Attorney General V. Liveris

1941 Present: de Kretser J.

ATTORNEY-GENERAL v. LIVERIS.

294-M. C. Galle, 27,228.

Motor bus-No application for licence-Cancellation of registration-Conviction for failure to take out licence-Motor Car Ordinance, No. 45 of 1938, s. 160 (1).

The accused who had not taken out a licence for his motor bus for the year 1940, had the registration of his bus cancelled in April, 1940, on the ground that it was permanently unserviceable.

Held (in a charge against him under section 29 0) of the Motor Car Ordinance) that the amount recoverable under section 160 0) is the amount of duty which at the date of the conviction is payable for the period for which a licence may be issued.

APPEAL from an order of the Municipal Magistrate, Galle.

O. L. de Kretser (Jr.), C.C., for the Attorney-General, appellant.

No appearance for respondent.

Cur. adv. vult.

June 17, 1951. DE KRETSER J-.

This is an appeal by the Attorney-General. The respondent was the registered owner of a motor bus and had failed to take out a licence for the year 1940. By April 27, 1940, the registration of the motor bus had been cancelled. That is the evidence accepted in the Magistrate's Court and it is borne out by the document, D 2, which refers to an application dated March 20, 1940, to have the registration cancelled. It was cancelled on the understanding that the vehicle had been rendered permanently unserviceable or destroyed and that it would never be used on the road again.

Having failed to take out his licence, the respondent Was prosecuted under section 29 (1) of the Motor Car Ordinance, No. 45 of 1938. He admitted liability to pay the licensing fee up to April 27. The Magistrate purporting to guide himself by the decision of this Court in M. C. Galle, No. 3,602, decided on December 2, 1940, fined the accused Rs. 60 and did not proceed in terms of section 160 (1) to order the recovery of the amount stated in the statutory certificate which had been filed.

Judging from what the Magistrate had earlier said, it is clear, think, that he did not intend to punish the accused, except nominally, and that he proposed to recover only the licensing fee for the period commencing on January 1, and ending on April 27. He said, "I find the accused technically guilty but I do not propose to levy a fine more than one-third the amount or even levy a penalty". Assuming that his order was otherwise correct, what he should have done was to fine the accused Rs. 3.30 and to order that a sum of Rs. 56.70 be recovered from the accused.

It is, however, argued for the appellant that the Magistrate had no option but to order that a sum of Rs. 170 appearing in the certificate issued by the licensing authority should be recovered. This raises the question whether the certificate is of such binding force that the Magistrate cannot question it but must automatically give effect to it when he convicts a person under section 29 (1) of the Ordinance.

The section clearly contemplates the case of the ordinary defaulter who remains the registered owner of the car and is liable therefore to pay the full year's duty. In" such a case the certificate would state the amount due for that particular, vehicle and the Magistrate would only be the channel through which the duty is recovered.

The circumstances of the present case, however, are not ordinary. The Magistrate had before him evidence that the registration of the motor bus had been cancelled on the ground that it was permanently unserviceable. He had also before him the provisions of section 36 which

state that the holder of a licence, on surrendering his licence for cancellation, would be entitled to a refund of a proportionate part of the licence duty. Of course in this case there was no licence to surrender.

The principle of the Ordinance seems to be that the registered owner of a motor vehicle should pay the licence duty in advance, unless he had ta

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