clr/1976/1976_3_101.pdf

(1)that the revocation of an unlawful administrative act is a course lawfully open to the administration and it is based on the notion of the preservation of legality; that the 15 revocation of an unlawful administrative act is not permissible after the lapse of a reasonable period of time to be judged in thecircumstances ofeachcase;and that whenthereexistreasons of public interest an unlawful administrative act may be revoked even after the lapse of reasonably long time. 20

(2)That there existed reasons of public interest to avoid having in force simultaneously two prospecting permits in respect of one and the same area; and that, accordingly, even if the Court were to find that the time which has elapsed was reasonably long, it would still have to hold that it was proper 25 for the administration to revoke the permit which had been granted to appellant 1 {Pavlides v. TheRepublic

(1967)3 C.L.R. 217 distinguished).

(3)That the revocation of even an unlawful administrative act is a matter in relation to which there exists some margin 30 for the exercise of discretionary powers by the administration; and that it is quite clear, from a perusal of therelevant administrative records, that the sub judice decision was taken by the respondent Minister after considering all relevant matters, including thecontents ofthelegaladvice oftheAttorney-General. 35

(4)That in cases of revocation of unlawful administrative acts the revocation automatically takes place ex tunc so as to eradicate the consequences of illegality; and that, accordingly, it cannot be found that it was not proper to revoke the prospecting permit ex tuncand not only ex nunc. 40 Appeal dismissed. Quoted at pp. 104-105. 102 5 Cases referred.to: Decisions of the GreekCouncil of State: Nos. 796/1964, 1750/ 1965, 1531/1966, 3027/1967, 458/1968, 424/1932, 425/1932, 3169/1968, 1026/1966, 518/1956, 47/1963, 55/1963, 430/1964, 1730/1955 and 2882/1967; Charalambides v. TheRepublic, 1964 C.L.R. 326; Paschali v. The Republic,

(1966)3 C.L.R. 593; Antpniades & Co., v. The Republic

(1965)3 C.L.R. 673; Pavlides v. The Republic

(1967)3 C.L.R. 217; 10 Appeal. Appeal against thejudgment of a Judge of the Supreme Court of Cyprus (Hadjianastassiou, J.) given on the 17th June, 1975 (Case No. 84/72) whereby applicants' recourse against the de­ cision of the respondent to cancel prospecting permit No. 2380 15 was dismissed. K. Talarides, for the appellants. N. Charalambous, Counsel of the Republic, for the res­ pondent. Cur. adv. vult. 20 25 30 The judgment of the Court was delivered by:TRIANTAFYLLIDES, P.: The appellants.complain against an in thefirstinstancejudgment* of a Judge of this Court by means of which there was dismissed a recourse made by them against the decision of the respondent Minister of Commerce and Industry to revoke a prospecting permit granted to appellant 1 under the provisions of the Mines and Quarries (Regulation) Law, Cap. 270. The application for such permit was made by appellant 1 on August 26, 1970; it concerned an area of approximately one square mile in extent, in the vicinity of Kambia and Anaiiontas villages, and it related to umber and ochre. A prospecting permit No. 2380, class Έ ' , was issued on Fe­ bruary 27, 1971. 35 On December 13, 1971,the company which is appellant 2, and of which appellant 1 is a director and shareholder, .was formed with a view to exploiting any.deposits that might be discovered Reported in

(1975)3 C.L.R. 228. 103 1976 May 11 NICOLAS YIANGOU AND ANOTHER v. REPUBLIC (MINISTER OF COMMERCE AND INDUSTRY) 1976 May 11 in the course of prospecting; and it is common ground that a deposit of umber was in fact located. NICOLAS On December 14, 1971,appellant 1,as the holder oftheprospecting permit, wasasked by the Senior Mines Officer tocall at his office in relation to such permit, and he waswarned to dis- 5 continue any further prospecting operations. YlANGOU AND ANOTHER v. REPUBLIC (MINISTER OF COMMERCE AND INDUSTRY) As it appears from a letter dated December 20, 1971,which was addressed by the Senior Mines Officer to the Director-General of the respondent Ministry, theauthorities had discovered accidentally, in thecourse ofsomeother administrative process, 10 that inrelation to thesamearea therehad been granted, earlier, another prospecting permit, No. 2308, to the Cyprus Umber Industrial Co. Ltd. That prospecting permit covered an area of two square miles in extent, approximately, and one of those two squaremileswasthesquaremilecovered bytheprospecting 15 permit granted to appellant 1; and permit No. 2308 related to umber, too. Thesaid earlierprospectingpermit wasgranted on September 25, 1970, for a period of one year, and was then renewed on September 25, 1971,for another six months. 20 When it was discovered that through some administrative error the earlier prospecting permit had not been duly marked on the relevant Lands Office maps and records, with the result that later on a prospecting permit was issued to appellant 1in respect of part of the samearea, the advice of the Office of the 25 Attorney-General was sought on December 20, 1971, by the Senior Mines Officer; and in an advice dated January 12,1972, itwaspointed out thatduetomisconception offact, and inview of the provisions of section 19of Cap.270,the prospecting permit issued to appellant 1 wasgranted unlawfully and irregularly 30 and had to be revoked; it was,further, stated in the said advice that there might possibly arise a question of acquired rights, but that this aspect could be dealt with in due course. As a result, the prospecting permitgranted toappellant 1 was revoked bynotice of therespondent Ministry dated February 7, 35 1972,and the relevant fees were refunded to appellant 1, Section 19 of Cap. 270, which was referred to in the advice given by the Office of theAttorney-General, reads (when modified under Article 188 of the Constitution) as follows:" No prospecting permit shall be granted to any person in 40 104 respect of an area for which a prospecting permit is already in subsistence, but nothing in this section contained shall be deemed to apply to any prospecting permit for oil granted under the provisions of any Law in force for the time being: 5 10 Provided that the Council of Ministers, if satisfied that by so doing the rights or interests of the holder of a pros­ pecting permit in respect of thearea shall not be prejudicial­ ly affected, grant a prospecting permit in respect of the same area to any person other than such holder but for a mineral or quarry material other than that for which the subsisting permit was granted". As we have pointed out during the hearing of this appeal, we are inclined to the view that the matter of the revocation of the prospecting permit in the present case cannot be treated as 15 coming only within the narrow ambit of section 19; in our view it is governed by the general principles of administrative law applicable to such matter. 20 25 30 35 40 The revocation of an unlawful administrative act is a course lawfully open to the administration and it is based on thenotion of the preservation of legality; the relevant principles are to be found in Stasinopoullos on the Law of Administrative Acts

(1951), at pp. 398-399; and it is useful to refer, too, to the de­ cisions of the Council of State in Greece in cases 796/1964, 1750/1965, 1531/1966, 3027/1967 and 458/1968; in particular in the decision in case 3027/1967thefollowing are stated as regards the revocation of unlawful administrative acts:" ή ανάκληση, κσΐ παρανόμουέτι διοικητικής πρά£εως δέν είναι επιτρεπτή μετά την πάροδονευλόγου χρόνου,κρι­ νόμενου κατά τάς εκάστοτε συν&ήκας, έάν Ι£ αύτης παρήχθη πραγματική κατάστασις προστατευτέα έν όψει των άρχων της χρήστης Διοικήσεως, πλην έάν αύτη προεκλήθη δι* απα­ τηλής ενεργείας τοϋ ενδιαφερομένου ή δέν έτηρήθη υπ'αΰτοϋ ορός τεθείς έν αύτη μέτήν έπιφύλαΕιν της ανακλήσεωςή συντρέχη λόγος δημοσίουσυμφέροντος." ("··•• the revocation of even an unlawful administrative act is not permissible after the lapse of a reasonable period of time, to be judged in the light of the circumstances of each case, if there has been created from the beginning a situation needing protection on the basis of the principles of proper administration, unless the unlawful administra­ 105 te May 11 NICOLAS YlANOOU AND ANOTHER v. REPUBLIC (MINISTER OF COMMERCB AND INDUSTRY) 1976 May Π NICOLAS YIANOOU AND ANOTHER tive act has been caused by fraudulent conductof the person concerned or there has not been observed by him a con­ dition included in the act subject to the reservation that there might be revocation or there exist reasons of public interest"). 5 V. REPUBLIC (MINISTER O F COMMERCE AND INDUSTRY) As is stressed in the passage just quoted above, when there exist reasons of public interest an unlawful administrative act may be revoked even after the lapse of reasonably long time; and this is to be found, also, in other decisions of the Greek Council of State, such as those in cases 424/1932, 425/1932, 10 1750/1965 and 3169/1968. What is " a reasonable period of time" is a matter which, as pointed out in the decision of the Council of State in Greecein case 1026/1966, depends on the circumstances of each particular case; and the relevant criteria have been set out by the said 15 Council in its decision in case 518/1956; whether or not the time which has elapsed is reasonable is a matterfor the Courtto decide (see, in this respect, the decisions of the same Council in cases 47/1963, 55/1963 and 430/1964). Actually, we are not prepared to hold, in the present case, 20 that a reasonable period of time did, in fact, elapse between the date of the unlawful administrative act and the date of its re­ vocation; and, in this respect, it is useful to observe, in relation to our relevant case-law, that the present case is clearly distin­ guishable, on the basis of its special facts, from cases such as 25 Charalambides v. The Republic, 1964 C.L.R. 326 and Paschali v. The Republic,

(1966)3 C.L.R. 593, which have been cited to us in argument; on the contrary, it seems to us to be quite si­ milar, in certain respects, to the case of Antoniades and Co., v. The Republic,

(1965)3 C.L.R.

1. 30 It is, furthermore, pertinent to point out that as soon as the administrative mistake was discovered appellant 1 was notified to discontinue further prospecting operations. In the present instance there, obviously, existed reasons of public interest to avoid having in force simultaneously two prospecting permits in respect of one and the same area and, therefore, even if we were to find that thetimewhich has elapsed was reasonably long, we would still have to hold that it was proper for the administration to revoke the permit which had been granted to appellant
2. 106 35 40 The revocation of even an unlawful administrative act is a matter in relation to which there exists some margin for the exercise of discretionary powers by the administration (see, in this respect, Stasinopoulos, supra, p. 423, and Delicostopoulos 5 on Administrative Law

(1972), p. 249); therefore, we cannot accept the submission of counsel for the respondent that Pavlides v. The Republic,

(1967)3C.L.R. 217, has established an inflexiblerule that an unlawful administrative act hasinvariably to be revoked; in that case the issue was whether or not it was the 10 duty of the administration to revoke erroneous computations of income tax and it must be regarded as having been decided on the basis of its own particular facts. It has been submitted by counsel for the appellants that no discretion was, in fact, exercised at all, by the respondent Mi15 nister and that he acted on the basis of the relevant advice of the Office of the Attorney-General feeling that he was bound to revoke the permit in question. We do not share this view. In the said advice there were set out fully both the legal and other considerations which had to be taken into account; and it is 20 quite clear, from a perusal of the relevant administrative records, that the subjudice decision wastaken by the respondent Minister after considering all relevant matters, including, of course, the contents of the said advice. Another point which was raised during the hearing of this 25 appeal was whether the revocation should have been made with effect ex tunc or only with effect ex nunc, that is only from the time when the administrative mistake was discovered and without setting aside retrospectively in toto the prospecting permit. In cases of revocation of unlawful administrative acts the 30 revocation automatically takes place ex tunc so as to eradicate the consequences of the illegality (see, interalia,the decisions of the Council of State in Greecein cases 1730/1955and 2882/1967, as well as Delicostopoulos, supra, p. 255, Kyriacopoulos on Greek Administrative Law, 4th ed., vol. B, p. 419, the Con35 elusions from the Case-Law of the Council of State in Greece (1929-1959) p. 205, and Stassinopoulos, supra, pp. 471-472); therefore, we cannot find that it was not proper to revoke the prospecting permit in question ex tunc, and not only ex nunc. In Stassinopoulos, supra, at pp. 472-474, there are set out the 40 principles which govern the situation when an unlawful administrative act has been revoked ex tunc but, in the meantime, there 107 1976 May l l NICOLAS YIANGOU AND ANOTHER v. REPUBLIC (MINISTER OF COMMERCE AND INDUSTRY) 1976 May 11 NICOLAS YIANGOU AND ANOTHER v. REPUBLIC (MINISTER O F COMMERCE AND INDUSTRY) have arisen, because of it, and prior to its revocation, certain rights;weneed not enlarge upon suchprinciples becauseweare not concerned with them in the present case;but, wemust add that we do sympathize, in a certain way, with the appellants, who are not to blame for what has happened, and it is up to them to consider what other remedies may be open to them in order totry to obtain redress,either administratively or through any legal process possibly open to them, for any damages that they may have suffered; we do not, however, wish to express, in any way, any view whatsoever in this respect. 10 In the result the present appeal is dismissed; but, in view of the nature of the present case, we are not prepared to make an order against the appellants regarding itscosts. Appeal dismissed. No order as to costs. 15 108