THE SOUTH WESTERN BUS CO., LTD., Petitioner, and ARUMUGAM et al., Respondent

127-NLR-NLR-V-48-THE-SOUTH-WESTERN-BUS-CO.-LTD.-Petitioner-and-ARUMUGAM-et-al.-Respondent.pdf


JAYETILEKE J.—The South Western Bus Co., Ltd. v. Arumugam.
385
1947Present: Jayetileke J.
THE SOUTH WESTERN BUS CO., LTD., Petitioner, andARUMUGAM et al., Respondents
S. C. 346—Application for Writs of Certiorari and Mandamuson the Commissioner of Motor Transport and another
Writ of Certiorari—Omnibus Licensing Ordinance—Applications for licences—Issue from time to time—Powers of Commissioner—Ordinance No. 47 of1942, Section 7.
Under section 7 of Ordinance No. 47 of 1942 the Commissioner of MotorTransport has power to issue road service licences from time to time asoccasion requires. The proviso to that section does not contemplatesimultaneous applications and simultaneous orders for the issue oflicences.
The granting of a licence by the Commissoiner of Motor Transport isa judicial order and is, therefore, subject to a writ of certiorari.
^ PPLICATIONS for writs of certiorari and mandamus.
H. V. Perera, K.C. (with him H. W. J ayewardene), for the petitioner.Walter Jayawardene, C.C., for 1st respondent.
E. F. N. Gratiaen, K.C. (with him D. W. Fernando and C. de S.Wijeratne), for 2nd respondent.
Cur. adv. vult.
August 26, 1947. Jayetii.eke J.—
This is an application for a Writ of Certiorari to bring up and quashan order made by the 1st respondent, who is the Commissioner ofMotor Transport, under section 7 of the Omnibus Service LicensingOrdinance, No. 47 of 1942. Certiorari is a prerogative writ issued by aCourt of superior jurisdiction to bring up for examination the acts ofbodies of inferior jurisdiction. It is applicable to judicial as well as toquasi-judicial proceedings though it is commonly said that it is applicableonly to judicial proceedings. In Reap v. London County Council1Scrutton L.J. said : —
“ It is not necessary that it should be a Court in the sense that thisCourt is a Court; it is enough if it is exercising, after hearing evidence,judicial functions in the sense that it has to decide on evidence betweena proposal and an opposition; and it is not necessary to be strictly aCourt; if it is a tribunal which has to decide rights after hearingevidence and opposition it is amenable to the writ of certiorari."
In Re.r v. Woodhousein which it was held that licensing jurisdictionis judicial, Fletcher-Moulton L.J. said : —
“ The writ of certiorari is a very ancient remedy, and is the ordinaryprocess by which the High Court brings up for examination the acts ofbodies of inferior jurisdiction. In certain cases the writ of certiorariis given by statute, but in a large number of cases it rests on thecommon law. It is frequently spoken of as being applicable only to
• (1931) 2 K. B. 213 at p. 233.* (1906) 2 K. B. 301 at p. 534.
13
386 JAYETILEKE J.—The South Western Bus Co., Ltd. v. Arumugam.
‘ judicial sets’ but the cases by which this limitation is supposd uobe established shew that the phrase ‘ judicial act ’ must be taken in avery wide sense, including many acts that would not ordinarily betermed * judicial For instance, it is evidently not limited to bringingup the acts of bodies that are ordinarily considered to be Courts.From very early times the common law courts considered that theyhad jurisdiction to examine into rates by certiorari, and the case ofRex v. King and Others(1788)2 T. R.234 which is
cited in the text books as an authoritj' to the contrary,tends to support the view that their refusal to grant writsof certiorari in cases of poor rates was based on reasons ofexpediency and not on any doubt as to their powers. Orders of thePoor Law Commissioners can be brought up on certiorari, and theprovisions of the Poor Law Amendment Act (4 & 5 Will. 4c 76), relatingthereto do not purport to give the right, but treat it as a case of restrict-ing the exercise of a right assumed to exist. In the case of In re theConstables of Hipperholme (5 D & L 79) the Court held that the orderof two justices appointing a constable under the powers of 5 & 6 Viet,c. 109, s. 19, could be examined on certiorari. Other instances couldbe given, but these suffice to shew that the procedure of certiorariapplies in many cases in which the body whose acts are criticizedwould not ordinarily be called a court, nor would its acts be ordinarilytermed ’judicial acts’. The true view of the limitation would seemto be that the term ‘ judicial acts ’ is used in contrast with purelyministerial acts. To these latter the process of certiorari does not apply,as for instance to the issue of a warrant to enforce a rate, even thoughthe rate is one which could itself be questioned by certiorari. In short,there must be the exercise of some right or duty to decide in order toprovide scope for a writ of certiorari at common law. ”
Three tests have been laid down in Rex v. Electricity Commissioners 1for the application of certiorari. The inferior jurisdiction concernedmust (1) have legal authority to determine questions affecting the rightsof subjects, (2) have the duty to act judicially and (3) have exceeded itsjurisdiction. In the course of his judgment Atkin L.J. said : —
“ The question now arises whether the persons interested are entitledto the remedy which they now claim in order to put a stop to theunauthorised proceedings of the Commissioner. The matter comesbefore us upon rules for writs of prohibition and certiorari which havebeen discharged by the Divisional Court. Both writs are of greatantiquity, forming part of the process by which the King’s Courtsrestrained courts of inferior jurisdiction from exceeding their powers.Prohibition restrains the tribunal from proceeding further in excess ofjurisdiction ; certiorari requires the record of the ord,er of the court tobe sent up to the King’s Bench Division, to have its legality inquiredinto, and, if necessary, to have the order quashed. It is to be notedthat both writs deal with questions of excessive jurisdiction, anddoubtless in their origin dealt almost exclusively with the jurisdictionof what is described in ordinary parlance as a Court of Justice. But
• (1924) 1 K. B. 171 at p. 204
JAYETILEKE J.—The South Western Bus Co., Ltd. v. Arumugam. 387
the operation of the writs has extended to control the proceedings ofbodies which do not claim to be, and would not be recognized as,Courts of Justice. Wherever any body of persons having legal authorityto determine questions affecting the rights of subjects, and having theduty to act judicially, act in excess of their legal authority they aresubject to the controlling jurisdiction of the King’s Bench Divisionexercised in these writs.”
The facts which gave rise to this application are as follows : —OnOctober 1, 1944, the 1st respondent issued a road service licence to thepetitioner from Kalutara .to Atura through Matugama, Agalawatta andKalawellawa to be in force till March 31, 1946. After the expiration ofthat period he re-issued the licence up to September 30, 1947. On March
1945, he issued a road service licence to the' 2nd respondent fromHorana to Atura to be in force up to February 28, 1946. On September
1945, the 2nd respondent made an application to him to extend hisroute from Atura to Kalawellawa, a distance of 2£ miles. The petitionerobjected to the application on two grounds : — (1) that that section ofthe route was covered by his licence and (2) that the 1st respondenthad no power under section 7 of the Ordinance to entertain or to allowthe application. On February 2, 1946, the 1st respondent, after inquiry,allowed the application. The present application is to have the ordermade by the 1st respondent quashed' on the ground that in making it heacted in excess of this jurisdiction. At the argument before me,Mr. Jayewardene faintly argued that the granting of the licence was not ajudicial order but a decision made by the 1st respondent in the perfor-mance of duties which were purely administrative and, that it was not.therefore, subject to certiorari. I think it is clear from the provisions ofthe Ordinance that the question whether the 1st respondent should issuea licence is not left to him as a matter of pure discretion but it is a matteron which he has to pronounce judicially after hearing the parties. Hehas, no doubt, a discretion in regard to the issue of licences, but thatdiscretion he must exercise according to law and not arbitrarily. Section4 provides that, before refusing an application for a licence, the Com-missioner must give notice of any objections to the applicant, and hearwhat the applicant has to urge in support of his application. Section 12gives the Commissioner power to suspend or revoke a licence issued toany person if any condition attached to the licence has been contravenedor not been complied with. There are two provisos to that section.The first provides that no licence shall be revoked or suspended unless theCommissioner is of opinion that such revocation or suspension is necessaryowing to the repetition of the breach of condition, or to the breachhaving been committed wilfully, or to the danger to the public involvedin the breach. The second provides that no order of revocation orsuspension shall be made by the Commissioner except after notice to theholder of the licence and consideration of any representations as may bemade by the holder either in writing, or in person, or by representativeagainst the making of the order. Section 13 gives a person, whoseapplication for a licence or for the renewal of a licence is refused by theCommissioner, a right of appeal to the Tribunal of Appeal. It alsogives a person, who is aggrieved by the decision of the Commissioner to
388 JAYETILEKE 3—The South Western Bus Co., Ltd., v. Arumugam.
attach any condition to the licence, or to vary the conditions of thelicence, or by an order of the Commissioner revoking or suspending thelicence, a right of appeal to the Tribunal of Appeal.
These provisions imply that the character of the jurisdiction whichis vested in the Commissioner is essentially judicial.
I shall now proceed to deal with Mr. Perera’s argument that, undersection 7 (1) of the Ordinance, the moment the Commissioner issues alicence, his powers are exhausted and that he has no further power toissue another licence in respect of any section of the route covered bythe licence he has already issued. The sub-section reads : —
“ 7.(1) The issue of road service licences under this Ordinance shall
be so regulated by the Commissioner as to secure that different personsare not authorised to provide regular omnibus services on the samesection of any highway :
Provided, however, that the Commissioner may, where he considersit necessary so to do having regard to the needs and convenience of thepublic, issue licences to two or more persons authorising the provisionof regular omnibus services involving the use of the same section of ahighway, if, but only if—
that section of the highway is common to the respective routesto he used for the purposes of the services to be provided under each ofthe licences, but does not constitute the whole or the major part of anysuch route ; and
the principal purpose for which each such licence is being issuedis to authorise the provision of a service substantially different fromthe services to be provided under the other licence or licences.”
Fixing upon the words “ to be used ”, “ to be provided ” and “ eachsuch licence is being issued ”, Mr. Perera contended, with considerableforce, that the section contemplates simultaneous applications andsimultaneous orders for the issue of licences. The general rule of inter-pretation is set out in section 4 of the Interpretation Ordinance (Chapter 2)which provides that when an Ordinance confers a power or imposes a duty,then, unless a contrary intention appears, the power may be exercisedand the duty shall be performed from time to time as occasion requires.
This section would give the Commissioner the power to issue licencesfrom time to time unless the legislature has expressed a contrary intentionin section 7 (1) of the Omnibus Service Licensing Ordinance. TheOrdinance taken as -a whole contemplates that applications for licencesmay be made at any time and that the power to issue them may beexercised as occasion requires. It must be noted that there is no provisionin the Ordinance that applications for licences should be made before aparticular date. The first line of section 7 (1) speaks of the “issue ofroad service licences under this Ordinance ”, an expression which is inaccordance with the notion that licences may be issued from time to time.The section requires the Commissioner to regulate his general power toissue licences so as to secure that different persons are not authorisedto provide regular services on the same section of the highway. Itimposes on the Commissioner a duty to take this precaution whenever heissues licences under the Ordinance. Mr. Perera’s argument is based
J A YET ILEX E J.—The South Western Bus Co., Ltd. v. Arumugam. 389
entirely on the terms of the proviso. The opening lines of the proviscvempower the Commissioner “to issue licences to two or more personsauthorising the provision of regular omnibus services involving the use-of the same section of a highway.” The main part of sub-section 1having provided that different persons should not be authorised to usethe same section of a highway, it is natural that the proviso, which isintended to create an exception, should permit of the issue of licences tomore than one person in special circumstances. If a licence has alreadybeen issued to one person and another licence is subsequently issued toanother person, the effect is that the Commissioner has, in fact, exerciseda power to issue licences to two persons, a situation which appears to bequite in accordance with the power “ to issue licences to two or morepersons ”. The words the Commissioner “ may issue ” do not refer toan act limited in point of time ; they are the usual words by which thelegislature confers a power. The issue of two or more licences simul-taneously is no doubt comprehended within this expression but that doesnot mean that the power to issue licences from time to time is expresslyexcluded from its scope. The words “ may issue licences to two or morepersons ” do not, in my opinion, by themselves rebut the general rule setout in section 4 of the Interpretation Ordinance.
It remains now to consider whether there is anything in the remaining:part of the proviso which gives a different interpretation to these words.The power to issue licences to two or more persons in respect of the samesection of a highway can only be exercised if the two conditions mentioned1,in paragraphs (a) and (b) of the proviso are satisfied. Under paragraph(a) that section of the highway must be common to the respective routes;to he used for the purpose of the services to be ■provided under each of thelicences. Stress was laid on the words italicised by me in support of theargument that the paragraph intends to refer only to licences which are-issued simultaneously. The Commissioner has to consider when decidingif he is or is not to issue licences to two or more persons whether thecondition imposed by paragraph (a) is satisfied. To do this he has to-consider the effect of issuing the licences. This effect is necessarily aneffect in the future and not in the present or in the past. He has to besatisfied that the section of the highway is common to the respective'routes, not which are used, or have been used, but which will he used forthe purposes of the services, that is of services, not which are beingprovided, or have been provided, but which will be provided under eachof the licences. He-has, therefore, always to contemplate an effect in the-future and the words merely describe the results which will follow from adecision to issue two or more licences. These expressions have necessa-rily to find a place in paragraph (a) for the reasons just stated and, thatbeing so, it would be stretching the argument too far to rely upon theiroccurrence in the paragraph as a support for the view that the words“ to be ” should be construed so as to modify the ordinary scope of thepower conferred earlier in the proviso “ to issue licences to two or morepersons ”. Paragraph (b) of the proviso provides that “ the principalpurpose for which each such licence is being issued is to authorise theprovision of a service substantially different from the services to beprovided under the other licence or licences.” Here again stress was laid
390 JAYETILEKE J.—The South Western Bus Co., Ltd. v. Arumugam.
on the words italicised by me. I think it is convenient to consider allthe words “each such licence is being issued” together. These wordsrefer to each of the licences which is being issued at any given time byvirtue of the power “ to issue licences to two or more persons If thelicences are being issued at one and the same time to two or more personsthen the words “ each such licence ” refer to every one of the licences.If, on the other hand, one licence nas already been issued and two or morelicences are again being issued under the general power, the words “ eachsuch licence ” refer not to the one already issued but to the new oneswhich are being issued. The only difficulty is to appreciate the appropri-ateness of the words “ each such licence ” in a case where one licence hasalready been issued and one new licence is to be issued. The argumentis that the words “ each such licence ” are inappropriate and that if theintention was to include such a case the word “ each ” should have beenomitted. I think there is a fallacy in this argument. Suppose a sectionof an Ordinance were to provide that “ the proper officer may issue•certificates to two or more persons, subject to the condition that eachsuch certificate is to be in force for six months ”, it would not be deniedthat there is a power to issue the certificates from time to time ; and theexpression “ each such certificate ” would not imply that the two or morecertificates should be issued together but merely that each one which isissued will continue in force for the specified period. In the same ■way.the words “ each such licence ” in paragraph (b) of the proviso refer toeach one of the licences which is issued at any given time, and each ofthem must authorise the provision of a service substantially differentfrom the services to be provided under the other licence or licences,whether already issued or then being issued, which authorise the provisionof~regular services on the same section of the highway. It will be seen,therefore, that the terms of paragraph (b) are not in conflict with themeaning that must prima facie be given to the words “ may issue licencesto two or more persons ”, namely, that such licences can be issued fromtime to time.
If the intention of the legislature had been that a section of a highwayincluded in a route covered by a licence already issued should not formpart of the route authorised by a subsequent licence, that intention couldeasily have been, and should have been, clearly and unequivocallyexpressed.
I think that the view put forward by Mr. Perera would be too narrowa view of the powers of the Commissioner under section 7 of the Ordinanceand would, to a certain extent, nullify the provisions of the Ordinance.For the reasons given by me I am of opinion that it was within thescope of the powers of the 1st respondent to grant a licence to the 2ndrespondent.
I would, accordingly, dismiss the application with costs.
Application dismissed.