016-NLR-NLR-V-57-SOOSEY-FERNANDO-Appellant-and-COMMISSIONERFOR-REGISTRSTION-OF-INDIAN-AND-PAKIS.pdf
1955Present: Gunasekara, J.
SOOSEY PERXAXDO, Appellant, and COMMISSIONERFOR REGISTRATION OF INDIAN AND PAKISTANI .
RESIDENTS, Respondent
S. C. 229—In the Haller of an Appeal -under the provisions of Section 15of the Indian and Pakistani Residents (Citizenship) Act,
Xo. 3 of 1949'
Ivrlian and Pakistani Residents (Citizenship) Act, A‘o. 3 of 1019—Section 13—Inquirythereunder—Documents used by Commissioner as evidence—A'olice to applicantnecessary.
In the inquiry into tin application for citizenship by registration under thoIndian and Pakistani Residents (Citizenship) Act, tho Commissioner examined,apart from tho documents submitted by the applicant, certain othor documents,purporting to bo housoholder’s lists, that ho found in tho Assistant Food
' Controller’s office. ffo based on ivlint ho found in those documents inferencesadverse to the credibility of tho applicant. Tho applicant’s attention hadnot been drawn to this now cvidenco and he had been given no opportunityof explanation before tho Commissioner mode his order.
Held, that tho use of tho documents as cvidenco without notice to the appli-cant was contrary to tho principles of natural justico and vitiated the Commis-sioner’s order which was in Inigo part based on that evidence.
A-.
ZaPPEAL under section 15 of the Indian and Pakistani Residents(Citizenship) Act.
(r. F. Sethukavalar, for the applicant-appellant.
V. Tennekoon, Crown Counsel, for the respondent.
Cur. adv. vult.
July 11, 1955. Gl:nasj:k.aka, J.—
This is an appeal under section 15 of the Indian and Pakistani Resi-dents (Citizenship) Act, No. 3 of 1949, against an order made by a deputy-commissioner rofusing an application made by the appellant, an Indianresident, for the registration of himself and Iris wife and four minorchildren as citizens of Ceylon.
The application was .made on the 21st Juno 1951. By a letter datedthe 1st February 1954, the deputy commissioner notified the appellantthat he would inquire, under section 13 of the Act, into tho questionswhether the appellant was resident in Ceylon uninterruptedly from the1st January’ 1939 to the 21st Juno 1951, whether his wife and childrenwere so resident during certain specified periods, and whether the appel-lant was possessed of an assured income. He began an investigationinto these questions on the 25th February 1954. At the end of thatday’s proceedings he held in effect that there was pritna facie proof of the
requirements as to the appellant’s residence in Ceylon and of the posses-sion by him of an assured income. The inquiry into the question of theresidence of the appellant’s wife and children was first adjourned to the5th April and was eventually resumed on the 28th May 1954. At theclose of the proceedings held on the 2Sth May the deputy commissionermade the following order :"
“Applicant to produce householder’s schedules from 1947 to 1951.
On receipt of these schedules I shall make my order. Issue letter to
Dy. Food Controller of Colombo. ”
On the 2nd June 1954, he wrote to the deputy food controller of Colomboasking him to issue to the appellant certified copies of householder’sschedules from 1947 to 1951 on payment of the necessary charges. Oilthe 22nd Juno 1954 tho appellant submitted to the deputy commissionercertified extracts from the householder’s list for 1947 in respect of Xo. 242,Modera Street, Colombo, and from tho lists for the years 194S to 1951in respect of Xo. 156/4, Barber Street, Colombo, showing that tho appel-lant had been one of the occupants of these houses in those years and thatthe chief occupant of 242, Modera Street, in 1947 was his brother. Thedeputy commissioner then pointed out to him, by a letter of the OthJuly' 1954, that what he required were copies of the lists “showing allthe names appearing on tho original schedules ”. Tho appellant there-upon submitted, on the Sth September, certified extracts from the listsfor the years 194S to 1951 in respect of Xo. 156/4 Barber Street. Theseextracts contain the names of his wife and four children. In reply toan application made by him for an extract from the list for 1947 inrespect of this house he had been informed by the assistant food controllerfor the Colombo Municipality that these names appeared in that listbut the entry had been made in pencil and he was therefore not preparedto certify its genuineness.
The deputy commissioner made his order on the 14th October 1954.It appears from this order that, apart from the documents submittedby the appellant-, he examined also certain other documents, purportingto be householder’s lists, that he found in the assistant food controller’soffice, and he bases on what he found in those documents inferencesadverse to the credibility of the appellant-. The latter’s attention hadnot been drawn to this new evidence and he had been given no opportunityof explanation before the deputy commissioner made his order. Thouse of these documents as evidence without notice to the appellantwas contrary to the principles of natural justice and vitiates the deputycommissioner’s order, which is in large part based on the new evidence.
Order jxtrlly set aside.
It seems to me that there must be a fresh investigation into the questionrelating to tho residence of tho appellant's wife and children that isformulated in the letter of the 1st February 1954, and both counselagree" that this should be done. I set aside so much of the deputycommissioner’s order as relates to that question and I direct that it shouldbo investigated afresh. The respondent will pay the appellant Rs. 105as costs.""