MAERSK (LANKA) PVT. LTD

MAERSK (LANKA) PVT. LTD
VS
MINISTER OF PORTS AND AVIATION AND OTHERS

COURT OF APPEAL
SRIPAVAN, J(P/CA)
ROHINI PERERA, J
CA 1639/2006
JULY 26, 2007
OCTOBER 19, 24, 2007
NOVEMBER 5,9, 2007
DECEMBER 14, 2007
JANUARY 17, 2008

Writ of Certiorari - Shipping Agents Act, No. 10 of 1972-Sections 3, 8, 10(1),10 (2), 10(3), 10 (4) as amended by Act 8 of 2002 - Regulation ultra vires - is the Court entitled to look at the long title of the Act - 'Ejusdem Generis' Rule- Rule of Interpretation - Waiver, consent, acquiescence, estoppel ?

The petitioner sought to challenge Regulation 10- under the provisions of the shipping Agents Act 10 of 1972 on the basis that it is ultra vires the power.

vested in the Minister under Section 10 of the Act. The 1st respondent Minister empowered the Container Depot Operations to Levy Charges upon Shipping agents in accordance with a proposed Tariff services rendered to them. Prior to the issue of the Regulation of the Tariff was negotiated between the shipping agents and the Container Depot Operators.

It was contented by the respondent that the 1st respondent Minister is empowered to make regulations to Tariffs under Section 3(5) e.

Held:

(1) The 1st respondent Minister is empowered under the Act to make regulations for the purpose of giving effect to hte principles and provisions of the Act, additionally he is vested with the power to make Regualtions in respect of matters prescribed by the Act. The Minister may infer the principles upon which he may exercise those powers exclusively from the provisions of the Act and not from any external source.

(2) If there is no linkage between the Regulations and the principles derived from the provisions of the Act, then any such Regulations thus made would be ultra vires the proposed Act.

Per Rohini Perera.J

"The court is entitled to look at the long title of the Act in order to asecertain the ends and purposes which Parliament has intended to achieve through that legislation. It is quite permissible for the Courts to use the long title to ascertain the clear and unambiguous meaning of a section. If a section is ambiguous the long title may also consulted to discover the intention of Parliament in order to resolve an ambiguity:.

(3) The title of the Act is-to provide for the regulation and control of the carrying on of the business of Shipping Agent frieght forwarders Non Vessel Operating Common Carriers and Container Operators by the introduction and operation of a system of licensing and for matters connected therewith or incidenal therto. Any interpretation to the term standard under Section 3 (5) e must be supported by other provisions of the Act and construction to section must place a consistent rationale and probable menaing on all the sections reffered to when read together.

(4) Section 3 (5) (A), (B), (BB) and C of the Act are all matters pertaining solely to licensing or connected therewith or incidental thereto. Section 3 (5) E has to be read in context it is stated and any construction of the

section should place a consistent rationale and probable meaning on the whole section when read together. It is impossible to articulate a proposition that Section 3 (5) E should be construed to mean anything unconnected to licensing. Section 3 should be connected to other provisions of the Act.

Imposition of a tariff is a financial burden on the Subject. It therefore should have been strictly disclosed in the Act. The Principal Act does not relate to any taxation to be ordered by the Minister. Executive has no power to impose a tax by regulation without there being an express power given to the Minister in the controlling Statute.

Held further :

(6) There Is no provision in the Act from which it can be inferred that there Is a power vested in the Minister to regulate business relations between the shipping agent and container operators with regard

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