GUNARATNE v. KOTAKADENIYA, COMMISSIONER OF MOTOR TRAFFIC AND OTHERS

003-SLLR-SLLR-1990-2-GUNARATNE-v.-KOTAKADENIYA-COMMISSIONER-OF-MOTOR-TRAFFIC-AND-OTHERS.pdf


GUNARATNE
v.KQTAKADENIYA , COMMISSIONER OF MOTOR TRAFFIC AND
OTHERS
COURT OF APPEAL,
S.N. SILVA, J.,
C.A. APPLICATION No. 58/90JUNE 12, AND 13, 1990.
Writs of certiorari and prohibition — Motor Traffic Act -Driving licence – Issue of card toreplace driving licence.
Held :
In terms of section 126(1) as it stood before Act, No. 21 of 1981 which came into force on23.3.1981, every licence issued is effective without renewal during the lifetime of the holderunless it is cancelled or suspended under the provisions of the Act. After Act, No. 21 of1981 came into force on 23.3.1981 every driving licence is valid for such period as may beprescribed (by the Minister) and may be renewed thereafter. As no period has beenprescribed even licences issued on and after 23.3.1981 continue to be effective withoutany limitation as to time.
In order to be valid, any administrative act or order needs statutorty authorization. Withregard to Sections 124(1) and 125(1), Regulations had b6en made by the Minister,prescribing the form of the application and of the licence. Therefore, the first respondent(Commissioner of Motor Traffic) had no power to lay down other forms contrary to what hadbeen prescribed. Further, the driving licence card issued by the first respondent withoutthe particulars contained in the existing form has also no validity whatever in law.
The Commissioner of Motor Traffic can lawfully require any member of the public to makea payment only if such payment was warranted by law. The sum of Rs. 75 which licenceholders were required to pay the 1 st respondent is not a fee prescribed under the Act. The
recovery of this fee by the 1 st respondent is illegal and contrary to Ihe provisions of Article148 of the Constitution. The receipts issued for this payment bore^he name of a privatecompany and had been issued at the office of the 1 st respondent.
Par S. N. Silva, J.—
* It appears that the 1 st respondent permitted a private company to collect money fromthe members of the public who were made to believe that the payment was required bylaw. This act should in any view be condemned without reservation *.
The 1st respondent misused the power to issue a temporary licence to a bone fid9 visitorto Sri Lanka under s. 132 by issuing temporary licences to holders of valid licences effectivefor their life time or to other holders of licences effective without any limitation on time.
Further the new licence on a laminated card has no provision for a court to makeendorsements (upon conviction of the holder) as required by section 136 and there wouldbe no way to ascertain whether a licence holder has been convicted previously of anyoffences.
APPLICATION for writs of certiorari and prohibition.
Petitioner in person.
A. S. M. Perera, D. S. G. for respondents.
Cur. adv. vult
July 13, 1990.
S. N. Silva, J.
The Petitioner, being an Attorney-at-Law appeared in person in supportof this application. He submitted that although he is directly affected bythe impugned acts of the 1st Respondent in respect of which relief issought, that he filed the application in the greater interest of the public whohave been put to unnecessary expenditure and hardship by these acts.He accordingly described the application as a suit in the public interest.
The Petitioner was issued with a driving licence in 1946 under theMotor Car Ordinance, No. 45 of 1938 declaring him competent to drive allmotorcars. In terms of Section 242 (3) of the Motor Traffic Act this licenceis deemed to be a licence under the Act. Later, his licence was expandedto cover other types of vehicles such as lorries, motor coaches and thelike.
In August 1989 the Petitioner learnt from a newsletter of July 1989 ofthe Automobile Association of Ceylon (Marked UG “) that the Departmentof Motor Traffic was engaged in a phased out programme for the
replacement of driving licences issued in book form with new licences inthe form of a card. The petitioner, being a member of the Associationwrote letterdated 2.9.1989 (marked “A") to the secretary of the Associationto ascertain the provision of law under which the said programme wasbeing implemented. Pursuantto this letterthe Secretary of the Associationsent letter dated 20th September, 1989 (marked “ B ”) to the 2ndRespondent requesting his comments regarding the matter. The petitioneralso wrote letter dated 21.10.1989 (marked “ C “) to the 1 si Respondentto ascertain the provisions of law under which the existing driving licencesare being replaced. The letter specifically states that the 1 st Respondenthas no power in law to replace the licence issued in the Colombo District,of a given series, as a pilot project. That, subsequently, the “ facility” toreplace driving licences in book form with a card was extended to alllicence holders in the Colombo District. As regards the legal basis of thescheme, the letter states as follows :
“ Driving licence forms are prescribed by Regulation made under
section 124 of the Motor Traffic Act for the purpose of issuing these
cards"
The Petitioner then sent letter dated 2.12.1989 by registered post, tothe 1st Respondent specifically stating that his driving licence is valid forhis life time and that there is no provision in law to issue a card to replacethat driving licence. The Petitioner also stated that he would be resortingto action in Court if he did not hear from the respondent within two weeks.There was no repiy to this letter. It is to be noted that the 2nd Respondentin his affidavit denied having received this letter although it was sent byregistered post. Be that as it may, the Petitioner thereupon filed thisapplication on 24.1.1990 seeking inter alia relief by way of Writs ofCertiorari and Prohibition against the decision of the 1st Respondent toreplace driving licences issued prior to 1991 with cards in the mannerstated above.
The application was supported by the Petitioner in Court on 1.2.1990and the Court directed the issue of notices on the Respondents retu mableon 22.2.1990. On that day, State Counsel appeared for the Respondentsand moved for time till 22.3.1990 to file objections. However, no objectionswere filed but motions dated 21.3.1990 and 23.4.1990 were filed onbehalf of the Respondents seeking extension of time to file objections.These motions were not supported in Court. Finally, the case wasmentioned on 3.5.1990 on a motion filed by the Petitioner and it was fixedfor hearing. The Respondents were granted time to file objections beforethe hearing
The 1st Respondent ceased to hold office after this application wasfiled and an affidavit has been filed by the 2nd Respondent objecting tothe application. The 2nd Respondent has stated that no determinationhas been made declaring the existing driving licences invalid. He hasfurther stated" that no holder of an old driving licence is being compelledto give up his old driving licence in exchange for a new licence He hasfurther stated that action was taken to replace old driving licences in viewof several instances of forgery that were detected and that the newlicence in the form of a card was introduced as a security measure toprevent any tampering. That at the time a new licence in the form of a cardis issued the licence in book form is invalidated by affixing a rubber stampto that effect and returned to the holder.
In view of the position taken up by the 2nd Respondent in this affidavit,it is necessary to consider as a preliminary issue, whether the scheme toreplace old driving licences in book form was introduced by the 1stRespondent as a voluntary measure in which a licence holder had achoice either to retain the old licence or to apply for a replacement in thenew form.
The Petitioner strongly disputed the claim of the 2nd Respondent thatthis scheme was introduced as a voluntary measure. He produced theaffidavit (marked “L ”) of Mr. H. D. A. de Andrado, another Attorney-at-Law, who stated that he applied for a driving licence in the form of a cardin response to a news item in the English News Papers. He made thisapplication in the belief that he was compelled by law to do so. That,pursuant to the application being made he received a licence in the formof a card and also the licence in book form without any endorsement thatit is cancelled. Both licences were produced in Court in order to contradictthe position taken up by the 2nd Respondent that the old licence iscancelled before it is returned to the holder.
At a later stage, the Petitioner produced two News Paper Notificationspublished by the 1st Respondent in the Ceylon Daily News of 2.6.1989(marked “P”) and of 15.7.1989 (marked “Q"). It is stated in the noticemarked “ P" that applications will be received upto 30th June, 1989 fromlicence holders of*a given series for the purpose of issuing new licencecards. The notice also states as follows
“ Those who have so far not submitted applications to this office fordriving licences issued since October, 1980 bearing numbers Co. 1 to50,000 in response to my previous press notice should submit themwithout fail before 16.6.1989”.
The learned Deputy Solicitor-General for the Respondents did notdispute that these notices were published by the 1st Respondent fromtime to time setting deadlines for different categories of licence holdersto make applications for the new card. Therefore, it is clear that the claimof the 2nd Respondent in his affidavit filed in court (before said pressnotices were produced in Court) that the scheme was implementedpurely on a voluntary basis, is incorrect. Indeed, if he perused the noticespublished by the 1 st Respondent or as submitted by the Petitioner, tookthe trouble to find out why members of the public were waiting outside theoffice in long queues, he would have learnt that the scheme wasimplemented on a compulsory basis, and thereby he could have avoidedmaking an incorrect statement in the affidavit filed before this court.
In the circumstances referred to above, I have to agree with thesubmission of the Petitioner that the scheme to replace the drivinglicences issued in book form with a new licence in the form of a card wasimplemented by the 1st Respondent on a compulsory basis and thatlicence holders were made to believe that they were required by law tosubmit applications in the manner stated in the said notices to obtain alicence in the new form.
* As regards the relief sought, the main submission of the Petitioner isthat every driving licence issued or deemed to be issued under the MotorTraffic Act prior to 1981 is valid without renewal for the lifetime of theholder and that the 1st Respondent had no power to replace theselicences with a document in the form of a card. The Petitioner alsosubmitted the following :—
that the form C. M. T. 78 in which an application had to be madeaccording to the said notices was not one prescribed by Regulation;
that the fee of Rs. 75 to be paid was also not prescribed byRegulation and that it was in fact collected by certain persons of
a Private Company who were permitted by the 1 st Respondent tobe in the office for this purpose;
that up to the date this application was filed, a driving licence in theform of a card had not been prescribed by Regulation made underthe Act and as such the new licence was ipso facto invalid.
The learned Deputy Solicitor-General appearing forthe Respondentsconceded that there was no specific provision in the Motor Traffic Act toreplace existing driving licence with driving licence in the form of a card.However, he submitted that the action of the 1st Respondent, in thisregard, is justified by the provisions of section 239 (1) of the Act.
It was submitted that a distinction should be drawn between a licenceand the document which constitutes the evidence of a licence and thatthere is no provision in the Act which prohibits the 1 st Respondent fromchanging the evidence of a licence. It was further submitted that theCommissioner of Motor Traffic could prescribe administratively the formin which an application is to be made for a driving licence and the form inwhich a licence is issued in terms of sections 124 (1) and 125 (1)respectively of the Act. The submission is that the word “ prescribed "appearing in these sections should be understood as prescribed “ in apurely administrative capacity "by the Commissioner of Motor Traffic orhis officers. That the provision in the interpretation section, section 240which stated that the word “ prescribed" means prescribed underthe Actor by Regulation made under the Act should not be used in interpretingthe provisions of sections 124(1) and 125 (1). As regards the fee of Rs.75 learned Deputy Solicitor-General conceded that this fee has not beenprescribed by Regulation but submitted that it was recovered to meet thecost of a Private company that supplied the cards in which the newlicences were issued. It was submitted that since this recovery was nota revenue measure it need not be based upon a Regulation.
in the course of the submissions the learned Deputy Solicitor-Generalproduced certain Regulations made by the Minister and published in theGovernment Gazette number 605/6 dated 11.4.1990. It is to be noted thatthese Regulations had been made and published after notice was issuedin this case and after the Respondents obtained time to to file objections.By these Regulations the Minister has prescribed a driving licence in theform of a card that is shown in the schedule to the Regulations. There is
also a provision which states that upon an order being made by a Ministerthe existing forms prescribed will cease to be operative in respect of thespecified “categories of serial numbers." It is now clear that the newlicence in card form was prescribed by Regulation almost 10 months afterthe scheme to replace the existing licences was implemented by the 1 stRespondent and after the validity of the scheme itself was challenged inCourt. Furthermore, it has to be noted that the assertion of the 2ndRespondent in letter dated 8.11.1989 sent to the Petitioner and referredabove is incorrect.
The Petitioner challenged the validity of the form prescribed in theRegulations on the basis that the form was not in conformity with theprovisions of the Act. He also challenged the other provision referredabove on the basis that the power sought to be vested in the Minister isnot referrable to any substantive provision of the Act.
I will now examine the relevant provisions of the Motor Traff ic Act in thelight of the submissions made by Counsel.
In terms of section 124 (1) an application for a driving licence has to bein the prescribed form and be accompanied by the prescribed fee. Theapplication form, M.T. A. 30 was prescribed forthis purpose by Regulationin 1951 itself being the year the Act came into operation. The form iscomprehensive, in that it has 24 cages specifying a variety of particularsto be filled in by an applicant. It has also certain columns to be filled by theExaminer who makes the report after testing the applicant. It is notdisputed that the requisite fee has been prescribed by Regulation fromtime to time. Section 125 (1) provides that every driving licence shall bein the prescribed form. Form M .T. A. 32 has been prescribed by Regulationfor the purpose. The particulars have at all times been put down in theform of a book. It is to be noted that this form has provision for theextension of the validity of the licence to cover other classes of motorvehicles, than the class for which it is originally issued and a separate partfor the endersement of any offences that are committed by the holder ofthe licence.
In terms of section 126 (1) as it originally stood in the Act, every drivinglicence that is issued is “effective without renewal during the lifetime of theholder” unless it is cancelled or suspended under the provisions of theAct. This section was repealed by Act No. 21 of 1981 which came intoforce on 23.3.1981 and the new section that was introduced provides thatevery driving licence “shall be valid for such period as may be prescribed”and be renewed thereafter. The Petitioner contended that the licencesissued priorto 23.3.1981 continue to be valid without renewal during thelifetime of the holder. I note that there is no provision in the repealingstatute that relates back to the licence issued under the former section.These licence holders had acquired a right subject to the limitations thatwere specified to have an effective licence without renewal during theirlifetime. Therefore, in my view section 6 (3) (b) of the InterpretationOrdinance will apply and that right will subsist in the absence of anystatutory provision to the contrary in the repealing statute. The period ofvalidity of licences has so far not been prescribed under section 126 (1)enacted in 1981. Therefore even the licence issuedonand after23.3.1981continue to be effective without any limitation as to time.
Section 128 provides for the extension of the validity of a licence thathas already been issued to otherclasses of motor vehicles. An applicationfor this purpose has to be made in the prescribed form (M.T.A.34prescribed by the same Regulation) and submitted with the prescribedfee.
Section 132 empowers the Commissioner to issuse a temporarylicence to any bona fide visitor to Sri Lanka which shall be effective for aperiod not exceeding three months. The application for such a licenceand the licence that will be issued have been prescribed by Regulation(M.T .A. 35 and 36 respectively).
Section 135 requires every driver of a motor vehicle to carry his drivinglicence on his person or in the motor vehicle and to produce it on ademand made by a Police Officer. Section 135 (4) empowers a PoliceOfficer to take charge of a licence that is produced, for investigation andto issue in place of the licence, a permit to the holder of the licence. Thepermit to be so issued by a Police Officer has been prescribed. (M.T. A.37).
Section 231 empowers the Commissionerto issue inter alia a duplicateof a driving licence, if he is satisfied that the original is lost, destroyed,defaced or damaged. The application to be submitted for the purpose ofobtaining such a duplicate licence and the form of the duplicate licenceitself have been prescribed by Regulation (M.T .A. 42 and M.T .A. 32 Arespectively.).
The foregoing survey of some of the provisions of the Motor Traffic Actrelevant to the issue shows that the Act contains a carefully laid outscheme with regard to the issue of driving licences and connectedmatters.
The Commissioner of Motor Traffic is not given a general power or anabsolute discretion in this regard. The powers conferred on theCommissioner are specific and directed to meet given situations. Accordingto several provisions forms have to be "prescribed”. The word "prescribed”is interpreted in section 240 as follows:-
“Prescribed means prescribed by the Act or any Regulation madethereunder"
Section 237 (1) is also relevant to this aspect and it reads thus-
‘The Minister may make regulations for all matters for whichregulations are required or authorized to be made under this Act, allmatters stated or required by this Act to be prescribed, and all othermatters incidental to or connected with such matters.”
It is clear from the provisions of this section that the Minister isempowered to make Regulations in respect of all matters stated orrequired by the Act to be prescribed.
Considering the provisions of sections 240 and 237 referred to aboveI am of the view that where any section requires any form of a matter tobe prescribed, it is the Minister who has the power to make a Regulationrelevant to this matter. As section 237 originally stood, any Regulationmade by the Minister becomes effective only upon that Regulation beingapproved by Parliament and such approval being published in theGazette. The several M.T.A. forms referred to in the preceding section ofthis judgment have been so approved by Parliament and published in theGazette.
In the light of the foregoing statutory provisions it is somewhatsurprising that the learned Deputy Solicitor-General thought it fit to submitthat the word “Prescribed” appearing in section 124 (1) with regard to theapplication for driving licences and in section 125 (1) with regard to theform of the licence itself, should be interpreted to mean as prescribed by
the Commissionerof Motor Traffic, administratively. In this way the actionof the 1 st Respondent in requiring licence holders to submit applicationsinform C.M.T. 78 and the issuing of licences in the form of a card withoutthe particulars as found in M. T. A. 32 was sought to be justified. Thewritten submissions of the learned Deputy Solicitor-General deal withonly the provisions of section 240. The submission does not touch uponsection 237 (1) referred to above. As noted by me section 237 (1) has aclear provision that where a matter has to be prescribed, it is the Ministerwho has the power to make Regulations regarding that matter. Any claimthat in such circumstances, the Commissioner of Motor Traffic has thepower to prescribe the same matter administratively, is derogatory of thedelegated legislative power of the Minister and the legislative power ofParliament as set out in section 237 of the Act.
As regards the two provisions concerned, namely sections 124 (1) and125 (1), as noted above Regulations had been made by the Minister andapproved by Parliament and published in the Gazette, prescribing theform of the application and of the licence. In these circumstances, in myview the Commissioner of Motor Traffic had no power whatever to laydown other forms contrary to what has been prescribed. Therefore, theform dubiously numberedC. M. T. 78 (marked"!") which the 1 st respondentrequired licence holders to submit, according to the notices marked “P”and “Q" has no basis whatever in law. Further, the driving licence cardsthat were issued by the 1 st Respondent without the particulars containedin the existing form M. T. A. 32 have also no validity whatever in law. Quiteapart from these documents having no legal validity, I am of the view thatthe 1st Respondent perpetrated an illegality by issuing documents thatwere not valid in law, as licences from about 1989 up to 11.4.1990 (beingthe date of the Regulation referred to above).
The fee of Rs. 75/- which licence holders were required to pay by the1st Respondent according to the notices that were published, is not aprescribed fee under the Act. The learned Deputy Solicitor-Generalsought to justify the recovery of this fee on the basis that it was not arevenue measure but-a payment for something that was done. Thiscontention, in my view is untenable. It is correct, that there may besituations where a statutory authority or a public officer lawfully entersinto some form of contract with a member of the public, which involves thepayment of a fee for services rendered, work done, or goods supplied.These are voluntary payments made by members of the public pursuantto a contract or other arrangement entered into at arms length. Thepayment of Rs. 75 was not made on such a basis. The notices marked“P” and "Q” issued by the 1 st Respondent require driving licence holdersto make that payment. It could by no means be considered a voluntarypayment. It has to be considered as a levy that was made. In this regardI wish to refer to Article 148 of the Constitution which reads as follows:—
“Parliament shall have full control over public finance. No tax, rateor any other levy shall be imposed by any local authority or any otherpublic authority, except by or under the authority of law passed byParliament or of any existing law.”
It is clear from this salutary provision of the Constitution that a publicauthority is prohibited from charging any tax, rate or any other levy exceptunder the authority of a law passed by Parliament. Therefore, in my viewthe Commissioner of Motor Traff ic could lawfully require any member ofthe public to make a payment only if such payment was warranted by law.As noted above the sum of Rs. 75 is not a prescribed fee under the Act.In these circumstances I am of the view that the recovery of this fee by the1st Respondent was illegal and contrary to the provisions of Article 148of the Constitution. The receipt issued for such a payment has beenproduced marked “J”. This receipt bears the name of a Private Companyand it has been issued at the office of the 1 st Respondent. It appears thatthe 1st Respondent permitted a Private Company to collect money fromthe members of the public who were made to believe that the paymentwas required by law. This act should in my view be condemned withoutreservation.
The notices marked “P” and “Q” also provide that the licence holdersshould submit an application in form C. M. T. 78 together with the drivinglicence and other documents and obtain a temporary licence. It is clearfrom the provisions referred to above that a temporary licence could beissued by the Commissioner only to a bona fide visitor to Sri Lanka,(section 132). Therefore, I am of the view that the 1st Respondentmisused this power in issuing temporary licences to persons who alreadyhad valid licences effective for their lifetime or in other cases effectivewithout any limitation on time.
I have in the preceding sections dealt with the specific aspects of thescheme as implemented by the 1st Respondent. I will now consider thegeneral question whether the 1st Respondent had the power to take a
decision to replace existing driving licences with a form that was prescribedby the 1st Respondent.
The preceding survey of the provisions of the Act reveals very clearlythat the 1 st Respondent had no specif ic power to replace driving licencesthat had already been issued, with another form deviced by the 1stRespondent. The learned Deputy Solicitor-General submitted that thisaction was taken in view of several instances that were reported in whichlicences in book form had been forged. In this connection the 2ndRespondent produced several letters written by our diplomatic missionsabroad.
Licences that are issued under Motor Traffic Act are valid only withinthis country. It appears from the correspondence produced that personswho have left this country have utilized driving licences and otherdocuments to establish their identity in the countries they have entered.
It is in this connection that forgeries have been discovered. It is significantthat the 2nd Respondent has not referred to a single instance of a personbeing prosecuted or convicted in this country of an offence involving theforgery of a driving licence. A driving licence is a document that has to becarried by any person driving a motor vehicle as provided in section 135.
It is a matter of common knowledge that every day a large number ofdriving licences are inspected by Police Officers who stop vehicles in thecourse of their duty. If forgery of driving licences is a problem of thatdegree of seriousness, it would certainly have been discovered by thePolice and reported to the Commissioner of Motor Traffic. There is noevidence of any such representations being received by the Commissioner.from the Police. Therefore, I do not see much merit in the factual basisadduced by the 2nd Respondent in support of the scheme to replaceexisting driving licences.
As regards the legal basis learned Deputy Solicitor-General relied onsection 239 (1) of the Act. This section declares that nothing in the Actshould be treated as conferring on the holder of a permit or a licence aright to the continuance of any benefits arising from the Act or from anysuch permit or licence or from any conditions attached to it. The provision,as the marginal note indicates has been introduced in the public interest.This provision does not even remotely authorise the 1st Respondent toinvalidate driving licences that are valid for the lifetime of the holder of thelicence or for a period in respect of which no limit has been placed. Even
if any restriction is to be introduced in terms of section 239 (1) that has tobe done by or under the authority of a law and not administratively assought to be done by the 1st Respondent, because such action wouldhave the effect of taking away an existing right of a person granted to himby law. Therefore, I am of the view that section 239(1) could not be availedof to justify the action of the 1st Respondent.
The only other matter to be considered relates to the Regulationsmade by the Minister and published in the Government Gazette of11.4.1990. As noted above these Regulations have been made at thetime the application was pending in Court. However, in view of the reliefsought it is necessary to consider some aspects of the submission madeby the petitioner with regard to the validity of the Regulations. It appearsthat by the said Regulations the Minister has prescribed two forms asM.T.A. 32 ‘B* and ‘C’ respectively. M.T.A. 32 ‘B' is a lorm of a drivinglicence to be issued in the first instance. M.T.A. 32“C” is a form of theduplicate licence to be issued. It is significant that both forms, that nowconstitute a Regulation, have even the signature of the 1 st Respondent,probably signifying the extent to which the 1 st Respondent has identifiedherself with the form. The Petitioner submitted that these forms are badin law and contrary to the provisions of the Act. It was submitted that theforms do not contain any provision for the making of endorsements by acriminal Court afterthe conviction of a licence holder of an offence underthe Act or under the Penal Code. The Petitioner specifically drew theattention of Court to the provisions of section 136 in this regard. Thissection confers a court convicting the licence holder of offences to makeendorsements on the licence. In terms of section 136(5) the endorsementshave to be made by the Judge or the Magistrate or in the case of the HighCourt by the Registrar. In terms of section 136(2) a licence could becancelled on the basis of previous endorsements of convictions. ThePetitioner submitted that the new licence in a laminated card has noprovision for a Court to make endorsements as required by section 136.It was also submitted that, in the result there would be no way to ascertainwhether a licence holder has been convicted previously of any offences.That, it is in the public interest that licence holders who have beenconvicted of offences should be prevented from driving by the cancellationof their licences.
I am inclined to agree with the submission of the Petitioner in thisregard. It is to be noted that the existing form M.T.A. 32 has a separatesection for endorsements. For some reason, this aspect has beenignored in prescribing the new form. However, since the relief sought inthe case relates only to the replacement of driving licences issued priorto the amending Act of 1981 with new licences, it would not be necessaryfor me to pronounce on the validity of the new form itself.
The Petitioner also submitted that Regulation 3 which seeks toempower the Minister to make an order requiring that certain licences bereplaced with the new form, is ultra vires the Regulation making power ofthe Minister. Regulation 3 reads as follows
“The Minister may from time to time by Order published in theGazette specify the categories of serial numbers to which FormsM.T.A. 32B and M.T.A. 32C shall apply under these regulations andupon publication of such order, Forms M.T.A. 32 and M.T.A. 32Ashallcease to apply to such categories of serial numbers.”
There appear to be certain omissions in this Regulation. It is not clearwhether the reference to serial numbers, relate to serial numbers ofdriving licences. Therefore in my view the Regulation itself is vague andincapable of being implemented. Furthermore, no Order has been madeby the Minister underthis Regulation. In these circumstances it would notbe necessary to consider whether the Regulation itself is ultra vires thepower vested in the Minister by the Act.
For the reasons stated above I hold that the 1st Respondent had nopower or authority under the Motor Traffic Act or the Regulations madethereunder to require driving licence holders who have been validlyissued with driving licences to make applications for the replacement oftheir driving licences. The decision made by the 1st Respondent in thisregard as evidenced by the notices such as “P" and “Q” is ultra vires thepower of the 1st Respondent. To cite a passage from Professor H.W.R.Wade on Administrative Law 5 th Ed. (p. 39)
“any administrative act or order which is ultra vires or outsidejurisdiction is void in law, i.e. deprived of legal effect. This is becausein order to be valid it needs statutory authorisation, and if it is not withinthe powers given by the Act, it has no leg to stand on. The Court willthen quash it or declare it to be unlawful or prohibit any action toenforce it’’.
The foregoing analysis shows that the action of the 1st Respondentwith regard to all aspects of the decision is tainted with illegality, and theaction itself has, to use the words of Prof essor Wade, no legal leg to standon. The Petitioner would be in the circumstances entitled to the relief byway of a Writ of Certiorari and Prohibition as prayed for in paragraphs (b)and {d) of the prayer to the petition.
It was submitted by learned Deputy Solicitor-General that over 100,000licences had been issued upto 31.5.1990, in the new form. A largepercentage of these new licences had been issued to persons whoalready have licences in form M.T.A. 32. The learned Deputy Solicitor-General submitted that if the relief is granted it would affect this categoryof persons. In this regard, I note that according to the affidavit of the 2ndRespondent, when a licence in new form is issued the old licence isreturned to the licence holder after invalidating it by applying a rubberstamp. This practice of invalidating does not appear to have beenfollowed consistently since Mr. Andrado produced his licence without anystamp of invalidation. As regards this category of persons it is clear theyhave licences valid for their lifetime or valid for a period in respect of whichno limit has been placed by law. If any stamp has been applied invalidatingthose licences solely on the ground that a new licence has been issuedin the form of a card, that invalidation itself would be of no force or availin law. Therefore those licence holders would continue to have licencesin the form M.T.A. 32 without any invalidity in them. In the circumstancesI am of the view that the matter urged by learned Deputy Solicitor-Generalshould not in any way deter this Court from granting the relief sought bythe Petitioner. I accordingly direct the issue of Writs of Certiorari andProhibition as prayed for in paragraphs (b) and (cO of the prayer to thepetition dated 24.1.1990 of the Petitioner. The 1st, 2nd and 3rdRespondents will pay the Petitioner a sum of Rs. 2,500 as costs. TheApplication is allowed.
Application allowed.