068-NLR-NLR-V-58-S.-SOCKALINGAM-CHETTIAR-Appellant-and-THE-COMMISSIONER-FOR-REGISTRATION-OF-IN.pdf
Sockalingam Chettiar v. Commissioner foe Registration of' Indian and Pakistani 'Residents
*
1957Present: Gunasekara, J., and T. S. Fernando, J.
S. SOCKALINGAM CHETTIAR, Appellant, and THE COM-MISSIONER FOR REGISTRATION OF INDIANAND PAKISTANI RESIDENTS, RespondentCitizenship Case No. 107—Application D 15S6
In the matter of an Appeal under Section 15 of theIndian and Pakistani Residents (Citizenship) Act,
No. 3. of 1949Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Application forregistrat ion as citizen—Prima facie case not established—Failure to show cause—Refusal. of application—Right of appeal—Service of notice to applicant—.■ Proof—Sectiojis 9 (2), IS, 20.■,''
(i) Appeal lies against an order made under Section 9 (2) of the Indian and
Pakistani Residents (Citizenship) Act.'
. Sivan Pillai v. Commissioner for Registration of Indian arid Pakistani Residents(1953) 54 K. L. R. 310, not followed. •
– (ii) It i3 provided by Section 20 of the Indian and Pakistani Residents (Cit izen-ship) Act that a notice which ia required to, be seryed qn. an applicant “ shall,
where it is not served personally on him, be deemed to have been duly served if
it has been sent to him by post hi a registered letter addressed* to his last knownplace of residence or of business ”.-
Held, that there should he clear and unambiguous evidence to prove the facts,necessary to raise the presumption of law for which provision is made by-the-Section. Evidence furnished by the presence of two documents in the Com-” missioner’s filo, namely, the notico itself and an envelope addressed to the appli-cant, which bears certain post marks and endorsements, is not sufficient toprove that the notico was sent to the applicant by post in a registered letter,,which was eventually returned undelivered.
-i^-PPEAL, from an order made under Section 9 (2) of t-lre Indian and.Pakistani Residents (Citizenship) Act.
S. Thangarajah, for the ajjplicant-appellant.
J■ )V- Suba-singhc, Crown Counsel, for the respondent.
Cur. adv. vult.
January 21, 1957. Gunasekara, J.—
This is an appeal from an order made under section 9 (2) of the Indian-and Pakistani Residents (Citizenship) Act, No. 3 of 1949, refusing anapplication made by the appellant for the registration of his wife and.himself as citizens of Ceylon.
It was contended by the learned crown counsel, on the authority of thedecision of Swan J. in Sivan Pillai v. Commissioner for Registration ofIndian and Pakistani Residentsf that an order mado under section 9 (2)is an administrative act and is therefore not appealable. With all respectto the learned judge, it seems to me that this view is in conflict with theexpress terms of section 15 of the Act, which provides that “ an appealagainst an order refusingan application for registra-
tion may be preferred to the Supreme Court in the prescribed mannerby the applicant ”. An order made under section 9 (2) is such an order,and therefore, according to the plain m jailing of the language of section15, is an order against which an appeal maj' be preferred. There appearsto be no ground for reading into section 15 a provision excluding fromits operation orders made under section 9 (2). I therefore hold that theorder in question is an appealable order.*
The application was made on-the 3rd August 1951. A deputy com-missioner who considered the ajiplicat-ion was of opinion that a primafacie case had not been established, and it therefore became necessaryfor him, in terms of section 9 (1), to cause to be served on the appellanta notice setting out the grounds on which the application would berefused and giving the appellant an opportunity to show cause to thecontrary within a period of three months from the date of the notice-
1 (10.53) 54 ;y. L. R. 310; ’
The necessary notice was signed by the deputy commissioner on the7th September 1955. On the 14th December 1955 be made the orderthat is the subject of this appeal, holding, among other things, that thenotice had been duly served oil the appellant.
The order does not state upon what material this finding is based.The learned crown counsel has submitted to us that it is based bn theevidence furnished by the presence of two documents in the Commissioner’sfile, namely, the notico itself and an envelope addressed to the ajipellant,which bears certain post marks and endorsements. It is contended forthe respondent that the right conclusion to be drawn from this evidenceis’tjiat the notice was sent to the appellant by post in a registered letter,which was eventually returned undelivered. If that is the right conclu-sion the fact that the letter was returned undelivered proves of coursethat actually the notice was not served on the appellant. But the learnedcrown counsel seeks to rely on the provision in section 20 of the Actthat a notice which is required to be served on an applicant “ shall,where it is not served personally on him, be deemed to have been dulyserved if it has been sent to him by post in a registered letter addressedto his last known jdace of residence or of business ”.
The presumption of law for which provision is made by this sectionis one that the applicant is not permitted to rebut [Marimuitu v. Goon-onissioner for Registration of Indian and Pakistani Residents). Moreoverthe evidence relied on for proof of the facts necessary to raise the pre-sumption would ordinarily be evidence that the applicant has had noopportunity of challenging or contradicting. Bor both reasons-the evidencemust be conclusive before these facts can be held to be proved.
If the notice that had been served on the appellant had been “ sentto him by post in a registered letter addressed to liis last known place ofresidence or of business ”, clear and unambiguous evidence furnishingconclusive proof of those facts should have been readily available in thefiles and registers kept in the Commissioner’s office. The learned crowncounsel has not been able to point even to an office minute, or other entryin any official record or register, stating that the notice was so sent tothe appellant or sent to him at all. I agree with a contention that wasadvanced by Mr.' Thangarajah that the fact that the notico and theenvelope are in the file is insufficient by itself to prove conclusivelythat what . the envelope contained when . it' was posted was thonotico.
The deputy commissioner iiimself lias' not held that the notice has beensent to the appellant in a .registered letter addressed to his last knownplace of residence or of business and that it must therefore be deemedto have been duly served on him. The effect of his finding is that it wasin fact served. The presence of the document in the flic, however, provesthe contrary, and there is no sufficient evidence of the facts that must be.proved before it can be deemed to have been served.
The order appealed from must be set aside and the respondent, must bedirected to cause to be served on the appellant a fresh notice in terms ofsection 9 (1) of the Act and to proceed thereafter in due course of law.The appellant must have his costs of appeal, which I would fix at Its. 1.05.
Poslscrijtt
Since the above judgment was written my brother has drawn myattention to the case of K. Easiah v. Commissioner for Registration ofIndian and Pakistani Residents,x where Gratiaen J. has expressed agree*incut with Swan J.’s conclusion in Sivan Pillai’s case.2 Gratiaen J. pointsout that both are cases in which the appellant failed to avail himself ofthe opportunity gicn to him by a notice in terms of section 9 (I) of tlicAct to show cause w liy his applicat ion should not be refused, and saysthat Swan J. has held “ that in such circumstances the remedy by way ofappeal to this Court was not available”, and that he himself agreeswith this conclusion but “ woidd prefer not to attempt to solve thedifficult question whether t he order under appeal is of a judicial, a quasi-jiulicial or a purely administrative character He goes on to considerthe appeal on its merits and dismisses it on the ground that there is noerror made by the tribunal of first instance to which the appellant canpoint. The appeal was dismissed, as in the later case of Marininil it 3(where Gratiaen J. delivered the judgment of the court;, and was notrejected as in Sivan Pillai’s case.
As I read the judgment- in Easiah’s case, what was decided was notthat the .applicant had no right of appeal and therefore the appeal couldnot be entertained, but- that in the circumstances of that case the' appealcould not succeed.
T. S. Fernando, J.—I agree.
10-iG) 57 X. X. R. 307.
> (1033) 5$ X. X. n. 37.
– (/Ml) -it X. X. R. 3/0.
Order set aside.