043-NLR-NLR-V-58-S.-M.-SOLAMUTHU-Appellant-and-COMMISSIONER-FOR-REGISTRATION-OF-INDIAN-AND-P.pdf
U956Present: Gunasekara, J., and Sinnetamby, J.
S. M. SOLA3IUTHU, Appellant, and COMMISSIONERFOR REGISTRATION OF INDIAN AND PAKISTANIRESIDENTS, Respondent
Citizenship Case No. S4JJ956—Application C/4,417J0
Endian and Pakistani Residents (Citizenship) Act, R'o. 3 of 1049—Section IS—Right ofappeal thereunder—Power of Supreme Court to order fresh inquiry—Applicationfor registration—Evidential value of investigation officer's report.
Tlio appellate jurisdiction that is conferred on tho Supromo Court by section15 of tho Indian and Pakistani Residents (Citizenship) Act necessarily involvesa power to set aside tho order that is appealed from ; and such a power in turnimplies a power to order tho Commissioner to tuko any consequential stepswhich it may bo necessary for him to take so that ho may dispose of tho appli-cation for registration.
Where, in an application for registration under tho Indian and PakistaniResidents (Citizenship) Act, tho rejection of tho applicant’s testimony thathe was resident on a certain Estate was based entirely upon an allegation in aninvestigation officer’s report which was not disclosed to the applicant and whichho was given no opportunity of meeting—
Held, that it was not open to tho Commissioner to reject tho applicant’sovidcncc upon such a ground.
jAl PPEATj against an order made under the Indian and PakistaniResidents (Citizenship) Act.
Cecil de S. Wijeralne, for the applicant-appellant.
11. S. Wanasundcra, Crown Counsel, for the respondent.
Cur. adu. vult.
November 9, 1956. Guxasekara, J.—
This is an appeal against an order made under the Indian and PakistaniResidents (Citizenship) Act, No. 3 of 1949, refusing an application madeby the apjmllant-, Sithambalam Mookan Solamuthu, for registration as acitizen of Ceylon.
The application is dated the 20tli July 1931 and the order in questionwas made by a deputy commissioner on the 14th December 1955 after aninquiry held on that day in pursuance of a decision under section 9 (3) (a)of the Act. One of the questions for determination at this inquiry was.whether the appellant had been continuously resident in Ceylon duringtho period 1st January 1936 to 20th July 1951. The only evidence
15Sadduced at the inquiry was that of the appellant himself, who presentedhis case in person. At the close of his evidence the deputy commissionermade the following order :—
“ Applicant lias no witnesses to prove the period of residence from1-1—36 to 19-17. During this period lie states he was at Erracht Estateand at Sunderland Estate. Particulars verified at Sunderland Estateshow that Solamutliu s/o Mookan who had been at Sunderland Estateis married, whereas the applicant states that he is not married. Assuch this evidence cannot relate to applicant. There is also no evidenceof residence of applicant at Erracht Estate. It was open to applicant-' to produce witnesses to prove his period of residence, but lie failedto do so. He has no documentary evidence either. I refuse tlie.application and inform the applicant- accordingly”.
The verification that is referred to by the deputy commissioner was ailinvestigation made by an officer of his department behind the appellant’sback. The rejection of the appellant's testimon}' that he was resident onSunderland Estate is based entirely upon an allegation in the investi-gating officer's report which was not disclosed to the appellant- and whichhe was given no opportunity of meeting. It was pot open to the deputycommissioner to reject the appellant’s evidence upon such a ground.He was also in error when he held that there was “ no evidence of residenceof applicant- at Erracht Estate ”. On that point he had before himthe oral evidence of the appellant and a certificate from the superintendentof the estate which the appellant had submitted in support of his applica-tion. Eor these reasons, the order that is appealed from must be sct asidc.
There has been no proper inquiry into the appellant's application,and an order cannot be made upon it until such an inquiry has been held.It is contended for the Crown that this court has no power to remit thecase to t-lie respondent for a fresh inquiry. It seems to me that evenin that view of the law a fresh inquiry must be held once this court hasset aside the order that is the subject of the appeal ; for the proceedingsupon the application cannot end at the point at which they would thenbe left-, but must be continued by the Commissioner from that point.
The learned crown counsel lias cited the case of Pilchaniitihu v. Com-missioner for Registration of Indian and Pakistani Residents 1 as supportinghis contention. The decision in that case, however, provides no answerto the present question. The question there was whether, in a case wherethe order that was appealed from was not shown to be wrong, this courtehad the power to remit the case to the Commissioner to enable theappellant to supplement his case by adducing further evidence. That isdifferent from the present question, which is whether, in a case where theorder that is appealed from is set aside, this court can order a freshinquiry. In my opinion, the appellate jurisdiction that is conferred on thecourt by section 15 of the Act necessarily involves a power to set asidethe order that is appealed from ; and such a power in turn implies apower to order the Commissioner to take any consequential steps which
ifc maj- be necessary for him to take so that he may dispose of the applica-tion for registration. In Paramasivam v. Commissioner for Registrationof Indian and Pakistani Residents Gratiacn J. held, obiter, that this courtlias the power and the duty to order a fresh inquiry whenever justicecannot be achieved by other means. With all rcsjiect, I agree withthat view.