113-NLR-NLR-V-56-K.-T.-N.-DE-SILVA-Appellant-and-COMMISSIONER-OF-MOTOR-TRAFFIC-et-al-Respond.pdf
De Silva v. Commissioner of Motor Traffic
<47
1954Present: Sanson! J.r
K. T. N. DE SILVA, Appellant, and COMMISSIONER OF MOTORTRAFFIC et al., RespondentsS. C. 76—Motor Tribunal Appeal 213
Motor Traffic Act, No. 14 oj 1951—Sections 88 (/) and 89 (/)—Lorry—Carriuyeof goods—Public carrier’s permit —Effect of words “ may be granted
The grant of a public carrier’s permit under section 89 (1) (6) of the MotorTraffic Act is a matter which lies within the discretion of the Commissionerof Motor Traffic. The word “ may ” in that section has a permissive, and nota directory, meaning.
448SANS ON I J.—De Silva i>. Commissioner of Motor Traffic
_/.PPEAL tmder section 212 of the Motor Traffic Act.
Cyril E. S. Perera, Q.C., with N. M. de Silva and C. O. S. Siritoardene,for the appellant.
No appearance for the respondents.
Cur. adv. vidt.
December 14, 1954. Sansoni J.—
This is an appeal against an order of the Transport Appeals Tribunalrefusing the appellant a Public Carrier’s Permit in respect of two lorries.These lorries were licensed under the Motor Car Ordinance No. 45 of1938 for carrying goods. Section 88 (1) of the Motor Traffic Act No. 14of 1951 reads :—
Where any two places are conveniently connected by railway,and the shortest distance by road between those places is not less thansixty miles, then, save as otherwise provided in section 89, no permitshall be granted—B
(а)authorising the carriage between those places ; or
(б)authorising any carriage involving or necessitating the through
carriage between those places,
of goods by lorry or by a succession of lorries.
Section 89 (1) however relaxes this stringent rule and provides—
Notwithstanding the provisions of section 88, a permit authori-sing any carriage of the description mentioned in that section (here-inafter referred to as “ regulated long-distance carriage ”) may begranted—*
(а)in»exceptional circumstances, on the ground that the Commis-
' qjoner considers it expedient to grant a permit for the carriageof fresh fish, fresh fruit, fresh vegetables or other perishableor fragile articles, having regard to the delay and riskinvolved in, and the other disadvantages of, the carriage of.* such Articles by railway ; or
(б)on the ground that the applicant for the permit is a person who,
immediately prior to December 31, 1949, was the holder ofa licence or licences authorising the use of a lorry or lorriesfor substantially the same purposes and in substantially thesame area of operation as the purposes and the area, respec-tively, to which his application relates, so, however, that thepermit which may be granted in any such case shall onlyauthorise the use of the same lorry or lorries or other lorriesof the same total pay-load ; or
SANSONI J.—De Silva v. Commissioner of Motor Traffic
in exceptional circumstances, on the ground of strong economic
justification ; or
on the ground that the lorries are owned by the Government
or any prescribed public authority.
Mr. Perera has pointed out, quite correctly I think, that if any meaningcan be given to the word “ purpose ” in section 89 (1) (£>) of the Act sofar as a lorry is concerned, it is the purpose of carrying goods. Form 19in the Second Schedule of the Motor Car Ordinance is the form of lorrylicence which was in use at that time. It makes no distinction betweena lorry which was licensed for the private use of the owner and one whichwas licensed to ply for hire. Therefore plying a lorry for hire and usingit for one’s business were not different purposes authorised by licencesissued under the Motor Car Ordinance.
But the matter does not end there, for the difficult question that remainsto be answered is whether section 89 (1) (b) vests a discretion in theCommissioner of Motor Traffic as to whether he would, under the circum-stances detailed in sub-section (1), relax the prohibition against the grantof a public carrier’s permit contained in section 88, or whether the words“ may be granted ” mean “ shall be granted ”. The former interpreta-tion was adopted by the Tribunal, while Mr. Perera contended that thelatter is tho correct one. I think the view taken by the Tribunal iscorrect.
It is not always easy to decide whether the word “ may ” in a statutemeans “ may ” or “ shail ”.“ There is no doubt that ‘ may ’ in some
instances, especially when the enactment relates to the exercise ofjudicial or administrative functions, has been construed to give a powerto do tho act, leaving no discretion as to the exercise of the power whenthe acts are such as to call for it ”—per Blackburn J. in Bell v. Crane *.But there are also cases where the word is permissive and is used to vesta discretion in a particular authority. I think the principle has beenvery clearly explained in the case of R. v. Mitchell 2. Ridley J. in thatcase said “ If a right is given to a person and the word ‘ may ’ ia used ingiving a power to someone in order to effectuate that right, it meansthat tho person to whom the power is given is entitled tb act and that hemust so act, not because the statement says so—for-it only says ‘ may ’—but because it is his duty to act. In that sense it is true to say that theword * may ’ is equivalent to * must ’, but in any other seriSe I think itis untrue. As Lord Justice Cotton said (in Nichols v. Baker 3) the words‘ may ’ never can mean ‘ must ’ so long as the English language remains ;it is not that the word means ‘ must ’ but owing to the circuL stancesin which it is used a duty is placed upon the person, and therefore some-times it becomes equivalent to ‘ must ’ ”. Lord Coleridge J. said in thesame case “ It is quite clear that originally, apart from the surroundingcircumstances, when the word ‘ may ’ occurs in a statute it implies thatthe power is permissive and not imperative …. therefore woare remitted to the surrounding circumstances in order to discover whetheror not the word ‘ may ’ should be read; as having a permissive meaning,or whether it should be read as having a directory meaning ”.
' (1873) S Q. B. 481.* (1913) 82 L. J. K. B. 163.*
3 (1890) 59 L. J. Ch. 661.
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Seenivasogam v. Kirupamoo > tfi y
If one considers the matter in the light of these dicta one is first struckby the bearing sections 88 and 89 have on each other. The formersection absolutely prohibits the grant of a permit when two places areconveniently connected by railway, the latter section authorises the grant,notwithstanding the provisions of section 88, under certain definedcircumstances. It seems to me that the Commissioner, far from beingunder a duty, is merely given permission, to issue permits under thecircumstances detailed in section 89 if he thought fit to do so. Forinstance, clause (a) cannot, by any method of reasoning, be said to vesta right in anybody : it is clearly intended only to enable the Commissionerto grant a permit in exceptional circumstances. Clause (c) similarlyrefers to other exceptional circumstances under which a discretion isgiven to the Commissioner to act. These considerations show that thewords “ may be granted ” mean just what they say and cannot be cons-trued as “ shall be granted ”. It is not possible to interpret themdifferently when clauses (6) and (<£) are being considered, for the wordsmust be given the same meaning throughout the section. I can see noindication of a right given to a person in the position of the appellant.The language of the sections seems to point in the opposite direction.For these reasons I consider that the order of the Tribunal is correct.The appeal is therefore dismissed.
Appeal dismissed.