107-NLR-NLR-V-65-S.-S.-M.-K.-MANSOOR-Petitioner-and-THE-MINISTER-OF-DEFENCE-AND-EXTERNAL-AFFAIR.pdf
502
Manaoor v. Minister of Defemvt and Mxtmncd JLfjfadn
S^t/9-9?
1963__ . .. .
6 7 C
Present: G. P. A. Silva, J.
S. S. M. K. MANSOOR, Petitioner, and TEE MINISTER OF DEFENCEAND EXTERNAL AFFAIRS and another. RespondentsS. G. 349(62—Applicative for the issue of a Mandate in the nature of a .-Writ of Certiorari and for the issue of a Mandate in the nature of-a Writ of Mandamus under Section 42 of the Courts Ordinance
Certiorari—Mandamus—Affidavits tendered by the parties—Power of Court toallow croes-exarivination of the deponents—Citizenship Act, s. 12 (3).
Where, in certiorari proceedings, the petitioner obtains an'order of Courtpermitting him to cross-examine an officer on an affidavit sworn by him insupport of the respondent’s case, the respondent may be permitted to cross-examine the petitioner on his affidavit before the petitioner cross-examinesthe officer.
Application for the issue of writs of Certiorari and Mandamus-…against the Minister of Defence and External Affairs.
M. Tiruchdvum, Q.C.. with V. Kumaraswamy and A. R. M. Mansoorrfor the Petitioner.
A. C. Alles, Solicitor-General, with S. Deheragoda, Crown Counsel/for the Respondents.
Cur. adv. vu&K
6. P. A. SILVA, J.—Mamoar o. Minister of Defence and
External Affairs *•
503
June 20, 1963. G. P. A. Silva, J.—
This matter came up before my brother Sri Skanda Rajah on 29thJanuary 1963 on which date an application was made by counsel for thepetitioner that Mr. K. T. Perera, Assistant Secretary to the Ministry ofDefence and External Affairs and a prescribed officer in terms of section12 of the Citizenship Act, who had sworn certain affidavits in connectionwith these proceedings, be tendered for cross-examination. The appli-cation was allowed and on 3rd June 1963 this came up for hearing beforeme, Mr. K. T. Perera too having been summoned for the purpose of cross-examination by the petitioner's counsel.
It was argued by Mr. Tiruchelvam, Senior Counsel for the petitioner,that the duties of the prescribed officer in exercising powers under section12 (3) are of a quasi judicial nature and that it is obligatory on him, indeciding whether or not to send an application for registration as a citizento the Minister of Defence and External Affairs, to act judicially. Hecited in support of his contention the case of Manickam v. The PermanentSecretary, Ministry of Defence and, External Affairs1. He further submittedthat, if it is found that the prescribed officer has not acted judicially, theSupreme Court can interfere by way of Certiorari. Mr. Tiruchelvamalso cited certain other English cases to show that the Supreme Court cancorrect an error made by the prescribed officer which appears on theface of it, for example, if he has acted in excess of his jurisdiction or hascommitted an error in law. While the authorities cited appear to supportMr. Tiruchelvam’s contention, I feel that the main issue in this matterhas reached another stage. According to the affidavit of the pres-cribed officer he had sent the application for registration as a citizen tothe Minister of External Affairs in terms of section 12 (3). The petitionercontends that this statement in the affidavit is not correct and it is forthat reason that the order was obtained from my brother Sri SkandaRajah to summon the prescribed officer for cross-examination on hisaffidavit.
The Solicitor-General contended that the procedure of calling an officerwho files an affidavit for cross-examination in an application of thisnature is a very extraordinary course to be resorted to in exceptionalcircumstances and cited the oase of Regina v. Stokesley Justices 2 toillustrate his point. He, therefore, opposed the application of the peti-tioner to cross-examine the prescribed officer on the affidavit. He alsoargued that such a procedure would amount to altering the characterof these proceedings from affidavit evidence to oral evidence. Hesubmitted further that the affidavit of the petitioner only containshearsay evidence, when he states that his application for citizenship wasnot placed before the Minister of Defence and External Affairs for herdecision as ho could not possibly have had personal knowledge in regardto this matter and that, the affidavit of the petitioner being based onhearsay, dees not require to be refuted. The Sclicitcr-Generai referred
1 (I960) <33 2v. L. E. 201.- (2958) 2 A. E. B. 533.
504
G. P. A. SILVA, J.—ManeoorMiniMor of Defence and
External Affaire *■
to the case of Kannustoamy v. The Minister of Defence and MaternalAffairs1 in support of his contention. It seemed to me» aod I iadiflfttodi
to the Solicitor-General, that the submissions he had made bo far tanta-mounted to bis asking me to revise the order already made by my brotherSri Skanda Rajah on the application to cross-examine the prescribedofficer on whom a summons was accordingly issued to be present in Courtfor cross-examination. There is no jurisdiction for me to revise thatorder and the proper remedy for the respondent, if dissatisfied with theorder of Sri SkandaRajah J., dated 29th January 1903, wouldhavebeen toappeal from that order in appropriate proceedings. All the argumentsof the Solicitor-General addressed to me would have been appropriateat the stage at which this application was originally heard before mybrother. Even if these arguments convinced me and I was inclined totake a view different from the view taken by Sri Skanda Rajah J. when hegranted the application bo cross-examine the prescribed officer, I do nobhave any jurisdiction at this stage to hold otherwise. In the circum-stances the Solicitor-General made an application that he be permittedto cross-examine the petitioner on his affidavit before an opportunityis given to the petitioner to cross-examine the prescribed officer on hisaffidavit. He also added that if after cross-examination of the petitioneron his affidavit he succeeds in showing that the petitioner's affidavitamounts to nothing more than hearsay on the material point at issue,the necessity for the cross-examination of the prescribed officer willnot arise, in view of the decision in the 63 X. L. R. case earlier referred to.
Mr. Tiruchelvam for- the petitioner opposed this application on theground that it was too late. While I agree that the Solicitor-General,on behalf of the respondents, should have made this application whenthis matter came np for hearing on the last occasion, I do not think thepetitioner can reasonably oppose this application when he himself hasobtained an order for the cross-exaanination of the prescribed officer onhis affidavit in support of the respondent's case and when, admittedly,the cross-examination of the deponent of an affidavit in proceedings ofthis nature is a very extraordinary course.
I therefore allow die application of the Solicitor-General for cross-examination of the petitioner on his affidavit.
Orase-examination of petitioner on hid affidavit allowed. 1
1 (1961) 0o A'. L. R. HO.