Smith v. Fernando.
Present: Wijeyewardene J.
SMITH v. FERNANDO.
276—M. C. Chilaw, 8,587.
Motor car—Charge against driver of omnibus—" Parking ” of car—Haltinga bus for taking up and setting down a passenger—Meaning of term“Parking'’—Motor Car Ordinance, No. 20 .of 1927, ss. 6, 56, 61,74, regulation 10 (Cap. 156).
The accused, the driver of a bus, was charged under regulation 10framed under sections 6, 53, and 70 of the Motor Car Ordinance, No. 20of 1927, with halting the bus on the public road at a place other than apublic bus stand or bus halting place for the purpose of taking up orsetting down passengers.
The regulation is as follows:—The driver of a hiring fear plying forhire within the limits of the Sanitary Board of Madampe, on the roadsmentioned, shall not park his hiring car except (a) at a public stand or(b) at a halting place set apart for the purpose by the Chairman and thenonly so long as is reasonably necessary for the purpose of taking up orsetting down passengers.
Held, that the halting of a hiring car on the public road for the purposeof taking up and setting down passengers was not' “ parking ” of thecar within the meaning of the regulation.
i (1860) 8 Moore’s Indian Appeals 262.
WXJEYEWARDENE J.—Smith v. Fernando.559
^^PPEAL from a conviction by the Magistrate of ChUaw.
5. -R. Jayawardene, for accused, appellant.
Douglas Jansze, C.C., for complainant, respondent.
September 6, 1939; Wijeyewardene J.—
This is an appeal by the accused against his conviction by the Magistrateof Chilaw, under section 84 of the Motor Ordinance, 1927 (vide LegislativeEnactments, Volume IV., Chapter 156—section 90) and a regulation madeunder the provisions of the Ordinance. The charge against the accusedas set out in the summons served on him reads :
“You did within the limits of the Sanitary Board area of Madampebeing the driver of bus No. X. 6493 halt the same on the public roadat a place other than a public bus stand or bus halting place for thepurpose of taking up and setting down passengers in breach of regulationNo. 10 framed under the Motor Ordinance, No. 20 of 1927, appearing inGovernment Gazette No. 7,858 of June 4, 1931, and you thereby com-mitted an offence punishable under section 84 of Ordinance No; 20 of1927
When the accused appeared in Court on the summons served on himthe Magistrate read and explained to him the statement of the particularsof the offence contained in the summons in terms of section 187 of theCriminal Procedure Code.
The accused pleaded not guilty and the prosecution called a PoliceConstable who stated that the omnibus driven by the accused stopped ata place 50 yards away from the bus stand, provided by the SanitaryBoard of Madampe and “ dropped two passengers and picked up onepassenger He added, “ No buses are allowed to drop or "pick uppassengers at Madampe except at the bus standThe proctor appearing for the accused called no evidence but contendedthat on the evidence led by the prosecution the accused had not com-mitted a breach of regulation 10 referred to in the charge.
The Magistrate held against the contention of the accused’s proctor andfound that the accused had “ infringed the provisions of section 10 ofGazette No. 7,858 of June 4, 1931 ”. He convicted the accused andsentenced him to pay a fine of Rs. 5.
The motor regulation for the breach of which the accused has beenfound guilty is one of the regulations framed under .sections 6, 53, 58, and70 of the Motor Car Ordinance, 1927 (vide corresponding sections 6, 56,61, and 74 of Chapter 156).
Regulation 1 defines a “ Public Stand ” .and regulation 2 empowers theSanitary Board to establish public stands and halting places. Regula-tions 4 to 9 set out the conditions governing the parking of hiring cars inpublic stands.
Regulations 3 and 10 are as follows :—
“No hiring cars shall be parked within the limits of the SanitaryBoard of Madampe except at a public stand, so established andnotified ”.
WUEYEWARDENE J.—Smith v. Femanao.
“The driver ol a hiring car plying for hire within the limits of theSanitary Board of Madampe on the roads below mentioned shall notpark his hiring car except (a) at a public stand, or (b) at a halting pl,aceset apart for the purpose by the Chairman and then only for so long asis reasonably necessary for the purpose of taking up or setting downpassengers or goods.
“ Negombo-Chilaw road, Bazaar street also known as Chetty street,Kurunegala road including portion called Jayawardana Crescent,Galahitiyawa road including a portion called Collin place, and GoodsShed road
The question of law that arises for decision is whether on the evidencefor the prosecution the accused could be said to have “ parked ” his hiringcar within the meaning of regulation No. 10. The word “ park ” is notdefined either in the Motor Car Ordinance, 1927, or in the regulation.The Shorter Oxford English Dictionary gives the meaning of the verb“ to park ” as “ to leave in a park ” and defines the noun “ park ” as“ a place where motor cars may be left Unattended ”.
Webster’s New International Dictionary (1936, 2nd edition) gives avery interesting definition of the word which I reproduce below : —
“ To stop and keep (a vehicle, especially a motor vehicle) standing for.a time on a public way or to leave temporarily on a public way or in anopen space, especially in a space assigned for the occupancy of a numberof automobiles. Statutes and Ordinances placing restrictions on parkingdefine the terms variously. In some jurisdictions keeping a vehiclestanding with a driver in his place is called live parking, without adriver dead parking. A vehicle halted while awaiting a traffic signalor while allowing an occupant to alight or a waiting passenger to getaboard is not usually regarded as a parked vehicle. A vehicle placedtemporarily indoors as in a public garage, is usually said, to be stored
If the word “ park ” in the regulation is given the meaning assigned toit in the Dictionaries the conviction of the accused cannot stand as allthat the accused did was to stop the omnibus to “ drop two passengersand pick up one passenger”. Is the word “park” then used in anyother sense in the regulation under consideration ?
Now the word “ parked ” in regulation 3 cannot possibly mean also“halted” for in that case there will be no meaning in regulation 2providing for the establishment of halting places. Is there then anyreason why the word “ park” in regulation 10 should be given a meaningdifferent from what it has in regulation 3 ? Regulation 3 prohibits theparking of hiring cars in Madampe except at a public stand. Regulation10 has been framed to make some special provision with regard to-theparking of a particular group of hiring cars, namely, cars plying for hirein Madampe on certain public roads. It prohibits the parking of suchcars, but creates two exceptions. They may be “ parked ” at a publicstand as under regulation 3 or they may be “ parked ” at a halting placebut only for so long as is reasonably necessary for the pufpose of takingup or setting down passengers or goods. According to this view what theframers of the regulations intended to do by regulation 10 was to prohibit
WUEYEWARDENE J.—Smith «. Fernando.861
the parking of hiring cars plying on certain roads except in two groups ofplaces and -subject to certain conditions. Regulation 10 which thenprohibits the parking of cars cannot be invoked to sustain a charge againsta driver for halting a car. The driver of a hiring car charged underregulation 10 could plead any one of the following defences:—
Thai his car did not ply for hire on certain roads.
That he did not park his car anywhere.
That the place he parked his car was a public stand.
That the place he parked his car was a halting place and that he
did not keep his car for a period of time longer than was reason*ably necessary for the purpose of taking up or setting downpassengers or goods.
The accused in this case pleads the defence set out in (b) above.
The question may also be considered in another way. If the word“ to park ” has the meaning “ to halt ” in regulation No. 10 then theregulation prohibits the halting of a hiring car except (a) at a publicstand, (b) at a halting place for so long as is reasonably necessary for thepurpose of taking up or setting down passengers or goods.
But the fourth schedule to the Motor Car Ordinance contains regulationsapplicable to hiring cars and regulation 3 of these regulations enacts—
“ No omnibus shall be stopped or allowed to stand on a highway in anurban area, except—
in the event of a breakdown and then only for so long as may be
necessary to enable reasonable repairs to be effected ; or
on a public stand provided or allotted for that purpose and indicated
as such by a notice exhibited by the licensing authority and thenonly on payment of such fees, and. subject to such regulationsfor the use thereof as may be prescribed or made under theMotor Car Ordinance and subject to regulation 4 of theseregulations; or
at a stopping place indicated as such by a notice exhibited by the
licensing authority and then only for so long as is reasonablynecessary for the purpose of taking up or setting down passengersor goods and subject to regulation 4 of these regulations ; or
in a parking place provided or indicated by regulations or notice
under section 56 of the Motor Car Ordinance.
These regulations could be altered or added to by regulations undersection 71 of the Ordinance (vide Legislative Enactments, Vol. 4, Chapter156, section 75). Regulation 10 published in the Government GazetteNo. 7,858 of June 5, 1931, is not a regulation made under section 71 ofthe Ordinance. Moreover, if the word “park” in regulation 10 means“ halt ’’ the only effect of that regulation would be to replace regulation 3in the Fourth Schedule to the Ordinance as otherwise the two regulationswill be overlapping. If the effect of regulation 10 is to replace regulation3 in the Fourth Schedule then the framers of regulation 10 must be takento have intended to refuse the right to the driver of an omnibus to halthis car at any place in the event of a breakdown which right had beenspecifically given by regulation 3 in the Fourth Schedule. It is notpossible to say that the framers of the regulation No. 10 had such anintention.
Masson v. Mathes.
In this connexion it is interesting to refer to the definition of “ parking ”given in the new Motor Ordinance, No. 45 of 1938, to which my attentionhas been drawn by the Crown Counsel. “ Parking” is defined in thatOrdinance as meaning “the bringing of a motor car to a stationaryposition or causing it to wait for any purpose other than that of imme-diately taking up or setting down persons or goods ”.
I am therefore of opinion that regulation No. 10 does not enable acharge to be framed against a driver for “ halting his hiring car for thepurpose of taking up and setting down passengers
The proctor who appeared for the accused in the lowei Court contendedthat the charge could not be sustained under regulation 10 but theprosecution did not move to amend the charge. I do not think that inthe circumstances of the case I should alter the charge and send the caseback for further proceedings,
I shall therefore quash the conviction and leave it to the proper author-ities to take any other proceedings if they think it desirable to do so.
SMITH v. FERNANDO