clr/1976/1976_3_109.pdf

(1)that in the circumstances of this case, it was reasonably open both to the LicensingAuthority and the Minister 20 on appeal under section 6 of Law 16 of 1964, to arrive at the conclusions that they did, regarding the needs of the route in question particularly so in view of the presence of displaced persons in the area and their transport needs; that there has been no misconception of fact whatsoever; and that there is 25 nothing to suggest that the criteria laid down in section 8 of Law 16/64 (as amended) have not been duly taken into consideration, or that the reasoning is either insufficient or misconceived.

(2)That the question whether the transport of displaced 30 persons was practically impossible was never in issue at any time on any party's behalf and no material was placed before the Minister to that effect; that it was within the Licensing Authority's discretion when issuing a road service licence, to impose such conditions which did not make the licence contrary 35 to Law, so that the Minister in the exercise of hispowers under section 6of theLawcouldcancelit onhisown;andthat, accordingly, the subjudice decision is confirmed to the extent of dismissing the applicants' hierarchical recourses and annulled to the extent of the direction made by the Minister for the 40 amendment of the licence granted. Subjudicedecisionpartly annulled. 110 Recourse. ' Recourse against the decision of the respondent to dismiss applicants' hierarchical recourses against the decision of the Licensing Authority and give instructions to the Licensing 5 Authority to amend the road service licence granted to the interested party so that the bus under Reg. No. D.G. 634 be entitled to carry from Psimolophou passengers in general and not only displaced persons. D. Panayiotou, for the applicants. 10 CI.Antoniades, Counsel of the Republic for the respondent. Cur. adv. vult. The following judgment was delivered by: A. Loizou, J.: By the present recourse the applicants seek a declaration of the Court that the act and/or decision of the 15 Minister of Communications and Works dated 17.6.1975 by which he dismissed the said recourses and gave instructions-to the Licensing Authority to amend the road service licence granted to "Lambousa" Co. Ltd., (hereinafter referred to as the interested party) so that their bus under Reg. No. DG 634 20 be entitled to carry from Psimolophou passengers in general and not only displaced persons, is nulland voidand of no legal effect whatsoever. Both applicants are owners of duly licensed buses which serve the route Psimolophou-Nicosia. As a result of the Turkish 25 invasion, a number of displaced persons, including applicant No. 2, moved to Psimolophou village. Although, as claimed, the transport needs of the said route could be served by the vehicles existing prior to the invasion, applicant No. 1consented that a road service licence be given to applicant No. 2 in respect 30 of his bus under Reg. No. CQ 539 for the better and fuller service of the new needs of the village and the Licensing Authority granted same. On the 27th January, 1975, the interested party submitted an application to the Licensing Authority in respect of their 35 vehicle under Reg. No. DG634 on the route Psimolophou Refugee Camp-Deitera-Nicosia, instead of the route KyreniaNicosia for which same was licensed. This application'was submitted on the prescribed -printed form A.A.4 and on its top part it was written in ink, "Application for serving the 40 needs_of refugees". The provisional character of the licence 111 1976 May 14 KYPROS KOURRIS A N D ANOTHER v. MINISTER O F COMMUNICATIONS A N D WORKS THROUGH T H E ATTORNEYGENERAL 1976 May 14 KVPROS KOURRIS AND ANOTHER v. MINISTER O F COMMUNICATIONS AND WORKS THROUGH THE ATTORNEYGENERAL sought confined to the transport of refugees only, was also reiterated to the District Transport Control Officer, Nicosia, by the representative of the interested party. (See his report dated 4.2.1975). In the said report it is also stated that at Deftera and Psimolophou villages, there were living about five 5 hundred and four hundred refugees respectively and that the organizations of the Motorists 'KEEA" and "PEEA" objected to the grant of the licence applied for, on the ground that the needs of the route were fully served both by the pre-existing licensed vehicles and the buses of displaced persons already 10 provisionally licensed. The Licensing Authority having heard representations from all parties and havingbefore it the report of the District Transport Control Officer dated 4.2.1975, together with a survey of the transport of passengers on the aforesaid route, did con- 15 sider this application at its meeting of the 14th March, 1975. After having taken into consideration that several refugees were daily transported from the villages of Psimolophou and Deftera, it decided to grant the application, on condition that they would transport refugee-passengers only under the folio- 20 wing terms: "(

1. a)This licence is being granted due to the present anomalous situation and will be of a temporary duration and in force for a period of three months from today with a right of renewal every three months until this 25 situation becomes normal. (
2. b)Theowner ofthevehicleretainstherightshepossessed on his previous route and he should resume his previous route as soon as the situation becomes normal." The aforesaid decision was communicated to all concerned 30 on 24.3.1975 and both applicants filed against same, hierarchical recourses to the Minister of Communications and Works on 31.3.1975 and 4.4.1975,respectively. The subjudicedecision of the Minister dated 17.6.1975reads as follows: " Having taken into consideration all the material before me and the representations of the parties I have arrived at the following conclusions: (
3. a)Out of the displaced persons residing at Psimolophou about 55are transported to Nicosia. 112 35 40 5 10 15 20 25 30 35 40 (
4. b)The displaced omnibus CG539 of Mr. Ioannis Constantinou of Vouno which has been granted a a provisional licence on the Psimolophou-Nicosia route does not satisfy the transport needs of the displaced persons residing at Psimolophou. (
5. c)Thecondition imposedby theLicensingAuthority to the effect that omnibus DG634 of 'LAMBOUSA' Company Ltd. will transport displaced persons is practically impossible. 2. In view of the above the recourses are hereby dismissed and the Licensing Authority is directed to amend the licence granted to 'LAMBOUSA' Company Ltd. so that its omnibus DG634 may be licensed to transport passengers from Psimolophou in general and not only displaced persons." The aforesaid decision was communicated to all parties on the 1st July, 1975and the applicantsfiledthe present recourse which was based on the following grounds: "1. The act and/or decision of the respondent is contrary to law and/or was taken in excess or abuse of power because the criteria laid down in section 8 of Law 16 of 1964 were not taken into consideration as Law 16 of 1964 does not empower the Minister to amend the decision of the Licensing Authority in the absence of a recourse by the LP. 2. That theact and/or decision of therespondent wastaken under a misconception of fact because there were not taken into consideration the transport needs as a whole and all the existing means of transport and particularly the distance ofthe route and the fact that there are also other licensed vehicles. 3. That the said act is unwarranted and/or lacks sufficient and/or clear reasoning in that though stating that only displaced persons are not served it granted a licence of such a nature in order to serve non-existent needs." It hasbeenargued on behalf oftheapplicants that the finding of the Minister that vehicle CG539 did not satisfy the needs of the displaced persons that took up shelter in Psimolophou, is not supported by the real facts and that thefindingsof the Minister in paragraph (
6. c)ofhisdecision,isagain not supported by the real facts in that there has never been placed before him such a matter or problem, as all the parties concerned were 113 1976 May 14 KYPROS KOURRIS A N D ANOTHER v. MINISTER O F COMMUNICATIONS A N D WORKS THROUGH T H E ATTORNEYGENERAL 1976 May 14 KYPROS KOURRIS A N D ANOTHER v. MINISTER O F COMMUNICATIONS A N D WORKS THROUGH THE ATTORNEYGENERAL insisting only on the transport of displaced persons from the Displaced Persons Camp at Psimolophou and that there has been a wrong exercise of discretion or excess or abuse of power. I have gone through the relevant material in the file that the Minister and the Licensing Authority had before them and I 5 have been satisfied that in the circumstances of this case, it was reasonably open both to the Licensing Authority and the Minister on appeal under section 6, to arrive at the conclusions that they did, regarding the needs of the route in question, particularly so in view of the presence of displaced persons in 10 the area and their transport needs and there has been no misconception of fact whatsoever. There is nothing to suggest that the criteria laid down in section 8 of the Motor Transport (Regulation) Law, 1964, Law No. 16/64, as amended, have not been duly taken into consideration, or that the reasoning is 15 either insufficient or misconceived. There is, however, one more point that has to be considered. The Minister by his decision found that the condition imposed by the Licensing Authority to the effect that omnibus Reg. No. DG 634 of the interested party will transport displaced persons, 20 was practically impossible and after dismissing the recourses of the applicants, directed the Licensing Authority to amend the licence granted, so that the said omnibus would be licensed to transport passengers from Psimolophou in general and not displaced persons. 25 The short answer to the question that this finding and direction raises, is that same was never in issue atany time on any party's behalf and no material was placed before the Minister to that effect. It was within the Licensing Authority's discretion when issuing a road service licence, to impose such 30 conditions which did not make it contrary to law, so that the Minister, in the exercise of his powers under section 6 of the Law, as amended, could cancel it on his own. Therefore, the subjudice decision is confirmed to the extent of dismissing the applicants' hierarchical recourses and annulled to the extent of 35 the direction made by the Minister for the amendment of the licence granted, so that the said bus should be licensed to transport passengers from Psimolophou in general and not only displaced persons, as decided by the Licensing Authority. In the circumstances, there will be no order as to costs. 40 Sub judice decision annulled in part. No order as to costs. 114