076-NLR-NLR-V-54-R.-SIVAN-PILLAAI-Appellant-and-COMMISSIONER-FOR-THE-REGISTRATIONS-OF-INDIAN-A.pdf
310
SWAN" J. —Sivm Pillai v. Commissioner for the Registration of
Indian and Pakistani Residents
1953Present : Swan J.
R.SI VAN PILLAI, Appellant, and COMMISSIONER FOR THE
REGISTRATION OF INDIAN AND PAKISTANI RESIDENTS,
Respondent
8. C. 9d9—Indian and Pakistani Residents DD 46
Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Application for
registration as citizen—Prima facie case not established—Failure to show cause
Refusal of application—Right of appeal—Sections 9 (1) and (2), 10, 11, 15 {!).
The appellant made an application to be registered as a citizen of Ceylon.Subsequently the Commissioner served a notice under Section 9 (1) of the Indianand Pakistani Residents (Citizenship) Act, intimating tp the appellant that hehad decided to refuse his application unless the appellant showed cause to thecontrary within three months. The appellant did not show cause and, thereupon,the Commissioner in terms of Section 9 (2) of the Act refused the appellant’sapplication and notified him accordingly.
Held, that the act done by the Commissioner under Section 9 (2) of the Act waspurely administrative and that there was no right of appeal from such an order.
Ar
XaPPEAL from an order of the Commissioner for the Registration of
Indian and Pakistani Residents.
S.Sharvananda, for the appellant.
M. Tiruchelvam, Crown Counsel, for the respondent.
Cur. adv. wit.
February 3, 1953. Swan J.—
This is an appeal under Section 15 (1) of the Indian and PakistaniResidents (Citizenship) Act, No. 3 of 1949, as amended by Act No. 37 of1950. Learned Grown CounseLappearing for the respondent has taken apreliminary objection, to wit, that the appellant has no right of appeal. Itwas agreed that the preliminary objection should be considered first.
SWAN J.—Siva a PUlai v. Gomm issioner for the Registration of
Indian and Pakistani Residents
311
The appellant had on 24.12.1950 made an application to be registeredas a citizen of Ceylon. On 29.2.1952 the Commissioner served a noticeunder Section 9 (1) intimating to the appellant that he had decided torefuse his application on the grounds set out in the schedule, unless theappellant showed cause to the contrary by letter within three monthsfrom the said date. The grounds of tentative refusal set out in theschedule read as follows :—
“ You have not proved that you are an Indian or Pakistani resident,no evidence having been offered that your origin or the origin of anyancestor of yours was in pre-partition British India or an Indian State. ”
The appellant did not show cause by letter or otherwise ; and on 10.6.52the Commissioner in terms of Section 9 (2) of the Act refused the appel-lant’s application and notified him accordingly. Mr. Thiruchelvam contendsthat the Commissioner had no option in the matter ; that as the appellanthad failed to show cause the Commissioner was bound by Section 9 (2) torefuse his application. He drew my attention to the wording of Section 9(2) “shall make order refusing the application” which, he submits, aremandatory. He further submits that no appeal lies from an order ofrefusal made under Section 9 (2). Mr. Sharvananda says that Section 15
is wide enough to cover an order of refusal made under Section 9 (2).
Section 15 (1) reads as follows :—
‘ ‘ An appeal against an order refusing or allowing an application forregistration may be preferred to the Supreme Court in the prescribedmanner by the applicant or, as the case may be, by the person wholodged any objection which has been overruled by the order. ” I
I have considered the matter very carefully and have come to the con-clusion that the objection taken by learned Counsel for the respondent issound and must be upheld. To begin with one must realize that Indianand Pakistani residents have no right to claim Ceylon citizenship. TheAct permits them to exercise the privilege of procuring registration ascitizens of Ceylon. Section 6 sets out the conditions which have to befulfilled by an applicant for registration. Section 7 (a) provides that theapplication should be in the prescribed form and should contain relevantparticulars, and Section 7 (b) requires that it should be supported byaffidavits. Upon receiving the application the Commissioner or his Deputyis required to refer the application to the investigating officer of the areain which the applicant claims to be ordinarily resident • and the. investi-gating officer is required to make such investigations as may appear to himto be necessary, and furnish a report to the Commissioner as to the natureof the investigations conducted by him, the facts which were disclosed tohim in the course of such investigations, and his conclusions as to thecorrectness or otherwise of the particulars or statements set out in theapplication. Section 8 (4) provides that the report of the investigatingofficer shall be taken into consideration by the Commissioner in dealingwith the application. Section 9 (1) provides that where the Commissioner
312
SWAN J.—Sivan Pillai v. Commissioner for the Registration, of
Indian and Pakistani Residents
is of the opinion that a prima facie case has not been established he shallcause to be served on the applicant a notice setting out the grounds onwhich the application will be refused and giving the applicant an oppor-tunity to show cause to the contrary within three months from the dateof the notice. Section 9 (2) provides that if no cause is shown theCommissioner shall make order refusing the application.
X am of the opinion that the act done by the Commissioner underSection 9 (2) was purely administrative and that no appeal lies from suchan order. It should be noted that even where the Commissioner thinksthat the applicant has made out a case for registration he is not empoweredto allow the application. Section 10 provides that he shall give publicnotice that an order allowing the application will be made unless writtenobjections are received by him from any member of the public within amonth from the publication of the notice. Where no such objectionsare received he is required by Section 11 to “ forthwith make orderallowing the application ”. It seems to me quite clear that an ordermade under Section 9 (1) or Section 11 is in the nature of an order nisithat becomes automatically absolute after the expiry of the stipulatedperiod. The Commissioner has no discretion or option in the matter.He is bound in the one case to refuse, in the other case to allow the appli-cation. I am also of the opinion that when he makes such an order heis exercising a fundamentally administrative function, and against suchan order there is no right of appeal, nor would this Court interfere uponan application for writs of certiorari and mandarmis. In JB. JohnsonCo. (Builders) Ltd. v. Minister of Health 1 the Court of Appeal pointedout the difference between a function which was purely administrativeand one which was of a quasi-judicial nature. Lord Greene M.R. in thecourse of his judgment said :—
“ If the legislature chooses to mix, for the purpose of one essentiallyadministrative process, a quasi-judicial element so as to make a sortof hybrid operation of it, one cannot expect lines of division to producean entirely logical result. The quasi-judicial element must not bepermitted to cause irruptions into a purely administrative sphere.”
In the Act we are dealing with it seems to me to be quite clear that theCommissioner in making an order under Section 9 (2) or Section 10 isexercising an essentially administrative function. It is only when causeis shown by an applicant against an order made under Section 9 (2), or*>y a member of the public against an order made under Section 10, thata quasi-lis comes into being and quasi-judicial functions are super-imposedon the Commissioner. At the ensuing inquiry, or an inquiry initiatedby the Commissioner under Section 13 the Commissioner must performthe quasi-judicial functions imposed on him as required by Section 14.I have no hesitation in holding that the right of appeal conferred bySection 15 (1) is only against an order made after an inquiry held asaforementioned.
The appeal is rejected.
{1947) 2 A.E.R. 395.
Appeal rejected