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EBERT SILVA BUS CO. LTD. v. HIGH LEVEL ROAD BUS CO. LTD.
NLR51V162
1949 Present . Windham J.
EBERT SILVA BUS CO., LTD., Petitioner, and HIGH LEVEL ROAD BUS CO., LTD.,
Respondent
S. C. 264-Application for a Writ of Certiorari against the Motor
Tribunal
Writ of certiorari-Omnibus
Service Licensing Ordinance, No. 47 of 1942- Sections 5 (1), 13 (1), 14 (1) (6)
and 14 (3)-Powers of Tribunal of Appeal-Meaning of words " route which is
substantially the same "-Temporary diversion of route-Not illegal.
In an appeal under section 13 (1) of the Omnibus Service Licensing Ordinance it
is competent for the Tribunal of Appeal to require that while a road along which
the prescribed route is to run is closed to traffic the route shall temporarily
run along another road or roads. Such an order does not exceed the jurisdiction
conferred on the Tribunal by section 14 (1) (b).
In determining whether one route is substantially the same as another route,
slight divergencies are immaterial.
THIS was an application for a writ of certiorari to quash an order made by the
Motor Tribunal of Appeal.
H. V. Perera, K.C., with N. E. Weerasooria, K.C., D. D. Athulathmudali and W.
D. Gunasekera, for the petitioner.
G. Thiagalingam, with Stanley de Zoysa and S. E. J. Fernando, for the fifth'
respondent.
Cur. adv. vult.
October 20, 1949. WINDHAM
J.-
This is an application for a writ of certiorari to quash an order made by
the first three respondents, acting as a Tribunal of Appeal under section 14 of
the Omnibus. Service Licensing Ordinance, No. 47 of 1942. In that order the
Tribunal had revoked a decision by the fourth respondent, the Commissioner of
Motor Transport, to issue an exclusive road service licence to the petitioner
company, and had directed that a licence should issue instead to the fifth
respondent company, who are contesting this application.
The petitioner company had no right of appeal against the order of the Tribunal,
since under the joint operation of section 4 (6) (a) of the Motor Car Ordinance,
No. 45 of 1938 (as later amended) and section 13 (8) of the Omnibus Service
Licensing Ordinance, No. 47 of 1942, the only persons having such a right of
appeal, by way of case stated, are the Commissioner of Road Transport and the
person upon whose appeal to the Tribunal against a refusal by the Commissioner
to issue him a licence, the Tribunal's order was made, namely the fifth
respondent company in the present case. The petitioner, however, applies for a
writ of certiorari on the ground that, in making the order which it did, the
Tribunal was acting in excess of the jurisdiction conferred on it by section 14
of the Ordinance No. 47 of 1942 in general, and section 14 (1) (b) in
particular.
In support of the application it has been urged by learned counsel for the
petitioner that the order of the Tribunal was irregular in a number of respects.
In only one respect, however, is it seriously argued that there was an
irregularity amounting to an exceeding by the Tribunal of its jurisdiction, and
it is accordingly this irregularity alone which merits consideration in the
present application. For it is sound law and is agreed by both parties that in
respect of such an irregularity the remedy by way of certiorari would lie,
whereas for an irregularity not amounting to an excess of jurisdiction it would
not.
The original decision of the Commissioner of Road Transport in favour of the
petitioner was dated 10th July, 1948, and was made under sections 4 and 5 of the
Ordinance. The decision was in respect of an application by the petitioner under
section 3 of the Ordinance to ply their bus service for passenger hire in
Colombo on the route between Bambalapitiya and Maradana. The Commissioner
decided to grant the licence to the petitioner after considering applications by
a number of other bus companies to ply along the same route. The decision was in
the following terms: -
" A service from Bambalapitiya
