Kandy Omnibus Co., Ltd. V. Roberts

1954 Present: Sansoni J.

KANDY OMNIBUS CO., LTD., Petitioner, and T. W. ROBERTS et al.,
Respondents

S. C. 596-In the matter of an application for a mandate in the nature of a Writ of
Certiorari under section 42 of the Courts Ordinance (Cap. 6)

Certiorari-Petitioner must be a person aggrieved-Necessary parties-Delay-Jurisdiction-Acquiescence to patent want of jurisdiction-Difference in effect between patent and latent want of jurisdiction-Estoppel-Duty of applicant to disclose all material facts-Difference between judicial function and administrative function-Omnibus Service Licensing Ordinance, No. 47 of 1942, ss. 6 (2), 13 {4)-Motor Traffic Act, No. 14 of 1951, ss. 243 (1), 246 (1) (4) and (7)- Interpretation Ordinance (Cap. 2), s. 6 (3) (c).

Although a person applying for a writ of certiorari is required to be a person aggrieved, it is sufficient if he has a substantial interest in the decision in respect of which the writ is sought.

Whether there has been unreasonable delay or not in making an application for a writ of certiorari depends on the circumstances of each case.

When an aggrieved party applies for certiorari in respect of an order made by a quasi-judicial body in a matter where it totally lacked jurisdiction, he is entitled to the writ as of right ; but where there was only a contingent want of jurisdiction, acquiescence or waiver or similar conduct would place even an aggrieved party in the same position as a stranger and the grant of relief is discretionary. It is only in the latter case that the applicant is bound to make a full and fail disclosure of all material facts.

The petitioner and the 4th to 9th respondents respectively were the holders of certain road service licences issued by the Commissioner of Motor Transport under the Omnibus Service Licensing Ordinance, No. 47 of 1942. In consequence of certain complaints made by the petitioner to the Commissioner to the effect that the 4th to 9th respondents were picking up and setting down passengers within the Municipal Limits of Kandy to the prejudice of the petitioner, the Commissioner, after holding due inquiry, made order under section 6 (2) of Ordinance No. 47 of 1942, that the conditions attached to the licences of the 4th to 9th respondents should be varied so as to debar them from picking up and setting down passengers within the Municipal Limits of Kandy.

The 4th, to 9th respondents appealed to the Tribunal of Appeal against the Commissioner's decision. All the appeals were heard together and on the 10th October, 1952, the Tribunal of Appeal reversed the decision of the Commissioner. Thereupon the present application for a writ of certiorari was filed by the petitioner on the 22nd December, 1952, stating that the Tribunal of Appeal consisting of the 1st to 3rd respondents had no jurisdiction to hear the appeals in question after Ordinance No. 47 of 1942 was repealed by the Motor Traffic Act, No. 14 of 1951, which came into operation on the 1st September, 1951.

Held, (i) that the Tribunal of Appeal had a duty to act as a quasi-judicial, and not purely administrative, body and was, therefore, subject to certiorari if it acted in excess, or usurpation, of jurisdiction.

(ii) that the Tribunal was competent to hear only appeals preferred against a decision granting or refusing an application for a road service licence, but not against a decision of the Commissioner varying the conditions attached to a licence. The Tribunal suffered, therefore, from a total and patent want of jurisdiction over the subject-matter of the appeal. As this was a case of total want of jurisdiction and not a case of irregularity or want of contingent jurisdiction, the fact that the petitioner had waived objection to the jurisdiction of the Tribunal and taken part in the proceedings thereafter could not disentitle him, despite his acquiescence, to object later that the order made by

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