clr/1971/1971_3_286.pdf

(1). It does not seem to me that the Minister's letter of February 26, 1969 (supra) contains, or amounts to, any " act " or " decision " within Article 146.1 of the Constitution. It merely contains information as to the facts which led up to the decision of the Director (published in August 1967, supra) and the criteria which he took into consideration in deciding on the type of water meter to be used in controlled areas.

(2)As intimated in the said letter of the Minister, the Minister himself has no competence under the Law to decide as to the type of water meter to be used in controlled areas and quite obviously the recourse is directed at the decision of the Director which was published in the Gazette over 18 months before the filing of this recourse and in this respect the recourse is out of the time (75 days) prescribed in Article 146.3 of the Constitution.

(3)But quite independently of the above, even assuming that the letter of the Minister of February 26, 1969 (supra) or any paragraph thereof could be said to amount to any decision within the meaning of Article 146.1 of the Constitution and even if the Minister had competence to make a decision in the matter, such decision, admittedly taken without any new inquiry but by merely adopting the Director's said decision, is merely, confirmatory of the former decision and as such cannot be made the subject of a recourse. Recourse dismissed. No order as to costs. 287 1971 July 30 HADJI KYRIACOS AND SONS LTD. V. REPUBLIC (MINISTER OF AGRICULTURE AND NATURAL RESOURCES) Recourse. Recourse against the decision of the respondent refusing to allow the use of water meters of a particular type in areas declared to be controlled areas under the provisions of the Water Supply (Special Measures) Law, 1964 (Law 32/64). A. Hadjioannou, for the applicants. K. Talarides, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. The following judgment was delivered by :— L. Loizou, J. : By this recourse the applicants seek a declaration that the decision of the Minister of Agriculture contained in his letter dated 26th February, 1969, addressed to the applicants by which he refuses to allow the use of water me+ers of a particular type in areas declared to be controlled areas under the provisions of the Water Supply (Special Measures) Law, 1964, and/or the decision of the Director of the Department of Water Development which the Minister mentions in his said letter and which he adopts is null and void and of no effec* as being contrary to law and/ or in abuse of powers oi based upon a misconception of facts. Applicants base their case (a) on article 25 of the Constitution in order to show that the decision challenged by the lecourse and/or the decision of the Director of the Department of Water Development (hereinafter the Diiector) on which it is based is unlawful and/or unconstitutional and (b) on section 5

(1)of Law 33 of 1964, in order to show that the decision challenged and/or that of the Director was taken in abuse of powers and/or under a misconception of facts. By the opposition it is, inter alia, alleged that the respondent Minister had no competence to specify the type of water meter to be used ; that his letter dated 22nd September, 1969, does not amount to any act or decision within the meaning of article 146 of the Constitution ; and that the recourse is in effect directed against the decision of the Director and is, therefore, out of time as having been made more than 75 days of the date when such decision was published. In the course of the hearing the parties have agreed and have applied to the Court that the preliminary issue of the 288 limitation of time be determined in the first instance. I consider this course the more convenient and I, therefore, propose to deal with this issue first. The facts which are relevant to this issue are briefly as follows : The Director, in exercise of his powers under the Water Supply (Special Measures) Regulations 1966, specified the type of water meters to be used in controlled areas. This decision of the Director has been published in the 'Gazelteoithe 31st August,-1967, under Not.-No. 1237and h\ the local press. The applicants were not then importing water meters of any kind. Sometime in Octobei, 1968, the applicants started importing water meters of a kind which, admittedly, are not of the type specified by the Director and could not, therefore, be used in controlled areas. The applicants, it would appear, saw the Minister of Argiculture some time at the beginning of January, 1969, and complained to him that the decision of the Director regarding the type of water meters to be used in contioiled areas put their firm, as well as other importers of water meters, in a disadvantageous position and further that they believed and were prepared to piove that the water meters imported by them were the most suitable. In answer to a letter by the applicants (letter dated 18th January, 1969, attached to the application) confirming the points raised at their interview with the Minister the latter wrote to them the letter of the 26th February, 1968 (exhibit 1). I consider it useful and pertinent to set out this letter in full : •«"Επιθυμώ δπως αναφερθώ εις ύμετέραν έπιστολήν ημερο­ μηνίας 18ης Ιανουαρίου 1969, έττΐ τοϋ θέματος τοΰ τύπου των ύπο τοϋ Τμήματος "Αναπτύξεως "Υδάτων εγκριθέντων ύδρομετρητών και είς άπάντησιν πληροφορήσω υμάς ως ακολούθως:— (α) "Ο καθορισμός τοϋ τύπου τοΰ ύδρομετρητοϋ ύπό τοϋ Διευθυντοϋ τοΰ Τμήματος Αναπτύξεως Υδάτων αποτελεί ύποχρέωσιν αύτοϋ άπορρέουσαν έκ των προνοιών τοϋ περί Ύδατοπρομηθείας (Είδικά Μέτρα) Νόμου, Ό τύπος ώς και ΐίλλαι τεχνικά! προδιαγραφαΐ τοϋ ύδρομετρητοϋ έχουν καθορισθή προ πολλοΰ, πλήρης δέ περιγραφή τούτων δίδεται εϊς τήν ύπ* αριθμόν 1237 Γνωστοποίησιν τήν δημοσιευθεΐσαν είς τήν έπίσημον Εφημερίδα της Δημοκρατίας της 31ης Αυγούστου, 1967. * An English translation •of this text is to be found at pp. 291-92 post. 289 1971 July 30 HADJI KYRIACOS AND SONS LTD. v. REPUBLIC (MINISTER OF AGRICULTURE AND NATURAL RESOURCES) 1971 July 30 HADJI KYRIACOS AND SONS LTDV. REPUBLIC (MINISTER OF AGRICULTURE AND NATURAL RESOURCES) (β) Σχετικώς προς τόν καθορισμόν τοϋ τύπου τοϋ ύδρομε­ τρητοϋ ελήφθησαν σοβαρώς ύπ' όψιν μεταξύ άλλων αϊ έν Κύπρω ύπάρχουσαι συνθήκαι, ή φύσις τών υδρο­ φόρων στρωμάτων καΐ ή έξ αυτών κατά τήν άντλησιν εξαγωγή δμμου ή οποία καΐ προκαλεί προβλήματαφθοράς τών κινητών εξαρτημάτων, ή ακριβής καταγραφή, ή εΰκολος καί ομοιόμορφος άνάγνωσις της ενδείξεως, ή άπόδοσις καί ή έκ της ροής μέσω τοΰ ύδρομετρητοϋ προκαλούμενη τριβή, ώς επίσης καί ή εύκολος καί εύθυνή συντήρησις. ()') 'Επί τη βάσει τών είς τήν προμνησθεΐσαν Γνωοτοποίησιν περιεχομένων προδιαγραφών έζητήθησαν προσφοραί, τε­ λικώς οέ ή Κυβέρνησις παρέλαβε παρά τοϋ τελευταίου προσφοροδότου ποσότητα ύδρομετρητών τους οποίους καί διαθέτει είς τους ενδιαφερομένους οΐτινες έν τούτοις δεν εμποδίζονται άπό τοϋ νά προμηθευθούν ϋδρομετρητάς τοΰ καθορισθέντος τύπου έξ άλλων πηγών ύπό τόν δρον δτι οί τοιοΰτοι ύδρομετρηταί θά ικανοποιούν τάς προδιαγραφάς καϊ τους τεχνικούς δρους τους αναφερομένους είς τήν προμνησθεΐσαν Γνωοτοποίησιν καί θά τύχουν της εγκρίσεως τοΰ Διευθυντοϋ τοΰ Τμήματος "Αναπτύξεως Υδάτων. (δ) Παρ' δλον δτι ουδέποτε ΰπεβάλατε δείγμα τών ΰφ* υμών εισαγομένων ύδρομετρητών έν τούτοις έξ αυτών τούτων τών δηλώσεων σας προς τόν Διευθυντήν τοϋ Τμήματος "Αναπτύξεως "Υδάτων κατέστη πρόδηλον δτι οί είρημένοι ΰδρομετρηταϊ δέν Ικανοποιούν τάς δημοσιευθείσας προδιαγραφάς και συνεπώς ό προμνησθείς Διευθυντής δέν δύναταινά έγκρίνη τήνέγκατάστασιν των διάτους σκοπούς τοϋ περί Ύοατοπρομηθείας (Ειδικά Μέτρα) Νόμου. "Εάν έν τούτοις διαθέτετε άλλους ΰδρομετρητάς, διαφορετικοϋ τύπου τών προαναφερθέντων, οΐτινες ϊκανοποιοϋν τους τεχνικούς δρους καί προδιαγραφάς τότε ό Διευθυντής τοϋ Τμήματος 'Αναπτύξεως "Υδάτων ευχαρίστως θ' άναλάβη νά ύποβάλη τούτους εις σχετικόν £λεγχον καί είς περίπτωσιν ικανοποιήσεως του νά παραχώρηση τήν ε*γκρισίν του προς διάθεσιν αυτών μεταξύ τών ενδια­ φερομένων καλλιεργητών.» Learned counsel for the applicants has stated in t h e course of his address that t h e decision against which the recourse is directed is contained in para, (

1. d)of the above letter and is in fact the Minister's refusal to examine applicant's com­ plaint on t h e pretext that he follows the decision of the Director which was published in the Gazette of the 31st August, 1967. With all respect to learned counsel's argument, it does not seem to me that the letter exhibit 1 amounts to any 290 " a c t " or " decision " in the sense of Article 146. It merely contains information as to the facts which led up to the decision of the Director and the criteria which he took into consideration in deciding on the type of water meter to be used in controlled areas, and advises the applicants that if they have any water meters of a type which satisfies the required specifications then the Director would gladly check them and, if satisfied that they are suitable, approve them for use. ... It_should,_ I think, _be_pointed put that, a? intimated in the Minister's letter, the Minister himself has no competence under the Law to decide as to the type of water meter to be used in controlled areas and quite obviously the recourse is directed at the decision of the Director which was published in the Gazette and the local press over 18 months before the recourse was filed and some thirteen months before they started importing their own water meters. But, quite independently of the above, even assuming tha+ the letter exhibit 1 or any paragraph thereof could be said to amount to a decision within the meaning of Article 146 and even if the Minister had competence to make a decision in the matter, such decision, admittedly taken without any new inquiry but by merely adopting the Director's decision, is merely confirmatory of the former decision and cannot be the subject of a recourse. Having reached this conclusion I must hold that the recourse is out of time and must, therefore, fail. In all the circumstances I have decided to make no order as to costs. Recourse dismissed. No order as to costs. * This is an English translation of the Greek text appearing at pp. 289-90 ante. " I wish to refer to your letter dated the 18th January, 1969, on the subject of the type of the water meters approved by the Department of Water Development and in reply to inform you as follows :— (
2. a)The specifying of the type of water meter by the Director of Water Development Department constitutes an obligation of the Director emanating from the provisions of the Water Supply (Special Measures) Law. The type 291 1971 July 30 HADJI KYRIACOS AND SONS LTD. v. REPUBLIC (MINISTER OF AGRICULTURE AND NATURAL RESOURCES) 1971 July 30 HADJI KYRIACOS AND SONS LTD. v. REPUBLIC (MINISTER OF AGRICULTURE AND NATURAL RESOURCES) as well as other specifications concerning the water meter have been specified a long time ago, and a full description thereof appears in Notification No. 1237 of the Official Gazette of the Republic of the 31st August, 1967. (
3. b)In specifying the type of water meter there were, inter alia, seriously taken into consideration the prevailing conditions in Cyprus, the nature of the water-bearing strata including the extraction of sand therefrom during pumping, which also tends to ruin the moving accessories, the accurate recording, the easy and uniform meter reading, the output and the friction created by the flow through the water meter as well as the convenient and cheap maintenance. (
4. c)Tenders were invited on the basis of the specifications set out in the aforesaid Notification, and finally the Government obtained from the lowest tenderer a quantity of water meters which are offered to the persons concerned who are, nevertheless, not prevented from being supplied with water meters of the type specified from other sources on condition that such water meters will be in accordance with the specifications referred to in the aforesaid Notification and will be approved by the Director of the Department of Water Development. (
5. d)Though you have never submitted a sample of the water meters imported by you, from your statements to the Director of the Department of Water Development themselves, however, it became apparent that the said water meters arenot in accordance with the published specifications and consequently the said Director is unable to approve their installation for the purposes of the Water Supply (Special Measures) Law. If, however, you have any other water meters, of a type different than the ones referred to, which are in accordance with the Specifications then the Director of the Department of Water Development will gladly undertake to check them and in case he is satisfied to give his approval for their disposal to any cultivators interested". 292