058-NLR-NLR-V-51-PERADENIYA-SERVICE-BUS-CO.-Petitioner-and-SRI-LANKA-OMNIBUS-CO.-Respondent.pdf
I’eradt niya Service Bus (Jo. v. Sri Lanka Omnibus Co.
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1949Present: Basnayake J.
PERADENIYA SERVICE BUS CO., Petitioner, and SRI LANKAOMNIBUS CO., Respondent
Application No. 28—Case stated under section 4 of the Motor CarOrdinance, No. 45 of 1938
Omnibus Service Licensing Ordinance, No. 47 of 1942—Procedure by which Tribunalsacting under the Ordinance should be guided—Case staled for opinion of SupremeCourt—Form in which it should be sent up—Section 13 (8)—Motor Car Ordi-nance, No. 45 of 1938, section 4.
When a Tribunal of Appeal states a case under section 13 (8) of tho OmnibusService Licensing Ordinance, No. 47 of 1942, it should net out in full the footson which it bases its decision, its findings thereon and its decision on the questionsof law arguod before it. It should also state tho questions on which the opinionof tho Supreme Court is dosired.
A cose stated must bo signed by all the members of the Tribunal of Appeal
and not by the Chairman Alone.
> (1943) 49 N. L. L. 344 at page 346.
1 (JS92) 1 Q. B. 560.
_>;M UA-SNA YAKiS J.— /Vraa'iN.VA2 Sta ke Bus Go. o. Sri Lanka Omnibus Co.
(^jASE ntut-ed under section 4 of the Motor Car Ordinance, No. 45 of1938, and section 13 (8> of the Omnibus Service Licensing Ordinance, No. 47of 1942.
C. 'Thiagalingavi. with 0. T. samtra>/• ickremt, for the PeradeniyaService Bus Company.
11. V. Perera, K.0 . with If – i>. Gur>asekera, for the Sri Lanka OmnibusCompany.
Our. adc. vuH.
December 5, 1949. Basnayake J.—
This is a case stated by a Tribunal of Appeal under the OmnibusService Licensing Ordinance, No. 47 of 1942 (hereinafter referred to asthe Omnibus Service Licensing Ordinance), on the application of thePeradeniya Service Bus Company, Limited (hereinafter referred to as theapplicant).
It appears that the applicant had applied to the Commissioner ofMotor Transport (hereinafter referred to as the Commissioner) for anextension of the route covered by its road service licence, by half a mile,from its present terminus to a point called Kmbilmecgama on the Kandy-Colombo Hoad. A company known as the Sri Lanka Omnibus Company.Limited, which had a road service licence for the route from Kandy toColombo had also applied for a road service licence from Kandy viaEmbilmcegama to Daulagala. The Commissioner refused the applicationsof both. Being dissatisfied with, his decision cadi of them appealed undersection 13 (f>) of the Omnibus Service Licensing Ordinance to a Tribunalof Appeal. The Tribunal appears to have dismissed the appeals of boththe applicant and the Sri Lanka. Omnibus Company.
The applicant thereupon mack' nr. application to the Tribunal, undersection 13 (•*>') of the Omnibus Sendee Licensing Ordinance, to state aease for the opinion of this Court, The Tribunal accordingly stated thefollowing case:—
“ 1. The appellant company, the P. S. Bus Co., held a licence toply buses from Kandy to Daulagala via Peradeniya, a distance of about10 miles: it next obtained an extension of that route to a point midwaybetween the 2nd and 3rd mile posts on the road from Daulagala toEmbilmcegama on the main road, and thereafter obtained a furtherextension to a point £ mile distant from Embiiuieegama. Theseextensions were decided without notice to the respondent, the SriLanka Bus Co., which holds the licences to run buses on the main roadfrom Kandy to Embilmcegama and thence to Colombo. Appellantargues that no notice was necessary.
“2. Finally, the appellant Co. applied for an. extension fromthat l mile post on to Erabilmeegama. The respondent company alsoapplied for a licence to run buses from Kandy via Embilmeegama toDaulagala. The Commissioner considered it to be wasteful competitionto allow either company to run buses on that mile of road anddismissed the appellant’s application on that ground. He dismissedrespondent’s application on various grounds and both appellant- andrespondent appealed.
BASNAYAKE J.—Perndeniya Service Bus Co. v. Sri Lanka Omnibus Co. 233
“ 3. Respondent’s appeal has been dismissed by this Tribunalbecause it contained no statement of the grounds of appeal. Appellant’^appeal has been dismissed on the grounds—(1) that to grant appellantthis licence would encroach on the custom now enjoyed by respondent,(2) that respondent has as good a claim to hold the licence in issueas the appellant. Wc disagree with the Commissioner’s view that this mile should be left unserved, since we had in mind the needs of thesick and the aged as well as the general public.
“4. The points for decision arc (1)—whether this Tribunal wasentitled to consider any counterclaim after the respondent’s appealhad been dismissed, (2) whether It was not bound to grant the applicationof the appellant as the only applicant in the field, (3) whether theTribunal was not hound to set aside the Commissioner’s order andallow the appeal on the grounds stated in paragraph 10 (A to D) ofappellant’s present application or whether the needs of the public*,arc or are not best served by the decision as it stands, under whichall parties may make fresh applications and call further evidence.
“ 3. Let the Commissioner forward these proceedings with thepresent application and the proceedings at the previous hearing ofthis appeal and at hi3 inquiry with all documents then produced.”
The stated case is open to several objections. In the first place it issigned only bv the member elected to be tire Chairman of the sittingand not by all the members of the Tribunal. The statute 1 imposesthe duty of stating a case on the tribunal and not, as some Englishstatutes do, on the Chairman alone.
Jn the next place the stated case does not set forth the facts. Underthe Omnibus Service Licensing Ordinance a party is entitled to makean application for a stated case on questions of both law and fact-.The stated case should therefore set out in full the facts relied upon byeach party to the hearing before the Tribunal and its findings on thosefacts.
Lastly the questions on v.hioh the opinion of this Court is asked donot arise on the stated case. Having applied for a road service licenceunder the Omnibus Service Licensing Ordinance the applicant wasentitled to have his application considered both by the Commissionerand by the Tribunal of Appeal on its merits. Some of the considerationsthat should influence the decision of the Commissioner in dealing with anapplication for a road service licence are set out in section 4 of the OmnibusService Licensing Ordinance. It is proper for a Tribunal of Appeal totake into account those same considerations among others when dealingwith an appeal.
It is not correct for the Tribunal to treat an appeal, as it appears tohave been done in the case of the applicant’s appeal, as a counter cluimto another appeal, viz., the appeal of the Sri Lanka Omnibus Company.Nor should it regard itself bound to allow an appeal on the ground thatthe appellant is the sole applicant for a licence. A Tribunal is notentitled to submit questions of policy nor is it entitled, as it appears todo in question 3, to shift the entire responsibility of deciding an appealto thi3 Court.
1 Section •/ ((>) (a) of the. Motor Car Ordinance, No. 4-5 of 193S.
* Section L'i (8) of the Omnibus Service Licensing Ordinance.
23»> BASNAYAKE J.— Fetwimija Service litis Co. v. Sri I.anbi Omnibus Co.
The instant case has impressed on me the necessity of laying downtho procedure by which Tribunals acting under the Omnibus ServiceLicensing Ordinance should be guided. Under that Ordinance everyapplication for a road service licence must be made to the Commissioner(section 3) who is empowered to grant or refuse it (section 4), aftertaking into consideration any such representations as may be made to himby persons who arc already providing transport facilities along or nearto the proposed route or any part thereof or by any local authoritywithin the administrative limits of which any proposed route or partthereof is situated. Before refusing an application for a road servicelicence on the ground of any representation made to him the Commissioneris required to notice the applicant in order that he may have an opportunityof being heard (section 4). Section 4 lays down certain matters which theCommissioner i; bound to take into account in deciding whether to grantor refuse a road service licence. The functions of tho Commissionerunder section 4 are quasi-judicial. He is required to considerrepresentations mado to him by interested persons against an applicationand by the applicant in support of it. As section 13 gives the. applicanta right of apj>eal against the decision of the Commissioner to a Tribunalof Appeal the Commissioner should maintain a record of the materialon which he bases his decision. That record should consist of theapplication for the road service licence, the representations, if any,made against tho grant of the licence applied for, the matters urgedby the applicant in support of his application, and any matters ascertainedby the Commissioner on his own initiative. Although the Commissioneris not required to hear the parties ad comm, if he does give them anoral hearing, he should keep a full record of the evidence given at suchhearing. As the functions of the Commissioner under section 5 arequasi-judicial and particularly as there is a right of appeal to the Tribunalof Appeal, he should give reasons for his decision.
The rules1 which govern the proceedings before a Tribunal of Appealprovide that the Tribunal shall hear the parties who arc given the rightto be present and to be heard either in person or by representative.The hearing before tho Tribunal of Appeal should, except where theTribunal considers it necessary to call for evidonce oral or documentary,be confined to the material in the record of tho Commissioner. TheTribunal of Appeal should maintain a record of such evidence oral ordocumentary a8 it deems necessary to call for in the exercise of its powers2,and should give reasons for its decision. When the Tribunal states acase on an application for a stated case it should sot out fully the factson which it bases its decision, its findings thereon and its decision on thequestions of law argued before it3. It should also state the questionson which the opinion of this Court is desired •*. Questions of policy andhypothetical questions should not be put. Neither tho Commissioner’srecord nor the record of the Tribunal need be sent up to this Courtunless the stated case invites reference to any statement of fact or anydocument therein. The official reports of the Income Tax cases of
1 Regulations made under section 4 of the. Motor Car Ordinance, No. 45 of 1938.
1 Regulation 11 of the regulations made under section 4 of the Motor Car Ordi-nance, No. 45 of /SiliS,
3 Great Western Railway Co. v. Baler, 8 Tax Cases 231 at 245 and 257.
1 Farmer v. Trustees of the late William Cotton, 6 Tax Cases COO.
GRAT1AKN J.—lirilo Mutunnyagam v. Hewuvitarne
-37
England contain excellent examples of cases stated under the IncomeTax Acts on which cases stated under the Motor Car Ordinance, No 45of 1938, and the Omnibus Service Licensing Ordinance can with advantagebe modelled.
1 wish to add that evidence adduced before quasi-judicial tribunalslike the Commissioner or the Tribunal of Appeal should consist of oralstatements or documents in writing which arc made in the presence ofor communicated to both parties before the Tribunal reaches its decision 1.
Ill the instant case the form in which the case has been sent up preventsme from expressing my opinion on the specific questions raised. Theresult is that the applicant finds himself stated “ out of court Iregret I can do nothing for him.
This iB a case in which each party should bear his own costs.
Cate stated rejected.