148-NLR-NLR-V-44-EBERT-SILVA-BUS-SERVICE-Appellants-and-COLOMBO-OMNIBUS-COMPANY-Respondents.pdf
568 DE KRETSER J.—Ebert Silva Bus Service and Colombo Omnibus Company.
1943Present: de Kretser J.
EBERT SILVA BUS SERVICE, Appellants, and COLOMBOOMNIBUS COMPANY, Respondents.
Case stated by the Tribunal of Appeal under the MotorCar Ordinance, No. 45 of 1938, and Ordinance No. 47of 1942, No. 438.
Omnibus Service Licence—Conflict of claims for licence—Reasons of the Com-missioner—Misdirection of facts—Omnibus Service Licensing Ordinance,No. 47 of 1942, s. 4 (a).
Where there is a conflict oh claims for a licence between rival buscompanies, the Commissioner of Transport should state the reasons forhis decision. The Supreme Court will not interfere with the discretion ofthe Commissioner unless it is satisfied that the discretion might have beenused to better advantage or unless there has been a misdirection as tofacts.1
T
HIS was a case stated by the Tribunal of Appeal under the Motor
Car Ordinance.''.
» i
R. L. Pereira, K.C. (with him D. D. 'Athulathmudali), for appellants.
■ • •. ‘ •
Walter Jayawardene, C.C., for the Commissioner of Transport.
■Cur. adv. viilt.
November 2, 1943. de Kretser J.—
This is a case stated under the Motor Car Ordinance. The appellantshave a licence to run two omnibuses from Turret road junction, Colpetty,t,o the Eye Hospital’ junction in Cinnamon Gardens, Colombo. They hadapplied for this licence from the year 1940, and succeeded in obtaining itafter a couple of years in spite of the opposition of the B. J. F. Bus Co. whichhad a licence to run their omnibuses between Borella and Slave Island.The road from the Eye Hospital to Maradana was: thrown .open to motorbus traffic recently and the appellants then asked for a licence to runbetween the Hospital and Maradana^—this was in November, 1942—acircumstance which the Commissioner appears not to have been aware of,possibly because the application seems to have been largely dealt with bythe Director, of Transport, who has no place in the scheme of the MotorCar Ordinance.
DE KRETSER J.—Ebert Silva Bus Service and Colombo Omnibus Company. 569
The B. J. F. Bus Co. seems to have developed into the Colombo Bus Co.which runs a service passing the Eye Hospital and going on to SlaveIsland. There appears to have been another Company known as the“ B. M. R. ” which had a garage in Dean's road, i.e., the road along whichthe new licence is claimed. The owners of the B. M. R. are not partnersin the Colombo Bus Co., as the Commissioner seems to think. Document-ary evidence proves this, and Crown Counsel admits they are notpartners. It would appear that the B. M. R. Co. had for many yearsapplied for a licence to run along Dean’s road but they were not grantedone. The B. J. F.. Bus Co. did not apply until the appellants made thisapplication. The Commissioner decided in their favour and refused alicence to the appellants. No reason is given for the refusal and one hasto gather what may have been his reasons from his statement before theTribunal of Appeal when the appellants carried the matter there. In thecase of conflicting claims it is desirable, I think, that the Commissionershould state the reasons for his decision. Such a course may conceivablyprevent any further step being taken, and would also be fairer to theperson injuriously affected.
Before the Tribunal of Appeal the Commissioner appears to have takenup the position that the length of time during which each competitor hadbeen in the field should be taken into consideration, and assuming thatthe supposed application of the B. M. R. Co. was now vested in theColombo Bus Co. he decided that the latter had preference over theappellants. That was a mistaken view on his part. Possibly a secondreason was that the B. J. F. Bus Co. had been running a service for 15 yearsand the appellant for only a few years. But that consideration againwas irrelevant for each was providing a different service, and what wasnow being considered was a new service to provide for an area not hithertoserved.
The third reason given by the .Commissioner was that there are a number'of Government offices in the neighbourhood of the Eye Hospital and thata large number of clerks employed therein come by • train to Maradana.This by itself is no reason for preferring the one Company to the other.But Crown Counsel explains that the record is too cryptic and, that theposition is this : between Borella and Maradana there are other means ofcommunication so that few persons will use the bus service; therefore alicence for a service from Borella to Maradana will mean that buses willarrive at the Eye Hospital almost empty when coming from Borella andthe clerks would have room in them ; similarly the buses would be emptyat Maradana on the run to. Borella. Crown Counsel points out thatbefore the Tribunal of Appeal Counsel for the appellants contended thattheir buses would be full by the time they reached the Eye Hospitalwith passengers from Colombo South for Maradana:that being
the case, the clerks would have no room for them. Mr. Pereira for theappellant stated that that would be the position if they were allowed onlytwo buses as at present, and that he was really contending for the fourbuses they had asked for. The position is not clear from the judgment ofthe Tribunal. The dissenting Judge made the important point that theColombo Bus Co. had its garage a mile and a half away from the. EyeHospital and that there would be a wastage of tyres and petrol when their
570 DE KRETSER J.—Ebert Silva Bits Service and Colombo Omnibus Company.
buses ran empty' to the Eye Hospital to begin their service there. It isnot likely that he would have used that argument if the position had beenthat the service would be from Borella to Maradana via the Eye Hospital.The Commissioner seems to have met this argument with the informationthat the B. M. R. Co. had a garage in Dean’s road, presumably arguingthat that garage would be used for the new service. There appears to beno justification for this assumption.
b
I have recently held that the Commissioner has a very wide discretiongiven him by the Ordinance and that this Court should hesitate to interferewith the exercise of that discretion unless it was satisfied at least that itwas due to misdirection or might have been used to better advantage.It seems to me that one has to get established first a clear idea of what isgoing to be done. Is it a new or separate service which is going to bestarted ? Or is it to be a service linked up with an existing service or isit to be a combination of both ?
Section 4 of the Ordinance and only that section applies. This matterseems to fall under section 4 (a) (6). We have no evidence of any represen-tations made under section 4 (b). The Colombo Bus Co. were late inapplying for this licence, they were not represented by Counsel before theTribunal, and they did not appear at all before this Court. Consequentlyone may presume not merely that they are not keen oh pressing theirapplication but also that they have no particular representation to makebefore this Court. Two of the points on which the .Commissioner seemsto have gone now appear to be due to a misdirection on the facts.There remains therefore the point made by Crown Counsel, and it is farfrom clear that it was made by the Commissioner himself. I
I do not think the fact that Government offices are only temporarilysituated in that locality can be taken into consideration, both because thereis no evidence as to how long they will be there and also because existingconditions must be taken into consideration and not mere possiblecontingencies. Nor is there any evidence as to the volume of trafficexpected between the Eye Hospital and Maradana or as to the numberof persons from Colombo South who may want to travel to Maradana.If Crown Counsel’s contention be correct, the new licence (if giveri.to thesuccessful applicant) will have to be Borella-Eye Hospital-Maradana.How will this be done ? The licence applied for is for a new service.,and one can understand a licence limited to the points between the EyeHospital and Maradana. But if the proposed extension is taken to bethe modification of a route—referred to in section 5, then a mere addi-tion of Maradana to the Borella-Slave Island licence will not do,, for ifbuses are run from Slave Island via the Eye Hospital to Maradanathere may conceivably be as much inconvenience to the clerks whomthe Commissioner is providing for as in the case of the appellants’buses. There will have to be a restriction -of some of the buses tothe route Borella-Eye Hospital-Maradana. But can such a modificationbe made under the present Ordinance, which does not provide forlicences for each separate bus but only for a road service ? If thedifficulty is to be met by insisting on a time table, then exactly the sameprovision can be made with regard to the appellants’ buses.
DE KRETSEK J.—Ebert Silva Bus Service and Colombo Omnibus Company. 571
It seems to me also that if, in fact, there be a considerable numberof the public who wish to travel from Colombo South to Maradana thereis no reason why their interests should not be looked after. If there bethat traffic available, presumably those passengers travelling in theappellants’ buses as far as the Eye Hospital would enter the other Com-pany’s buses and so oust the clerks. It would also mean that they wouldhave the inconvenience of changing buses. If on the other hand thevolume of traffic is not so large, then the buses would be empty or nearlyso at the Eye Hospital as well as at the Maradana end, and so theseclerks will be provided for.
These objections seem to me to be possibly largely fictious, andif there is a real demand the remedy is to allow -more buses or else tolimit the service to a certain section only. It seems to me that thesituation can be adequately dealt with by allowing the appellants to runthe two buses they now have with an extension to Maradana. Thatwould serve the existing passenger traffic. They have applied for licencesfor two more buses and the licences for these two buses alone should belimited to the section Eye Hospital-Maradana. That will mean ashuttle service between the Eye Hospital and Maradana.
The time table furnished by the appellants provides for a very frequentservice, at intervals of 15 minutes at one time and of 10 minutes duringthe rush hours. If this time table be feasible, (and it has not been objectedto as impracticable) I see no reason why all four buses should not runfrom Colpetty to Maradana.
It seems to me also that the argument of Crown Counsel about busesrunning empty between Borella and the Eye Hospital is not likely tobe correct. Borella is a big business centre, so is Slave Island, and thevery fact that the other applicant has been content to run his busesbetween Borella and Slave Island for 15 years indicates that thetraffic is adequate. I believe the Commissioner meant to inaugurate anew service without interfering with the existing service. That willmean adding to the number of buses which the other party now has inoperation.
There is no reason why the creation of monopolies should be carriedtoo far. The reasons given at the hearing of this appeal and by themajority of the Tribunal of appeal appear to be based on what are nowfound to be erroneous facts, and the arguments in favour of the appellantsseem to me to have more weight.
In my opinion, therefore, the licence applied for should be grantedto the appellants. The fee deposited by them will be refunded.
The licence issued to the rival applicant should be revoked.
Appeal allowed.