ANDREOU ν. REPUBLIC & ANOTHER
(1989)3A CLR 467 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αφαίρεση Υπογραμμίσεων
(1989)3A CLR 467 1989 April 18 [KOURRIS, J.] IN THE MATFER OF ARTICLE 146 OF THE CONSTITUTION FOTINI ANDREOU, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF COMMUNICATIONS AND WORKS AND ANOTHER, Respondents. (Case No. 9/87) Judicial control - Motor transport - Granting of rural taxi license - Interference by Court - Principles applicable - Court does not substitute its discretion to that of the respondent authority - Court does not interfere if decision was reached after proper inquiry and was reasonably open to the respondents. Motor transport - The Motor Transport Regulation Law 1982-84 - Hierarchical recourse - Nature of.-Tsouloftas and Another v. The Republic
(1983)3 C.L.R. 426 followed. In this case the Court annulled a decision whereby the interested party was granted with a license for a rural taxi for Sycopetra village. Following that decision the interested party submitted a new application for such a license in respect of same car. The licensing authority did not reconsider the annulled decision, but considered the new application and granted the license. The applicant in this recourse filed a hierarchical recourse against that decision, but when the latter was dismissed, he filed the present recourse. Having reached the conclusion that in the present case the respondent authority did not act under a misconception of fact and that the sub judicedecision was reached after due inquiry and that it was reasonably open tothe respondent authority, the Court dismissed the recourse. Recourse dismissed No order as to costs. Case referred to: Tsouloftas v. Republic
(1983)3 C.L.R.
- Recourse. Recourse against the decision of the Review Licensing Authority dismissing applicants hierarchical recourse against the decision of the Licensing Authority to grant to the interested party a rural taxi licence to be stationed at Sykopetra. Chr. Pourgourides, for the Applicant. M. Tsiappa (Mrs), Counsel of the Republic B, for the Respondents. A. Panayiotou, for the Interested party. Cur.adv. vult. KOURRIS, J. read the following judgment. By the present, recourse, applicant seeks a declaration of the Court that the decision of the Permits Review Licensing Authority, respondent 2, dated 22.11.1986, and communicated to applicant and interested party by letter dated 4.12.1986, by which the saidrespondent had dismissed applicant's hierarchical recourse lodged against a decision of the Licensing Authority, granting to the interested party a rural taxi license to be stationed in the village of Sykopetra in relation to his vehicle under Registration No. NH 175, is null and void and of no effect whatsoever. The facts of this recorse shortly are as follows:- The Minister of Communications and Works and the Licensing Authority granted to A. Papadopoullos a rural taxi licence in relation to his vehicle under Registration No. NH 175 to be stationed in the village of Sykopetra and the applicant as interested party filed a recourse before the Supreme Courtunder No. 237/82 challenging the said decision. The Supreme Court, having heard the recourse, delivered its Judgment on 4.4.1985 annulling the said decision. After delivery of the Judgment in the above-mentioned case, A. Papadopoullos applied afresh to the Licensing Authority by letter dated 6.5.1985, seeking the grant of a rural taxi licence in relation to his vehicle NH 175 to be stationed at Sykopetra village. The Limassol District Transport Inspector made a report dated 14.6.1985 on the said application. The Licensing Authority convened on 25.6.1985 and decided in the light of the Court's said Judgment, to cancel Papadopoullos' relevant rural taxi licence and invited Papadopoullos and the applicant to make representations in relation to Papadopoullos' application for the grant of a rural taxi licence. The Licensing Authority's decision to cancel Papadopoullos' licence was communicated to him and to applicant by letters dated 6.7.1985 and invited Papadopoullos and applicant by letter dated 6.7.1985, to attend a meeting of the Licensing Authority which was to take place on 16.7.1985 for the purpose of examination by the Licensing Authority of Papadopoullos' application. Both applicant and Papadopoullos made their representations on 16.7.1985 and the Licensing Authority after examination on 13.8.1985 of all relevant facts and material, decided to grant the licence applied for. The decision of the Licensing Authority was communicated to Papadopoullos and applicant by letters dated 20.8.1985, and applicant, feeling dissatisfied with the said decision, lodged a hierarchical recourse dated 29.8.1985 to the Permits Review Licensing Authority. The Permits Review Licensing Authority heard the recourse and representations from the applicant and Papadopoullos at their meeting of 28.6.1986, and after taking into account all relevant facts and circumstances, they decided at their meeting of 22.11.1986, to dismiss applicant's hierarchical recourse. (Appendix 18 to the opposition). The decision of the Permits Review Licensing Authority dated 22.11.1986, (Appendix 19 to the Opposition), was taken under The Motor Transport Regulation Laws 1982 and 1984 (Laws 9/82 and 84/84) and was communicated to applicant and Papadopoullos by letter dated 4.12.
- The applicant, feeling aggrieved by the decision of the Permits Review Licensing Authority, filed the present recourse complaining that the respondent Authority failed to carry out a proper inquiry, made no proper appreciation of the facts placed before it, and that Sykopetra and Profitis Elias was one village and not two separate villages. Before proceeding any further, I would like to tackle the point raised by counsel for the applicant stating that there has been a revocation by the Permits Review Licensing Authority and expounding on the said issue. I do not agree that there has been a revocation by the Licensing Authority. In the present case, after the Judgment of the Supreme Court annulling the decision to grant a rural taxi licence to Papadopoullos, the interested party in the present proceedings, the respondent authority acting in compliance with the Judgment of the Supreme Court, notified Papadopoullos of the decision of the Supreme Court cancelling at the same time his licence. (See Appendix 6 to the Opposition). The respondent Authority took the sub judice decision as a result of a new application by the interested party dated 6.5.1985; they did not re-examine their decision which was annulled by the Supreme Court. The sub judice decision was issued in exercise of statutory powers with which the Respondent is vested by s.4A of the Motor Transport Regulation Laws 1982 and 1984 (Laws 9/82 and 84/84). The wording of s.4A
(3)is similar to the wording of the abolished s.4
(2)& Law 9/82 and s.6
(2)of the abolished Motor Transport Regulation Laws 1964 to 1975. The Minister's powers under s.6
(2)were analysed in the case of A. Tsouloftas v. The Republic of Cyprus
(1983)3 C.L.R. 426 in which it was inter alia stated at p. 437 that: "A hierarchical recourse is not a judicial proceeding in any sense. It is not intended to review the correctness of the hierarchical subordinate 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 sameduty to promote the objects of the Law by the application of its provisions in particular cases." And at p. 432: "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." Sections 5
(3)and 5
(6)(b) vest the Licensing Authority in general terms with discretionary power to grant road use licences whereas s.9 deals specifically with the Licensing Authority's discretion to grant rural taxi licences. Sub-section
(3)of s.9 stipulates as follows:- '
(3)Η αρχή αδειών εν τη ασκήσει της διακριτικής αυτής εξουσίας δέον όπως λαμβάνει υπ' όψιν τα ακόλουθα: (α)................................... (ι) την έκτασιν καθ'ην τυχόν αι ανάγκαι της οικίας .... αγροτικής κοινότητος, εξυπηρετούνται επαρκώς· (ιι) τον βαθμόν εις τον οποίον είναι πιθανόν ότι ο αιτητής θα δύναται να παρέχει τας αιτουμένας μεταφορικός υπηρεσίας· (ιιι) την έκτασιν καθ' ην η σκοπούμενη οδική χρήσις είναι αναγκαία ή ευκταία εν τω δημοσίω συμφέροντι· (ιν) τας ανάγκας της περιοχής εν τω συνόλω της αναφορικώς προς την μεταφοράν επιβατών.' Translated into English the said section reads as follows: "
(3)In the exercise of its discretionary powers the LicensingAuthority must take into account the following: (
- a)(
- i)the extent to which the needs if any of the relevant ..rural community ... are being satisfactorily served. (
- ii)the extent to which it is likely that the applicant will be in a position to supply the transport services applied for (iii) the extent to which the road use being sought is necessary or . in the public interest. (
- iv)the needs of the area in its entirety in relation to the transportation of passengers." The reasoning for the respondent's decision as expressed in the decision itself, was that the respondent, having taken into account the legislation in force and all the facts of the case placed before them, and having considered all the material contained in the relevant files, together with everything that had been stated by applicant and interested party, had decided to dismiss the hierarchical recourse for the better service of the transport needs of Sykopetra Village. According to the Limassol District Transport Inspector's report which was made on the application of the interested party on 14.6.1985, (Appendix 4 to the opposition), the interested party was a driver by profession in the village of Sykopetra and running a small grocery shop there with his wife. According to the Inspector's report there was no other licensed rural taxi in Sykopetra which numbered about 220 inhabitants, the village's regular transport needs being served by licensed rural buses and its emergencies being served since 1982 by interested party's taxi under Registration No. NH 175 whose licence had been cancelled in the light of the above-mentioned Judgment of the Supreme Court. According to the report, there was no 'phone in Profitis Elias which was the nearest community with a licensed rural taxi which was owned by the applicant. The Sykopetra Village Authority which had in the past, in point of fact, in 1982, objected to interested party's application at the time for the grant of a rural taxi licence for serving Sykopetra Village, (Appendix 11 to the opposition), now, byletter dated 11.7.1985, (Appendix 10 to the opposition), strongly pleaded the grant of a rural taxi licence for their village, stressing the need thereof through accounts of instances of emergency which had arisen in the past and in which the presence of interested party's licensed taxi in the village had been shown to be indispensable. It was also stated in the village authority's letter that due to the fact that Profitis Elias community in which applicant's rural taxi was stationed was at a distance of three miles from Sykopetra, without any communal or private 'phone, and that only a non-asphalted road connected the two communities, the applicant's taxi could not serve satisfactorily or at all the emergency needs of' Sykopetra, bearing also in mind that applicant herself was on many occasions away from Profitis Elias. The Department of Inland Transport's conclusion on the basi.s of the above-mentioned facts, were set out in a minute addressed to the chairman of the Licensing Authority (Appendix 12 to the opposition) by which they advocated the grant of the licence to the interested party. The Licensing Authority decided at their meeting of 13.8.1985 (Appendix 13 to the opposition) after taking into account the department's said suggestion, as required by s. 15 sub-s. 14 of the Motor Transport Regulation Laws, and after having listened to representations by applicant and interested party at their meeting of 16.7.1985, to grant to the interested party the licence applied for (appendix 9 to the opposition). Interested party's allegations at the said meeting of 16.7.1985, to the effect that applicant's licensed rural taxi of Profitis Elias could not satisfactorily serve the transport needs of Sykopetra, were compatible with the contents of the letter by the Sykopetra Village Authorities and the contents of the Limassol District Transport Inspector's report. Respondent No. 2, Permits Review Licensing Authority, after hearing the hierarchical recourse and listening to both the applicant and interested party at their meeting of 28.6.1988, had decided after taking into account all relevant material and facts, including the material and fact referred to hereinabove, todismiss applicant's hierarchical recourse. I propose now to examine whether there are two separate villages under the name of Sykopetra and ProfitIs Elias respectively. It appears that there is one village only, namely Sykopetra, with 220 inhabitants and Profitis Elias is a quarter of Sykopetra but at a distance of about 3 miles away from it, connected with a rural track road. There is no evidence as to the number of inhabitants of this community, but bearing in mind that the main village itself, i.e. Sykopetra, is inhabitated by 220 persons, then Profitis Elias which is a quarter of Sykopetra should be inhabited by less persons than Skopetra. The crux of the matter is not whether Profitis Elias and Sykopetra is one village, but whether this rural community consisting of Sykopetra and Profitis Elias were in need of another rural taxi for the better service of the village's transport needs. I am satisfied, in view of the above, that the respondent authority made a due and proper inquiry and did not act under a misconception of facts or failed to make a proper appreciation of the facts placed before it. It was open to the respondent No. 2 authority to reach thesub judice on the basis of the material placed before them and the provisions of the Motor Transport Regulation Laws. The finding made by respondent authority No. 2 and reflected in the sub judice decision that Sykopetra village was in need of a rural taxi for the better service of the villages transport needs, is warranted by the material which was before the respondent No. 2 authority at the time of their decision. For all the above reasons, the recourse is dismissed, but with no order for costs. Recourse dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο