164-NLR-NLR-V-47-KODITHUWAKKU-Petitioner-and-THE-TRIBUNAL-OF-APPEAL-et-al-Respondent.pdf
464
Kodiluwakhu v. The Tribunal of Appeal.
1946Present: Wijeyewardene J.
KODITUWAKKU, Petitioner, and THE TRIBUNAL OF APPEAL
et al., Respondents.
Ih the Matter of an Application foe. a Mandate in the natureof a Whit of Mandamus on the Tribunal of Appealconstituted underthe Motor Car Ordinance, No. 45 of1938, and the Omnibus Service Licensing Ordinance,
No. 47 of 1942. Application No. 473/1946.
Omnibus Service Licensing Ordinance, No. 47 of 1942, Schedule I., paragraphs2, 3—-Application for exclusive road service licence—Scope of applicant'sduty to pay conpensation—Compensation not payable to a person who has“ a pecuniary interest or share in the business ”—Liability restricted towritten undertaking given before the issue of licence. 1 2
1{1929) 1 King's Bench Division 1 at page 19.
2(1917) Appeal Cases 127.
2 (1930) 23 Huttarworth's Workmen's Compensation Cases 460 at peuje 471.
W1JEYEWARDENK J.—Kodiluwakku v. The Tribunal of Appeal.
465
A company which applied for an exclusive road service licence underthe Omnibus Service Licensing Ordinance, No. 47 of 1942, entered intoa written undertaking by which it agreed to pay compensation in termsof paragraph 2 (c) of the first Schedule of the Ordinance. K, the ownerof two omnibuses, consented in writing to the issue of the licence and,further, undertook to take shares in the company to the value of hisomnibuses and to transfer the omnibuses to the company.
Held, that K could not come under paragraph 2 (c) of the Scheduleas a person who could claim the benefit of the written undertaking givenby the company to pay compensation.
Held, further, that paragraph 2 (c) of the Schedule refers to a writtenundertaking in existence before the issue of the licence. Letters,therefore, written by the company to K, after the issue of the licence,adopting liability to pay compensation could not be regarded as “ writtenundertakings ”,
rpHIS was an application for a mandate in the nature of a writ ofa. mandamus against the Tribunal of Appeal constituted under theMotor Car Ordinance, No. 45 of 1938, and the Omnibus Service LicensingOrdinance, No. 47 of 1942.
N. E. Weerasooria, E.G. (with him D. D. Athulathmvdali), in support.
Cur. adv. vult.
October 16, 1946. Wuetewakdesne J.—
This is an application for a mandate in the nature of a Writ of Manda-mus on the first respondent, the Tribunal of Appeal constituted under theMotor Car Ordinance, No. 45 of 1938, and the Omnibus Service LicensingOrdinance, No. 47 of 1942.
In his affidavit submitted to this Court, the petitioner stated—
(«) that he was the owner of omnibuses B 2047 and X 7082 and thatlicences were issued to him to ply those vehicles for hire in1942 along certain routes ;
that the second respondent was an applicant for Exclusive RoadService Licences in respect of those routes for 1943 ;
that the petitioner consented to the Exclusive Road Service Licencesbeing issued to the second respondent “ in consideration of anundertaking (a certified copy of which marked “ A ” is filed)given by the second respondent ”.
that by certain letters of August and September, 1943, the second
respondent “ adopted his liability to pay compensation butdisputed the quantity of compensation payable to Ixim ”.
that he applied to the first respondent for an order directing the
second respondent to pay to him as compensation “ suchamounts as the first respondent may fix ” but the first respondentheld that it had no jurisdiction to entertain that application.
Though the affidavit stated that the petitioner was filing with theaffidavit- a copy of “ the application and the proceedings ” before theTribunal of Appeal, I found among the papers only an uncertified copyof an order made by Dr. I*. E. Pieris as Chairman of the Tribunal, ofAppeal. In the course of the argument before me the Counsel for thepetitioner referred to an agreement mentioned in that order. It was
466 WIJEYEWARDENE J.—Kodttuwakku v. The Tribunal of A-ppoal.
found that no copy of that agreement, certified or ’.mccrtified, had beenfiled in this Court and on the special application of Counsel I gave himan opportunity to produce a certified copy of that agreement which I havemarked “ Z ”. That document “ Z ” reads—
“ We, the undersigned, The Galle Motor Bus Company, Limited,do hereby in terms of section 2c of the First Schedule of OrdinanceNo. 47 of 1942, undertake and agree to pay as compensation to everyperson possessing an Omnibus licence on our Bus Routes who do notconsent to join the said Company
Section 18 of the Omnibus Service licensing Ordinance makes thespecial provisions in the First Schedule to the Ordinance applicable to theissue of Road Service Licences. Paragraph 2 of that Schedule statesthat no Road Servioe Licence shall be issued upon an application (otherthan an application under paragraph 1 (1) ) unless the Commissioner issatisfied :—
(а)“ that the applicant has paid compensation to every person who
being for the time being the holder of a licence under the MotorCar Ordinance, No. 45 of 1938, authorising the use of an omnibus…. has no pecuniary interest or share in the business
proposed to be carried on by the applicant under the roadservice licence ; or
(б)that every person referred to in sub-paragraph (a) has given his
written consent to the issue of the road service licence to theapplicant; or
(s) that the applicant has entered into a written undertaking by whichhe agrees to pay as compensation to every person referred to insub-paragraph (a), to whom he has not already paid compensa-tion or who has not consented to the issue of the licence to theapplicant, such amount' as may be determined by a Tribunal ofAppeal constituted under the Motor Gar Ordinance, No. 45of 1938 ”.
Now “ undertaking ” A referred to in the petitioner’s affidavit readsas follows :—
“I, H. B. K. Kodituwakku of Baddegama, owner of Motor Omnibuseswhose distinctive numbers are mentioned below, consent to the issue ofthe Exclusive Road Service Licence to the above Company, in terms ofsection 2 (6) of the First Schedule of Ordinance No. 47 of 1942. Iundertake to take shares in the above Company to the value of myomnibuses mentioned below. And to transfer the said omnibusesto the said Company.
That document shows clearly that the petitioner was a person having“ a pecuniary interest or a share in the business ” (vide paragraph 2 {a)of Schedule) and had also consented in writing to the issue of the licence.He did not, therefore, come under paragraph 2 (c) of the Schedule as aperson who could claim the benefit of a written undertaking like “ Z ”made by the applicant to pay compensation.
B 2047X 7082
H. B. Kodituwakku,December 26, 1942”.
JAYETILEKE J.—The Attorney-General v. Francis.
467
The letters* “ B ”, " C ” and “ D '* written after the issue of theLicence cannot be regarded as “ written undertakings ” contemplatedin paragraph 2, as that paragraph refers to documents in existencebefore the issue of the licence.
The petitioner, therefore, was not entitled to make an applicationunder paragraph 3 of that Schedule.
I refuse to issue notice on the Tribunal of Appeal and dismiss theapplication.
I wish to add that the Proctor who filed papers in this Court has notshown that amount of care which this Court has a right to expect fromits practitioners.
Application dismissed.