The Kelani Valley Motor Transit Co.,Ltd. V. The Colombo Ratnapura Omnibus Co.,Ltd.

[IN THE PRIVY COUNCIL.]

1946  Present: Lord Wright, Lord du Parcq and Sir John
Beaumont.

THE KELANI VALLEY MOTOR TRANSIT CO., LTD.,
Appellant, and THE COLOMBO-RATNAPURA
OMNIBUS CO., LTD., Respondent.

Privy Council Appeal No.90 of 1945.

Omnibus Service Licence-Contest between two companies for exclusive licence on a particular route-Method of calculation of licence already held by the rival companies-Distinction between ?highway? and ?route?-Omnibus service licensing ordinance, No. 47 of 1942, Schedule I.

When considering which of two companies was entitled, under the first schedule to the omnibus Service licensing Ordinance(No.47 of 1942), to an Exclusive Road Service Licensing on the route Colombo to Ratnapura it was the duty of the Commissioner of Motor Transport to give preference to the company which already held, at the material date, the great number of licence authorizing the use of omnibuses on the route Colombo to Ratnapura. The only licence to be reckoned were those confined to the route Colombo to Ratnapura, and licence covering the whole of that route and also some further distance beyond Colombo or Ratnapura or both could not be taken into account.
   
?Route ? and ?highway? in the Motor Car Ordinances of 1938 and 1942 are not synonymous terms. A ?highway? is the physical track along which an omnibus runs, whilst a ?route? is an abstract conception of a line of travel between one terminus and another, and something distinct from the highway traversed. It is of the essence of a route for which a licence is granted that it should run from one terminus to another.

APPEAL by special leave from a judgment of the Supreme Court. The judgment of the Supreme Court is reported in (1943) 44 N.L.R.352.

D. N. Pritt, K.C., and Stanley de Zoysa, for the appellant.

Cyril Radcliffe, K.C., L. M. D. de silva, K.C., and R. K. Handoo, for the respondent.

May 7, 1946. SIR JOHN BEAUMONT.-
   
This is an appeal by special leave from the judgment of the supreme court of Ceylon dated June 21, 1943, reversing a majority decision of the Tribunal of Appeal constituted under the Motor Car Ordinance, No.45 of 1938, which had affirmed an order of the commissioner of Motor Transport dated January 13, 1943, granting to the appellant and refusing the respondent an Exclusive Road Service Licence under the omnibus service licensing Ordinance, No.47 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 authorizing 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.
   
To determine this question it is necessary to notice the relevant provision of the Motor Car Ordinance, No.45 of 1938,(hereinafter referred to as ?the original ordinance ?) and the Omnibus Service Licensing Ordinance, No.47 of 1942, (hereinafter referred to as ? the amending Ordinance ?). In the first schedule 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 motorcar for which a licences is not in force. Section 43(2) (a) provides that every applicant for a licences 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 section 45 (1) (a) every licensing authority shall forward to the Commissioner

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