KANDY OMNIBUS CO. LTD, Petitioner, and T. W. ROBERTS et al , Respondents

074-NLR-NLR-V-56-KANDY-OMNIBUS-CO.-LTD-Petitioner-and-T.-W.-ROBERTS-et-al-Respondents.pdf

KandgtOmnGnts Go., Ltd. v. Roberta
293
1954Present : Sansoni J.
KANDY OMNIBUS CO., LTD., Petitioner, and
T.W. ROBERTS et al., Respondents
S. C. 596—In the matter of an application for a mandate in the natureof a IPrit of Certiorari under section 42 of the Courts Ordinance (Cap. 6)
Certiorari—Petitioner must be a person aggrieved—Necessary parties—Delay—Juris-diction—Acquiescence to patent toant of jurisdiction—Difference in effectbetween patent and latent want of jurisdiction—Estoppel—Duty of applicantto disclose all material facts—Difference between judicial function and adminis-trative function—Omnibus Service Licensing Ordinance, No. 47 of 1942, ss. 6 (2),13 (4)—Motor Traffic Act, No. 14 of 1951, ss. 243 (1), 246 (I) (4) and (7)—Interpretation Ordinance (Cap. 2), e. 6 (3) (c).
Although a person applying for a writ of certiorari is required to bo a personaggrieved, it is sufficient if he has a substantial interest in the decision in respectof which the writ is sought.
Whether there lias been unreasonable delay or not in making an appl iculion fora writ of certiorari depends on the circumstances of each case.
When un aggrieved party applies for certiorari in rospoct of an order madeby a quari-judicial body in a matter where it totally lacked jurisdiction, ho isentitled to the writ as of right; but where there was only a contingent want ofjurisdiction, acquiescence or waiver or similar oonduot would place even anaggrieved party in the same position as a stranger and the grunt of relief isdiscretionary. It is only in the latter case that the applicant isbound to make afull aud fail disclosure of all material facts.
The petitioner and the 4th to 9th respondents respectively wore the holders ofcertain road service licenses issued by the Commissioner of Motor Transportunder the Omnibus Service Licensing Ordinance, No. 47 of 1942. In conse-quence of certain complaints made by the petitioner to the Commissioner tothe effect that the 4th to 9th respondents were picking up and setting downpassengers within the Municipal Limits of Kandy to the prejudice of the peti-tioner, the Commissioner, after holding due inquiry, mede order under section ft(2) of Ordinance No. 47 of 1942, that the conditions attached to the licences ofthe 4th to 9th respondents should be varied so as to debar them from picking upand setting down passengers 'within the Municipal Limits of Kandy.
2*
Kandy Omnibus Oo., Ltd. v. Roberts
The 4£h to 9th respondents appealed to the .{Tribunal of Appeal against theCommissioner’s decision. All the appeals were heard together and on the 10thOctober, 1952, the Tribunal of Appeal reversed the deci lion of the Commissioner.Thereupon the present application for a writ of certiorari was filed by thepetitioner -on the 22nd December, 1962, stating that the Tribunal of Appeal eon*sisting of tho 1st to 3rd respondents had no jurisdiction to hear the appeals inquestion after Ordinance No. 47 of 1942 was repealed by the Motor Traffic Act,No. 14 of 1961, which came into operation on the 1st September, 1961.
Held, (i) that the Tribunal of Appoal had a duty to act as a quasi-judicial, andnot purely administrative, body and was, therefore, subject to certiorari if it•acted in excess, or usurpation, of jurisdiction.
(ii) that the Tribunal was competent to hear only appeals proferreil ngainBta decision granting or refusing an application for a road service liconco. but notagainst a decision of the Commissioner varying the conditions attached to aliconco. Tho Tribunal suffered, therefore, from a total and patent want ofjurisdiction over the subject-matter of the appeal. As this was a case of totalwant of jurisdiction and not a case of irregularity or want of contingent juris-diction, the fact that tho petitionor had waived objection to tho jurisdiction oftho Tribunal and taken part in the proceedings thereafter could not disentitlehim, despite his acquiescence, to object later that the order made by thoTribunal was void.
(Hi) that tho petitioner was sufficiently aggrieved by the order of tho Tribunalto entitlo him to apply for a writ of certiorari. It was not necessary that heshould have had a statutory right to appear either before tho Commissioner ortho Tribunal.
that tho failure to make the Commissioner a party was not fatal to theapplication.
That tho joinder of tho 4th to 9th rospondonls in ono application for
certiorari was not improper, although they had shown enuso uopun-.foly andfiled separate applications hoforo the Tribunal.^
that the interval of about two months in filing the application forcertiorari did not constitute unreasonable delay, os the on so involved manydifficult questions of law which could only be considered after an exhaustiveexamination of tho relevant statutes and numerous precedents.
APPLICATION for a writ of certiorari to quash certain proceedings ofthe Tribunal of Appeal constituted under the Motor Oar Ordinance,No. 45 of 1938.
//. V. Perera, Q.G., with E. G. Wikramanayakc, Q.C., E. 11. .S'- R.Coomarasxvamy and L. Mulutanlri, for the petitioner.
11. IP. Jayetvardene. Q.C., with G. T. Samarawickreme. D. R. P. Goore*tilleke and J. N. Arumugam, for the-4th and 5th respondent*.
11. V. Tambiah, with R. A. Kannangara and V. Ralnasabapalhy, for the6t-h respondent.
«9. Nadesan, Q.C., with K. Shinya, for the 7th, 8th ami 9th respondents.
Cur. adr. ml!.
ANSONI J.—Kandy Omnibus Oo., Ltd. v. Roberts2W
November 12, 1954. Saksoki J.—
The petitioner has applied for a writ of Certiorari to quash certainproceedings of the Tribunal of Appeal constituted under the Motor CarOrdinanceNo. 45 of 1938 and consisting of the 1st, 2nd and 3rd respondents,and to quash the order made by the said Tribunal on 10th October, 1952.The matter arises in the following way : The petitioner and the 4th to 9threspondents respectively were the holders of certain road service licencesissued by the Commissioner of Motor Transport under the Omnibus ServiceLicensing Ordinance, No. 47 of 1942. In consequence of certain com-plaints made by the petitioner to the Commissioner to the effect that the4th to 9th respondents were picking up and setting down passengerswithin the Municipal Limits of Kandy to the prejudice of the petitioner,an inquiry was held by the Commissioner into those complaints. Thepetitioner and tho 4th to 7th and 9th respondents took part in the inquiry.The Commissioner thereafter served a notice on the 4th to Oth respondentsunder section 6 (2), Ordinance No. 47 of 1942, requesting them to showcause, if any, why a condition should not be attached to their road servicelicences to the effect that the same passenger should not bo picked up andsot down within tho Municipal Limits of Kandy. Certain objections woreput forward by the respondents. The Commissioner thereafter madeorder imposing tho condition he had proposed to impose. Ho notifiedthem of this condition and called upon them to transmit their licences tohim to enable him to insert that condition in their licences.
The respondents concerned appealed to the Tribunal of Appeal againstthe Commissioner’s decision. The petitioner and the 4th to 9th respon-dents were represented by counsel before the tribunal winch heard all thoappeals together between 18th November, 1950, and 4th Oetober, 1952.On 10th October, 1952, it made order setting aside the Commissioner’sorder and directing that the licences of the 4th to 9th respondents borenewed as before without the condition imposed by the Commissioner.The present application was filed on 22nd December 1952. The ground onwhich it is based is that the 1st to 3rd respondents had no jurisdiction tocontinue to hear the appeals in question after Ordinance No. 47 of 1942was repealed by the Motor Traffic Act, No. 14 of 1951, which came intooperation on 1st September, 1951. It is the petitioner’s case that theTribunal of Appeal consisting of the 1st to 3rd respondents which wasappointed thereafter was competent to hear only appeals preferred against adeoision granting or refusing an application for a road service licence, butnot against the decision varying the conditions attached to a licence.
Mr. Jayewardene who appeared for the 4th and 5th respondentsraised certain preliminary objections which were argued before thepetitioner’s case was heard. The preliminary objections were :
the petitioner has no status to make this application.
the failure to make the Commissioner a party is fatal to the
application.
sea
8ANSONI J.—Kandy Omnibus Co., IM. v. Roberts
4th to 9th respondents have been wrongly joined together in
one application.
there was unreasonable delay in filing this application.
the petitioner acquiesced in the proceedings before the
Tribunal and is therefore disentitled to make this application.
the application is lacking in bona tides.
the Tribunal of Appeal did not act as a quasi-judicial body
and therefore Certiorari does not lie.
I shall now deal with these objections in the above order.
The short point is whether the petitioner is a person aggrieved by theorder of the Tribunal. It was submitted by Mr. Jayewardene that thepetitioner had no legal right to be heard by the tribunal, it was not anecessary party to the appeal proceedings before the Tribunal, and wasmerely one of a number of persons who made representations to theCommissioner and supported the variation of the conditions of thelicences; though the petitioner may have been affected financially by thenon-imposition of the new conditions, and therefore was the prime mover inthe initiation of proceedings to have that condition imposed, that wouldnot make it a person aggrieved. Mr. Perera, on the other hand, contendedthat the petitioner was the only party aggrieved by the Tribunal’s order ;it had been affected financially since its business was being taken awaythrough the act® of the 4th to 9th respondents in picking up and settingdown passengers in Kandy town, and had therefore made representationsto the Commissioner to intervene and impose the condition on the re-spondent’s licences ; it had attended the preliminary inquiry held by theCommissioner and also the proceedings before the Tribunal, and madeits representations at such proceedings. One of the earlier cases on thisquestion as to who is a person aggrieved in this sense is R. v. Justices ofSurrey1 which was a case dealing with an application for Certiorari.Blackburn, J„ there quoted Lord Ellenborough, C.J., who said in R. v.Taunton St Mary 2, “ Certainly a person does not answer to the characterof a person grieved who is only in common with the rest of the subjectsinconvenienced by the nuisance; but here it appears that those personshave by reason of their local situation, a peculiar grievance of their own ”.The learned Judge then decided that the applicant for the Certiorari was,by reason of his residence in the neighbourhood of the highways concernedin that case, which the justices had certified were unnecessary, a personaggrieved. The petitioner in these proceedings is much more directlyaffected by the Tribunal’s order than the applicant in that case was bythe justices’ certificate. Lord Ellenborough, C.J., also said in the judg-ment cited that the petitioner in that case had “fa peculiar grievance beyondthat which affects the public at large ”, which was another way of defining
1 (1870) 39 L. J. M. C., 145.
* 105 E. R. 685.
8ANSONI Sj—rKandy Omnibus Co., Ltd. v. Roberts207
the test to be applied. In a later ease, R. v. Groom', Lord Alverstone, C.J.,speaking of the sense in whioh persons applying for a writ of Certiorariare required to be persons aggrieved said : “ It is sufficient if they- have areal interest in the deddon of the justifies Mr. Jayewardene stressedthe fact that the petitioner had no legal right to appear either before theCommissioner or the Tribunal. But I do not think that this is a necessaryoondition. It cannot be denied that the petitioner is the person whois most affected by the order of the Tribunal, for he is directly prejudicedby the removal of the condition from the respondent's licences, a con-dition which was insertedvatrthe petitioner's instance and for its benefit.If there had been a statutory requirement that the petitioner shouldbe heard by the Tribunal that would no doubt have strengthened thepetitioner’s position, but I have not been referred to any authoritywhich makes this an essential requirement. The decision of the Courtof Appeal in R. v. Nicholson8 and R. v. Justices of Surrey8 indicatethe contrary. The applicants for the writ in the former case were heldnot to be persons aggrieved because they “ failed to show that theyhave a real practical grievance ” and for that reason their applicationwas dismissed. This case was followed in R. v. Richmond ConfirmingAuthority4 which was also a case of Certiorari. The applicant therewas a rival licensee and it was on this ground, and for the reason thathe bad a substantial interest in the subjeot matter, that his applioationsucceeded.
Is the Commissioner a necessary party to the proceedings ?It must be remembered that the present application is to quash the orderof the Tribunal made on an appeal against the decision of the Commis-sioner. Mr. Jayewardene urged that the Commissioner made the order,he could have supported it before the Tribunal, and was entitled to beheard by the Tribunal for that purpose. But once the Tribunal has madeits order the Commissioner’s decision is superseded by that of the Tribunaland in an application such as this, which challenges the validity of theTribunal’s decision, I cannot see what interest the Commissioner has.Certainly he has no interest such as the 4th to 9th respondents have.They would be adversely affected if the Tribunal’s order is set aside, andit is for that reason that they are necessary parties. The Commissioner,however, will not be adversely affected if the petitioner succeeds ; onthe contrary, his order will be restored : while if the petitioner fails,matters will lie where they were before this application was filed and theCommissioner will be in no worse position. Nor do I see what theomission of the Commissioner to state a case for the opinion of this Courthas to do with this question. Presumably he chose deliberately notto take that course.
Mr. Jayewardene submitted thatas the 4th to 9th respondents showedcause separately and filed separate appeals before the Tribunal, thereshould have been six separate applications filed by tho petitioner forCertiorari. I think he recognised the difficulty caused by only one order
' (1901) 2 K. B. 157.3 (1870) 39 L. J. M. O., 145.
* (1899) 68 C. J. Q. B. 1,034.* (1921) 90 C. J. K. B. 413.
208
SANSON! J.—Kandy Omnibus Oo., Ltd. v. Roberts
having been made by the Tribunal in respect* of all the appeals, which■were consolidated and heard together. Mr. Perera pertinently askedwhether the objection, of non-joinder would not have been raised if he hadmade 6 separate applications against each of the 4th to 9th respondentsleaving out the other five parties affected by each application. It was notsuggested that any prejudice whatever has been caused by the respondentshaving been joined together.
Whether there has been unreasonable delay or not is largely amatter of opinion and depends on the circumstances of each case. Whena case involves many difficult questions of law which can only be consideredafter an exhaustive examination of the relevant statutes and numerousprecedents, I hardly think that an interval of about two months, such aswe have here, is an unreasonably long time.
The arguments on the objection based on acquiescence by thepetitioner in the proceedings before the Tribunal occupied a great deal oftime and they have very considerably assisted me in arriving at a decision.The objection itself arises for consideration because on 27th October, 1951,counsel then appearing for the present petitioner suggested that it wasdoubtful whether the Tribunal had any jurisdiction to hear theparticular appeal because the new Act No. 14 of 1951 provided for onlycertain appeals filed under the Ordinance No. 47 of 1942 to continueto be heard. On the next date, however, the petitioner’s counsel withdrewhis objection and the hearing of the appeal continued. It is argued forthe respondents that the petitioner is not now entitled to be heard on thequestion of lack of jurisdiction, having waived its objection to the juris-diction of the Tribunal and taken part in the proceedings thereafter. Mr.Porera for the petitioner contended that this is a case of total want ofjurisdiction and not a case of want of contingent jurisdiction : he submittedthat it is apparent on the face of the proceedings that tho Tribunal hadno jurisdiction to deal with this appeal, and where such defect of juris-diction is patent, acquiescence in the jurisdiction exercised by the Tribunaldoes not disentitle the party acquiescing to come in later and objectthat the order made by it is void. He relied on tho following passage inSpencer Bower on Estoppel by Representation (1923) page 187 : “ Event he most plain and express contract or consent, a fortiori, therefore, anymore conduct or inaction or acquiescence of a party litigant from which arepresentation may be implied Buch as to give rise to an estoppel, cannotconfer judicial authority on any of His Majesty’s subjects not alreadyinvested with such authority by the law of the land, or add to tho jurisdic-tion lawfully exercised by any judicial tribunal. Any such attempt tocreate or enlarge jurisdiction is in effect the appointment of an officer ofthe judiciary by a subject, and, as such, constitutes a manifest usurpa-tion of the Royal prerogative, cr (in the old phraseology) ‘ contemptof the Crown ’, just as much as if a subject were to purport to appoint anofficer of the Executive or of the Legislature ”. He submitted that it isonly in a case of want of contingent jurisdiction that a party can precludehimself, by such conduct as taking part in the proceedings, from object ingto the jurisdiction at a later stage.
SANSON! J,—Kandy Omnibus Co., Ltd. v. Roberts20©
The earliest of the soapy oases cited, dealing with a similar point, isjB. v. Committee men for South Holland Drainage It was, to quote thesummary of the case given by Spencer Bower, “ a statutory compensa-tion case, in which the claimant moved for a certiorari to quash the pro-ceedings on four grounds, (1) that he had not received the prescribed 40days’ notice to treat for the company, (2) that the jury had ordered a fenceto be erected, besides awarding compensation, which they had no statutoryjurisdiction to do, (3) that the estate was copyhold, and the jury had notawarded compensation to the lord, as required by the statute, and (4)that ho held the right of his wife, and no compensation had, as required bythe statute, been awarded to her ; but it was held that ho barred himselffrom the right to complain on any of these grounds, and had waived allfour objections—the first, by his conduct in requesting the inquisition tobe held at a date too early to admit of the 40 days having expired ; thesecond, by his conduct inassenting to the erection of the fence, and discus-sing with the company the amount of compensation on the footing thatthis was to be done ; the third, by his express representation to the com-pany that the land was freehold ; and the fourth, by a like representationthat it was absolutely hi8 own ”» The next case cited was R. v. Man-chester and Leeds Railway Co.,2 which was a similar case where the claim-ant was held to have waived the statutory requirements as to notice totreat. Lord Denman, O.J., who had also decided the eariior case said :“ But it is clear that we must exeroise a discretion as to granting a Cer-tiorari. The conduct of the party applying may bo Buch as to precludehim from being entitled to it. On a recent occasion wo would not allowa party to take advantage of a defect on the face of the inquisitionwhich arose from his having himself requested that the provisions of theAct should bo deviated from A good deal of tho argument con-cerned the exact meaning of this passage, which is in substance repeated inlater decisions. For example, in R. v. Justices of Surrey (supra), Black-burn, J., said : “ Where the party grieved has by his conduct precludedhimself from taking an objection, the Court will not permit him to makeit, as in The Queen v. The South Holland Drainage Committee. In other caseswhere tho application is by the party grieved, so as to answer the samepurpose ub a writ of error, we think that it ought to be treated, like a writ oferror, as ex debilo justitiae ”. Another case where a party was held tohave precluded himself by his conduct from applying for a writ was R. v.Justices of Salop 3. The statute concerned in that case provided that thejurisdiction of the justices could be ousted by a party disputing thevalidity of a rate which he had not paid. When the party was summonedbefore the justices no objection to their jurisdiction was taken, and wit-nesses were called and cross-examined. At a later stage of the inquiryobjections to the validity of the rate were submitted. In deciding that theparty was not entitled to a Certiorari Crompton J. said : “ I think that itwas the intention of the statute that tho person disputing the validity ofthe rate should at once give notice to that effect to the justices, not thathe should first lead the justices to decide the question and then dispute 1
1 112 E. R. 901.* 112 E. R. 805.
a 121 E. R. NO.
300
SANSON I .T.—Kandy Omnibus Ob., Ltd. t>. Roberts
their jurisdiction to decide it This case ■was followed in Cordery v.Greaves1 where a Magistrate made an order on a dispute between thesecretary of a friendly society and the representative of a member of thesociety, although the rules of the society provided that such a disputeshould be decided by arbitrators. The rules were put in evidence but theMagistrate’s attention was not called to the particular rule. The Court ofQueen’s Bench refused the writ of Certiorari on the ground that the Magis-trate was misled by this omission. It was strongly urged by Mr. Jayawar-dene that in addition to these cases R. v. Williams * was also a clearauthority for the view that a party who takes part in proceedings cannotlater object to their validity. In that case the applicant for Certiorari wasconvicted of selling bread other than by weight. One of the justices whohad sat on the Bench was concerned in the business of a baker, and there-fore disqualified by Statute from acting ae a justice in such a case, ha hisaffidavit applying for the writ the applicant did not state that at the time ofthe hearing he was ignorant of the facts disqualifying the particular justice.The Court held that Certiorari shpuld not be granted. Channel, J., said“ It is a rule of practice not to grant a writ of.Certiorari where the applicantdoes not negative knowledge of the fact constituting the disqualificationwhen he was before the Court below. That rule has been established ongood grounds. It does not depend on whether the decision of the justiceswas void or voidable. If an objection to a conviction is taken by amemberof the public, the granting of the writ by the Court is discretionary ; butif it is taken by a party aggrieved, then a Certiorari ought to be grantedex debito justitiae ; but even in that case if the applicant has by his conductprecluded himself from taking the objection, the Court will not permit himto take it. The authority for the exception where an applicant has soprecluded himself is R. v. South Holland Drainage Committee which isreferred to by Mr. Justice Blackburn in R. v. Surrey Justices. Wheretherefore a party aggrieved has by his conduct precluded himself fromtaking an objection, the Court has a discretion ”. Rowlatt, J., agreeingsaid, “ If (the applicant) is a party aggrieved R. v. Surrey Justicesshows that he can dobar himself from taking this objection. The affidavitsdo not show that he was unaware of the disqualification of the Justiceon the hearing of the summons ”. Atkin, J,, said, “ There is a rule that•the applicant must satisfy the Court that he has not by his conduct pre-cluded himself from applying for a Certiorari, and the present applicanthas not done so ”.
Now what is the ratio decidendi of these cases? I think it is the ruleenunciated by Mr. Spencer Bower in.his book at page 187 where he says,in continuation of what I have already quoted: “Where it is merelya question of irregularity of procedure, or of a defect in ‘ contingent'jurisdiction, or non-compliance with statutory conditions precedent to thevalidity of a step in the litigation, of such a character that, if one of theparties be allowed to waive, or by conduct or inaction to estop himselffrom setting up, such irregularity or want of * contingent ’ jurisdiction ornon-compliance, no new jurisdiction is thereby impliedly created, and noexisting jurisdiction is thereby impliedly extended beyond its existing
* {1914) S3 L. J. K. U. 53S.
* 20 L. T. 972.
SANSONT J.—Kandy Omnibus Go., Ltd. v. Roberts
30X
boundaries, the estoppel will be maintained, and the affirmative answer ofillegality will fail, for, the Royal prerogative not being invaded, and theState therefore not being injured, nor any of His Majesty’s subjects forwhom that Royal prerogative is held in trust, there is no ground of publicpolicy, or other just cause, why the litigant, to whom alone in that casethe statutory benefit belongh, should not be left free to surrender it atpleasure, or why having b6 surrendered it, whether by contract, or byconduct or inaction implying consent, he should be afterwards permittedto claim it. Accordingly, in all cases of the first class, that is, of defectusjurisdictions the representoJ has been held incapable of estopping himselffrom resisting the usurped" authority; whereas in all those of the otherclass, that is of mere dtfeehu triationis, the affirmative answer has beenrejected, and the representor has been held estopped from objecting tothe irregularity We thus have the two classes of cases covering wantof jurisdiction and the effect of a party’s conduct in either class explainedby the learned author in these two passages. It is beyond doubt that asharp distinction exists between ‘ cases of patent and latent want ofjurisdiction, as the two classes are also called. The right of a partyaggrieved to apply for relief in either case by way of Prohibition isclearly dealt with in Shortt on Mandamus (1887) page 447 where hequotes Lord Mansfield as having said :—“ If it appears upon the faceof the proceedings that the Court below had no jurisdiction, a prohibitionmay issue at any time, either before or after sentence, because all isa nullity : it is coram non judice. But where it does not appear uponthe face of the proceedings, if the defendant will lie back andsuffer that Court to go on, under an apparent jurisdiction, it wouldbe unreasonable that this party, who, when defendant below, has thuslain by and concealed from the Court below a collateral matter, shouldcome hither after sentence against him there, and suggest that collateralmatter as a cause of prohibition, and obtain a prohibition upon it, afterall this acquiescence in the jurisdiction of the Court below ”. Actingon this rule in the case of a'.patent want of jurisdiction in Farquharson v.Morgan *, Lord Halsbury 'said :—In this case, with every dispositionto decline to interfere withthe course of litigation, and with a strong desireto visit an unreasonable and persistent litigant with the consequences ofthe course which he has pursued, I have earnestly striven to see whetherI could, according to the well known and ordinary practice of the Court,refuse the application for a prohibition. I think, however, that the writmust go so far as those portions of the plaintiff’s claim which are outsidetho Agricultural Holdings (England) Act, 1883, are concerned. It has beenwell settled for many years that when the objection to the want of juris-diction on the part of an inferior Court appears on the face of the record orproceedings (anti it is immaterial by what means that objection was broughtto the knowledge of the Court) it is the duty of the Court to interfereanti protoct the prerogative of the Crown, and in the" due course of theadministration of justice prohibit the inferior Court from entertaining amatter which is outside its jurisdiction ”. The other two judges of theCourt of Appeal in their judgments explain the principle upon which aparty acquiescing in the proceedings, where it is a case of latent defect of 1
1 (1894) 63 L. J. K. B. 474.
302
SANSONI J.—Kandy Omnibus Co,, Ltd. v. Roberts
jurisdiction, disentitles himself to relief even in cases of prohibition.Lopes, L.J., in his judgment quoted the opinion of the Judges delivered byWilleB, J., to the House of Lords in the Mayor of London v. Cox 1:—
“ Where the defect is not apparent, and depends upon some fact in theknowledge of the applicant which he had an opportunity of bringing for-ward in the Court below, and he has thought proper, without excuse, toallow that Court to proceed to judgment without setting up the objection,and without moving for a prohibition in the first instance, although itshould seem that the jurisdiction to grant a prohibition in respect of theright of the Court is not taken away, for mere acquisscence does not givejurisdiction—yet, considering the conduct of the applicant, the importanceof making an end of litigation, and that the writ though of right is not ofcourse, the Court would decline to interpose, except perhaps upon anirresistible case, and an excuse for the delay, such as disability, mal-practice, or matter newly come to the knowledge of the applicantDavey, L.J., in his judgment emphasised what I consider is the keynoteof this passage when he said : " It will, however, be observed that thelearned Judge’s statement is confined to cases where the defect is notapparent, and depends upon some fact in the knowledge of the applicantwhich he might have brought forward in the Court below, but has keptback without excuse—that is, when the applicant has been guilty of somemisconduct in the proceedings, and has in a sense misled the Court”. Ina later passage in his judgment he used language which seems particularlyappropriate to the matter I have to deal with : “ In the present caso thejurisdiction invoked is the creation of a statute not even conferring juris-diction in general terms, but confined to a particular defined subjectmatter. The first question which a Judge has to ask himself when ho isinvited to exercise a limited statutory jurisdiction is whetlior the casofalls within the defined ambit of the statute ; and it is his duty to declinoto make an order as Judge if, and so far as, the matter is outsido the juris-diction ; and if ho does not do so he may (if a Judge of an inferior Court)
bo restrained by prohibitionIn Jones v. Owen ….
it was held by Mr. Justice Patteson that when there was a total want ofjurisdiction no consent could be given, and that learned Judge said,‘ It is said that the attorney for the defendant did not object to the juris-diction ; but that is not admitted on the other side. At all events, therewas total want of jurisdiction which no assent could cure’ ”.
The principle—that estoppel by conduct docs not preclude a partywho took part in the proceedings from raising the question of jurisdiction,or give jurisdiction in a case where the want of jurisdiction appears on theface of the proceedings and the Judge must or ought to have known thatbo was acting beyond his jurisdiction—has been applied in later cases. InSimpson and Latton v. Crowle 2, a party raised the question of jurisdic-tion in appeal, though he had failed to raise it in the lower Couct and itwas held that the principle of Farquharson v. Morgan (supra) shouldbe applied, as the principle should not be confined to cases of prohi-bition. But the operation of the principle of estoppel must not be mis-understood and its limits are clearly stated in Halsbury’s Laws of England* (1867) 36 L. J. Ex. 225.. * (1921) 90 L. J. K. B. 878.
K ANSONI J.—Kandy Omnibus Co., Ltd. v. Roberts
303
(3rd Edition) Vol. 9, paragraph 824; “ Where by reason of any limitationimposed by statute, charter or commission, a Court is without jurisdictionto entertain any particular action or matter, neither the acquiesencenor the express consent of the parties can confer jurisdiction upoqthe Court, nor can consent give a Court jurisdiction if a condition whichgoes to the jurisdiction has not been performed or fulfilled. When theCourt has jurisdiction over the particular subject matter of the action orthe particular parties, and the only objection is whether, in the circums-tances of the case, the Court ought to exercise jurisdiction, the partiesmay agree to give jurisdiction in their particular case, or a defendant byappearing without protest, or by taking any steps in the action may waivebis right to object to the Court taking any cognisance of the proceedings ”,When a Court has jurisdiction in particular cases which depend on theexistence of a certain state of facts a person who admits, or does not chal-lenge, the existence of those facts can estop himself from denying theirexistence at a subsequent stage of the proceedings. But where a Court hasjurisdiction in a particular class of cases, not depending on the existenceof any fact but limited to particular subject-matters, estoppel or consentdoes not arise because there is total lack of jurisdiction in respect ofmatters outside those limits. Spencer Bower draws attention to the twotypes of cases at page 236 : “ So when a party litigant, being in a positionto objoct that the matter in difference is outside the local, pecuniary,or other limits of jurisdiction of the tribunal to which his adversary hasresorted, deliberatedly elects to waive the objection, and to proceedto the end as if no such objection existed, in the expectation of obtain-ing a decision in his favour, he cannot be allowed, when this expectationis not realized, to set up that the tribunal had no jurisdiction over tliocause or parties, except in that class of case already noticed, wherethe allowance of the estoppel would result in a totally new jurisdictionbeing creatod. The like estoppel is raised by a party’s attendance atthe hearing and taking part in the proceedings without raising anyobjections to the personal disqualification of a member of the tribunal,or to the non-compliance of any notice, summons, or service of process,with statutory requirements or rules of court, or to the informality ofa writ, or to the irregularity of a verdict in a statutory compensationcase on matters which by statute the tribunal is not authorized to takeinto consideration.” “The class of case already noticed” which horefers to, is the class where there is a total want of jurisdiction, and towhich the passage on page 187 already cited refers.
The rule has been expressed in many different ways and the mostrecent authority brought to my notice is Madhura Mao v. Surya Mao ',decided by a Full Bench of the Madras High Court. The petitioners inthat case applied for a writ of Certiorari to quash an order made by uDeputy Registrar of Co-operative Societies (which had set osido theelection of Directors of a Co-operative Bank) on the ground that theDeputy Registrar had no initial jurisdiction to deal with the matter. Apreliminary objection to the application was raised on the ground that nsno exception was taken by the petitioners before the Deputy Registrarregarding the exercise of jurisdiction by the Deputy Registrar, but they
1 {1954) A. J. R. Madras 103.
30*
SANSONI J.—'Kandy Omnibus Co., Ltd. v. Roberts
had on the contrary acquiesced in the exercise of jurisdiction by him, theywere precluded from now raising their objection. The objection wassupported by reference to the case of Laxaman Chettiar v. Commissioner ofthe Corporation of Madras 1 —which, I should add, is one of the authori-ties relied on by Mr. Jayewardene in support of his preliminary objection.The objection was overruled, the judgment stating, “ No amount of con-sent would cure the initial want of jurisdiction. It is not open to a personto confer jurisdiction by consent and no amount of acquiescence wouldconfer jurisdiction upon a tribunal or Court where such jurisdictiondid not exist. The contention raised by the petitioner if well foundedwould go to the root of the matter, and it would be a case of total lack ofjurisdiction, which cannot be cured by consent or acquiescence ”. Thecase of Laxaman Chettiar v. Commissioner of the Corporation of Madraswas distinguished as not being a case of initial want of jurisdiction.It seems to me that the principles on which the Court acts are the Bame inthe case of Prohibition as in the case of Certiorari, where there is a wantof jurisdiction pleaded. There is much to be said for the view that theonly difference between Prohibition and Certiorari is that the former“ can be brought at an earlier stage of the proceedings complained of:it is preventive rather than remedial ”—C. K. Allen, Law in the Making,(5th Edition), page 548. This view is supported by the judgment ofAtkin L.J., who said in R. v. Electricity Commissioners 2, “ I can see nodifference in principle between Certiorari and.Prohibition, except that thelatter may be invoked at an earlier stage. If the proceedings establishthat the body complained of is, exceeding,its jurisdiction by entertainingmatter which would result in its final decision being subject to beingbrought up and quashed on Certiorari, prohibition will lie to restrain itfrom so exceeding its jurisdiction Thus it seems clear that if theTribunal of Appeal laboured under an initial want of jurisdiction to hearthe appeals of the 4tb to 9th respondents, the acquiescence of thepetitioner has no bearing on the question of its validity or invalidity onthe ground of want of jurisdiction.
The objection based on the alleged lack of bona fides dependson the materiality of the averments which, it is said, should have had aplace in the affidavit filed by the petitioner. The particular avermentswhich Mr. Jayewardene and Mr. Thambiah claim should have been madeare (1) that the petitioner’s counsel was present on October 10,1952, whenthe order of the Tribunal was delivered especially in view of the “ sug-gestio falsi ” contained in the averment that the petitioner received acopy of the order on November 15th, 1952, and (2) that the petitionerraised the objection of want of jurisdiction and later withdrew it andcontinued to take part in the proceedings. Now it is undoubtedly truethat the petitioner in an ex parte application for relief, whether in theshape of an injunction or a rule nisi for a writ of Certiorari or any otherdiscretionary writ must be frank with the Court, and must not suppressmaterial facts or practise anything like deception. The rule was referredto by Scrutton, L.J., in Rex v. Kensington Income Tar: Commissioners 3in the following terms :—“ It has been for many years the rule of theCourt, and one which it is of the greatest importance to maintain, that
1 SO Madras 130.'* (1924) 1 K. B. 171.
* (1917) 86 L. J. K. B. 257.
SAHSONIJ.—Kandy Omnibus Co., Ltd. v. Roberts
305
when an applicant comes to the Court to obtain relief on an ex parte state-ment he should make a full pud fan disclosure of all the material facts—it says facts, not law. He'must not misstate the law if he can help it,the Court is supposed to know the law. It knows nothing about the faots,and the applicant must state fully and fairly the facts ; and the penaltyby which the Court enforces that obligation is that if it finds out that thefacts have been fully and fairly stated to it the Court will set aside any actionwhich it has taken on the faith of the imperfect statement I would,however, stress the words “ material facts, ” and I need hardly add thattheir materiality must depend on the particular circumstances of eachcase. I have tried to show that acquiescence iB not a relevant matter in acase of total want of jurisdiction: itfollowB that it is immaterial whetherthe petitioner raised an objection based on the lack'of jurisdiction andwithdrew it or not, for it has no bearing on the invalidity of the proceed-ings. How then could its non-disclosure in the affidavit come within thisrule of the Court? Sven if the petitioner’s counsel was present when theorder of the Tribunal was delivered I do not think that makes anydifference, because I have already held that there has been no inordinatedelay between that date and the date of filing this application.
But it is also necessary in this connection to consider whether thepetitioner is entitled to relief—assuming there are no other obstacles in hispath—as of right or merely as a matter of discretion, for the rule enun-ciated by Scrutton, L.J., applied to cases where a discretion has to beexercised by the Court. Mr. Perera’s proposition was that when anaggrieved party applies for Certiorari in respect of an order made by aquasi-judicial body which had acted in the particular matter when; ittotally lacked jurisdiction, that party is entitled to the writ as of right ;but whero there was only a contingent want of jurisdiction, acquiescenceor waiver or similar conduct would place even an aggrieved party in thesame position as a stranger and the grant of relief is discretionary. I con-sider, after examining the many authorities cited, that this is the correctposition. The opinion of Willes, J., in the Mayor of London v. Cox (supra)points out the distinction between the two cases :—“ There is indeed a dis-tinction after sentence between a patent and a suggested defect, for if theparty below, whether plaintiff or defendant, thinks proper, instead ofmoving for a prohibition to proceed to trial in the special or inferior Courtand is defeated, then if the defect be of power to try the particular issueonly the right to move for a prohibition is gone. If the defect be of juris-diction over the cause and that defect be apparent upon the proceedings aprohibition goes after sentence”. This decision was followed by the fullCourt of Appeal in Broad v. Perkins *, whicli was a case where the defectin the jurisdiction of the inferior Court was not apparent but dependedupon some fact in the knowledge of the applicant for prohibition which hehad an opportunity of bringing in the Court below—but did not. In sucha ease the grant of the writ was discretionary as contrasted with a case suchas Parquharson v. Morgan {supra) where there is a total absence of juris-diction to deal with the particular matter ; in the latter case I am satisfiedthat the Court is bound to grant the writ, if it is applied for by a person 1
1 (1888) 57 L. J. Q. B. 638.
300SANSONI J.—Kandy Omnibus Go., Ltd. v. Roberts
aggrieved, notwithstanding the existence of consent or acquiesoence, andT do not therefore see how it is necessary for an applicant is such a case toset out facts which have a significance only where there is a discretion tobe exercised. The cases of R. v. The Justice of Surrey (supra) and R. v.Williams (supra) already cited alBO deal with this distinction.
(7) Was the Tribunal of Appeal under a duty to act judicially inhearing the appeal in question ? Mr. Jayawardene submitted it had nosuch duty and was acting as a purely administrative body, in which caseof course Certiorari could not issue. Slesser L.J., in R. v. London CountyCouncil1, sub-divided the celebrated dictum of Atkin Ii.J., in tho caseof R. v. Electricity Commissioners (supra) to read : “ Wherever anybody of persons ”—firstly—“ having legal authority ”—secondly—“ todetermine questions affecting the rights of subjects, ” and—thirdly—“ having the duty to act judicially ”—fourthly— “ act in excess of theirlegal authority, they are subject to the controlling jurisdiction of the King’sBench Division exercised in these writs ”. It is the third necessarycharacteristic that I am now considering. It must be emphasised thatthis application is not to quash the order of the Commissioner of MotorTransport and it is therefore hardly necessary to consider whether ho wasunder a duty to act quasi-judicially or not when he made his order imposinga condition on the licences of the 4th to 9th respondents. ButI would pointout, in passing, that the case of Errington v. Minister of Health. 2 showsthat a proceeding may be administrative at one stage and quasi-judiciaiat another—depending on whether there are objections to be considered ornot—even though the same authority may be acting throughout. Whenthero are objections to be considered and the authority has to decidewhether an order should be made in spite of the objections raised, ho maythen be regarded as exercising judicial functions. We have, however,to consider the position which arose when the Commissioner’s order wasappealed from, and the duty of deciding the appeal devolved upon theTribunal. Had it the duty to act judicially ? Kania C.J. said in Province,of Bombay v. Khnshaldas 3 : “ The true position is that when tho lawunder which the authority is making a decision itself requires a judicialapproach, the decision will be quasi-judicial. Prescribed forms of pro-cedure are not necessary to make an inquiry judicial, provided that incoming to the decision the well recognized principles of approach are re-quired to be followed”. In the same case Mukherjea, J.,said, “ Everyjudicial act presupposes the application of the judicial process. There isa well marked distinction between forming a personal or private opinionabout a matter and determining it judicially. In the performance of anexecutive act, the authority has certainly to apply his mind to the materialsbefore him : but the opinion he forms is a purely subjective matter whichdepends entirely upon his state of mind. It is of course necessary that hemust act in good faith, and if it is established that he was not influencedby any extraneous consideration, there is nothing further to be said aboutit. In a judicial proceeding, on the other hand, the process or methodof application is different. ‘ The judicial process involves the application 1
1 (1931) 100 L. J. K. B. 760.* (1936) 104 L. J. K. B. 49.
3 A. I. R. (1950) S. G. 222.
SANSONI J.—Kandy Omnibus Co., Ltd. t>. Roberts
307
of a body of rules or principles by the technique of a particular psycho-logical method ’—Robson’s Justice and Administrative Law, p. 33. It in-volves a proposal and an opposition, and arriving at a decision upon thesame on consideration of facts and circumstances according to the rules ofreason and justice. Vide I?, v. London County Council 1. It is notnecessary that the strict rules of evidence should be followed; the procedurefor investigation of facts Or for reception of evidence may vary according tothe requirements of a particular case. There need not be any hard andfast rule on such matters, but the decision which the authority arrives atmust not be his ‘ subjective ’, * personal ’ or ‘ private ’ opinion. It mustbo sometlung wliich conforms to an objective standard or criterion laiddown or recognized by law, and the soundness or otherwise of the deter-mination must be capable of being tested by the same external standard.Tliis is the essence of a judicial function which differentiates it from anadministrative function ; and whether an authority is required to exerciseone kind of function or the other depends entirely upon the provisions of theparticular enactment. Where the statute itself is clear on this point, nodifficulty is likely to arise, but where the language of the enactment doesnot indicate with precision what kind of function is to be exercised by anauthority, considerable difficulties are bound to bo experienced ”.
Mr. .Fayewardene contended that before the Commissioner there wereno two parties, nor were there a proposal and ail opposition, andbefore the Tribunal the position was the same. Ho relied on the dictum ofScrutton, L. ,T., in R. v. London County Council (supra) that ‘‘ it is enoughif it (the Tribunal) is exercising, after hearing evidence, judicial functionsin the sense that it has to decide on evidence between a proposal anilan opposition”. But in R. v. Manchester Legal Aid Committee a, Barker, J.,stressed the word “ enough ” in this passage and said : " The true view,as it seems to us, is that the duty to act judicially may arise in widelydifferent circumstances which it would lie impossible, and, indeed, inadvis-able to attempt to define exhaustive!}' ”. Mukherjea, <T., in the judgmentfrom which I have already quoted pointed out that a proposal and anopposit ion morel}' meant a point in controversy or a lis ”. It may con-sist of the interest of the public on the one hand and the interest of theparty affected on the other. “ No formal array of parties, ” he said, “ isnecessary. It is enough that there is a point in issue which hus got to bodecided between parties having conflicting interests in respect to the samein the case of R. v. Electricity Commissioners (supra) the only parties werethe Commissioners who proposed the scheme and the companies whoobjected to it. The Commissioners had to make an order after hearing theobjections, but since they had a duty to act judicially they were held to bosubject to Certiorari. Nor, again, is the hearing of evidence a necessarypre-requisite of a quasi-judicial proceeding. It is at the earlier stage of aproceeding that evidence is taken, beforo the heuring of tho appoul isreached. Lord Haldane, L.C., said in Local Government Board v. Arlidye 3,When the duty of deciding an appeal is imposed, those whoso dutyif is to decide must act judicially. They must dual with the question
■ 11(1.11) too L. K. B. 7HO.1 (1962) 2 Q. n. in.
1 (1916) .1. C. I-.’O.
808
SANSONI J.—Kandy OmnibaiXto., Ltd. v. Robert*
referred to them without bias, and they must give each of the parties theopportunity of adequately presenting the case made. The decisions mustbe come to in the spirit and in the sense of responsibility of a tribunal whoseduty it is to mete out justice The point decided by the Privy Counoilin Shell Company of Australia v. Federal Commissioner of Taxation1was that “ an administrative tribunal may act judicially, but still remainan administrative tribunal as distinguished from a Court, strictlyso-called ”, so that case has no bearing on this issue. When I consider theposition of the Tribunal of Appeal in the light of the Regulations governingits procedure, and its powers after it has heard an appeal, I cannot see howit can be regarded as anything but a body which is required to act quasi-judicially. I think the Chairman of the Tribunal fully appreciated this posi-tion when he said in his order,overruling an objection to the petitioner’beingheard at the appeal: ‘‘In the ordinary course of business and of justice it isright to hear the parties who are affected by an order …. I haveno doubt that the legislature would wish us to hear all parties affectedby any conditions proposed to be attached to such a licence ”. Of courseit does not follow that if he had decided not to hear the petitioner, becausethe Regulations gave the petitioner no right to be heard, the tribunalwould not have been a body acting quasi-judicially ; the test is notwhether it did in fact act in a judicial manner but whether it had a duty toact in a judicial manner.
At this stage it is convenient to consider a submission made by Mr.Nadesan. His point was that even if the condition imposed by the Com-missioner has been wrongly deleted by the Tribunal, the passing’of theMotor Traffic Act, No. 14 of 1951, had made the Commissioner’s order void ;therefore the order of the Tribunal was also void ; in the result, he sub-mitted, no practical purpose is served by the present application and thisCourt should not therefore make an order which is unnecessary. Theargument is attractive but lacks substance ; it overlooks the reason forgranting certiorari, viz., an act done in excess of or in usurpation of juris-diction. As Slesser, L.J., said, in R. v. London County Council {supra),“ To argue that because an authority was usurping a jurisdiction oracting contrary to their judicial powers, therefore certiorari would not liewould be to defeat the whole purpose of the writ. But the question is, havethey purported under the statute, and have they a duty under the statute,to perform a judicial function Mr. Nadesan raised his objectionbefore I had heard Mr. Perera on his application, and his argument mayhave had to be considered more carefully if this case was one where therewas only a latent want of jurisdiction in theTribunal. In such a case, asI have tried to show, even when an aggrieved party applies, the grant of thewrit is discretionary and he can preclude himself by acquiescence. But•here the petitioner has attacked the order as being void on the ground thatthe Tribunal suffered from a patent want of jurisdiction to make it; insuch a case Certiorari is granted as of right, and the void order is quashed.In the view I take of the Tribunal’s power to make the order it is, strictlyspeaking, unnecessary for me to go into the question of the effect the Com-missioner’s order had upon the licences of the 4th to 9th respondents.
1 (1031) 100 L. J. P. C. 55.
SANSONI 3.—Kandy Omnibus Co., Ltd. v. Roberta
.son
'I’ln* objection was taken on the basis that the Commissioner’s order ofvariation erased to have any effort when tin < Irdiiiauco No. 47 of 1942 wasrepealed. I accept Mr. Nadesan’s contention that the wonl “ licence ”is used in very many parts of tlio Ordinance No. 47 of I!)42 to refer to the *written document of authority, but it is not always so list'd. For example,when the Ordinance refers to an order revoking or subtending the licenceit surely refers not to the written document but to the authority conferredby that document. It is permissible to give different meanings to t hesame word, even in the same section of an Ordinance, if the context sorequires it, and that has become necessary in this case. Now the point w«>arc concerned with in this ease is in Bection <i (2) which enacts :—
“ The Commissioner may at any time, by notice served on tho holderof a road service licence, vary the conditions attached to a road .servicelicence, anil require the production of tin* licem-e for the purpose otsuch variation. ”
linos this sub section mean that the conditions cannot he vnriod exceptby a writing on the document, or does it mean that the serving of a noticeil|i t lie holder ijtnu facto affects the variation ? I take the latter view, and Ialso take the view that the words “for tho purpose, of such vr.ria) ion “<lo notmean " for the purpose of giving effect to such variation luit " lor thepurpose, of implementing such variation The variation takes effectwhen the notice is served, or is deemed to have 1m.cn served under section17. It is from such notice that the holder is given tho right of ap|>eul l»vsection i:t (4). Hut it is said that no hucIi variation can take effect untilit is entered on the w ritten document, because the Regulations require t heCommissioner to so enter it. The logical effect of this argument, would het bat a holder nfa licence can completely nullify any order of variation byi ci'using to produce the document for tin: necessary alteration. 1 do not,think a person call, by his own act, he allowed t.o defeat the object, of anOrdinance ill this way, and I should be reluctant, to interpret section (i (2)sons to permit of.such an evasion of the provisions of the Ordinance,unless it is necessary. I would hold that t.he order varying the licences ofthe till to Ut.h respondents took effect as soon as the Commissioner gavethem notice of such variation, and the licences therefore had the nowcondition imposed on them though it was not actually written on thedocuments. Since they are deemed to he stage carriage |icrmits grantedunder Ad It of Ill'll (see section 2415 (I) ), they would lie such permitscontaining this condition.
r shall now deal with the application of the petitioner. As 1 havealready indicated, it is made on the basis that there was a total want ofjurisdiction in the Tribunal of Appeal to deal with the appeal oftlie-lth toUtli respondents against the Commissioner’s order varying their licences byiin|Mising a particular condition. If this is the position it follows, in tlioview I take of the authorities already cited, that the writ must go. I f thelaw had remained as enacted ill Ordinance No. 47 of 1942, there would havebeen no question as to the Tribunal’s juris diet ion (n make the order it. did,but on September 1st, 1951., the Motor TratHc Act came into operation.IIv section 24“ (I) the Act repealed the Motor Car Ordinamo Xu. 45 of
310
SANSONI J.—Knndy Omnibus Co,, Lid. t>. Robert*
1938 and the Omnibus Service Licensing1 Ordinance No. 47 of *1942 ;provisos (b) and (c) however kept those Ordinances in force for particularpurposes ns follows : -•
(h) t he provisions of the Omnibus Service Licensing Ordinance, No. 47of 1942, shall continue in force for the purpose and only for thepurpose of enabling the provisions of sect ion 246 of this Art tohave effect ; and
the provisions of the repealed Ordinance relating to the constitutionand powers and functions of the Tribunal of Appeal and toappeals to the Tribunal of Appeal or appeals from decisions ofthe Tribunal shall continue in force but only for the purpose ofenabling the provisions of section 246 of this Act to have effect.
What is the effect of the repeal and of these two provisos read together ?
I think they mean that nothing further could be done under the repealedOrdinance by reason of the repeal beyond what was expressly saved inthe provisos. Mr. Thambiah submitted that under section 6 (3) (c) of theInterpretation Ordinance, Cap. 2, the appeal before the Tribunal continuedas though there had been no repeal. But I think that this would have beenthe position only if the two provisos had been absent. The provisos haveexpressly laid it down that nothing beyond what is preserved in section246 shall continue in force. No more emphatic words could have beenused to indicate that. The Tribunal therefore had no powers left to itbeyond those conferred on it by section 246 (4) which is the only part ofsection 246 which deals with the matter of appeals and their consequences.Section 246 (4) reads as follows :—
‘‘ In any case where an application was made to the Commissioner ofMotor Transport under the Omnibus Service Licensing Ordinance, No.47 of 1942, for a road service licence, or under the repealed Ordinancefor a licence for a lorry, and the Commissioner has given a decisiongranting or refusing the application—
(a) all the provisions of sections 13 and 14 of Ordinance No. 47 of 1942,or as the case may be, sections 50 to 54 of the repealedOrdinance shall apply in relation to the right of appeal againstsuch decision, and in relation to any appeal which may havebeen duly preferred thereunder prior to the date of thecommencement of this Act ;.
(i>) if the decision is that tho application should be granted, and noappeal is or has been preferred against it, effect shall bo givento the decision as provided in sub-section (5) or in sub-section(6) of this section ;
(c) if an appeal is or has been preferred against the decision, tftid thofinal determination upon such appeal, whether by a tribunalof appeal or the Supremo Gourt or by His Majesty in Council,is that the application should be granted, effect, shall be givento such final determination as provided in sub-section (5) or insub-section (6) of this section, ”
SAN80NI j.-r-itandy.&mntbvs do., Ltd. v. Roberts
3ll
Mr. Perera submitted that nothing more was necessary to ensure that theonly decisions of the Commissioner to which the sub-section applied arethose either granting or refusing an application for a licence; and, therefore,a decision attaching any oondition to a licence or varying the conditions ofa licence, whicli was the decision in this case, is not provided for in thesub-section and no appeal then pending before tho Tribunal was saved bysdb-section (4) (a). There can be no doubt that under section 13 (4) ofOrdinance No. 47 of 1942, a holder of a licence could appeal against sucha decision to the Tribunal, and section 14 (4) provided for the order theTribunal could make on such an appeal. The omission in section 246 (4)of any reference to such a decision of tho Commissioner is significant andwas stressed by Mr. Perera..
The main submissions of the respondents’ counsel were (1) thatsinco the Commissioner had granted the respondents licencos within themeaning of tho words “ the Commissioner has given a decision grunting orrefusing the application ”, paragraph (a) made all the provisions ofsections 13 and 14 of Ordinance No. 47 of 1942 applicable in relation to thoappeal filed by the 4th to 9th respondents, since their appeal was filed priorto 1st September 1951 ; (2) that the operation of paragraph (a) was not con-fined to appeals against decisions granting or refusing applications forlicencos but to “ any appeals ” against any decision of whatever kindsuch as is provided for by section 13, Ordinance No. 47 of 1942, includinga decision varying a licence ; (3) stress was laid on the reference to “ all thoprovisions of sections 13 and 14” of that Ordinance and the absence of wordswhich confined the class of appeals to appeals against decisions grunting orrefusing applications for licences ; (4) it was submitted that since section13 does not provide for an appeal against an order granting a licence, para-graph (b) could only be given a meaning by extending the operationof sub-section (4) to appeals in all cases against any decision made by theCommissioner ; (5) support was sought to be derived from the AmendingAct No. 1 of 1952 which added sub-section (7) to section 246 of the mainAct, and in which the holder of a licence was mentioned as a possible partyto an uppeal. In replying to the submissions Mr. Perera argued (1) thatsub-section (4) doalt only with two classes of decisions, viz., those grantinglicences, (but which had not been implemented by the issue of licencos),and those refusing licences; he submitted that decisions grantinglicences which had been implemented were dealt with in sub-section
; (2) that sub-section 4 (a) conferred the right of appeal aguinstonly those two classes of decisions, and laid down the conditions whichapplied to the filing of appeals against only such decisions, the words" any appeal ” not having the effect of enlarging the classes but onlymeaning “ any appeals of the classes specified ” ; (3) the reference to all theprovisions of sections 13 and 14, Ordinance No. 47 of 1942, did not enlargethe classes which had already been defined, but was merely to require thatthoro should have been du6 compliance with the provisions of thosesections ; (4) an appeal against a grant of a licence is possible where therehave been two or more applicants for a licence and one of them is granted,ami the others are refused the licences ; (5) the Amending Act No. 1 of 1952can be given effect to without enlarging the scope of section 246 (4) ;
312SAtfSONI J.—Kaniy Omnibus (jo., Ltd. V. jioberta
(<S) not only does section 24G not provide for an appeal against an order vary*ing the conditions of a licence, it does not provide for an appeal against anorder suspending or revoking a licence, nor does it provide the machineryto give effect to any order made on such appeals. The absence ofadministrative provision for such coses, he submitted, indicates that noright of appeal in such cases was intended to bo preserved.
The arguments- for the respondents were ingenious but I cannotaccept them. They do violence to the wording of section 24(5 (4) because theyseek to give the words “ a decision granting, or refusing the application "an unreasonable interpretation ; they overlook the situation of the words“ in relation to any appeal which may have been duly preferred ” in t hesub-section, for I cannot believe that any draughtsman who intended toconfer such a right of appeal as that contended for by the respondents’counsol would have done so by merely tacking on the words to complete thesentence that comprises paragraph (a) ; they fail to convince, whereas Mr.Perera’s explanation of the scope of section 24G (4) is reasonable and givesduo weight to all its provisions so that they form a coherent- scheme. Itwas also submitted by Mr. Thambiah that the Act should be so inter-preted as to preserve, if possible, the right of appeal which had vested inthe respondents before the Act came into operation. While Iaccept the force of his argument which is based on the proposition that it isa serious thing to deprive a person of the right of appeal to a superior tri-bunal which had accrued to him, I think the cumulative effect of tin-provisions of section 243 and section 246 (4) is just that.
The consequence of my findings on the points of dispute is that theTribunal acted without any jurisdiction in hearing the appeal and makingan order since the appea was not against an order granting or refusing alicence. The Tribunal suffered from a total and patent want of juris-diction over the subject matter of the appeal ; the petitioner has nottherefore precluded himself, by taking part in the proceedings, frommaking this application. I therefore grant the prayer of the petitioner andquash the order made by tho Tribunal of Appeal. The 4th to ‘Jthrespondents will pay the costs of tho petitioner.
Application allowed.