The Court of Appeal allowed the intervenient petitions filed by Hayleys Advantis Ltd. and McLarens Investments Ltd. to the writ petition filed by Parliamentarian Vasudeva Nanayakkara over alleged restrictive practices in the shipping industry.
The bench comprised justices P.Padman Surasena (CA President) and ArjunaObeysekera.
President’s Counsel Sanjeeva Jayawardena, appearing for Hayleys Advantis Ltd,informed Court that there was a substantial question of law.
He submitted that although the intervenient-petitioners had been mentioned in the petition, they were not cited as respondents but they had been kept outside from enlightening their position.
In reply, Akiel Dean, appearing for the petitioner, told Court that they were not cited as respondents as reliefs wasnot sought from them but from the Minister.
Court noted that there was a reference to them (the intervenient). Petitioner Nanayakkara alleges that the Minister is in breach of his legal duty by a failure to make regulations in terms of the Merchant Shipping Act against the Restrictive Practices or Monopolisation being carried out within the Sri Lankan shipping industry.
He cited the Minister, Ministry Secretary, Merchant Shipping Director General Ajith Wickrama Seneviratne and Sri Lanka Ports Authority Chairman Dr. Parakrama Dissanayake as respondents.
The petitioner pleads restrictive practices are openly and deliberately being carried out in relation to the carriage of goods by sea in Sri Lanka.
He also pleads the largest shipping entities are monopolising, combining or conspiring with others to monopolise the carriage of goods by sea to and from Sri Lanka.
He is petitioning the Court to issue an order directing the Minister to act in terms of the Merchant Shipping Act and declare it an offence for any person either as a principal or agent to enter into contract or to be or continue to be a member of or engage in any combination in relation to the carriage of goods by sea to and from Sri Lanka.
Intervenient-Petitioner Hayleys states that despite not being named as a party respondent in the writ petition, allegations of openly engaging in restrictive practices carried out in Sri Lanka in relation to the carriage of goods by sea are based on its recent acquisition.
It said the allegations are baseless which requires it to demonstrate to Court, from material which are only privy to it and no one else, that such assertions are false and have been distorted by the petitioner.
It said it had been deliberately kept away from being made a party to avert it from bringing the true facts in respect of the acquisition which forms the primary basis upon which the whole case had been presented.
It pleads that it is misleading to say that it, together with leading shipping agentMcLarens Investments Ltd., controls over 70% of Sri Lanka’s shipping and maritime services market.
It contends that the total port throughout handled by it is only approximately 13.7% and that the acquisition of the Sri Lanka Shipping Company Ltd. was effected to enable it being a Sri Lankan company to gain access to the international shipping market as a ship owner and operator, thereby allowing it to acquire a fleet of vessels and expand its transportation sector into international chartering services, salvage and towing services.
The acquisition by it, being a local Sri Lankan company, enabled it to prevent 10 of its seagoing assets from being acquired by a foreign entity, it clarified.
It maintains that the acquisition was effected in the best interest of Sri Lanka and in particular the local shipping industry to help develop the nation as a leading shipping hub in the region.
FaizMusthapha PC with FaizaMarkar, Akiel Dean and RajikaAluvihara, instructed by B.S.U.Fernando, appeared for the petitioner. Sanjeeva Jayawardena PC appeared for HayleysAdvantis Ltd. and M.U.M.Ali Sabry PC appeared for McLarens Investments Ltd.