clr/1976/1976_3_385.pdf

(2)of section 6 of the relevant Law has been misunderstood and misapplied by the Minister, inasmuch as when he "assigned" to three officers of his Ministry the task of hearing what he considered 20 to be an appeal made by the interested party, he, in effect, went so far as to delegate to them completely his powers under such section 6, which was a thing that he was not lawfully entitled to do under the provisions of that section; or, to say the least, he shared with them such powers in a manner which exceeded 25 the limits of the proper application of the proviso to subsection

(2)of section 6. Appeal. Appeal against thejudgment of a Judge of the Supreme Court of Cyprus (A. Loizou, J.) given on the 28th February, 1976 30 (Case No. 388/74) whereby applicants* recourse against the decision of the respondent to give instructions to the Licensing Authority to grant a road service licence to the interested party in respect of the route Kakopetria-Galata-Evrychou-Nicosia was dismissed. L. Papaphilippou, for the appellants. R. Gavrielides,Counsel of the Republic, for the respondent. A. Magos, for the interested party. Cur. adv. vult. The judgment of the Court was delivered by: 40 TRIANTAFYLLIDES, P.: The appellants have appealed against 386 35 5 the dismissal*, by a Judge of this Court, of a recourse made by them under Article 146 of the Constitution; by. means'of such recourse they Lhad challenged the validity of .a decision of the respondent Minister of Communications and Works, dated November 14, 1974, by which he decided that a road service licence should be granted to the interested party, I. Marangos, in respect of the Kakopetria-Galata-Evrychou-Nicosia route. The decision of the'Minister was reached when he determined an appeal, by Avay.of hierarchical recourse, made to him by the 10 interested party against a decision of the Licensing Authority by means of which an application of his for a licence for the afo­ resaid route was turned down. We are in agreement with the learned trial Judge in so far as is concerned the validity of the relevant administrative action 15 leading up to the decision of the Licensing Authority; in this respect, we cannot accept the submission of counsel for the ap­ pellants that by a letter written by the interested party on April, 10, 1973, after he had applied for a road service licence, he li­ mited the scope of such application to the route from Kakope20 tria up to Evrychou only and abandoned his application in res­ pect of the route from Evrychou to Nicosia; in our opinion the true effect of that letter is that it clarified, that the interested party was not going to stop at Evrychou in order to accept pas-. sengers from there for Nicosia, but would only stop at,Evrychou 25 in order to enable pupils coming from Kakopetria and Galatato alight there. On the other hand, .we agree with counsel for the appellants that the decision of the respondent Minister is invalid because there was no properly made appeal before him, inasmuch as 30 there had not been compliance with necessary material forma­ lities: Such appeal was lodged by means of an ordinary letter, dated July 18, 1973, which was addressed to the Minister, and thirteen days later the then Minister of Communications and Works made a note on that letter to the effect that it should be 35 treated as a recourse ("προσφυγή"),inotherwords as an appeal under section 6 of the Motor Transport.(Regulation) Law, 1964 (Law 16/64), as re-enacted by the Motor Transport (Regulation) (Amendment) (No.2) Law, 1972 (Law 81/72). We are of the opinion that an essential prerequisite for the' Vide p. 44 in this Pari ante. 387 pec. 3 SOLEA CAR COMPANY LIMITED (No. 2) v. REPUBLIC (MINISTER OF COMMUNICATIONS AND WORKS) 1976 Dec. 3 SOLEA CAR COMPANY LIMITED (No. 2) v. REPUBLIC (MINISTER O F COMMUNICATIONS AND WORKS) validfilingof such anappeal was theuse,for thispurpose,of the appropriate form, which is prescribed by the relevant Regula­ tions, that is the Motor Transport Regulations of 1964 (seethe official Gazetteof November 19, 1964, Third Supplement, Not. 505); we have reached this conclusion because of thevery clear 5 and express wording of regulation 24, which provides, in rela­ tion totheformalities for suchanappeal,thatit should bemade within twenty days, intheprescribed form, and that the right of appeal is exercised ("ή ϋφεσιςασκείται")by means of lodging with the Ministry of Communications and Works, within the 10 above period, the said form and by furnishing copy thereof to the Licensing Authority, within the same period. As therehas notbeen complianceat all, in this case, withthe aforementioned essential formalities, the Minister's decision has to be annulled,as having been reachedin relationtoan invalidly 15 filed appeal, and, consequently, the appealed from judgment of the trial Judge,by means of which therecourse of theappellants against thesaid decision of the Minister was dismissed, has tobe set aside accordingly. Before concludingthisjudgmentwe should pointoutthat,had 20 we found that there was before the Minister a properly made appeal,wewould have,again, annulledthesubjudice decision of theMinister,because itseems to us that,inthepresent case,the proviso to subsection

(2)of section 6 of the relevant Law has been misunderstood and misapplied by the Minister, inasmuch 25 as when he "assigned" to three officers of his Ministry the task of hearingwhat heconsideredtobeanappealmadeby the inter­ ested party, he,ineffect, went sofar as todelegate tothem com­ pletely his powers under such section 6, which was a thing that he was not lawfully entitled to do under the provisions of that 30 section; or,to say the least, heshared with themsuch powers in a mannerwhich exceeded the limits of the proper application of the proviso to subsection

(2)of section 6. We have, indeed,given anxious considerationtothisaspect of the case, because we do feel that it is necessary, when applying 35 the provisions of section 6,to adherefully both to theletterand the spirit of such section, with the result that the ultimate re­ sponsibility for reaching a decision under such section should, at all times, remain with the Minister, and with the Minister only. In the result this appeal is allowed; but, in view of the fact 388 40 that the issueswhichwereraised both before the trialJudge and before us are, to a certain extent, of a rather novel nature, we shall adopt, as regardscosts,the samecourse as the trial Judge, and weshall, consequently, not make any order as to the costs either of the trial or of this appeal. Appeal allowed. No order as to costs. 1976 Dec. 3 SOLEA CAR COMPANY LIMITED (No. 2) v. REPUBLIC (MINISTER OF COMMUNICATIONS AND WORKS) 389