Mansoor V. Minister Of Defence And External Affairs

1963    Present : G. P. A. Silva, J.

S. S. M. K. MANSOOR, Petitioner, and THE MINISTER OF DEFENCE
AND EXTERNAL AFFAIRS and another, Respondents

S. C. 349/62-Application 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 to allow cross-examination of the deponents-Citizenship Act, s. 12 (3).

Where, in certiorari proceedings, the petitioner obtains an order of Court permitting him to cross-examine an officer on an affidavit sworn by him in support of the respondent's case, the respondent may be permitted to cross-examine the petitioner on his affidavit before the petitioner cross-examines the officer,

APPLICATION for the issue of writs of Certiorari and Mandamus against the Minister of Defence and External Affairs.

M. Tiruchelvam, Q. C., with V. Kumaraswamy and A. R. M. Mansoor, for the Petitioner.

A. C. Alles, Solicitor-General, with H. Deheragoda, Crown Counsel, for the Respondents.

Cur. adv. vult.

June 20, 1963. G. P. A. SILVA, J.-

This matter came up before my brother Sri Skanda Rajah on 29th January 1963 on which date an application was made by counsel for the petitioner that Mr. K. T. Perera, Assistant Secretary to the Ministry of Defence and External Affairs and a prescribed officer in terms of section 12 of the Citizenship Act, who had sworn certain affidavits in connection with these proceedings, be tendered for cross-examination. The appli­cation was allowed and on 3rd June 1963 this came up for hearing before me, 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 section 12 (3) are of a quasi judicial nature and that it is obligatory on him, in deciding whether or not to send an application for registration as a citizen to the Minister of Defence and External Affairs, to act judicially. He cited in support of his contention the case of Manickam v. The, Permanent Secretary, Ministry of Defence, and External Affairs[(1960) 62 N. L. R. 204.  ]. He further submitted that, if it is found that the prescribed officer has not acted judicially, the Supreme Court can interfere by way of Certiorari. Mr. Tiruchelvam also cited certain other English cases to show that the Supreme Court can correct an error made by the prescribed officer which appears on the face of it, for example, if he has acted in excess of his jurisdiction or has committed an error in law. While the authorities cited appear to support Mr. Tiruchelvam's contention, I feel that the main issue in this matter has reached another stage. According to the affidavit of the pres­cribed officer he had sent the application for registration as a citizen to the Minister of External Affairs in terms of section 12 (3). The petitioner contends that this statement in the affidavit is not correct and it is for that reason that the order was obtained from my brother Sri Skanda Rajah to summon the prescribed officer for cross-examination on his affidavit.

The Solicitor-General contended that the procedure of caning an officer who files an affidavit for cross-examination in an application of this nature is a very extraordinary course to be resorted to in exceptional circumstances and cited the case of Begina v. Stolcesley Justices[(1956) 1 -4. E. R. 563.] to illustrate his point. He, therefore, opposed the application of the peti­tioner to cross-examine the prescribed officer on the affidavit. He also argued that such a procedure would amount to altering the character of these proceedings from affidavit evidence to oral evidence. He submitted further that the affidavit of the petit

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