138-NLR-NLR-V-57-D.-S.-ATTYGALLE-AND-COMPANY-LTD-Petitioner-and-THE-COMMISSIONER-OF-MOTOR-TRA.pdf
1956Present: Graliaen, J., and Sansoni, J.D. S. ATTYGALLE AND COMPANY, DTD., Petitioner.and THE COMMISSIONER OP MOTOR TRAFFIC e.t nl,•Respondents-'*5. C. S67—In the matter of an appeal to the Supreme Court fromthe decision of the Transport Appeals Tribunal in term s of section212 of the Motor Traffic Act No. 14 of 1951
lorry Public carrier’s permit—One ground for granting it—Motor 'Traffic Act No. I toj 1051, ss. S9 (1) (6), 90 (3) (6).
Any person, who held a licence of the requisite character immediately beforothe specified date, is duly qualified under section 89 (I) (6) of the Motor TrafficAct to apply for & permit authorising “long distance carriage ” of goods by-lorry, failure to satisfy the Commissioner that he regularly {if at all) made useof that licence during tho relevant period docs not divest him of liis statutoryqualifications to receive a permit.-'
•" ““' “T
XJ-PPEAL from a decision of the Transport Appeals Tribunal in termsof section 212 of the Motor Traffic Act..
II. I'. lyerera, Q.C., with Izadeen Mohamed and Carl .layadntjhe, fortho petitioner.
II. h. dc Silver, Crown Counsel, for the 1st- respondent.
No appearance for the 2nd respondent.
.Cur. rtdr. rail.
March 2, 195rt. C i’.attakn', J.—
Tlie petitioner, winch is a Company with limited liability, was atalt material times empowered to cany on tlie business of c-ariying goodsfor hire. Shortly- after the Motor Traffic Act No. 14 of 1951 came intooperation, the Company applied to the Commissioner for a public carrier'spermit tinder section SO (1) {!>), authorising tlie use of two lorries in theUva Province and along the route “ Badulla to Colombo via Ratnapuraand Avissawella ”. The second respondent objected to the issue of apermit- on the following grounds :
that the Company was not qualified to make an application under
section SO (1) (b) because it- was not, immediately prior toDecember 31st- 1949, “ tho holder of a licence authorising theuse of lorries for substantially the same purposes and in sub-stantially the same area of operation : ”
that the Company had, in the alternative, not operated in the said
area during the relevant period and was therefore not “ theholder of a licence” within the meaning of section S9 (1) (b) ;
that there were already suitable transport facilities to meet- the
requirements of the area.
Tho General Manager of Railways also objected to the Company’s appli-cation on the first ground enumerated above, but later withdrew hisobjection on being satisfied that the Company did in fact hold licences“ for the same area and payload ”.
After inquiry, the Commissioner made an order on 24th April 1952allowing the Company’s application. He hold as a fact that the Com-pany did hold licences prior to December 31st- 1949 for two lorries fortho same purposes and payload and within the same area, and thereforepossessed the necessary qualifications to apply for a public carrier’spermit. He was also satisfied that, having obtained similar licences for1950 and 1951, the Company ;liad during these latter years carriedon a considerable transport- business within ths area. He rejected the2nd respondent’s evidence that the Company was a new comer ”and that the area was already adequately served by other carriers ofgoods.•
The 2nd respondent, appealed to the Transport Appeals Tribunalagainst the order, his main complaint boing that the Commissioner’sinquiry was irregular in that he had been refused permission to scrutinise
certain documents relied on by the Company in support of its application.He also contended, as a matter of law, that the Company was in anyevent not qualified to apply for a permit under section SO (I) (b) withoutproof that, besides holding licences for its lorries for the’period terminatingon December 31st 1940, it had in fact “ operated the area regularlyduring that particular period. ”
On January 1 Lth 1053, the Tribunal, without giving its ruling as tothe qualifications necessary to make an application under section SO (I){b), held that the Commissioner was wrong in refusing to allow the 2ndrespondent to inspect certain documents. The Tribunal accordinglydirected the Commissioner (i) to hold a fresh inquiry liml to admit anyfurther evidence which the parties might place before him, and (ii) there-after to make his recommendations as to whether the Tribunal, in theexercise of its appellate jurisdiction, ought to make order allotting orrefusing the Company’s application.
The fresh inquiry before the Commissioner commenced on September19t-h 1953 and was not concluded until October 2nd 1954. In due coursothe communicated to the Tribunal his findings of fact upon tho evidenceled before him, and made alternative recommendations as to how in hisopinion the Company’s application, should be disposed of. Hi? findingsof fact, which bind the Tribunal and this Court, Mere to tho followingclfcc-t :
that the Company did hold, for the period terminating 31st
December 1049 and also for the years 1950 and 1051, licencesof the description specified in section SO (1) (b);
that the Company had not used its lorries in the area in 1949, hut
that it had done so in 1950 and in 1951 and had thereby “ pro-vided a much-needed service to the public ” in tho carriage ofgoods generally and of vegetables in particular. Ho rejectedthe 2nd respondent’s contention that tho area was alreadyadequately and well served ” in either of those respects.
Having recorded these findings of fact, upon ttliich he was specially''competent to reach a decision, the Commissioner made alternative re-commendations to the Tribunal. He recommended that if, as a matterof laic, an applicant- was disentitled to a permit- under section S9 (1) (b)unless he had in fact provided during the year 1949 a servico for “ sub-stantially the same purposes and in substantially the same area, ” theCompany’s application under that section should be refused ; in thatevent he proposed that the appellant should be granted a permit undersection S9 (1) (a) for the carriage of vegetables between tho Wclimadaarea and Colombo. On the other hand he recommended that- if, as amatter of law, the mere possession of a licence prior to December 31st1949 constituted a sufficient qualification to apply for a permit undersection S9 (1) (b), the Company’s application ought to ho granted inview of liis other findings of fact which I have already summarised.
The argument in appeal against the Commissioner’s original orderdated 24th April 1952 was resumed on March 2Gth 1955. On thisoccasion the Tribunal niado an order refusing the Company a permit
53- GKATIAKK, J.—AHyyalle & Clo,,-Ljd. r. 'The Commissioner of Motor (Traffic
under section S9 (1) (6) but adopting the Commissioner’s alternativerecommendation for the grant of a permit under sect ion 89 (I) (a) res-tricted to the carriage of vegetables from the Wclimatla area to Colombo.The Company claims that tho Tribunal was not justified in interferingwith tho Commissioner’s discretion to grant a permit under section S9(I) (f») authorising tlic carriage cf goods generally within the area andalong the route specified in the Commissioner’s order dated April 24th1952..
Tho Tribunal admittedly had no jurisdiction to set aside tiro Com-missioner’s order in favour of tho Company except on a question of law,and in my opinion, tho only justification for substituting an order for arestricted permit under section 89 (1) (a) in tho present ease wouldhave boon :
either (1) that the Company was disentitled in law to a permit undersection S9 (1) (6)
or (2) that the Commissioner, in exercising his discretion in favour ofthe Company, had either disregarded the factors which he oughtto have taken into consideration before roaching his decision,
.or been influenced by irrelevant and oxtrancous considerations.
.With rogard to the question of law, I take tho view that any person whoin fact held a licence of tho requisite character immediately before thespecified date was duly qualified under section S9 (1) (b) to apply for apormit authorising “ long distance carriage ” of goods by lorry. Failureto satisfy the Commissioner that he had regularly (if at all) made use ofthat liconce during tho relevant period did not divest him of his statutoryqualifications to receive a permit : on the other hand, it certainly con-stituted “ previous conduct in the capacity of a carrier of goods ”—within tho meaning of section 90 (3) (5) of the Act—which ought to botaken into account by the Commissioner in exercising his discretionwhether to allow or refuse the permit applied for.
In tho present case, the terms of tho Commissioner’s original orderand of his subsequent recommendations ” makes it clear that thisfactor was given due weight by him ; he was satisfied, however, that itwas counter-balanced by other important considerations such as (1)tho interests of tlio public generally, (2) the circumstanco that thearea was inadequately served and (3) that tbe Company had regularlyand efficiently “provided a much-needed service” in 1950 and 1951.Accordingly the Tribunal was not justified in deciding, “ as a matter oflaw ”, that the Commissioner’s Older dated 24th Apiil 1952 ought to bequashed or varied on appeal. The order of tho Tribunal must thereforebo set aside and tho Commissioner’s original order granting the Companya public carrier’s permit under section SO (1) (b) in respect of lorriesNos. CY 170 and CN SS29 shc-uld bo restored. Let the Registrar now remitthe case to tho Tribunal for appropriate action under section 211 (G).Tho 2nd respondent must pay the Company’s costs of this appeal whichI would fix at Its. 525.
S.vNSOXi, J.—I agree.•
Order set aside. –