Fernando v. The Commissioner of Motor Transport.
1941Present: de Kretser J.
FERNANDO v. THE COMMISSIONER OF MOTOR TRANSPORT.
In re Case stated under Section 4 of the Motor Car Ordinance.
Omnibus—Application for licence for bus along a proposed route—Right of
Commissioner to refuse licence—Route previously plied by same bus
Congestion of traffic—Power of licensing authority—Motor CarOrdinance, No, 45 of 1938, ss. 45 (2), 46 (2), and 47.
The commissioner of Motor Transport inay not on the ground ofcongestion of traffic refuse a licence to an omnibus on a proposed routeif it is a route along which the applicant has previously plied the sameomnibus.
The licensing authority may not refuse to renew a licence excepton the grounds mentioned in section 45 (2) of the Motor Car Ordinance.
The discretion of the Commissioner is expressly limited to a considera-tion of the matters set out in section 47. 1
1 40 N.L. S. 235.
DE KRETSER J.—Fernando v. The Commissioner o£ Motor Transport. 365
HIS was a case stated in the Supreme Court by the Tribunal ofAppeal under Section 4 of the Motor Car Ordinance.
H. V. Perera, K.C. (with him L. A. Rajapakse), for the applicant.
H. H. Basnayake, C.C., for Commissioner of Motor Transport.
Cur. adv. vult.
June 24, 1941. de Kretser J.—
Section 4 of the Motor Car Ordinance, No. 45 of 1938, provides forTribunals of Appeal and sub-section 6 thereof makes the decision of aTribunal final but provides for a case being stated on a question of lawfor the opinion of the Supreme Court. It is enacted that the stated caseshall set forth the facts and the decision of the Tribunal, and the SupremeCourt is authorised to hear and determine any question of law arisingon any stated case and to remit its opinion to the Tribunal. It will benoted that this Court is required to determine not the question of lawstated but any question of law arising on a state'd case, and that it is notonly the bare question of law which is transmitted but the stated casemust set forth the facts and the decision of the Tribunal.
A statement of fact should inciude the decision given by the Com-missioner from whose order the appeal had been taken. In the casebefore me, the Commissioner’s decision was not transmitted but it wasavailable and was handed up to me and I gathered from it that the Com-missioner had refused to allow the motor omnibus in question to use thesection of the route from Peradeniya into Kandy on the ground ofcongestion of traffic.
The case stated is as follows :
“ Whether the Commissioner or the Appeal Tribunal is precluded fromrefusing to licence any omnibus which admittedly had a licence and pliedfor a number of years on the route applied for on the ground, urged onthe appellant’s behalf, that such an omnibus does not fall within the cate-gory of “additional omnibus traffic” in Section 45 (2) (c) of OrdinanceNo. 45 of 1938.” Stated in this bare form it was conceded'by appellant’scounsel that the answer must be in the negative. But it is clear thatwhat was intended was to raise the question whether in the circumstancesof this case the Commissioner or the Appeal Tribunal was precluded fromrefusing to licence the omnibus. This Court is empowered by Section 4 (d)to cause a stated case to be sent back for amendment by the Tribunal,but I do not think such action is called for except where the case statedis confusing or unintelligible.
Now, the facts are as follows : The omnibus in question had had alicence issued for it at the end of 1939 for the year 1940. At the end of1940 a renewal of the same licence was applied for. There is no expressprovision for renewing a licence and every application is in form anapplication for a fresh licence. But the circumstance that it is not beingapplied for for the first time is given consideration in the relevant sectionsof the Ordinance. Section 43 requires the applicant to specify in hisapplication, among other things, particulars of the route or routeson which it is proposed to provide a service under the licence. Thegeneral sections with regard to licensing are to be found in the sectionsbeginning with Section 29. The application for a licence must be
366 DE KRETSER J.—Fernando v. The Commissioner of Motor Transport.
made to the licensing authority of the place in which the motor car willusually be kept during the period for which the licence is required. Sec-tion 45 requires the licensing authority to ijprward to the Commissionerevery application so received together with a recommendation that thelicence be allowed or refused. The discretion of the licensing authorityis not unlimited, for Section 45 (2) expressly requires that he shall notrecommend a refusal except upon one or more of the grounds statedtherein, one of them being “ (c) that any proposed route is generallyso congested by traffic that additional omnibus traffic cannot, with dueregard to the safety and convenience of the public, be allowed thereon”.It is additional omnibus traffic with regard to which he is given the rightto recommend refusal of a licence. “ Additional omnibus traffic ” isnot traffic in addition to that which existed when the Ordinance cameinto operation nor the applications which come in after a certain numberof applications have been received and favourably recommended, butclearly apply to omnibuses which are seeking a licence on the proposedroute for the very first time. Here we have a recognition by the Legislaturethat existing vested interests should not be interfered with on the groundof congestion of traffic. That congestion of traffic may arise from cir-cumstances over which the applicant for a licence had no control and heshould not be penalized on that account.
As far as I can judge, this position is not doubted by the Commissioneror the Tribunal of Appeal. But it is important to remember it, for itmay be the key to the solution of the question of law which arises. Thelicensing authority is required to forward the applications to the Commis-sioner, who thereupon is required to cause one or more of such lists to bepublished in the Gazette and to cause a copy of the list or notice to beaffixed in a conspicuous position at the office of every licensing authorityand at such other places as the Commissioner may consider necessary. Theproposed route may take the omnibus through areas governed by manylicensing authorities, and any such licensing authority may make objectionagainst the issue of the licence. So may -any person who is the holderof a valid licence or who is himself an applicant for a licence.
Any intermediate licensing authority would not be in a position to makean adverse recommendation if application had been made to him in thefirst instance except on the grounds specified in Section 45 (2). Withreference to congestion of traffic, he would only be able to object to addi-tional omnibus traffic. It seems to me that he must guide himself bythe samerule when making objections.
The other class of persons may make any reasonable objection but,in considering the objection, the Commissioner ought to take into accountwhether the application is for an entirely fresh licence or one with referenceto an existing service. Only in this way can the various sections of theOrdinance be made consistent with one another.
Section 47 prescribed what matters the Commissioner shall have regardto in deciding whether an application for a licence should be granted orrefused, and among such matters is the recommendation of a licensingauthority and the adequacy and suitability of all existing transportfacilities. If the licensing authority had contravened the requirementsof the Ordinance, then the Commissioner would clearly be entitled to
DE KRETSER J.—Fernando v. The Commissioner of Motor Transport. 367
disregard Ills recommendation. The requirement that he should considerthe adequacy and suitability of all existing transport facilities seems tome to be on the same lines as the rule enacted for the guidance of thelicensing authority. An omnibus which had been previously licensedwould come within the term “existing transport facilities”. Thesemay be more than adequate, in which case additions may rightly berefused. But it seems to me that the Commissioner cannot decide torefuse a licence to omnibuses already in service on a particular route onthe ground of congestion of traffic.
Many of these points would have been made clearer if the Ordinancehad more plainly distinguished between applications made for the firsttime and applications which are in reality applications for renewals oflicences. It seems to me that when the Ordinance prohibited a licensingauthority from recommending adversely against existing services on theground of congestion, thereby indicating that he should issue the licenceif his power had been unfettered, it would be strange if it intended that theCommissioner could overrule the recommendation which had been made inaccordance with the Ordinance. If the Legislature intended to give theCommissioner unfettered discretion then it was hardly necessary toprescribe rules for the guidance of the licensing authority.
The Commissioner’s discretion is expressly limited to considerationof the matters set out in Section 47. If there is nothing wrong with therecommendation of the licensing authority it should not be disregarded.Ii no objections had been raised by those qualified to make objection,that fact cannot be ignored. And if existing transport facilities areadequate and suitable, that fact again cannot be ignored. The resultis that the Commissioner canrtot, on the ground of congestion, refuse alicence along a proposed route if it is a route along which the applicanthas previously plied the same omnibus. He may, of course, have otherreasons such as, for example, that the omnibus is unfit for Service.
This opinion answers the question raised by the case stated. Boththe Commissioner and the Tribunal of Appeal would be precluded fromdenying a licence in the circumstances disclosed in this case.
Crown Counsel did not meet the arguments advanced in appeal but fellback' on Section 48 and attempted to draw a distinction between a decisionto issue a licence and the determination of the route. He claimed thatwith regard to the- latter the Commissioner had absolute powers. Heseemed rather taken back to find himself forced into the position that insuch a case there should be no appeal and no occasion for a case to bestated. These proceedings have gone on the footing that an appealwould lie and that a case may be stated. But I may say at once that thiscontention is unsound. The section does not empower the Commissionerto decide that a licence should issue but that the licence should issue ;i.e., the licence applied for. By reason of valid objections he may have toalter the route or curtail it. For example, if the deviation into Kandy wasbeing applied for the very first time he might well refuse such a devia-tion, and to that extent the proposed route could be altered. All that Sec-tion 48 requires is that the Commissioner should make his order, of whichhe would then give notice as required by Section 49, eventually forward-ing his decision to the licensing authority, who would then issue his
368DE KRETSER J.—Inspector of Police v. Kanapathypillai.
licence specifying thereon the matters required to be specified bySection 54.
The fallacy of the argument lies separating the proposed route fromthe licence. The applicant is expressly required to state the proposedroute, the licensing authority is required to consider- matters regardingthe proposed route.
All motor cars must be licensed. No applicant can possibly object topaying the duty imposed, nor will any licensing authority be unwilling toreceive the duty. Any possible objection centres round the route andit is regarding the route that an appeal would lie.
The opinion expressed by me will now be remitted by the Registrar tothe Tribunal. The same opinion will apply to Case No. 2,234 (S. C.No. 184) and to Case No. 2,292 (S. C. No. 185).
If there is a prescribed fee and this has been paid, the appellant will beentitled to a refund of the same.
I have consulted Counsel on the matter of cost- in these cases and theyall agree that there should be no order as to costs
FERNANDO v. THE COMMISSIONER OF MOTOR TRANSPORT