KELANI VALLEY MOTOR TRANSIT CO LTD Vs. COLOMBO-RATNAPURA OMNIBUS CO LTD

JUDGEMENT

(1.) This is an appeal by special leave from the judgment of the Supreme Court of Ceylon dated 21 June 1943, reversing a majority decision of the Tribunal of Appeal constituted under the Motor Car Ordinance (45 [XLV] of 1938) which had affirmed an order of the Commissioner of Motor Transport, dated 13 January 1943, granting to the appellant and refusing the respondent an exclusive road service licence under the Omnibus Service Licensing Ordinance (17 [XLVII] of 1942) for the route from Colombo to Ratnapura. The question at issue is whether the appellant or the respondent at the material date held the greater number of licences authorising the use of omnibuses on the route Colombo to Ratnapura, and the answer to that question depends upon whether the only licences to be reckoned under the relevant legislation are those confined to the route Colombo to Ratnapura as the respondent contends, or whether licences covering the whole of that route and also some further distances beyond Colombo or Ratnapura or both are to be reckoned, as the appellant contends.

(2.) To determine this question it is necessary to notice the relevant provisions of the Motor Car Ordinance (45 [xlv] of 1938) (hereinafter referred to as "the original ordinance") and the Omnibus Service Licensing Ordinance (47 [XLVII] of 1942) (hereinafter referred to as "the amending ordinance"). In sch. 1 to the latter ordinance occur the actual words which have to be construed. The original ordinance so far as relevant contains the following provisions. Section 29 (1) provides that no person shall possess or use a motor car for which a licence is not in force. Section 43 (2) (a) provides that every applicant for a licence for an omnibus shall specify in his application particulars of the route or routes on which it is proposed to provide a service under the licence. Under S. 45 (1) (a) every licensing authority shall forward to the Commissioner every application received by that authority for a licence for an omnibus, together with a recommendation upon the application. Under S. 47, the Commissioner in deciding whether an application for a licence for an omnibus should be granted or refused, has to consider amongst other things whether by reason of the length of the proposed route or routes or the extent of the area covered thereby, the service under the licence will be efficient and likely to provide adequately for the needs of the public. Under S. 48 (1) where, upon an application for a licence for an omnibus, the Commissioner decides that the licence should be granted, he has to determine the route or routes in respect of which licences may be issued. Section 50 provides for an appeal from a decision of the Commissioner to the Tribunal of Appeal of which the constitution and powers are defined by the ordinance. Under S. 52 the Commissioner is required to communicate to each licensing authority his decision upon applications made to him. Section 51 (1) is important and is in the following terms ; ''Every licensing authority shall specify on every licence for an omnibus issued by that authority (a) the approved route or routes on which that omnibus may ply or stand for hire, and the number, if any, assigned to each route under S. 57; (b) the two places which shall be the termini of each such route; and (c) the highway or the several highways to be followed by the omnibus in proceeding from one terminus to the other." Under S. 57 (1) the Commissioner may classify and number, in such manner as may be convenient, the approved routes in respect of which licences for omnibuses are issued, and he is required to publish in the Gazette a list of the routes so classified and numbered. Section 116 makes it an offence for an omnibus to ply or stand for hire on any route other than an approved route specified on the licence of that omnibus or which, starting from one terminus of an approved route fails to complete a journey along that route to the other terminus except as therein mentioned. It may be noticed also that form 12, which is the form of application for a licence for an omnibus, requires the application to state the route for which the licence is required, giving the two termini of the route and intermediate highways proposed to be followed, and the form of licences to be granted, which is form 18 states that the omnibus licence is to be used only on the specified route from one place to another.

(3.) It will be observed that the scheme of the original ordinance was to license particular omnibuses to be used on specified routes. It would appear that that system led to undesirable competition, and under the amending ordinance a system was introduced of licensing particular routes and assigning each route to a particular owner. Under S. 2 (1) of the Amending Ordinance it is provided that no omnibus shall, after the date specified, be used on any highway for the conveyance of passengers for fee or reward, except under the authority of road service licences issued by the Commissioner of Motor Transport under the ordinance. Under S. 3 (1) (a) every application for road service licences shall be made to the Commissioner in such form as he may provide and has to contain (a) particulars of the route or routes on which it is proposed to provide the service. Section 4 specifies the matters to be considered by the Commissioner on application for road service licences, and amongst other things he is required to have regard to (1) the suitability of the route or routes on which it is proposed to provide a service under the licence, (2) the extent to which the needs of the proposed route or routes are already adequately served and (3) the needs of the area as a whole in relation to traffic. Section 5 provides that in any case where the Commissioner decides to grant any application for a road service licence for a regular service, he shall specify in the licence the route or routes on which the service is to be provided under the licence. Section 6 deals with the conditions which the Commissioner may attach to road service licences. Condition (e) provides that, in a case where licences are issued to different persons in respect of the same section of a highway or where any route or part thereof lies within the administrative limits of any local authority, passengers shall not be taken up or shall not be set down except at specified points or between specified points. Section 7 (1) provides :