IOANNOU ν. M'STRY OF INTERIOR (1987) 3 CLR 1548

(1987)3 CLR 1548 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων

(1987)3 CLR 1548 1987 October 12 [LORIS. J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION MARIA K. IOANNOU, Applicant, v.

1. THE MINISTRY OF INTERIOR,
2. THE DISTRICT ADMINISTRATION OF NICOSIA,
3. THE DISTRICT COUNCIL, Respondents. (Case No. 553/86). Intoxicating liquors - Licence to sell - The Intoxicating Liquor; Law, Cap. 144, section 5

(2)- Section 5

(2)(a) relates to matters affecting the applicant - Section 5

(2)(

1. b)to matters affecting the premises - It is confined to the suitability and fitness of premises - Probability of nuisance or of traffic congestion cannot be taken into consideration - Absence of permit to use premises as a pub (The Streets and Buildings Regulation Law, Cap. 96, as amended) and fact that requirements, entailing structural alterations, for securing such permit were not carried out, sufficient in the circumstances to support refusal of the application - Proviso (
2. i)to section 5

(2)(b). Reasoning of an administrative act- Validity of the act may be upheld on the basis of a lawful reasoning even if such reasoning is different from that given by the Administration and even if the reasoning given by the Administration is legally defective. The District Council, i.e. the appropriate organ under .Cap. 144, turned down applicant's application for a licence for sale of intoxicating liquors by retail upon certain premises in AyiiOmoloyites Quarter in Nicosia, on the following grounds, namely: (

1. a)The premises are not suitable and fit in all respects, because nuisance will be created in the vicinity. (
2. b)The limited space for parking will cause congestion of traffic and in consequence nuisance. (
3. c)The permit for the approved use of the building, according to the Streets and Buildings Regulation Law, was issued for a house, whilst the building willbe utilized by the applicant as a pub, without having applied to the Municipality of Nicosia for the change of the permit for the use of the building, and (
4. d)in the vicinity there are other licenced premises sufficient for the needs of the vicinity». It must be noted that in order to secure the necessary permit for the use of the building in question as pub structural alterations were needed with a view to cutting off internal communication of the kitchen with the corridor leading to the toilet, extra washing and urine basins had to be installed and the kitchen had to be provided with hot water and ventilation apparatuses had to be installed therein. Held dismissing the recourse.

(1)The matter in issue is governed by section 5(21 of Cap. 144. In virtue thereof, the, matters that have to be taken into Consideration in granting or refusing an application are matters affecting the applicant (section 5

(2)(a)), matters affecting the premises (section 5

(2)(b)) and the needs and convenience of the public in the neighbourhood (proviso (i) to section 5

(2)(b)).

(2)The District Council treated the applicant as satisfying the provisions of S. 5

(2)(a).

(3)Section 5

(2)(

1. b)of Cap. 144 requires the District Council to be satisfied before granting a certificate that the «premises or place» are «suitable and fit in all respects» for the sale therein of such liquors. The words of the statute are plain and unequivocal. The section is confined to the suitability and fitness of the premises in which the sale of intoxicating liquors will take place: it has nothing to do with the neighbourhod and the probable nuisance to inhabitants of multi-storey buildings in the vicinity, as the Police report maintains, or the probable congestion of traffic in the area. It follows that reasons (
2. a)and (
3. b)given in support of the sub judice decision are clearly wrong.

(4)In view of the requirements for obtaining the permit to change the use of the premises in question and the fact that such requirements had not been met, the conclusion is that it was reasonably open to the District Council to refuse granting to the applicant a licence for the sale of intoxicating liquors by retail as the premises in question were not suitable and fit in all respects for the purpose.

(5)From the material before the Court it emanates that reason (d), referring to proviso (i) of s. 5

(2)(b) of the said law, was reasonably open to the District Council.

(6)The case law shows that the Court may uphold the validity of an administrative decision on the basis of a lawful reasoning therefor, even though such reasoning is different from the reasoning given by the administration for reaching such decision and even if the reasoning given by the administration is legally defective.

(6)In the light of the above the validity of the sub judice act is upheld on the basis of reasons (c) and (d). Recourse dismissed. No order as to costs. Cases referred to: Spyrou v. The Republic

(1973)3 C.L.R. 478; Papadopoullos v. The Republic

(1968)3 C.L.R. 662; Anthoupolis v. The Republic

(1980)3 C.L.R. 296; Constantinou v. Republic

(1985)3 C.L.R. 1142. Recourse. Recourse against the refusal of the respondents to grant applicant a licence for the sale of intoxicating liquors by retail. A. Papacharalambous, for the applicants. D. Papadopoullou (Mrs.), for the respondent. Cur.adv. vult. LORIS J. read the following judgment. The present recourse is directed against the decision of the respondents dated 4.7.86, communicated to the applicant on 10.7.86, whereby a request on behalf of the applicant for granting to her licence for the sale of intoxicating liquors by retail, was refused. The applicant on 26.3.86 being desirous of obtaining a licence for the sale of intoxicating liquors by retail, upon premises rented by her at Katsonis Street 9, Ayii Omologites, Nicosia, applied to Nicosia District Office with a view to obtaining such a licence. The appropriate organ envisaged by the relevant Legislation, (Cap. 144 as amended), notably the District Council, examined the aforesaid application and turned down the request of the applicant; the said refusal of the Council and the reasoning thereof is set out in a letter dated 4.7.86, addressed by the District Officer Nicosia to counsel acting on behalf of the applicant and reads as follows: «Κύριοι, Αναφέρομαι στην επιστολή σας ημερομηνίας 15.Μαΐου 1986 με την οποία ζητάτε να εγκριθεί η αίτηση για άδεια πωλήσεως οινοπνευματωδών ποτών της πελάτιδάς σας Μαρίας Κ. Ιωάννου, στο υποστατικό της, που βρίσκεται στην οδό Κατσώνη 9, Αγ. Ομολογητές και σας πληροφορώ ότι κατόπιν αποφάσεως του Επαρχιακού Συμβουλίου η εν λόγω αίτηση δεν μπορεί να εγκριθεί για τους πιο κάτω λόγους: (α) Το υποστατικό δεν είναι κατάλληλο από όλες τις απόψεις (IN ALL RESPECTS) γιατί θα δημιουργηθεί οχληρία στην περιοχή. (β) Ο περιορισμένος χώρος στάθμευσης θα προκαλεί συμφόρηση της τροχαίας και κατ' επέκταση οχληρία. (γ) Η άδεια χρήσεως της οικοδομής, σύμφωνα με το Νόμο περί Οδών και Οικοδομών εκδόθηκε για κατοικία, ενώ θα χρησιμοποιηθεί από την αιτήτρια σαν μπυραρία χωρίς να έχει αποταθεί στο Δήμο Λευκωσίας για αλλαγή της άδειας χρήσεως οικοδομής, και (δ) στην περιοχή υπάρχουν άλλα κέντρα τα οποία ικανοποιούν τις ανάγκες της περιοχής.» (English Translation: «Sirs, I am referring to your letter dated 15 May, 1986, by means of which you are asking the approval of the application of your client namely Maria K. Ioannou for the sale of intoxicating liquors, in her premises situated at Katsonis Street No. 9, AyiiOmologites and I do inform you that pursuant to the decision of the District Council, the said application cannot be approved for the following reasons: (a) The premises are not suitable and fit in all respects because nuisance will be created in the vicinity. (b) The limited space for parking will cause congestion of traffic and in consequence nuisance. (c) The permit for the approved use of the building according to the Streets and Buildings Regulation Law, was issued for a house, whilst the building, will be utilized by the applicant as a pub, without having applied to the Municipalityof Nicosia for the change of the permit for the use of the building, and (d) in the vicinity there are other licensed premises sufficient for the needs of the vicinity.» Before proceeding .to examine the complaints of the applicant in connection with the sub-judice decision and the reasoning thereof, I consider it useful to refer to the relevant provisions of the law, which is, as already stated above, The Sale of Intoxicating Liquors Law Cap. 144 as amended. The provisions relating to the functions of the District Councils, are set out in section 5

(2)of Cap. 144, which in so far as they are relevant to the present case (including the first Proviso thereof) read as follows: «5

(2)Before granting a certificate the District Council must be satisfied that- (

1. a)the person applying for such certificate is of good character and a fit person to hold a licence for the sale of intoxicating liquors by retail; and (
2. b)the premises or place where such person proposes to sell intoxicating liquors by retail are suitable and fit in all respects for the sale therein of such liquors: Provided that no such certificate shall be granted- (
3. i)when, in the opinion of the District Council, there exist already in the village or quarter of a town or village in which the person applying therefor proposes to sell intoxicating liquors by retail, premises or places licensed for the sale of such liquors sufficient for the needs and convenience of the public; (
4. ii).................................... (iii) ................................... From the above stated provisions of the Law it is clear that the matters that have to be taken into account by a District Council in granting or refusing an application for a licence for the sale of intoxicating liquors by retail, are matters affecting: (
5. a)The applicant (s.5

(2)(a)). (b) The premises (s. 5

(2)(b)). (

1. c)The needs and convenience of the public in the neighbourhood (proviso (
2. i)to s. 5

(2)(b)), It is apparent from the material before me and in particular the relevant administrative files which have been produced (Ex. 1 and Ex. 2) that the written application addressed to the District Officer Nicosia by the applicant, was duly examined by the appropriate administrative organ, notably the District Council which was convened for the purpose on 21.6.86 (vide blues 97, 98, 99, 101 of Exh. 2). Considerable time prior to the holding of such a meeting an inquiry was conducted in respect of the matters affecting the applicant, the premises and the needs of the neighbourhood. Thus a letter was addressed to the Police on 7.4.86 for their views (blue 31 in Ex. 2), obviously in respect of the character of the applicant, the views of the Municipality were sought in respect of the premises (blue 77A in Ex. 2) and a further inquiry was conducted in connection with the needs of the public in the neighbourhood envisaged by proviso (i) to s. 5

(2)(b) of the Law (relevant in this latter connection is the report of the Assistant District Inspector dated 22.5.86- vide blues 83, 84 and 85 in Exh. 2). The Police report dated 11.4.86 (blues 36-37 in Ex. 2) does not mention anything about the character of the applicant and there is no other material before me, which goes to the character of the applicant with the exception of a letter dated 2.7.86 which was communicated to the District Administration on 4.7.86 (blues 108 and 109 in Ex. 2) which could not have been taken into consideration by the District Council as the latter gave its decision as early as 21.686 (blues 106 & 107 in Ex. 2). Obviously the District Council having no adverse material in respect of the character of the applicant considered that she did satisfy the requirements of s. 5

(2)(a) and confined its examination to the remaining two matters notably the premises and the needs of the public in the neighbourhood. Now as regards the premises: Section 5

(2)(b) of Cap. 144 requires the District Council to be satisfied before granting a certificate that the «premises or place» are «suitable and fit in all respects» for the sale therein of such liquors. The words of the statute are plain and unequivocal and they cannot be held to have any other meaning except that the premises themselves aresuitable and fit in all respects (from the structural, sanitary, points of view and the like) but in any event not in relation to the neighbourhood in which they are situated. Section 5

(2)(

1. b)of the law is confined to the suitability and fitness of the premises in which the sale of intoxicating liquors will take place; it has nothing to do with the neighbourhood and the probable nuisance to inhabitants of multi-storey buildings in the vicinity as the Police report maintains, or the probable congestion of traffic in the area. After all we must not loose sight of the fact that Cap. 144 was enacted as early as November 1943 and inspite of subsequent amendments after Independence, the whole section 5 stands unaltered on the statute book as promulgated about 44 years ago, when there were no multi-storey buildings in Cyprus and the traffic was so scarce that it was not even regulated by traffic lights. Now, what was the material before the respondent Council in connection with the suitability and fitness of the premises of the applicant? It is clear from the administrative file (vide minute 8 in blue 77A of Exh. 2 dated 13.5.86 signed by the Secretary of the Municipal Council) that the applicant did not secure a permit from the Municipality for the new proposed user of the premises, obviously as envisaged by Law 2/78, as amended. In this connection it must be borne in mind that the premises in question consisted of a house; this house was to be utilized by the applicant as a pub; therefore it required a permit for the «approved @@@se» of the building as a pub, pursuant to the Streets and Buildings Regulation Law, Cap. 96, as amended. What was needed for recurring such a permit is set out in blue 88 of Ex. 2. Suffice it to mention few of the requisites here: Structural alterations were exceeded with a view to cutting off internal communication of the kitchen with the corridor leading to the toilet; extra washing and @@@ rine basins had to be installed; the kitchen had to be provided with hot water and ventilation apparatuses had to be installed herein. All these and other requisites set out in Ex . 2, had to be compiled with before the Municipality could grant a permit for the approved use of the premises in question, by the applicant, as a hub And up to the day the District Council gave the sub-judicedecision none of these requisites were met and no permit was secured from the Municipality to that effect. Therefore it Was reasonably open to the District Council to refuse granting to the applicant a licence for the sale of intoxicating liquors by retail as the premises in question were not suitable and fit in all respects for the purpose. And the District Council had to be so satisfied, before granting a certificate that the premises were suitable and fit in all respects. Turning now to the needs and convenience of the public in the neighbourhood envisaged by Proviso (
2. i)to s. 5

(2)(

1. b)of the Law: from the material before me, which was also before the respondent Council, and in particular from the detailed report of the Assistant District Inspector which appears in blues 83-85 of Ex. 2, it is clear that in the quarter in question, there Were sufficient premises licensed for the sale of intoxicating liquors by retail, for the needs and convenience of the public, so that the decision of the respondent council to turn down the request of the applicant under this head, was reasonably open to it. There remains now to consider the main complaint of the applicant: the reasoning of the sub-judice decision. The reasoning is set out in the letter of 4.7.86 addressed by the District Office Nicosia to counsel for applicant and is being reproduced verbatim at the beginning of this judgment. Paragraphs (a)(
2. b)and (
3. c)give the reasoning in respect of the refusal of the District Council to grant a licence under s. 5

(2)(

1. b)of the Law whilst paragraph (
2. d)refers to Proviso (
3. i)of s. 5

(2)(

1. b)of the Law. It must be stated at the outset, that the reasoning in paras (
2. a)and (
3. b)is wrong for the reasons I have explained above and I need not repeat again. With regard to para (
4. c)I must say that the reason is rather laconic but it can be supplemented from the material in the administrative files; I have dealt at length above, with this material and I hold the view that it can fully support judicial scrutiny; and I repeat that in the circumstances it was reasonably open to the respondent Council to refuse a licence under s. 5

(2)(b). Now in connection with para (d) of the reasoning I must say that the wording thereof is perfectly clear and conveys the reason why the application was turned down under this head. Before concluding I feel duty bound to deal as briefly as possible with reasoning, which is legally defective. In the case of Spyrou. V. The Republic

(1973)3 C.L.R. 478 at p. 484 the learned President of this Court stated the following: «It is, however, open to an administrative judge- and I am dealing with these cases in such a capacity - to uphold the validity of an administrative decision on the basis of a lawful reasoning therefore, even though such reasoning is different from the reasoning given by the administration for reaching such decision and even if the reasoning given by the administration is legally defective (see, inter alia, the decisions of the Greek Council of State in Cases 48/1968, 132/1969, 2134/1969 and 2238/1970)» To the same effect are also the case of Papadopoullos v. The Republic

(1968)3 C.L.R. 662 at p. 674 and Anthoupolis v. The Republic

(1980)3 C.L.R. 296 at pp. 302-303. Recently in the case of Constantinou v. Republic

(1985)3 C.L.R. 1142 the same principle was reiterated at p. 1148 as follows: «But wrong legal reasoning does not necessarily lead to annulment, if the decision can have other legal support. (See Kyriakopoulos on Greek Administrative Law, Vol. B, p. 387, and Decisions 666/36, 1606/50 and 1850/50 of the Greek Council of State). As I have already stated above the application of the applicant was turned down both on matters referring

(1)to the premises

(2)the needs of the public in the neighbourhood. As regards the first head the reasoning in paras (

1. a)arid (
2. b)of the letter of 4.7.86 is legally defective whilst the reasoning in para (
3. c)under the same head, can have full legal support as above stated. As regards the reasoning under the 2nd head as I have explained above it is a legal reasoning conveying clearly the reason why the application was turned down, and cannot in any way be faulted. In the result this recourse fails and is hereby dismissed. There will be no order as to costs. Recourse dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο