IN RE SOUTH WESTERN BUS . CO., LTD., et al

114-NLR-NLR-V-55-IN-RE-SOUTH-WESTERN-BUS-.-CO.-LTD.-et-al.pdf

In re South Western Bus Co., Lid.
399-
1953Present : Pulle J.
In ee SOUTH WESTERN BUS CO., LTD., et al.S. C. 48, 64, 65, 71—In the matter of cases stated under the provisionsof section 4 of the Motor Gar Ordinance, No. 45 of 1938, read withsection 13 of the Omnibus Service Incensing Ordinance, No. 47 of 1942
Omnibus Service Licensing Ordinance, No. 47 of 1942, ss. 4 (6), 13 (8)—Case stated—Instance when a case may be stated—Route licence—Past representation by local’authority—Relevancy—Certain other factors for consideration.
In a case where a route licence is revoked by the Tribunal of Appeal, theCommissioner of Motor Transport may, under section 4 (6) of the Motor CarOrdinance, No. 45 of 1938, read with section 13 (8) of the Omnibus ServiceIncensing Ordinance, assist the licence holder to place his case before the SupremeCourt by himself moving to have a case stated. This does not necessarily meanthat from the point of view of the executive the licence must be restored to thelicence holder.
A communication addressed by a local authority drawing the attention of theCommissioner of Motor Transport to the congestion of traffic on a road withinits area can be regarded as a representation under section 4 (6) of the OmnibusService Licensing Ordinance, even though the communication was not addressedin connexion with the selection of a route of which that road forms a part.
A Tribunal of Appeal should not interfere in matters left purely to thediscretion of the Commissioner of Motor Transport.
A company providing an omnibus service exclusively within an urban areahas no overriding claims as against a company operating both within and outsidethe urban area.
CEASES stated by the Tribunal of Appeal under the Omnibus ServiceLicensing Ordinance.
H. V. Perera, Q.C., -with Colvin R. de Silva, H. W. Jayewardene, J. W.Subasinghe and A. C. de Zoysa, for the South Western Bus Co., Ltd-
Stanley de Zoysa, with C. Manohara, for the Cam ini Bus Co., Ltd.
Thiagalingam, Q.C., with Sylvan Fernando, P. Somatilakam andT. ParathaMngam, for the High Level Bus Co., Ltd.
D. Athulathmudali, with L. Gunaratne, for the Colombo OmnibusCo., Ltd.
N. jE. Weerasooria, Q.C., with N. M. de Silva and W. D. Gunasehera,for the Ebert Silva Bus Co., Ltd.
V. Tennekoon, Crown Counsel, for the Commissioner of Motor Transport,as amicus curiae.
Cur. adv. wit.
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’PXTLUE T.—In re South Western Bus Co., Ltd.
.September 11, 1953. PtruLE J.—
♦This judgment relates to four cases stated by the Tribunal of Appealunder the Omnibus Service Licensing Ordinance, No. 47 of 1942, andbearing Supreme Court Nos. 64, 65, 71 and 48. Learned Counsel desiredthat they should be heard together for the reason that theyt are all con-cerned -with the competing claims of four omnibus companies to be grantedan exclusive road service licence under the Ordinance referred to to plyomnibuses on what will be called hereafter as route No. 2. There werethree other groups of eases stated in respect of routes Nos. 1, 3 and 4 andI was specially requested not to record my decision until the argumentsin all the cases concerning the four routes had been heard.
In order to understand the issues which arise for determination it isnecessary to set out the facts in the first instance in a condensed form.In 1947 about fifty applications for licences to run omnibuses along variousroutes in the City of Colombo were under consideration by the Com-missioner of Motor Transport. The Commissioner selected four routes ofwhich route No. 2 was from Bambalapitiya Railway Station to Maradanavia New Bullers Road Museum Road, Alexandra Place and Dean’s Road.The Commissioner then made an order dated the 10th fJxly, 1948, grantinga licence to operate on this route to a company which will be referred to asEbert Silva. Three companies which will be referred to as South Western,High Level and Gamini were among rival claimants in the sense that theytoo wanted to operate between the termini Bambalapitiya and Maradana.The rival claimants appealed to the Tribunal of Appeal under section 13
of Ordinance No. 47 of 1942. By its order dated the 26th March, 1949,“the Tribunal of Appeal directed that a licence be granted to High Levelfor the route running from Bambalapitiya coast road at its junction withNew Bullers Road to the Pettah via Thurstan Road and Darley Road.Darley Road leads directly to Maradana along a small stretch namedSutherland Road which at the time of the hearing by the Tribunal ofAppeal was closed to omnibus traffic. Sutherland Road was opened totraffic on the 15th July, 1949, so that in terms of the Tribunal’s orderHigh Level obtained a licence to ply on the route Bambalapitiya—NewBullers Road junction to Maradana via Darely Road and SutherlandRoad. In this connexion reference may be made to the case of EbertSilva Bus Company Limited v. High Level Road Bus Company Limited.1
Section 4 sub-section 6 of the Motor Car Ordinance, No. 45 of,1938, readwith section 13 (8) of Ordinance No. 47 of 1942 gives a remedy only to an“ appellant ” before the Tribunal or the Commissioner of Motor Transportto have a case stated by the Tribunal either on a question of law or factto the Supreme Court. In Supreme Court Nos. 64 and 65 the caseshave been stated at the instance of South Western. It is not material to-enter into the reasons why two cases were stated oa( the application ofSouth Western. Supreme Court No. 48 was stated at the instance of theCommissioner. Few words of explanation are necessary to shew why incertain instances the Commissioner moves the Tribunal to state a case.It will be Seen that Ebert Silva who succeeded in first getting the licence * i
1 (1949) 51 N. L. R. 162.
* Application made to the Privy Council for special leave to appeal from this
i udgmpnt was refused.—Ed.
PUX.LE J.—In re South Western Bus Co., Ltd.
401
lost it in appeal. There is no provision under which Ebert Silva couldhave got a case stated. It is not unusual in a case where a licenceis revoked by the Tribunal for the Commissioner to assist the licence holderto place his case before the Supreme Court by himself moving to have acase stated. It does not necessarily mean that from the point of view ofthe executive the licence must be restored to the licence holder. LearnedCrown Counsel who appeared for the Commissioner made this plain.TKa position was that of amicus curiae and I am greatly indebted to himfor presenting his arguments in a spirit of fairness to all competingclaimants. Ebert Silva appeared in the role of a respondent but thatcompany was for all practical purposes the appellant in case No. 48.
The difficulties confronting me in deciding these cases are manifold.There is no procedure for taking evidence either before the Commissioneror the Tribunal. The record consists of a transcript of the speeches ofCounsel and the documents marked by them. In selecting eithera route or a licensee the Commissioner is not required to give adetailed statement of the reasons on which his decisions are based. It iscomparatively easy on a given statement of facts to decide purely a pointof law arising from them, but when it comes to deciding whether on aquestion of fact the Tribunal of Appeal was wrong in reversing the Com-missioner the principles that this Court should apply are by no means clearwhen, as said before, there is not a detailed statement of reasons for theCommissioner’s decision. The Commissioner, the members of the Tribu-nal and Counsel who appeared before them were familiar with the high-ways comprised in the routes and I must say that as a resident of Bamba-lapitiya for the last eighteen years I have travelled almost daily from myresidence to the Law Courts (via Maradana) both along Barley Road and.Bean’s Road.
There are yet some other preliminary matters to be noticed. Incase No. 48 the Commissioner moved the Supreme Court for an order onthe Tribunal to state an amended case but that application was withdrawn.In Nos. 64, 65 and 71 amended cases were sent by the Tribunal. In Nos.64 and 65 the appellant is South Western. It would unduly lengthen thisjudgment were I to state in detail the grounds for not disturbing the con-current decisions of the Commissioner and the Tribunal not to giveroute No. 2 to South Western. Thus the three main contestantsare Ebert Silva, High Level and Gamini. Gamini supported High Levelin the submission that having regard to the services provided by themthey (Gamini and High Level) had a superior claim to Ebert Silva’s butGamini supported Ebert Silva to this extent that there was no reason forthe Tribunal to disturb the Commissioner’s selection of the route toMaradana via Bean’s Road. High Level’s contention was that if a servicefrom Bambalapitrya to Maradana had to be provided it was in the publicinterest that the last stretch from the Eye Hospital junction to Maradanashould be via Barley Road and not via Bean’s Road. Once this route wasselected it was argued that High Level’s claim to be granted the licencewas incontestable.•
At the time the Commissioner selected route No. 2 (i.e., via Bean’sRoad) Ebert Silva was operating on the route Turret Road to Maradanavia Eye Hospital junction and Bean’s Road. Eight buses were plying on
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PTJXiUE J.—In re South Western Bus Co., Lid.
this route. . Both Gamini and High Level operated two services whichtook them along a common stretch of the highway between a point onHavelock Road where it is intersected by Link Road and the Eye Hospitaljunction. At this junction Gamini proceeded along Dean’s Road andthence to Pettah and High Level proceeded along Union Place and DarleyRoad and turned off to Pettah along McCallum Road. Roth Gaminiand High Level could not, by reason of section 7 (1) of the Ordinance,■operate on substantially the same section of highway and hence Gaminiwas diverted at the Eye Hospital junction to Dean’s Road, a conditionbeing inserted in the licence requiring Gamini to charge a fare along theDean’s Road stretch double that charged by Ebert Silva.
The reasons given by the Commissioner for fixing the route and forselecting Ebert Silva are stated as follows:
“ A service from Bambalapitiya to Maradana is essential in order toprovide travelling facilities to the students of the University and theschools and to officers of Government departments in the area. EbertSilva Bus Company are operating the section from Maradana to UnionPlace and from there to Colpetty. Although they have not applied for theidentical route mentioned by me but from Maradana tp Bambalapitiyavia Turret Road I consider that they are the most suitable to run a serviceon the route. I therefore allow them the route Bambalapitiya RailwayStation to Maradana via New Buffers Road, Thurstan Road, CambridgePlace, Albert Crescent, Museum Road, Baptist Chapel Road and Dean’sRoad.”
In the course of the hearing before the Tribunal the Commissionerfurnished a memorandum dated the 15th October, 1948, in which heelaborated the grounds for selecting the route via Dean’s Road and forgranting to Ebert Silva the licence to operate on this route. He says,“ Route 2 was selected by me as it is the shortest and direct route ”.Eurther he states that if the route is divided into two sections, one fromMaradana to Alexandra Place (i.e., a short distance from the Eye Hospitaljunction) and the other from Alexandra Place to Bambalapitiya (viaMuseum Road and Thurstan Road) then the position is,,that Ebert Silvaalone is providing already a service (remembering that Gamini is required tocharge double fare on Dean’s Road) on the first section while no serviceis provided on the second. Another point which the Commissionerthought was in favour of Ebert Silva is set out in paragraph 4 q£ the me-morandum. It reads, “ People living in the south of the city in placessuch as Bambalapitiya, Wellawatte, Dehiwela, Mt. Lavinia, &e., want ashort service to Maradana instead of travelling to Pettah and thence toMaradana. Such a service is at present provided by the Ebert SilvaOmnibus Company Limited ; people get down at Koffupitiya, take thiscompany’s buses and go to Maradana ”. The Commissioner concludedhis memorandum with the statement that if Maradana to Bambalapitiyavia Darley Road and Thurstan Road is selected the claims oi either HighLevel or Gamini would appear to be greater than the claim of Ebert Silva.
The Tribunal was not prepared to assent to the statement of the Com-missioner that residents of Bambalapitiya or Wellawatte whose houseslie between the coast road and Havelock Road and Thurstan Road wouldin going to Maradana take a coastal bus as far as Turret Road junction
PL-L.UE J.—-In re Sou'h Western Bus Co., Ltd.
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and there catch an Ebert Silva bus to Maradana. It is difficult to con-trovert the statement of the Tribunal that a large number of these resi-dents may v eil patronize the High Level or Gamini buses which are con-stantly plying along Havelock Road and Reid Avenue. Some supportfor the Tribunal’s view is furnished by the Commissioner himself in hismemorandum of 15th October, 1948, wherein he states that if Ebert Silvais allowed route Xo. 2 that would substantially affect the servicesprovided by Gamini and High Level along Reid Avenue.
I come now to what the Tribunal has described as a decisive objectionagainst Ebert Silva. The regulations made in pursuance of the MotorCar Ordinance, No. 45 of 1938, specifically provide that a Tribunal of Appealmay during the hearing of any appeal call for such evidence, oral or docu-mentary, as it may consider necessary for the decision of any matter inissue in the appeal. At the hearing High Level produced two documentsmarked HLR 2 and HLR 3. HLR 2 is a communication dated 12thMarch, 1947, addressed to the Commissioner by the Secretary, MunicipalCouncil, Colombo, stating that the Council at its meeting of 5th March,1947, considered the question of the congestion of traffic on Dean’s Roadowing to its narrowness and decided to request the Commissioner that theservice provided by Gamini along Dean’s Road be diverted to UnionPlace and Darley Road and through McCallum Road to Pettah and thatEbert Silva, being a city service, be allowed to remain. To this theCommissioner replied on the 1st April, 1947, that only one service of Gaminiis allowed to run along Dean’s Road, i.e., the Colombo—Kohuwelaservice, while all the other services run along McCallum Road. This wasallowed by the Commissioner as under section 7 of Ordinance No. 47 of1942, the service from Kohuwela to Colombo cannot be allowed to runalong McCallum Road. Kohuwela is a hamlet about a mile outsideColombo to the south.
I would pause here to make a few observations. To begin with the re-presentation was not made in connexion with the selection of route No. 2by the Commissioner. It was made earlier with reference to two existingservices, namely, the Colpetty-Maradana service of Ebert Silva andthe Kohuwela—Pettah service of Gamini via Dean’s Road. Now a localauthority is entitled under section 4 (6) of Ordinance No. 47 of 1942 tomake representations to the Commissioner in regard to the suitability of aroute within its administrative limits. The argument for High Levelis that at the time the Commissioner selected route 2 he had either over-looked or ignored the opinion of the Municipal Council that far fromputting a third service on Dean’s Road there should not be more than oneservice operating on that Road. I understand that the result of a thirdservice along Dean’s Road would be to increase the number of buses bysight. Whatever be the figure the congestion on Dean’s Road was boundto worsen. The tribunal said,-
“ There is a second and decisive objection to this order. It sets upa new stream of traffic along Dean’s Road, whereas most of the com-panies sought the route along Darley Road. Now the Municipal Coun-cil of Colombo has passed a resolution (HLR 2) protesting againstincrease of traffic on Dean’s Road. Such resolutions are matters whichthe statute specially directs us to consider in making these orders.”
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PULLE J.—In re South Western Bus Co., Ltd.
The Tribunal proceeded further to state,
“ It is common knowledge that Dean’s Road is far more narrow thanDarley Road and traffic on it is twice as congested. I (the Chairman)have travelled on these two routes twice or thrice a month for manyyears and that is the fact about traffic as I met it.
“ I think it is dangerous and wrong to increase the number of busesplying on Dean’s Road.”
A carefully prepared statement was handed to me by learned Counselsetting out the case for Ebert Silva. The first point taken by Ebert Silva,to which I have already adverted, is that no duty was cast on the Com-missioner to consider under section 4 the representation contained inHLR 2 because it was not made in connexion with the fixing of the routeBambalapitiya to Maradana. There is no statutory machinery for-bringing applications for route licences to the notice of local authorities >It is not suggested that in the present case any notice was given by theCommissioner to the Municipal Council of any of the fifteen applicationsfor linking Bambalapitiya with Maradana. In actual practice allthat a local authority can do is to draw the attention of the Commissionerto the dangerous condition of road transport within its area. I am ofopinion that it would be too technical a view to take that the document-HLR 2 cannot, for purposes of determining route No. 2, be regarded asa representation under section 4 (b). The Commissioner may withoutincurring any blame have overlooked it, but it is clear that in any eventif the Commissioner did not consider it the Tribunal of Appeal could regardit as an important and relevant piece of evidence in the course of a-re-hearing. Be it noted that the Tribunal has not uncritically acceptedthe implications of HLR 2. All the members of the Tribunal are agreedthat it is “ dangerous ” to increase the number of buses plying on Dean’sRoad. I cannot with any degree of confidence say that the Tribunal,erred in preferring Darley Road as the last lap to Maradana.
It is argued that HLR 2 and HLR 3 were produced from the files in theCommissioner’s Department and, therefore, one must '"assume that theCommissioner selected Dean’s Road with full knowledge of their contents.Neither in bis order selecting route 2 nor in the memorandum of 15thOctober, 1948, does the Commissioner refer to these documents, nor was anyreference made to these documents by any of the Counsel whofappearedbefore the Commissioner. In fact, I believe, it was produced by Counselfor High Level before the Tribunal on the 23rd October, 1948. Theprobabilities are that these documents came to the Commissioner’s noticewhen they were produced by High Level on the 23rd October, 1948. Inthese circumstances it was quite competent for the Tribunal to set asidethe selection of the Dean’s Road route.r
I hope I am not disrespectful to learned Counsel if I do not consider indetail their arguments in regard to the relative merits of Dean’s Roadand Darley. Road, arguments to which I have had to listen for severaldays. These were really matters for assessment by the persons appointedby the statute to judge, namely, the Commissioner and the members of the-Tribumal. My function is to correct errors of law and fact committed by
PTTLIjE J.—In re South Western Bus Co., Ltd.
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the Tribunal and in discharging that function I have home in mind thatin matters left purely to the discretion of the Commissioner the Tribunalwould be wrong in interfering with it.
It is not argued that Darley Road as a means of access to Maradana isobjectionable. Counsel for High Level repeated what he urged strenu-ously before the Tribunal that while the Darley Road route to Maradanais about quarter mile longer there are many more commercial houses andpublic institutions on the lap between Eye Hospital junction, UnionPlace, and Darley Road up to its junction with McCallum Road than thereare on Dean’s Road. If the Tribunal took this also into account I wouldsay that they did so properly.-
In selecting the operator the Tribunal said,
“ It remains to select which company shall hold the licence. Twoalready ply buses along Darley Road, viz. : High Level Companyand Gamini Company. The statute plainly contemplates a preferenceto companies already using a route and forbids grant of licence to othersexcept under specific circumstances.”
I have heard a good deal of argument on the following questions :—
(а)whether the provisions of section 7 of Ordinance No. 47 of 1942would be a bar to the grant of a licence to Ebert Silva to operate on route2 as selected by the Tribunal, having regard to the existing services ofHigh Level and Gamini ?
(б)whether these provisions would be a bar to the grant of a licenceto High Level or Gamini to operate on that route having regard to theexisting services of Gamini or High Level respectively ?
No material has been placed before me on which I could answer eitherquestion in the affirmative. Hence I answer that there is no legal barto the grant of the licence to any of these companies.
I think I ought to say a few words on one of the submissions made onbehalf of Ebert Silva. It is said that he operates three services withinthe Municipal limits of Colombo and that High Level and Gamini operatefrom points many miles outside Colombo. It is true that places likeHorana, ti terminus of Gamini, and Ingiriya a terminus of High Levelare far from Colombo ; but on the other hand both companies operate onsections with Pettah as one terminus and Nugegoda (in the case of HighLevel) and Kohuwela (in the case of Gamini) as the other terminus, thetwo latter places being on the south eastern outskirts of Colombo. I amaverse in any event to giving effect to an argument which would result inrestricting competition and enlarging the field of monopoly. That EbertSilva is operating only within Colombo may be relevant but cannot beoverriding. In bis memorandum of Ibth October, 1948, the Commissionerstated that if Darley Road was selected he would prefer the claims ofGamini and High Level to Ebert Silva’s. The Tribunal has concurredin this view apparently for the reason that route 2 is more in the neigh-bourhood of the routes on which Gamini and High Level have beenoperating. '
406
Peter v. Carolis
Left with selecting either High Level or Gamini the Tribunal preferredthe former on the ground that in their opinion it could give a betterservice. They say that High Level owns a very much larger number ofNelson type buses and they are superior to open buses. I am unable tofind any material on which I could say that the Tribunal has erred ingiving weight to this fact. If it be the fact that the proportion betweenthe new and old buses is the same in the case of both companies, it doesnot still vitiate the basis of the Tribunal’s preference.
I think I have substantially answered the issues of fact and of lawarising on the four cases stated. In the ultimate analysis the position isthat the Tribunal thought Harley Road was more suitable than Dean'sRoad in the last lap of the route to Maradana. Both the Tribunal andthe Commissioner thought that in that event High Level and Gaminihad better claims than Ebert Silva. Ebert Silva’s claim was not dis-missed in limine on any ground of law arising under section 7. The'Tribunal preferred High Level’s claims for reasons which I have stated.In the result I see no reason to interfere with the decision of theTribunal and I accordingly affirm it.
*-
As agreed the question of costs is left over for further argument.
Decision of Tribunal of Appeal affirmed.