of the two alternative steps which must follow the holding of an inquiryunder section 13, namely the step referred to in paragraph (a) of sub-section 7 of section 14, would be quite inappropriate in the circumstances.Once notice has been published under section 10 of an intention to allow
360 H. JT. Q. 1’KRNaNDO, J.—Annairtatai v. Conlniisstanir for Registration^. of Indian and Pakistani Residents
an application, and an inquiry is held into an objection lodged within onemonth of that notice, it would he very nearly absurd that the identicalstep of publishing a notice under section 10 giving another opportunityfor objections should again be taken.
. .
Apart from the absurdity which can result if section 13 is utilised afteraction is taken under section 10, general considerations also appear toarise. Section 11 confers on an applicant a statutory right that hisapplication will be allowed if no objection is received within one month ;and where objection is duly received all that section 12 contemplates is aninquiry into the matter of the objection ; if I may put it in that way, theeffect of a notice under section 10 is that the statute assures the applicantof success, subject only to the decision of the Commissioner upon anyobjection duly lodged and substantiated. In the absence of expressprovision in section 13 qualifying that assurance, the powers conferredby that section should not in my opinion be construed to affect that,statutory right in any ■way or to authorise the Commissioner to investigateany matter other than a matter duly raised in an objection. Henceone is forced to the conclusion that the power to hold an inquiry undersection 13 cannot be exercised at any stage after the publication of astatutory notice under section 10.
The order in the present case refusing the appellant’s application, nothaving been made in accordance with the procedure set out in section 9,is invalid. In Solamnthu v. The Commissioner for Registration of Indianand Pakistani Residents 1 my brother Gunasekara stated “ there has beenno proper inquiry into the appellant’s application and an order cannot bemade upon it until such an inquiry has been held.” That language is•particularly appropriate to the present case where an essential step inthe prescribed procedure has been completely ignored by the DeputyCommissioner. Once the order appealedfrom is set aside on such groundit must follow in my opinion that- the steps hitherto taken upon theapplication were a nullity, and that proper steps must now be taken bythe Commissioner even without a direction from this Court on that be-half. But I entirely agree with my brother Gunasekara’s views as to theimplied power of this Court which flows from the jurisdiction conferredby section 15 of the Act. The order appealed from is set aside and Idirect the Commissioner to consider and deal with the application underthe provisions of sections 9 and 10 of the Act. The respondent will paj'to the appellant costs fixed at Its. 262'50.
T. S. Febsando, J.—
I agree with the views expressed by my brother in his judgment andalso agree that the order indicated by him should be made.
Order set aside.
» (1956) 58 N. L. R. J57-.