030-NLR-NLR-V-52-SAMSON-PERERA-et-al.-Petitioners-and-T.W.-ROBERTS-et-al.-Respondent.pdf
Present: Pulle J.
1060
SAMSON PER1RA et al., Petitioners, and T. W. ROBERTSet al., Respondents
Applications Nos. 162 and 291 of 1949
Writs of certiorari and prohibition—Applications for road, service licence—Mattersto be considered by Commissioner—Appeals against decisions of the Commis-sioner—OmnibusService Licensing Ordinance, No. 471942—Sections
{*), 7, 13 (3), 14, (2) and (3).
«•>
A route licence was granted to A without prior notice to B who was alreadyproviding transport facilities near to the route covered by A’s licence. Thefailure of the Commissioner of Motor Transport to inform B of A’s applicationfor the licence was undoubtedly contrary to the practice followed for depart-mental convenience. B, purporting to avail himself of the provisions of section4 (b) of the Omnibus Senvice Licensing Ordinance, subsequently informed- theCommissioner of certain grounds on which he objected to the granting of thelicence to A and also made a formal application for the licence to be grantedto him. The Commissioner, thereupon, without holding an inquiry, intimatedto- B that his application could not be granted as it was obnoxious to section 7of the Ordinance.
Held, that the Commissioner of Motor Transport did not commit a breachof the provisions of section 4 (b) of the Omnibus Senvice Licensing OrdinanceHeld further, that the right of appeal conferred by sub-section 3 of section- 13of the Ordinance was not available to B.,
jAt-PPEICATIONS for certiorari and prohibition arising from an orderof the Commissioner of Motor Transport.
In Application 162—
H. V.. Perera, II.G., with Stanley do Zoysa and C. IS. J aye war dene, forthe petitioner.
N. E. Weerasooria, K.C., with W. D Gunasekera, for the 5th respondent.In Application 291—
N. jE. Weerasooria, K.G., with W. D. Gunasekere, for the petitioner.
H. V. Perera, K.C., with Stanley de Zoysa and G. E. Jayewardene, forthe respondent.„
-Cur. adv. vult.
November 7, 1950. Pulle J.—
These proceedings relate to two applications which were heard together.The first is an application for a writ of prohibition on the Tribunal ofAppeal constituted for thfe purposes of hearing appeals under theOmnibus Service Licensing Ordinance, No. 47 of 1942. The petitioner
is one A. H. Samson Perera who at all times material to the proceedingswas the holder of a licence to provide a service of motor cabs for a periodof two years commencing May 27, 1948, from Morontuduwa to Horana.The 5th respondent to this application is one M. A. P. Fernando. The1st, 2nd and 3rd respondents are the members of the Tribunal of Appealand the 4th respondent the Commissioner of Motor Transport.
The second application is by the 5th respondent to the first application,M. A. P. Fernando. The main relief he seeks is a writ of Certiorariquashing the decision of the Commissioner of Motor Transport grantingthe licence referred to above to A. H. Samson Perera.
For convenience I shall refer to A. *H. Samson Perera as the “ licence-holder ” and to M. A. P. Fernando as the “ objector
The facts in their chronological sequence are as follows. In theyear 1946 an exclusive road service licence was granted to the PanaduraMotor Transit Co., Ltd., to run a cab service on the route Horana-Morontuduwa. The objector was also an applicant for the same licencebut he was unsuccessful. On May 6, 1948, the Panadura Motor TransitCompany, by its Managing Director, applied to the Commissioner ofMotor Transport for permission to “ transfer* 1 ’ the cab service to thelicence-holder. They also asked the Commissioner of Motor Transportto transfer to the licence-holder the omnibus service from Kalutara toKesbewa and supported that request with a letter from the ManagingDirector of the South-Western Bus Company, Ltd. On May 27,1948, a licence was granted to the licence-holder to provide a motor cabservice for a period of two years commencing from that date. Theobjector’s application for a writ of certiorari' is to quash the licence. OnJune 17, 1948, the objector applied for a licence for the identical serviceand he was informed on October 4, 1948, that his application was refusedac it was obnoxious to section 7 of the Omnibus Service Licensing Ordi-nance, No. 47 of 1942. The objector then appealed to the Tribunal ofAppeal and at the hearing objection was taken by Counsel for the licence-holder that the Tribunal had no jurisdiction to entertain the appeal.The objection was overruled and the hearing of the appeal was put offfor May 21, 1949. The licence-holder’s application is that a writ beissued prohibiting the Tribunal of Appeal from proceeding with theappeal taken by the objector.' •
The grant of the licence to the licence-holder is attacked principallyon the ground that the Commissioner of Motor Transport had failed tocomply with section 4 (6.) of the Ordinance which requires him to takeinto consideration representations by a person such os the objector whowas already providing ti*ansport facilities near to the proposed routecovered by the licence. The objector’s argument is that the failure tocomply with section 4 (b) vitiated the licence inasmuch as it was issuedwithout jurisdiction by the Commissioner whose functions are of a quasi-judicial character and that the licence was, therefore, null and void.The licence-holder contends that the Commissioner had not committeda breach of section 4 (b) and that in the exercise ftf his functions in grantingthe licence he was acting purely in an administrative capacity and notin the performance of any quasi-judicial functions. In regard to the
later point it was held in the case of the South-Western Bus Go., Ltd. v.Arumugam et a,/,.1 that the granting of a licence by tire Commissioner* of'Motor Transport is-a judicial act subject to a writ of cei*tiorari. X amcontent to follow this decision and the only question which, falls to bedetermined on the application for a writ of certiorari is whether theCommissioner acted in contravention of section 4(b). In order to
decide this a further narration of facts is necessary.
According to the exhibit It 2 dated March 15, 1948, attached to theaffidavit of the objector dated June 14, 1949, it would appear that whenapplications were received by the Commissioner for route licences thepractice was to send notices of there applications to operators providingfacilities along or near the proposed routes. By the document B> 2 theobjector was informed of the discontinuance of this practice and of a,new practice by which the application would be published monthly inthe Government Gazette of the last Friday of eacb month. It was leftto any person who objected to a grant of any licence to address hisrepresentations to the Commissioner within the time stated in the notice.
I would pause here to observe that there is no express provision in theOrdinance imposing on the Commissioner the duty of notifying anyoneof the receipt of an application for a route licence.
. In the Government Gazette of June 4, 1948, a notice was published bythe Commissioner of Motor Transport giving particulars of applicationsfor licences to ply omnibus or cab services. According to this notice thelicence-holder had made two applications on May 11, 1948, one for anomnibus service and the other the cab service in question. The noticedoes .not purport to be one made in compliance with any statutorydirection %nd it reads :
“ With reference to section 4 (b) of the Omnibus Service Incensing*Ordinance, No. 47 of 1942, a list of the applications for regular omnibusor cab service is published below for the information of persons whoare already providing transport facilities along or near to the proposed‘ route or any part thereof or for the information of any local authoritywithin the administrative limits of which any proposed route or partthereof is situate ”.
The next paragraph of the notice sets out the form in which represent-ations may be made.
By his letter dated June 17, the objector informed the Commissionerof the grounds on which he objected to the granting of a licence to thelicence-holder and also made a formal application for the licence to begranted to him. A letter of the same date, namely, June 17, was sentby an officer signing himself “ for Commissioner Motor Transport " tothe objector acknowledging the receipt of his application and statingthat it would be published in the Gazette for the information of personsdesiring to make representations against the grant of the application.
The objector’s application was published in the Gazettei of July 2,1948, and thereupon the Jicenee-holder by his letter of July 13 informedthe Commissioner that he objected on the ground that he had .already.1 (1947) 48 AT. L. R. 385.
been issued a licence for the same service. A copy of this letter wasannexed to a communication by the Commissioner to the objector datedJuly 16, promising to fix the matter for inquiry in due course. Noinquiry was held in spite of a specific request by .the Proctor for. theobjector and on October 4, 1948, the Commissioner intimated to. himthat his application could not be granted as it was obnoxious to section 1of the Ordinance.
It is difficult to withhold a measure of sympathy for the objector.Clearly he was one of the persons entitled to make representations undersection 4 (b) and he was prevented from so doing owing to the unco-ordinated handling of public business in the office of the Commissionerof Motor Transport. It is manifest that the officer who prepared thenotice published in the Gazette of June 4, 1948, was unaware that onMay 27, 1948, a licence had already been issued. No blame attachespersonally to the Commissioner and it is not disputed that the licencewas granted in good faith to the licence-holder. The crucial questionI have to determine is whether in the events which have occurred itcan be said that the Commissioner failed to comply with section 4 (6).
The section does no more than impose a duty in imperative terms onthe Commissioner to take into consideration any representations as maybe made to him by persons who are -already providing transport facilitiesalong or near to the proposed route. On a plain reading of the sectionand the evidence before me it cannot be said that the Commissionerfailed in his duty. His department undoubtedly failed to adhere tothe procedure which it had laid down for dealing with applications forroute licences, but the question is whether in respect of any application apossible objector has a statutory right to insist that that procedure befollowed. In the discharge of functions which a public officer is calledupon to perform in terms of a statute he may.- esc cautela, devise a pro-cedure intended to benefit as large a class of people who might be affectedby the exercise of his functions, but over and above the requirementsof the statute under which he acts. I cannot, however, assent to theproposition that a person like the objector in this case has any legalright to the observance of a practice laid down for departmental con-venience. The case of the objector is a hard one but I shall be doingviolence to the language of section 4 (6) were I to hold that the Com-missioner had committed a breach of its provisions. In my opinion themotion for certiorari fails and is dismissed with costs.
I come next to the application of the licence-holder for a writ ofprohibition on the Tribunal of Appeal. Now the appeal taken by theobjector is from the order refusing his application to provide a regular*motor cab service on the Morontuduwa-Horana route. Under whatprovision of the Ordinance can the Tribunal entertain the appeal?Clearly it does not come within either sub-section* 1 or sub-section 2 ofsection 13. Sub-section 3 of section 13 reads:
“ In any case where an application has been made for a road servicelicence in respect of a route or routes on whicfti a service is not alreadyprovided under any other licence, the applicant, if he is aggrievedby the decision of the Commissioner refusing the application may,
before tlie expiry of a period of ten days from the date of the serviceon him of notice of such refusal, appeal against the decision of theCommissioner to a Tribunal of Appeal”.
On behalf of the licence-holder it is argued that the right of appealconferred by the sub-section quoted above is not one available to theobjector. He made his application on June 17, 1948, whereas his rivalwas on this date actually providing a service on a licence dated May 27,1948, so that the objector’s application falls outside the language ofsub-section 8 as it was made for a road service licence in respect of aroute or routes on which a service was already provided under anotherlicence. If it was the intention of «the Legislature to confer a right ofappeal on an unsuccessful applicant in any circumstances the words ofqualification in the sub-section ought not to have found a place in it.If that was the intention it could have been expressed in plain languageand I should further have expected specific provision to be madeauthorising the Tribunal to cancel or suspend a licence already grantedupon such terms and conditions that the public would be provided witha service until the time that the successful appellant before the Tribunalwould b.e able to put his own vehicles on the route. In my opinion thereis nothing in sub-section 2 or 3 of section 14 which makes me doubtthe correctness of the interpretation which I have placed on section 13 (3).Whatever remedy the objector might have resorted to for the purposeof obtaining a declaration that the licence issued to the licence-holderwas void ab initio, the remedy by way of appeal to the Tribunal was notopen to him.
The motion for prohibition is allowed with costs as against the 5threspondent.
Motion for certiorari refused.Motion for -prohibition alloived.