1941 Present : Cannon J.

ABEYWICKREME, Appellant, and COMMISSIONER OF
MOTOR TRANSPORT, Respondent.

In the matter of a case stated under section 4 (6) of the
Motor Car Ordinance, Appeal No. 2,609.

Omnibus licence-Refusal of application for licence in a particular year- Change of circumstances-Renewal of application-Motor Car Ordinance, No. 45 of 1938, s. 4 (6).

Where the Commissioner of Motor Transport refuses an application for an omnibus licence for a particular year, he is not debarred from considering another application by the same applicant for the same route during the same year where the circumstances have changed and where there is room for an additional omnibus.

THIS was a case stated for the Supreme Court under section 4 (6) of the Motor Car Ordinance, 1933.

H. V. Perera, K.C. (with him D. D. Atulathmudali), for objector, appellant.

H. W. R. Weerasooriya, C.C., for the Commissioner of Motor Transport.

Cur. adv. vult.

December 17, 1941. CANNON J.-

This is an appeal by way of cases stated under section 4 (6) of the Motor Car Ordinance, No. 45 of 1938, in which Ordinance is the law relating to the licensing of public vehicles.

The question referred by the case stated for the decision of this Court is as follows:-"Where the Commissioner refuses an application for an omnibus licence for a particular year, is he debarred from considering another application for the same route during the same year where the circumstances have changed and there is room for an additional omnibus ?

The duration of a 'bus licence is for a year or any part of a year ending in the month of December in all cases. The procedure for obtaining a licence to begin in January is that the application must be sent in to the licensing authority and forwarded by that authority, together with its recommendation, to the Commissioner of Motor Transport not later than the first week in the October preceding. An application for a licence to come into force at any time after January 31 must be forwarded by the licensing authority, with its recommendation, to the Commissioner within seven days of its receipt. The licensing authority may not recommend a refusal of the application except upon one or more of three grounds, namely, unsuitability of the particular 'bus for the proposed route ; unsuitability of the route for 'bus traffic ; traffic congestion on the proposed route-" that any proposed route is generally so congested by traffic that additional omnibus traffic cannot, with due regard to the safety and convenience of the public, be allowed thereon ", section 45 (2) (c). All such applications are advertised by the Commissioner ; and any other licence holder or applicant for a licence for any part of the route in question may make objection to the issue of the licence, section 46 (2) (b). The Commissioner must have regard to the following matters when deciding whether to grant or refuse the application : -The licensing

authority's recommendation ; any objection under section 46 (2) (b) ; existing transport facilities ; adequacy of the proposed service for the needs of the public. The Commissioner's decision is duly notified to the licensing authority for that authority to act in conformity therewith ; and where the decision communicated is that the licence should be refused, section 53 (1) directs that " the licensing authority shall not issue the licence ".

The facts which give rise to the present appeal are that a licence was applied for in October, 1940, for a 'bus to ply from January, 1941, on the route Matara to Hakmana. The Commissioner refused it and there was no appeal from his refusal. Later, in February, 1941, the applicant applied for a licence for the route Matara to Hakmana and Beliatte, such licence to come into force on March 1, 1941. This application was allowed because the traffic conditions had changed. An appeal was lodged