THEOCHARIDES ν. THE REV. PERM. AUTHORITY
(1989)3A CLR 428 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αφαίρεση Υπογραμμίσεων
(1989)3A CLR 428 1989 April 11 [KOURRIS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDREAS THEOCHARIDES, Applicant, v. THE REVIEW PERMITS AUTHORITY, Respondent. (Case No. 788/85) Due inquiry - Refusal to grant a license to own and manage 15 self-drive cars (Z) on the ground that the respondents were not satisfied that the applicants intended to carry on the transport business as there main occupation (See section 5(a) of the Motor Transport Regulation Law, 1982-1984) - Said conclusion not borne out by the material in the file - Sub judice decision annulled. Motor transport - The Motor Transport Regulation Law, 1982-1984 - Hierarchical recourse - Nature and character of - Tsouloftas and Others v.The Republic
(1983)3 CL.R. 426 followed. Having reached the conclusion that the material in the file contradicted respondent's finding that the applicants did not intend to have transport business as their main occupation, the Court annulled the sub judice decision. Sub judice decision annulled. No order as to costs. Case referred to: Tsouloftas and Others v. republic
(1983)3 C.L.R.426. Recourse. Recourse against the decision of the respondent upholding the decision of the Licensing Authority to refuse to applicant licences for the hire of 15 cars without a driver. E. Lemonaris, for the Applicant. M. Tsiappa (Mrs), Counsel of the Republic B, for the Respondent. Cur.adv. vult. KOURRIS, J. read the following judgment. By the present recourse, the applicant seeks a declaration of the Court that the Decision of the respondent authority, dated 24.5.1985, communicated to the applicant by a letter dated 1.7.1985, by which the respondent Authority had upheld the Licensing Authority's decision of 12.2.1985, to refuse to applicant licences for the hire of 15 cars without a driver, is null and void and of no effect whatsoever. Applicant applied on 7. 7.1984 to the Licensing Authority for a licence to own and manage 15 self-drive cars commonly known as "Z" cars. A report dated 20. 7.1984 was subsequently prepared with regard to the said application by the Nicosia District Transport Inspector and the Licensing Authority examined the above- mentioned application at its meeting of 12.2.1985 and decided to refuse to applicant licences for the hire of cars without a driver. By letter dated 22. 2.1985, the Licensing Authority communicated to applicant its above-mentioned decision. Applicant, feeling aggrieved with the decision of the Licensing Authority, filed a hierarchical recourse to the Permits Review Authority under s.4(
- a)of the Motor Transport Regulation Laws, 1982 and 1984, Law 9.82 and Law 84/84. The hierarchical recourse was heard by the Permits Review Authority at its meeting of 23.4.1985 and after taking into account all the facts and circumstances of the case, it decided at its meeting of 24. 5.1985, to dismiss the hierarchical recourse. The Decision of the Permits Review Authority dated 24. 5.1985, was communicated to applicant by letter dated 1. 7.1985 and against this Decision the applicant filed the present recourse. The sub judice decision is to the effect that the Permits Review Authority have not been convinced that the applicant intends to carry on the transport business as his main occupation. (See Appendix A to the application.) In other words, the Permits Review Authority have not been convinced that applicant satisfied the requirements of s.5(
- a)of the Law. I think it is pertinent at this stage to set out s.5(
- a)of the Law: "Ουδεμία άδεια οδικής χρήσεως θα χορηγείται αναφορικώς προς οιονδήποτε όχημα δημόσιας χρήσεως προς εκτέλεσιν οιασδήποτε οδικής χρήσεως δι' ην απαιτείται τοιούτον όχημα δυνάμει των διατάξεων του παρόντος Νόμου, εκτός εάν ο ιδιοκτήτης τούτου πείσει την Αρχή Αδειών ότι μετέρχεται ή προτίθεται όπως μετέλθει την μεταφορικήν επιχείρησιν ως κύριον αυτού επάγγελμα." In English it may be translated as follows: "No road service license shall be granted in respect of any public service vehicle for the service of any road for which such vehicle is required under the provisions of this Law, unless its owner convinces the Licensing Authority that he carries on or intends to carry on the transport business as his main occupation." The nature and character of hierarchical recourse was dealt with in the case of A. Tsouloftas and Others v. The Republic of Cyprus
(1983)3 C.L.R. 426. It was held that the test by which the validity of the decision of the Permits Review Authoritymust be judged as the same as that applicable to the Licensing Authority. The sub judice decision was issued in exercise of statutory powers with which the respondent Authority is vested by s.4(A) of the Motor Transport Regulations 1982 and 1984 (Law 9/82 and 84/84). The wording of s.4(A)
(3)is similar to the wordingof the abolished section 4
(2)of Law 9/82 and s.6
(2)of the abolished Motor Transport Regulation Laws 1964-1975. The Minister's powers under s6
(2)were expounded in the Tsouloftas case (supra) where at page 431 it was stated. "A hierarchical Recourse is not a judical proceeding in any sense. It is not intended to review the correctness of the hierarchically subordinated organ's decision by reference to the soundness of the reasoning propounded in respect thereof, but to establish a second tier in the decision-taking process, designed to eliminate mistakes as well as abuse of authority by subordinates... Both organs in the hierarchy are charged with the same duty - to promote the objects of the Law by the application of its provision in particular cases." And at p. 432 it is stated: "The test by which we must judge the validity of the decision of the Minister is the same with that applicable to the Licensing Authority. It is this: Whether it was reasonably open to the Minister, in view of the provisions of the Law, and the material before him, to decide as he did." Counsel for applicant invited the Court to annul the decision of the respondents because they have acted contrary to, the facts which were before them and exercised their discretion wrongly and thus the decision of the respondents is contrary to law and in abuse of power. I have considered, the arguments of both counsel and the material which was before the respondents, and I think the conclusion of the respondents that applicant did not intend to carry on the transport business as his main occupation, is not borne out by the material before the respondents. On the contrary, there was evidence to the effect that applicant had the financial means to carry on "Z" car business as his main: occupation. In point of fact, there was evidence before the respondents that he had a notice deposit account with the Cyprus Popular Bank Ltd. of £14,600.- (See Appendix 9). if the respondents wanted to query the intentions of the applicant on the subject, they should have inquired further into the matter. As it is, their conclusions are contradicted by the material in the file and, consequently, they could not properly invoke the provisions of s.5
(9)of the Law as proper justification for refusing the application. For these reasons, I am satisfied that the respondent Authority exercised their discretion wrongly. Their decision is contrary to law and in abuse of power and the recourse is, therefore, allowed, and the sub judice decision is set aside with no order for costs. Sub judice decision annulled. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο