104-NLR-NLR-V-55-EBERT-SILVA-BUS-CO.-LTD.-et-al.-Appellants-and-COMMISSIONER-OF-MOTOR-TRAN.pdf
Ebert Silva Bug Go., Ltd. v. Commissioner of Motor Transport
371
1953Present : Pulle J.
EBERT SILVA BUS CO., LTD., et al., Appellants, and COMMISSIONEROF MOTOR TRANSPORT, RespondentS. C. 62 and 79—In the matter of cases stated under the 'provisions ofsection 4 of the Motor Gar Ordinance, No. 45 of 1938,read with section 13 of the Omnibus ServiceLicensing Ordinance, No. 47 of 1942
Omnibus Service Licensing Ordinance, No. 47 of 1942—Sections 6 (2), 7, 14 {3)—
Tribunal of Appeal—Scope of its jurisdiction.
Under section 14 (3) of the Omnibus Service Licensing Ordinance it is notopen to a Tribunal of Appeal to grant a road service licence to a party to runalong a particular route when there is no appeal for such a route before theTribunal.*
If the Tribunal of Appeal agree with the termini and the line of a route selectedby the Commissioner but are confronted with an insurmountable obstacleraised by section 7, they should leave it to the Commissioner un^Jer section 6(2) to vary the conditions attached to an existing licence. It is essential thatwhere the statute expressly states that a function is to be performed by theCommissioner it should be left to him in the first instance to come to a decision.
372 PTJLLE J.—Ebert Silva, Bits Go., Ltd. v. Commissioner of Motor Transport
CEASES stated under the Omnibus Service Licensing Ordinance.
N. E. Weerasooria, Q.C., with N. M. de Silva and W. D>. Cfunasekera,for Ebert Silva Bus Co., Ltd.
C. Thiagalingam, Q.C., with S. E. J. Fernando, P. Somidilakam andT. Parathalingam, for the High Level Bus Co., Ltd.
Stanley de Zoysa, with C. Manohara, for the Gamini Bus Co*-, Ltd.
H. V. Perera, Q.C., with H. W. Jayewardene and A. C. M. Uvais, forthe South-Western Bus Co., Ltd.,
V. Tennekoon, Crown Counsel, for the Commissioner of Motor Transport.
Cur. adv. vult.
September 11, 1953. Pttli/e J.—
I have already dealt in my judgments on routes Nog. 1, 2 and 3 withthe events which preceded the selection by the Commissioner of MotorTransport of these routes. At the same time the Commissioner selectedthe fourth route with which we are concerned in this ease. TorringtonSquare at or near which a number of Government offices have come intoexistence is the focal point of this route. The Commissioner thoughtthat in the interests of all concerned Torrington Square should be linkedwith Maradana and Pettah. Bambalapitiya as a possible terminuswhich would benefit travellers on the coastal belt wishing to proceedto Torrington Square was not selected because they would be servedby the Ceylon Omnibus Company’s buses plying on route No. 1 fromBambalapitiya to Borella However, passengers from Maradana andPettah had to he provided for and that was the Commissioner’s reasonfor selecting route No. 4. It is obvious that passengers who had to gofrom Pettah or Maradana to Torrington Square had no interests of anykind in common with passengers from Nugegoda, Rohuwela or evenBambalapitiya. When it came to selecting an operator the Commis-sioner found that he could not grant a licence to any company withoutcontravening section 7 of the Omnibus Service Licensing Oidinance,No. 47 of 1942. He thought he could find a partial remedy for thesituation if the High Level Road Bus Company ran their Nugegoda-Pettah service via Reid Avenue or Torrington Square. He said he wouldallow that modification if High Level applied with an amended timetable.
Appeals were taken to the Tribunal of Appeal by Righ Level who hadmade two applications, namely, one to provide a service from TorringtonSquare and Maradana via Torrington Place, Alexandra Place, UnionPlace and Darley Road, and another from Bambalapitiya to MaradanaRailway Station via New Bullers Road, Bullers Road, Torrington Place,Alexandra Place,.Eye Hospital junction, Union Place and Darley Road.An appeal was also taken by Ebert Silva Omnibus Company, Limited,
PUT.LE J.—Ebert SUun Bus Co., Ltd. r. Commissioner of Mo'or Transport 373
who had made an application from Bambalapitiya Railway Station-Maradana via New Bullers Road, Bullers Road, Tonington Square,Alexand.ra Place, Eye Hospital junction and Deans Road.
The Tribunal did not grant either of the appeals of High Level or thatof Ebert Silva but found a solution of their own to meet the needs ofTorringtoD Square. They ordered that the Kohuwela-Pettah serviceof Gamini which runs through Deans Road be deviated at the BullersRoad roundabout to Torrington Square to rejoin the normal Pettahservice at about Torrington Place. The Tribunal did not desire toincrease the number of Gamini buses on the Pettah service to meet theneeds of Torrington Square for fear of increasing congestion on DeansRoad. The Chairman considered the claims of High Level but thoughtthat Gamini had a slight advantage because its buses took passengersright past Maradana Railway Station itself. There are two cases statedin connexion with route No. 4. They are Supreme Court No. 62 at theinstance of Ebert Silva and No. 79 at the instance of High Level.
I have heard in regard to route 4 a good many of the arguments whichwere urged in support of the respective claims of Ebert Silva, Gaminiand High Level to route No. 2. It is not necessary to repeat them orto express an opinion on their value for the purpose of deciding thecases stated. Counsel for Ebert Silva and High Level submitted thatthe decision of the Tribunal was ultra vires and that the order made bythem should be set aside. Crown Counsel appearing for the Commis-sioner supported them. The question is set out succinctly in paragraph
of the grounds which High Level wanted to be stated for the opinionof the Supreme Court :
“ Whether the Tribunal was justified in granting to the Gamini BusCompany, Limited, a licence to run from Kohuwela to Pettah via Torring-ton Square, Deans Road and Maradana when there was no appeal forsuch a route before the said Tribunal.”
I have already set out details of the licences applied for by High Leveland Ebert Silva. Gamini made three applications, one from Pettahto Bambalapitij a Railway Station via Tonington Place and TorringtonSquare, another from Bambalapitiya Railway Station to MaradanaRailway Station via Torrington Square and Torrington Place and a thirdfrom Torrington Square to Eye Hospital via Thurstan Road and Cam-bridge Place. On a consideration of the six applications referred toand the proceedings before the Commissioner it is obvious that theTribunal did not have before them any appeal for a route from Kohuwelato Pettah via Torrington Square or, for that matter, any appeal involvingthe variation of the conditions of the licence for the Kohuwela-Pettahrun of Gamini’s. While the Commissioner selected route No. 4 he foundthat section 7 s^ood in the way of finding an operator. In appeal itwas perfectly competent for the Tribunal to have selected within theambit of the applications (or reasonable modifications thereof) a routedifferent to the Commissioner’s selection. What the Tribunal did wasto travel completely -outside in search of an expedient, undoubtedly,with the best of'intentions. If the Tribunal agreed "with the terminiand the line of the route but were confronted with an insurmountable
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obstacle raised by section 7, they should have left it to the Commissionerunder section 6 (2) to vary the conditions of an appropriate licence thatwould meet the need of transporting passengers to and from TorringtonSquare. It is essential that where the statute expressly states that afunction is to be performed by the Commissioner it should be left to himin the first instance to come to a decision. The variation of the Kohuwela—Pettah service or any other service, if such was necessary, should properlyhave been considered by the Commissioner. If he did decide to varythe conditions it seems doubtful whether anyone else, except the holderof the licence and the Commissioner, had any locus standi before theTribunal.
It was argued that the Tribunal could justify its order under section•14 (3) of the Ordinance. I cannot agree. What the Tribunal did ineffect was to vary an existing licence and not to grant a licencesubstantially for a route applied for by Gamini.
It is clear that the point of jurisdiction raised by Ebert Silva and HighLevel must succeed and I answer the question on that point in the twocases stated in favour of these companies and set aside the order of theTribunal.
It must be understood that I express no opinion on' the relative meritsof the competing claimants. I understand that the legal difficultieswhich stood in the way of the Commissioner finding an operator to serveon route No. 4 do no longer exist—section 55 of the Motor Traffic Act,No. 14 of 1951.
As agreed I reserve for further argument what order for costs I shouldmake.
Order of Tribunal of Appeal set aside.