clr/1977/1977_3_140.pdf

(1970)3 C.L.R. 75 at p. 79 followed. Motor Transport—"Carrier's A" Licence—Revocation of, based on regulation 12A of the Motor Transport (Regulation) Regulations, 1964 (as amended)—Said regulation invalid—Sub judice revocation annulled—Spyrou and Others (No. 2) v. The Republic

(1973)3 C.L.R. 627 followed. Administrative Law—Act based on regulation invalidly enacted— Annulled. The sole issue in this recourse, which was directed against the decision of the respondents to revoke a "Carrier's A" licence granted to the applicant, was whether regulation 12A of -the Motor Transport (Regulation) Regulations, 1964 (as amended) was valid. The case was originally fixed for hearing on March 10, 1977 but had to be adjourned till April 29, 1977 because of the non-appearance of counsel for respondents, though he had been duly notified. On .the latter date, too, counsel for respondents did not appear, even though he was again duly notified and the Court decided to go ahead with the hearing of the case in his absence. Held, {I) on the question arising because of the absence of counsel for the respondents: 140 5 - That the course of hearing the case in the absence of coun­ sel for the respondents was a proper one in view of thenature of a recourse under Article 146 of the Constitution such as the present one (Lambrou v. Republic

(1970)3 C.L.R. 75 followed). Held, (II)on the merits of the recourse: JQ That in this case it is sufficiently clear from .the material before this Court, and, especially, from the wording of the sub judice decision, that it was based on regulation 12A of the Motor Transport (Regulation) Regulations, 1964 (as amended); and that as such regulation was found to be in­ valid in the case of Spyrou and Others (No. 2) v. Republic

(1973)3 C.L.R. 627 the only proper course for this Court is to annul the decision complained of by the present applicant. 15 Subjudicedecision annulled. Cases referred to: Lambrou v. Republic

(1970)3C.L.R. 75 atp. 79; Spyrouand Others(No. 2) v. Republic

(1973)3 C.L.R.

1. Recourse. 20 Recourse against the decision of the respondent Licen­ cing Authority torevoke a "Carrier's A" licencein respect of amotorlorry of theapplicant. Λ
2. Nicolaou, for theapplicant. No appearancefor therespondent. 25 Cur. adv.vult. Thefollowing judgment was delivered by:- TRIANTAFYLLIDES, P.: By this recourse the applicant complains against thedecision of theLicencing Authority, respondent 2, which comes under theMinistry of Commu30 nications andWorks, respondent 1, to revoke a "Carrier's A" licenceinrespect of his motor-lorry BA
3. The said decision was communicated to him by letter of thechairman of respondent 2, dated June 17, 1969 (see exhibit 2); the reason for the revocation was that though 35 his vehicle was being put intocirculation for thefirst time, itwas notnewly built andunused. 141 1977 May 6 COSTAKIS NEOPHYTOU v. REPUBLIC (MINISTRY OF COMMUNICA­ TIONS AND WORKS) 1977 May 6 COSTAKIS NEOPHYTOU v. REPUBLIC (MINISTRY OF COMMUNICATIONS AND. WORKS) The present recourse was filed on August 29, 1969, and was first fixed for hearing on December 9, 1969.On that date counsel for the parties agreed that, as theissue of the validity of regulation 12A of the Motor Transport (Regulation) Regulations, 1964—(as amended bytheMo- 5 tor Transport (Regulation) (Amending) Regulations, 1965, and by theMotor Transport (Regulation) (Amending) Regulations, 1967)—which is subjudicein the present case, was already being examined in another case, which was then being heard, the present case ought to be 10 adjourned sine die pending the outcome of that case. Judgment in that other case has not yet been delivered; but, in the meantime, the issueof the validity of thesaid regulation 12A was determined in yet another case(Spyrouand Others(No.2) v. The Republic,

(1973)3C.L.R. 15 627), and counsel for applicant has applied that thepresent case should proceed to be deterrnined, too; consequently, it has been heard on April 29, 1977, and judgmenthasbeenreserveduntiltoday. The case wasoriginally fixed for hearing on March 10, 20 1977, but had to be adjourned till April 29, 1977, because of the non-appearance of counsel for respondents, though he had been duly notified. On the latter date, too, counsel for respondents did not appear, even though he was again duly notified, and I decided to go ahead with 25 thehearingof thiscaseinhisabsence. Such a coursewasproper, inmyopinion, inviewof the natureof arecourseunderArticle 146of theConstitution, such as the present one; in Lambrou v. The Republic,

(1970)3 C.L.R. 75thisCourt had this to sayin a similar 30 situation (atp.79):"A recourse under a jurisdiction such as that provided for under Article 146 of the Constitution is made, in effect, against the act or decision which is its subject-matter; itisnot madeasagainst anyparty, 35 as such (see, also, Cyprus Transport Co. Ltd. and Another (No. 1) and The Republic

(1969)3 C.L.R. 501). It follows from this premise that absence of any party need not prevent the Court from examining the validity of the subject-matter of a recourse 40 (see Tsatsos on the Recourse for Annulment, 2nd edition, p.238)". 142 The corresponding passage from Tsatsos on the Recourse for Annulment is now to be found in the 3rd edition of such textbook, at p. 369. In the present case it is sufficiently clear from the material before me, and, especially, from the wording of the sub judice decision, that it was based on the aforementioned regulation 12A, and as such regulation was found to be invalid in the Spyrou case, supra, the only proper course for me is to annul the decision complained of by the present applicant. It is open, of course, to the respondents to reconsider the position, in this matter, afresh, and to reach any decision in connection with it, which is warranted in thelight of thelaw and of the true facts of thecase. In view of the circumstances of the case and; especially, because of the non-appearance of counsel for the respondents, I award to counsel for applicant, and against the Republic, £ 3 0 costs. Sub judice decision annulled. Order for costs as aforesaid. 143 1977 May 6 COSTAKIS NEOPHYTOU v. REPUBUC (MINISTRY OF COMMUNICATIONS AND WORKS)