091-NLR-NLR-V-44-NORTH-WESTERN-BLUE-LINE-COMPANY-Appellant-and-K.-B.-L.-PERERA-Respondent.pdf
352
North-Western Blue Line Company and K. B. L. Perera.
1943Present : fle Kretser J.
NORTH-WESTERN BLUE LINE COMPANY, Appellant, and
K.B. L. PERERA, Respondent.
In the Matter oe a case stated to the Supreme Court (No. 3,089)IN TERMS OF THE MOTOR Car ORDINANCE AND THE OMNIBUS SERVICE. Licensing Ordinance.
Omnibus Service Licences—Applications to run omnibus service on a definite route—Contest; betioeen two companies—Method of calculation of bits licencesheld by the rival companies^-Omnibus Service Licensing Ordinance,No. 47 of 1942, ss. 4 (b) and 6 (I) (e).-
DE KRETSER J.—North-Western Blue Line Company and K. B. L. Perera 353
In considering applications for licences to run omnibus services on aroute between two termini, the licences covering those points onlyshould be taken into account in deciding which of two companies heldthe majority of licences.
Licences on the authority of which omnibuses could be used on thatsection of the highway and the highway beyond the two termini shouldnot be taken into consideration.
T
HIS was a case stated to the Supreme Court by the Tribunal ofAppeal under section 6 (a) of the Motor Car Ordinance, No. 45
of 1938, as amended by the Omnibus Service Licensing Ordinance, No. 47of 1942.
The facts appear from the judgment.
R. L. Pereira, K.C. (with him J. E. M. Obeyesejcere), for appellants.
H. V. Perera, K.C. (with him D. W. Fernando and Stanley de Zoysa),for respondents.
T. S. Fernando, C'.C., for the Commissioner of Transport.
Cur. adv. rult.
June 21, 1943. de Kretser J.—
The case stated for the opinion of this Court arises from the followingfacts. The Kelani Valley Motor Transit Company, whom T shall callthe respondents, and the Colombo-Ratnapura Omnibus Company, whomI shall call the appellants, are the parties concerned. The Commissionertook up for consideration applications for road service licences betweenColombo and Ratnapura, and in dealing with them guided himself ashe is required to do by Ordinance No. 47 of 1942, by the rules laid downin the first schedule to that Ordinance.
The question is whether he correctly interpreted the relevant rule.
' At the hearing the debate was mainly regarding the meaning of theword “ route ”, incidentally bringing in the meaning of the expressions“ same route or routes which are substantially the same ”, and “ licence. . . . authorising the use of omnibuses on such route or on routessubstantially the same as such route ”.
The appellants contended that “ route ” meant the route under consi-deration, and that was Colombo to Ratnapura, and licences coveringthose two points only should be considered in deciding which of them heldthe majority of the licences, while the respondents contended that “ route ”only meant the highway between the two points mentioned and thelicences to be taken into account were those under the authority of whichomnibuses could be used on that section of the highway and should includeall licences which related to that section and the, highway beyond thetermini.
Between Colombo and Ratnapura the appellants held eleven licencesand the respondents only six.
Between Colombo and points beyond Ratnapura, but still in theRatnapura District, the appellants held seven and respondents seven.
The respondents, however, held six licences from Panadura to Badullavia Colombo and Ratnapura, and from Panadure to points in theRatnapura District beyond Ratnapura four licences. While, therefore,the respondents were in a minority regarding the first two classes, theyheld the majority of the licences when all four classes were taken into
354 DE 'KRETSER J.—North-Western Blue Line Company and K. B. L. Per era.
the reckoning. Even if the buses from Panadure to the RatnapuraDistrict were taken into account, still the respondents were in a minorityand the contest therefore raged round the six omnibuses which went asfar as Badulla.
From the above statement it will be clear that consistency of argumentnecessarily means either the inclusion or the exclusion of the last threeclasses, and that it is incorrect to discuss the matter on concessions “ forthe sake of argument ”.
Ordinance No. 47 of 1942 made certain drastic changes in the existinglaw and it is necessary to ascertain, if possible, the principles underlyingthe alterations, and to do that a brief review of the history of the law isboth useful and necessary. It is necessary also to bear in mind thatthe Ordinance is to be read and construed as one with the Motor Car. Ordinance, No. 45 of 1938, as amended by section 22 of the new Ordinance.
Briefly then*, the earlier Ordinance insisted that applicants for licencesshould not only notify the routes on which they proposed to establishservices but also specify the termini of such routes, and it was madeobligatory on licences on pain of penalty to complete the run betweenthe points specified except for reasons which were named, such as amechanical breakdown. One would imagine that if an applicant saidthat he proposed to run his omnibus between Colombo and Ratnapurahe had already specified the termini and that insistence on his namingthem was superfluous. It was intended, however, to cure an existingevil which caused inconvenience to the public, whose interests were ofparamount importance, and it was sought to prevent a licensee fromabbreviating the service for which he had h licence on the pretext thathe could stop or start from any point within the ambit of his licence.The requirement that he should continue to specify the route as he didbefore was not meaningless but was only intended to fix down the licenseeto the obligation to run his omnibus between the points specified. “ Theroute ”, therefore, continued to mean “ the run ” or “ the service ” and,even it if did not, it npw came to mean the run between the points specified.That is, the words had a particular significance and did not mean merelythe highway between the points named. As if to emphasise this, theOrdinance used the word “ highway ” in various sections as I shall showlater. An applicant for a licence did not, when he named the route, meanto. apply for permission to use the highway but he was naming the limitsof the service he proposed to maintain, that is to say, he was designatingthe nature of his service to the public. Under the old Qrdinance, whichI shall call the main Ordinance, there could, however, be many servicesby different parties on the same route and the same party might rim hisomnibuses on different routes. This led to many ugly situations of whichthe public and the Courts are only too well aware. The newOrdinance sought to remedy this evil by limiting the services on anyparticular route and even establishing monopolies, if possible, the mono-polist ' compensating the rival who was eliminated. Vested interestshad always been recognized, and under the main Ordinance the powersof the Commissioner were considerably fettered. It was desired probablyto enlarge his discretionary powers (and he has been given very large powers
DE KRETSER J.—North-Western Blue Line Company and K. B. L. Perera. 355under the new Ordinance) but it was necessary to curb autocratic actionon his part and to allay the fears of vested interests and so rules weremade for his guidance which served at least to veil his pbwers.
It was made possible for a company or individual to acquire existinglicences on a particular route and then when the time came the Com-missioner would give preference to the company or individual who heldall or the majority of the licences on that route. The licences were thosein force before January 1, 1943, and as licences were annual that meantlicences for 1942.
In guiding himself, however, the rules which were given in schedule Iwere subordinate to the directions given in section 4, which amplysafeguarded the interests of the travelling public and in clause VI ofsub-section (a) gave the Commissioner very large powers in the words“such other matters as the Commissioner may deem relevant”, i.e.,relevant chiefly to safeguarding the interests of the public.
Section 18 (2) gave the Minister for Local Administration extremelywide residuary powers, and. he was empowered by amendment of thefirst schedule to “ resolve any matter of doubt or difficulty which mayarise in connection with the first issue of road service licences under thisOrdinance.” He did in fact attempt to solve a preliminary difficultyand apparently was confronted with another as a result. The Ordinancedoes not specify the order in which the Commissioner should take upthe various routes for consideration. To my mind it did not, because itwas left to the Commissioner to exercise his discretion in the matter.He was expected to take up the more important services first. The mainhighways ran in about six directions and only sections of each wereof major importance. To work the Ordinance to his satisfaction hemight make any start that would suit his purpose best. If the Commis-sioner’s interpretation of the rule—with which the majority of theTribunal of Appeal agreed—were correct, then it might make a greatdifference.
To take the present claimants,, if the Commissioner took up the routefrom Colombo to Avissawella the appellants would score an easy victory.If he then took up Colombo to Ratnapura, section 7 of the new Ordinancemight involve him in difficulty, for section 7 (1) directed him to “ soregulate the issue of licences as to secure that different persons are. notauthorised to provide regular omnibus services on the same section ofthe highway ”.
Note that the words are not “ on the same route ” but “ on the samesection of the highway ”. He was given power in a proviso to deal with acase where the needs of the public demanded services by more than oneperson but this power was strictly limited by the condition that he couldexercise it only if the section of the highway did not constitute the wholeor major part of “ any such route ”, and provided the principal purposesof the services licensed were substantially different.
It was agreed that the distance from Colombo to Ratnapura is 56 milesand from Colombo to Avissawella 30 miles, and that Colombo to Avissa-wella was the major part of the route Colombo to Ratnapura. I do notsay that I agree with this interpretation of the word “ major ” but merelystate that Counsel agreed that that was its meaning. Tt would seem to
356 DE KRETSER J.—North-Western Blue Line Company and K. B. L. Perera.
follow that competition could not be allowed between Colombo andAvissawella, which was the same section of the highway, and licencesfrom Colombo to Ratnapura could only be issued to a rival on conditionthat no service was provided between Colombo and Avissawella, thecondition being imposed under section 6. Conversely if the Colombo toRatnapura route were first considered the applicants for licences betweenColombo and Avissawella might have to be denied them later. Besidesdifficulties might arise regarding the assessment of compensation.
Now, under section 57 of the main Ordinance the Commissioner wasempowered to classify and number routes- and he had then to publishsuch lists in the Gazette. The Commissioner drew up a list classifying'certain routes as main routes, others as subsidiary, and others as local,and this list was published in Gazette No. 8,413 of November 18, 1938.The proclamation was for general information and related to licences for1939, and purported 'to state the “ principles ” which had been adopted.When the question arose as to the order in which he should take up routesfor consideration under the new Ordinance, the Minister purporting toact under section 18 directed that he should first take up what had beenclassified as' main routes. The regulation made by him was publishedin the Gazette No. 9,057 of December 29, 1942., Colombo to Ratnapurawas a main route; Ratnapura to Bandarawela and Bandarawela toBadulla were subsidiary routes. But at a conference (between whomis not stated) held on December 31, 1942, the Minister made the followingminute, which was not published in the Gazette :—
.“At a conference held on December 31, 1942,‘the Hon. the Ministerinformed the Commissioner of Transport that the order of December26, 1942, published in Gazette No. 9,057 of December 27, 1942, shouldnot be considered as affecting the definition of routes or routes whichare substantially the same in interpretation of these words in the firstschedule to Ordinance No. 47 of 1942, and should not be taken intoconsideration.”
Mr. H. V. Perera expressly stated that he did not argue that the factthat Colombo to Ratnapura was classified as a main route affected thequestion under consideration but he gave me the impression of adroitlysuggesting that it should affect the question. He was right in statingthat it had no bearing on this appeal, ft is interesting to note that theMinister in the order he published gave another direction also, viz., thatthe Commissioner should first dispose of applications for the entirety ormajor portion of a highway before dealing with those affecting a minorportion of such highway; I give the order in full so that its force may benoticed.
“ 1a. Notwithstanding anything in paragraph 1 of this schedule,the Commissioner shall—
dispose of each of the applications for the licence to provide anomnibus service, along the entirety or the major section of ahighway, before deciding to grant or refuse any application for alicence to provide an omnibus service on a route which Consistsof or includes a part or a minor section of such highway ;
DE KRETSER J.—North-Western Blue Line Company and K. B. L. Perera. 357
dispose of applications for the licence to provide an omnibus serviceon any route heretofore classified by the Commissioner as a mainroute, before deciding to grant or refuse any application for alicence to provide an omnibus service on any route heretoforeclassified by him as a route subsidiary to that main route.”
Mr. R. L. Pereira devoted much energy to urging that the routeColombo to Badulla was not substantially the same as the route Colomboto Katnapura, and that if it were, then Colombo to Avissawella wassubstantially the same as Colombo to Ratnapura and the licences for theshorter section should be counted, whereupon the appellant would win.
Mr. H. V.. Perera did not contend that the route Colombo to Badullawas substantially the same as Colombo to Ratnapura. He correctlystated that it was not. It is equally clear that Colombo to Avissawellais not substantially the same route as Colombo to Ratnapura.
Mr. H. V. Perera’s one contention was that licences from Colombo toBadulla were licences “ authorising ” ‘‘the use of omnibuses ” on theCoiombo-Ratnapura route, route meaning nothing more than highway.He emphasised the difference in language between the main provision ofthe first rule—“ licences . … in respect of the same route ”—and that in sub-section (1) and he went so far as to say that the phrase“ in respect of a route ” “ catches up the whole concept of a licence ”and therefore a licence in respect of Colombo to Ratnapura is not thesame as one in respect of Coiombo-Badulla.
To my mind the difference in phraseology does not make any difference.It is always dangerous to guide oneself solely by a difference in phraseo^logv. One needs to know much more. The context may show that thedifference is immaterial. Every licence “ in respect of a route ” doesauthorise the use of that omnibus on that route, and a licence authorisingthe use of an omnibus on a route is a licence of that omnibus in respect ofthat route. A licence authorises, and it must be in respect of somematter, in respect of a vehicle or of a commodity and in respect of routes,or hours, or other matters.
Mr. Perera’s argument really depends on the assumption that “ route ’’and “ highway ” are the same not only in ordinary language but in theOrdinance also. If it be not so his whole argument fails. I shall,however, look at the question from other points of view as well.
What is important is to consider the main provision of rule 1. Itdeals with applications for licences for road services in respect of thesame route or of routes which are substantially the same. It may wellhave said “ licences authorising the use of omnibuses on the same route,&c.” It is the route which is the subject of consideration and the applica-tion must be for that route, that is the route taken up for consideration.Mr. H. V. Perera conceded that much. Having then sorted out theapplications and decided on the route to be considered, the next step ismerely a counting of licences already held for such route. That is all .therule means, in my opinion. There is no justification for taking into, thereckoning any licences not limited to that route. A licence in respect ofColombo to Badulla is not an authority to use the omnibus on theCoiombo-Ratnapura route though it may use the highway between thesepoints : it is conceded that it is not in respect of Colombo to Ratnapura,
358 DE KRETSER J.—North-Western Blue Line Company and K. B. L. Perera.
not in respect of the same route or one substantially the same, in briefthe two licences are not identical. The argument that the greaterincludes the less is fallacious. The longer highway may include the shorterbut the routes are quite distinct and separate things, and the circumstancethat the services use the same highway does not make one part of theother. In brief I hold that the word “ route ” does not mean highway.
B£r. H. V. Perera argued that the word “ only ” would have come afterthe words “ such route ” if it was intended to limit the licences asindicated by me. The addition of the word “ only ” would have eliminated■discussion perhaps, as would the addition of the words “ or of routes ofwhich it is a part”, but I do not think the addition of these wordsnecessary in order to gather the meaning of the Legislature. One cannotignore the words “ such route ”. What is that ? Clearly the routetaken up for consideration, and what does rule 1 say? It refers toapplications in respect of the same route. The route being considered is,therefore, a fixed thing and the; licences to be considered must authorisethe use of omnibuses on this fixed section, that and no more and no less.Too much emphasis should not be laid on the word use or the word on.The licence was not intended to authorise the use of an empty omnibusnor was it concerned with collecting a road tax : it was intended to providea service and emphasis was laid on the termini of the route. The servicewas between the termini and the Commissioner would consider the mainservice, viz., that indicated by the termini, and would not consider thewayside stopping-places which would be purely subsidiary matters.
The words “ authorising- the use of omnibuses ” would therefore mean“ authorising an omnibus service ” and the service authorised would be,in the respondents’ case, Colombo to Badulla and not Colombo toRatnapura. Theoretically at least it. is possible to contemplate ’busafter ’bus going past Ratnapura with a full complement of passengersfrom Colombo to Badulla, and while Badulla would be served Ratnapuramight have no service at all. The primary service provided by therespondent would be for travellers to Badulla, and travellers to Ratnapura.would only be taken if there were room. The'more it is purely a serviceto Badulla the better would the public be served and probably the more. would respondent benefit. It is one of the relevant matters which theCommissioner might consider under section 4.
It seems to me also that the whole scheme of the Ordinance might beinvolved in chaos if Mr. H. 'V. Perera’s contention were upheld. . As theOrdinance now reads, I think the draftsman, if he used colloquiallanguage, might have said—“ If you have more than one application for.. licences for a particular route, the routes being those at present inexistence, give the licence to the person who has all or the greater numberof licences for that route, and compensate those who go out ”. If, however,respondents’ contention be the true one, the Commissioner would have toconsider all licences going past Ratnapura and even those for points betweenColombo and Ratnapura, for those licensees might be affected when theydid apply or rather when their applications were being considered.
If Mr. H. V. Perera’s clients failed, would compensation have to beawarded for the service Colombo to Badulla as well, or would theCommissioner'- have to wait and see how the respondents acted regarding
DE KRETSER J.—North-Western Blue Line Company and K. B. L. Per era. 359
Ratnapura to Badulla ? He might have to wait and see how thingsturned out on other sections of the road between Colombo and Ratnapura.The result would be that he would not deal with a particular route buthave to deal with all the connected routes at one time. Clearly this wasnot intended.
Again, would the respondents be entitled to vote, if I may so call it,when Colombo to Badulla, Colombo to Avissawella, Ratnapura toBadulla, &c., were being considered as one highway, and also vote whenColombo to Panadure was being considered ?
The route was the route of the main Ordinance, i.e., the route betweencertain termini, and a licence should not be considered as so many licencesembodied in one document. In my opinion Mr. H. V. Perera’s argumentcan be met by merely saying that there is no real difference between thephraseology in the different parts of rule 1, but I have considered it fromall possible angles because it was so strenuously argued and such im-portant issues are at stake.
Let us consider some of the sections of the new Ordinance. Section 2says that when a licehce has been issued specifying the routes on whicha service is to be established, no omnibus shall be used on any highwayincluded in such route except under the authority of that licence. Atthe very outset we have a clear distinction drawn between the route andthe highway included in such route. Section 3 requires applicants for aroad service licence to give particulars of the route or routes on whichthey propose to provide a service. It seems to me that a person proposingto establish a service between Colombo and Ratnapura and also betweenRatnapura and Badulla would have to say so at one- and the same time.The application being thus made the Commissioner cannot possibly takean application from Colombo to Badulla along with another applicationin respect of Colombo to Ratnapura for they would not be for the sameroute or substantially the same route. Licences for Colombo to. Badullawould not come before him therefore. If he obeyed the Minister’s directionhe would have to take up the longer highway, i.e., Colombo to Badulla,and having dealt with that then deal with Colombo to. Ratnapura.Colombo to Badulla would thus be eliminated from consideration. It isinteresting to note that the Minister seems to distinguish between highwaysand routes.
Section 4 (b) refers to “ the proposed route or routes or any partthereof ”. It would seem that the route is an entity in itself and theremay be a part of it. Section 6 (1) (e) refers to licences “ in respect of thesame section of a highway ”, not the same route or section of a route.Note also the words “in respect of” meaning nothing more than“ authorising the use of omnibuses on ”.
By section 10 a licensee is authorised to operate an omnibus serviceon the route or routes specified in the licence. The section in the mainOrdinance requiring an omnibus to proceed from terminus to terminus isrepealed. All that a licensee is expected to do is to provide a serviceon the route for which he is licensed. If he could provide a service onlyfor part of the route not only would that be a retrograde step but the
360 DE KRETSER J.—North-Western Blue Line Company and K. B. h- Pererc.
licence would shy so. The service and the route is one and it wasapparently considered unnecessary to require an omnibus to proceedto its termination provided the service was maintained.
Mr. R. L. Pereira referred me to Gazette No. 9,007 of September 16,1942, which gives the reasons for the new Ordinance. It only confirmsthe view which I have taken independently of this proclamation.
Counsel sought to throw light on the matter now under considerationby propounding certain problems regarding the question of compensationand creating what seemed like unfair situations. I have considered theseand other similar problems but I do not propose to go into them in detail.The time for considering such problems has not yet come. In my opinionthey will never arise, e.g., if appellant ran only one omnibus betweenColombo and Ratnapura ahd respondent ten between Colombo andBaduila and both applied for licences from Colombo to Ratnapura,appellant might not succeed for two reasons, viz,, (a) under section 4 theCommissioner might eliminate him as not providing a sufficient service ;and (b) respondent would limit some of his buses to the Colombo-Ratnapura route when making his application, e.g., five to run on thatroute. It would then be not a case under rule 1 but a case undersection 4.
In my opinion, therefore, 'the appellants succeed and are entitled to theircosts which the contesting respondents will pay.
1 have already ruled on the right of the respondents to appear and beheard, and having of their own choice taken up the contest they cannotcomplain if they are ordered to pay costs.
it might be wise to make amendments in the Ordinance which willmake clear the position of parties like the respondent. Under the mainOrdinance applicants for licences were not pitted against each other asviolently as they are now.' Provision was made for objections beingheard by the Tribunal of Appeal but the section dealing with referenceto this Court through the medium of a case stated was limited to questionsof law only, whereas now questions of fact niay be referred. The personsinterested in the question of law and empowered to have it stated werethe Commissioner or the unsuccessful applicant and the position stillremains the same, but regarding respondents some, doubt seems to existas to Whether “ the other party ” (of sections 4, 6, e) includes the contestingapplicant. I understand the party objecting is always heard by theTribunal of Appeal. It seems to follow that he should be heard by thisCourt too.
Appeal allowed.