026-NLR-NLR-V-43-ATTORNEY—GENERAL-v.-LIVERIS.pdf
112
Attorney-General v. Liveris.
1941
Present : de Kretser J.
ATTORNEY-GENERAL v. LIVERIS.
294—M. C. Galle, 27,228.
Motor bus—No application for licence—Cancellation of registration—Convictionfor failure to take out licence—Motor Car Ordinance, No. 45 of 1938,s. 160 (If.
The accused who had not taken out a licence for his motor bus for theyear 1940, had the registration of his bus cancelled in April, 1940, onthe ground that it was permanently unserviceable.
Held (in a charge against him under section 29 (1) of the Motor CarOrdinance) that the amount recoverable under section 160 (1) is theamount of duty which at the date of the conviction is payable for theperiod for which a licence may be issued.
DE KRETSER J.—Attorney-General v. Liveris.
113
PPEAL from an order of the Municipal Magistrate, Galle.
O.L. de Kretser (Jr.), C.C., for the Attorney-General, appellant.
No appearance for respondent.
Cur. adv. vult.
June 17, 1951. de Kretser J—.
This is an appeal by the Attorney-General. The respondent was theregistered owner of a motor bus and had failed to take out a licence forthe year 1940. By April 27, 1940, the registration of the motor bushad been cancelled. That is the evidence accepted in the Magistrate’sCourt and it is borne out by the document, D 2, which refers to an applica-tion dated March 20, 1940, to have the registration cancelled. It wascancelled on the understanding that the vehicle had been renderedpermanently unserviceable or destroyed and that it would never be usedon the road again.
Having failed to take out his licence, the respondent was prosecutedunder section 29 (1) of the Motor Car Ordinance, No. 45 of 1938. Headmitted liability to pay the licensing fee up to April 27. The Magistratepurporting to guide himself by the decision of this Court in M. C. Galle,No. 3,602, decided on December 2, 1940, fined the accused Rs. 60 anddid not proceed in terms of section 160 (1) to order the recovery of theamount stated in the statutory certificate which had been filed.
Judging from what the Magistrate had earlier said, it is clear, J think,that he did not intend to punish the accused, except nominally, and thathe proposed to recover only the licensing fee for the period commencingon January 1, and ending on April 27. He said, “ I find the accusedtechnically guilty but I do not propose to levy a fine more than one-thirdthe amount or even levy a penalty ”. Assuming that his order wasotherwise correct, what he should have done was to fine the accusedRs. 3.30 and to order that a sum of Rs. 56.70 be recovered from theaccused.
It is, however, argued for the appellant that the Magistrate had nooption but to order that a sum of Rs. 170 appearing in the certificateissued by the licensing authority should be recovered. This raises thequestion whether the certificate is of such binding force that the Magistratecannot question it but must automatically give effect to it when heconvicts a person under section 29 (1) of the Ordinance.
The section clearly contemplates the case of the ordinary defaulterwho remains the registered owner of the car and is liable therefore to paythe full year’s duty. In such a case the certificate would state theamount due for that particular vehicle and the Magistrate would onlybe the channel through which the duty is recovered.
The circumstances of the present case, however, are not ordinary.The Magistrate had before him evidence that the registration of themotor bus had been cancelled on the ground that it was permanentlyunserviceable. He had also before him the provisions of section 36 which
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DE KRETSER J.—Attorney-General v. Liveris.
state that the holder of a licence, on surrendering his licence for cancella-tion, would be entitled to a refund of a proportionate part of the licenceduty. Of course in this case there was no licence to surrender.
The principle of the Ordinance seems to be that the registered ownerof a motor vehicle should pay the licence duty in advance, unless he hadtaken certain steps to have himself exempted from that obligation, butthat he should not pay if his motor vehicle was unserviceable or if hesurrendered his licence for cancellation. The facts disclosed in this casedo not come within the purview of any of the sections of the Ordinance.
It would be exceedingly harsh if the licensing authority levied the amountdue for the whole year and refused to make a refund because it was nota case of the holder of a licence surrendering his licence, and the Magistratewould be violating natural principles of justice if he interpreted theprovisions of section 160 (1) literally.
Had the accused taken out a licence he would naturally have sur-rendered it for cancellation on April 27. Is he to be penalized for nottaking out a licence by having to pay the duty for the whole year ? Itseems to me that when the proper authority cancelled the registrationof the motor bus the licensing authority, in the peculiar circumstancesof this case, should have considered that constructively the accused hadsurrendered his licence and that while therefore the accused was primarilyliable to pay Rs. 170 the licensing authority owed it to him to refundeight-twelfths of that amount less Rs. 5. Section 160 (3) requires thatwhen the duty has been recovered the licensing authority shall issue alicence for the motor car in like manner as if the application for suchlicence had been made under part 5. Here we have a clear indication thatsection 160 (1) only contemplates a case where it is possible to issue alicence. In the present case the licensing authority could not issue alicence for a car the registration of which had been cancelled. There is nostatutory duty laid on the licensing authority to issue a certificate but thereis a statutory duty imposed on him to issue a licence when the duty isrecovered. If he cannot perform the duty laid upon him, then he shouldnot produce a certificate, and if he does produce a certificate and theCourt sees that he ought not to have produced it, it will also be awareof the fact that the provisions of section 160 (l).do not apply to thesecircumstances and that there is no statutory duty placed on the Court torecover what is not due."
I think that when in section 160 (1) the words “ would have beenpayable ” were used, the Legislature intended to say the amount whichwould have been payable and is still payable, and that the proper con-struction to give to these words is “ the amount of the duty which at thedate of conviction is payable ”, i.e., not merely for the period prior tothe conviction but for the priod for which a licence may be issued.
I therefore set aside the sentence passed by the Magistrate and, givingeffect to his intentions, direct that the accused be fined Rs. 3.30 andordered to pay Rs. 56.70, the duty due up to April 27, 1940.
Set aside.