clr/1979/1979_3_513.pdf

(4)of the Law—To be exercised properly so as not to frustrate the policy and objects of the Law, particularly with regard to the class of persons for whose benefit the power may be intended to have been conferred—Refusal to renew . prospecting permit—By givti g a lot of importance to the fear that water supply in the are.· would be polluted, whilstaccording to the experts there was /κ such fear—Respondents' discretion exercised in a defective mo.iner. Mines and Quarries(Regulation) Law, Cap. 270—Prospecting permit— . Renewal—Within discretion of Council of Ministers—Manner in whichsuch discretionis to be exercised—Section 13

(4)of the Law. 15 20 25 The appellants were the holders of 5 prospecting permits which were assigned to them by their previous owner and were transferred and registered in their name in July 1967 with the consent of the respondents in accordance with the provisions of section 13

(3)of the Mines and Quarries (Regulation) Law, Cap. 270. Thereafter they carried out. at a considerable cost, systematic prospecting and engaged for the purpose experts from the Geological Department and from abroad; they strictly complied with therequirements of the Mines and Quarries (Regulation) Law, Cap. 270 and the relevant Regulations and had the said prospecting permits renewed; but when they applied 513 Cylechno Lid. v. Republic

(1979)for their renewal for the last time the respondents refused to accede to their application. Before taking the decision to refuse the application for renewal the respondents had decided to recall experts from abroad to advise them especially with reference to the pollution of the water 5 of certain villages in the area of the proposed mine. Though the experts, who were secured through the media of the United Nations Development Program, reported that there was no fear of pollution of the surface and underground water, provided certain measures were taken, in taking the subjudice decision the 10 respondents gave a lot of importance to the fear that the water supply in the area would be infected or interfered with. Upon appeal against the dismissal of the recoursechallenging the aforesaid refusal: Held, (after stating the principles governingjudicial control of 15 discretionary powers of the administration—vide pp. 528-35 post) that though the Council of Ministers isentrusted with a discretion under the Mines and Quarries Regulation Law, Cap. 270, particularly under section 13

(4), to renew or not to renew the prospecting permits such discretion has to be exercised properly 20 so as not to frustrate the policy and objects of the Law, Cap. 270, particularly with regard to the class of persons for whose benefit the power may be intended to have been conferred (principle enunciated by Lord Reid in Padfield and Others v. Minister of Agriculture. Fisheries and Food and Others [1968] 25 I All E.R. 694 (H.L.) adopted and applied).

(2)That having in mind the facts and circumstances of this case and the case-law relating to the judicial control of the discretionary powers of the administration (vide pp. 528-35 post) the renewal of the prospecting permits was refused in a defective 30 manner by the administration because in exercising its discretion it erroneously took into consideration that there was fear of pollution of the water of the surrounding area from the mine, whilst accoiding to the expeits there was no fear of pollution of the water; and that, therefore, the appeal must be allowed 35 and the sub judice decision be annulled. (Sec, also, Vassos Eliades Ltd., v. The Republic

(1979)3 C.L.R. 259). Appeal allowed. 514 3 C.L.R. 5 10 15 C>techno Ltd. v. Republic Cases referred to: Droushiotis v. Republic

(1966)3 C.L.R. 722;

(1967)3 C.L.R.232; PadfieldandOthers v. TheMinister of Agriculture, Fisheries and FoodandOthers [1968]IAll E.R. (H.L.)694at pp. 701-702; BritishOxygen Co.v. Boardof Trade [1968]2All E.R. 177; Laker AirwaysLtd., v. Department of Trade [1977] 2 All E.R. 182; Vassos EliadesLtd., v. Republic

(1979)3 C.L.R. 259. Appeal. Appeal from the judgment of a Judge of the Supreme Court of Cyprus (A. Loizou, J.) given on the 31st December, 1976 (Case No. 89/73) whereby appellant's recourse against the refusal of the respondent to renew five prospecting permits was dismissed. G. Pelayias with A. Markides, for the appellants. N. Charalambous, Counsel of the Republic, for the respondent. Cur. adv. vult. TRIANTAFYLLIDES P.: The judgment of the Court will be 20 delivered by Mr. Justice Hadjianastassiou. HADJIANASTASSIOU J.: The main question raised in this appeal from the decision* of a Jrdge, sitting at first instance under the provisions of s. 11

(2)rf the Administration of Justice (Miscellaneous Provisions) law, 1964 (33/64) is whether the 25 Council of Ministers had properly approached the question of the renewal of thefiveprospecting permits granted to the appellant company. In order to understand the point involved in this case, it is necessary to refer to the legislation. The Mines and Quarries 30 (Regulation) Law Cap. 270 deals in s. 13 with prospecting permits. It reads as follows: "13.

(1)The Governor may grant to any person applying therefor in the prescribed manner and on payment of the prescribed fees a prospecting permit. 35

(2)A prospecting permit shall be in the prescribed form and shall be subject to such terms and conditions as the Governor may determine. * Reported in

(1976)3 C.L.R. 407. 515 Hadjianastassiou J . Cytccluio Hi. v. Republic

(3)A prospecting permit shall not be transferable and any right or interest conferred thereby shall not be assignable except with the previous consent of the Governor.

(4)A prospecting permit shall remain in force for one year from the date thereof, unless previously cancelled under the provisions of this Law, but it may be renewed by the Governor in the prescribed manner. 5

(5)Any person prospecting without a prospecting permit or any holder of a prospecting permit who fails to comply with or contravenes any of the terms or conditions of his 10 prospecting permit shall be guilty of an offence." Regarding the duties of a holder of a prospecting permit, s. 15 says that: "15

(1)The holder of a prospecting permit shall— (

1. a)carry on all prospecting on the lands comprised in his 15 permit in a safe andworkmanlike mannerinaccordance with any Regulations made under this Law; (
2. b)keep such registers and books and make sucli returns as may be prescribed; (
3. c)permit at all reasonable times the Inspector of Mines 20 or any other person authorised in that behalf by the Governor ίο inspect any prospecting and to inspect and take copies of any register and book of accountin the possession or under the control of the holder and kept in connection with the prospecting; 25 (
4. d)not divert water from any public river, stream, spring, well or water course without the previous consent in writing of the Inspector of Minesor any water privately owned without the previous consent in writing of the owner thereof; 30 (
5. e)at all times have a responsible agent supervising the prospecting if not personally residing on the lands comprised in his permit or sufficiently nearto as to give continuous supervision to the prospecting on such lands." 35 The Governor--in-Councilisgiven power to make regulations, and section 47 is in these terms:"47

(1)The Governor in Council may make Regulations 516 3 C.L.R. Cytcchno Ltd. v. Republic Hadjianastassiou J. for fully and effectively carrying out, and giving effect to, all or any of the purposes, provisions and powers in this Law contained.

(2)In particular, and without prejudice to the generality of the foregoing power, such Regulations may provide for all or any of the following subjects(

1. a)all matters which by this Law are required or permitted to be prescribed; 10 (
2. b)the manner in which application for prospecting permits, mining leases and quarry licences shall be made, and the form to be used; (
3. c)the information to be supplied by the applicant; 15 (
4. d)the fees, dues and rentals to be paid for prospecting permits, mining leases, quarry permits and quarry licences; (
5. e)the size and shape of the areas over which prospecting permits, mining leases and quarry licences may be granted; (
6. f)the manner in which areas and boundaries shall be surveyed and marked, and the fees payable therefor; (
7. g)the working conditions to be applied to mining leases and quarry licenses; (
8. h)the construction and use of roads 25 ί 30 " With regard to the renewal of prospecting permits, the Mines and Quarries Regulations 1958 published in supplement No. 3 to the Official GazetteNo.478, regulation 6 at p. 531 says that: " Upon application being made to the Governor through the Inspector, at least one month before a prospecting permit is due to expire, 'the Governor may renew such prospecting permit for one or more periods of 6 months up to a maximum period of 3 years in the case of Class A permit and one year in the case of Class Β permit." Having referred to some relevant sections of the legislation, we now turn to the facts of this case. The CYTECHNO 517 Hadjianastassiou J. Cytechno Ltd. τ. Republic

(1979)Company Limited has been registered under the Companies Law and has been carrying on for some time prospecting and mining operations in Cyprus and elsewhere and has been granted fiveprospecting permits, Nos. 2154, 2219, 2082, 2074 and 2083, which expired on January 8, 1970, November 9, 1969, September 5 19, 1969, July 23, 1969 and September 19, 1969 respectively. It appears further thattheseprospecting permitswere originally issued—as far back as 1955—to Mr. Nicos Kalimeras of Nicosia, who in 1967 assigned the said permits to thecompany in question for valuable consideration, including, inter alia, an amount of £20,000 and they were transferred and registered on July 25, 1967 with the consent of the respondents in accordance with the provisions of s. 13

(3)of Cap.

1. 10 The company carried out at a considerable cost, systematic prospecting, and also engaged for that purpose experts from the 15 Geological Departmentas well as from abroad, including a team of experts from Bulgaria, an Italian mining geologist, a team of Russians and a team of Canadian experts. In order to avoid referring to the actual reports, we would add that a detailed reference to their work is tobe found in those reports and docu- 20 ments produced as exhibits and which are duly summed up in the letter of the Senior Mines Officer of November 10,
2. There is no doubt that anyone reading those reports is left with the feeling that the work is more than encouraging and the safe conclusion that coflld be drawn is that Cyprus could 25 acquire and have functioning, and in full production, a second asbestos mine of great significance. (Sec the submission to the Council of Ministers, exhibit C, and the note of the*AttorneyGeneral of the Republic attached to the minutes of the pro­ ceedings of the Council of Ministers, paragraph 3, dated 5th 30 and 6th April, 1971). It is true that the question of the renewal of those prospecting permits was exa. lined by the Council of Ministers at two meetings of the 5 ΰ and 6lh April,
3. It is significant to state that the Minist rs of Finance and Commerce and Industry, 35 in paragraphs 8 and 9, expressed the opinion that in view of the seriousness of tht subject, it would be expedient, before a final decision was taken, to engage an expert firm to study the whole subject from all angles and advise the Government 518 3 C.L.R. Cytechno Ltd. v. Republic Hadjianastassiou J. accordingly. Finally, the Council of Ministers decided (see Decision No. 10377) that "the Government should recall the soonest possible experts, to consider same especially with reference to the pollution of the water (the underlining is ours) 5 and advise accordingly the Government". It is equally true to add that before this submission was taken an examination of the same matter was made at a meeting held under the Chairmanship of His Beatitude the President of the Republic who, having heard the views of the departments concerned, postponed 10 the taking of a decision, because he wanted to have the views of the company concerned. The Government, having in mind the great significance regarding the economy of the State, showed keen interest and secured the services through the media of the United Nations 15 Development Program, of one hydrologist, and one mining engineer with wide experience in asbestos mining. Their reports were lodged with the secretariat of the Council of Ministers and summaries of their reports were attached to the submission made by the Ministry of Commerce and Industry on the 7th 20 November,
4. Attached to the said submission were also the summaries of the reports of the various departments which had also expressed their views on the proposed exploitation of the asbestos resources of the area in question. Everyone showed great interest, and the reports were prepared as a result 25 of a decision taken at a meeting of representatives of the said departments which took place at the Ministry of Commerce and Industry on the 3rd September, 1960, to be followed by a subsequent meeting of the 6th February,
5. It isperhaps significant to statethat the advisers ofthe Ministry 30 concerned on tourism were also present, and the question of tourism was also raised during their meetings. Attached also to the submission were the minutes of the meeting which was held at the Presidential Palace on the 6th October, 1970, with regard to the same subject. It is equally right to say that 35 paragraph

(3)of exhibit C shows clearly that the Senior Mines Officer raised in time the question of the renewal of the five prospecting permits granted to the company in question. As we said earlier, the question of the touristic development of Troodos area was raised by the experts on tourism and 40 arguments were heard whether the exploitation of the new 519 Hadjianastassiou J. Cytechno Ltd. v. Republic

(1979)asbestos mine would affect that touristic area. In addition, the water supply of certain villages of the area, of Pitsilia, Marathasa and Solea, could also be affected. Having gone through the various views of the departments, it is clear that the various departments were trying to find 5 ways and means at first, to seewhether the touristic and mining industry could effectively co-exist, butfinally,a lot of importance was given about the fear that the water supply in the area would be infected or interfered with. That this project was very much in the mind of the Govern- 10 ment, appears also from the questions which had been placed before the Attorney-General for an advice on these matters. The questions placed before the Attorney-General were:(

1. a)whether the Council of Ministers could refuse the renewal of the prospecting permits; (
2. b)whether it could refuse the 15 granting of mining leases, given that the prospecting permits have already been issued; and (
3. c)which would be the financial consequences of the Republic as a result of such refusal. There were a lot of other arguments in the submissions and with respect some were self-conflicting, and in paragraph 9 of the 20 submissions in question, one sees the arguments given in favour of the renewal of the permits (
4. a)that from the operation of the asbestos mine the economy of the Island would benefit yearly with a substantial amount of foreign exchange; and(
5. b)even under circumstances of full employment, the engagement 25 of a labour force by the new asbestos mine would be welcome in view of the anticipated restriction of the work in other mining companies. On the other hand, particularly the Ministry of Commerce and Industry is reported to have given the following views, that, since the time of the granting of the prospecting permits, there has arisen especially during the last few years, a new situation which demands their non-renewal in the public interest. The Minis'ry went on to add that such new situation arose because (
6. a)of the recent agricultural development of the Solea area, at a grea' scale, which would be endangered if in any way, by the operation of the asbestos mine, the surface and underground wa ;rs, as it is feared, are affected, as well as from the dust which will be caused by the operation of the asbestos mine and will be carried by the winds and for the 520 30 35 40 3 C.L.R. Cytechno Ltd. v. Republic Hadjianastassiou J. prevention of which there cannot be a complete certainty; and (
7. b)the recently noticed great touristic development of the village of Kakopetria and Galata. From this report, one can definitely take the view that the 5 Ministry of Commerce and Industry has made up its mind and particular importance was given to the question of the touristic development and of the fear of the water. Furthermore, the said Ministry in a language with a stern warning said that the operation of the asbestos mine in Troodos would 10 mean a complete abandonment of the touristic development of Troodos,as well as for the development of the mountain tourism in general and of the realization of the plans under preparation; and for the construction of dams in Solea for further agricultural development of the area. Finally, the Ministry added that the 15 prevention of the destruction, on account of exhaustion of the underground waters of lower areas, will face difficulties and problems, by the operation of the asbestos mine, on account of the possible pollution of rain water. It seems to usthat the question of the pollution of rain water 20 was in the forefront of the minds of the various departments and by going through the"reports one cannot but take the view that the minds of some experts were influenced a lot in turning down the idea which appeared earlier that with the functioning of the mine, the implementation of the economic policy of the 25 Government would gain. As we said earlier, there was a false alarm because after reading the reports of the experts, the fears about the water regarding the injurious affection of the underground water, and the pollution of the water in general were no longer there, 30 because both, the experts who were called from abroad and at home showed that there was no question of pollution; and no justification that there was fear for the pollution of water in general. In fact, Mr. Dixey, a hydrological consultant, . stated that the fears expressed so far of possible harmful effects 35 on the surface and underground water resources of the area from the technical point ofvieware largely or wholly groundless, since they are based in part on a misinterpretation of the hydrogeological factors involved and largely on the out of date practices of the early phase of asbestos mining at Troodos, practices 40 which are in fact now avoided. He concluded his report by 521 Hadjianastassiou J. Cytechno Ltd. v. Republic

(1979)stating that "Provided the mining activities of the company are well-planned and executed under proper control, no adverse effect of the asbestos mining on watter supplies need be anticipated. The existing legislation gives the Council of Ministers complete freedom in issuing a mining lease as well as powers 5 to determine same after continued breach on the part of the leases of the terms and conditions of the mining lease. In view of what is stated above, and provided that before actual mining begins the water development department is consulted, he does not see any reason for objecting to the renewal of the pro- 10 specting permits." The next expert, Mr. Hebron, a mining consultant, in his report, expressed the opinion that there are methods of avoiding pollution of the atmosphere and the pollution of streams, and his view was that the answer to what can be done to minimize 15 damage to the aesthetic value of the area, is that new designs make an effort to present a pleasing appearance to all the buildings and the plan site. An effort should also be made to preserve the trees between the buildings on the site. Then it was pointed out that the proposed mining area will be definitely 20 smaller than the area now covered by prospecting permits. He concluded his report by suggesting that at the time of renewing the prospecting permits, the company should be made aware of the Government's concern as regards the environmental factors and advised of the design requirements 25 which can be summarized as follows: (

1. a)The plant design will be satisfactory in respect of atmospheric dust inside the plant, taking note of international regulations and future standards to be adopted by the industry; (
2. b)dust abatement measures will be taken to avoid damage or loss of use of neighbouring 30 regions; and (
3. c)tho waste disposal areas will be designed so as not to pollute streams and to minimize the aesthetic damage b y using a valley site when possible. The sub-judice decision No. 11840 was communicated to the company on the 22nd January, 1973, and is in these terms:- 35 "The Council of Ministers examined the application for the renewal of prospecting permits of the company CYTECHNO Ltd. in the area of Troodos (Pasa Livadhi) for the purpose of finding asbestos, and after detailed examination of all the documents placed before it, and facts and information given at this 40 522 3 C.L.R. Cytechno Ltd. v. Republic Hadjianastassiou J. meeting, and after exhaustive discussion of the subject and careful weighing of all the present existing circumstances, it considered that the said renewal will not have been in the public interest and decided on the basis of the provision of the Mines 5 and Quarries (Regulation) Law Cap. 270, and Law 5/65 that the said application be refused." The said company feeling aggrieved because their expenses and all their labours would have been wasted, filed a recourse No. 89/73 seeking a declaration that the decision of the 10 respondents dated 9.11.72 which was communicated to them by letter dated January 22, 1973, whereby the former refused to renew the five prospecting permits referred to therein, was null and void and of no effect whatsoever. The said recourse was based on a number of legal grounds. 15 On the contrary, counsel, for the respondents opposed the application and alleged

(1)that the decision attacked was not within the sphere of public law in accordance with the provisions of Article 146of the Constitution;

(2)that the said decision was taken lawfully having regard to all the facts and circumstances 20 of that case and in exercise of the discretionary powers of the administration; and

(3)that the said decision was duly reasoned and was taken in accordance with the provisions of the Mines and Quarries (Regulation) Law. Cap. 270. The case went before a Judge of first instance who having 25 gone into the mass of documents and the long and exhaustive arguments of both counsel, and having quoted authorities on the issues raised before him, had this to say:- "In the light of the above and having looked at the law as a whole and the purpose which it ismeant to serve,1 have come to the conclusion 30 that the administration in issuing or renewing a prospecting permit has, by law, an unfettered discretion. In such a case, however, the considerations"that may legitimately be taken into account by the administration in exercising such a discretionary power are again a matter for the discretion of the administration, 35 provided, however, that it does not act in abuse of power or on facts that are not accurate or on material which isnot supported by the facts," 'Then the learned Justice, dealing with the argument of counsel for the applicant company that in the absence of any change of 523 Hadjiitiiaitasiiou J. Cjtechno Ltd. v. Republic

(1979)the factual position the respondents had no choice but to renew the prospecting permit, said:*'In support of this proposition, reference was made to the advice of the Attorney-General of the Republic (exhibit L p. 6) where it is stated that 'in the exercise of its administra- 5 tive discretion, the Council of Ministers should take into consideration the existing situation at the time of the renewal. If it has not changed from the one existing at the time of the issuing of the permit, then I am inclined to the view that the permits must be renewed. If, however, it 10 changed and in the meantime there arose matters of public interest not existing at the time the permit was granted, the Council of Ministers must take into consideration the new created situation, and if, in its judgment after weighing carefully all facts existing at the time of the renewal, such 15 renewal would not be in the public interest to be granted, then it may refuse same, (see Greek Council of State, decision No. 294/1933) or to grant same under such conditions or other restrictions which the new situation would demand. (In particular, seeConclusions of M. Letourneur 20 in Receuit des arrets du Conseil d' Etat, 1954 p. 308, and compare Greek Council of State 1631/551.)" Finally, the learned Justice havingtaken into consideration the question oftouristicdevelopment of the area of Troodos,and the possibility of its being affected by the creation of a new asbestos 25 mine, as well as the agricultural and touristic development of the Solea area and of the villages of Kakopetria and Galata, tcok the view that in those circumstances, the adcption of a new definite policy and the reversal of an existing situation with the obvious financial consequences to others was justified from the 30 material in the file and those were sufficient and cogent reasons as to why the renewal was not called for in the public interest. In the light of those findings, the learned Justice dismissed the recourse. Regarding the finding of the learned Judge that there were 35 sufficient and cogent reasons as to why the renewal was not called for in the public interest, it is interesting to state that on November 10, 1969, Mr. Petropoulos, the Senior Mines Officer, addressed a long letter to the Director-General of the Ministry of Commerce and Industry regarding the prospecting permits 40 524 3 C.L.R. Cytechno Ltd.v.Republic Hadjianastassfou J. held by Cytechno Limited, and having given the historical background and the work done both by Mr. N. Kalimeras and the present holders of the prospecting permits, reached this conclusion: "The preliminary technical and economic calculations 5 show that (I) the construction of an industrial asbestos enterprise on the areas investigated, is a sensible and profitable thing from the economic point of view;

(2)the main technical and economic indices of the future enterprises can improve; and

(3)it is advisable to study more thoroughly the problem and 10 consequently make a more detailed and technical and economic substantiation of construction of an asbestos enterprise." 15 20 25 30 35 40 On 14th November, 1969, Mr. Anastassiou, the DirectorGeneral of the Ministry of Interior, addressed also a letter to the Director-General of the Ministry of Commerce and in expressing the views of his Ministry, said that the whole matter must be examined from the points of contribution of both, the asbestos mines and tourism to the national economy. Furthermore, headded that they wereof theview that it must be possible for those two aspects to co-exist regarding the economy by the possible, if necessary, amendment of the prospecting permit and of the business of the asbestos mine in such a way as not to endanger the vital interests of the touristic development of that area, but at the sametimenot toleavethe mining wealth without utilizing it for the sake of the winter tourism in that area which is uncertain. "At the same time," the writer goes on, "we will be in a position to impose the appropriate conditions for the avoidance of such tesults, viz., the placing of useless or other objects by the mining company or the interference of the underground water of the area As we understand the preliminary studies of the mining company have discovered rich mining products worth more than £100,000,000 with a yearly production worth over C£l,500,000 and according to our view, it will be a big mistake to keep it buried without a serious study of all the facts and circumstances." There was a fuither report by the Planning Bureau and once again the whole position was reviewed with regard to the renewing of the prospecting permits and the Planning Bureau recommended action on the following lines:"(a) As a first priority, the Ministry should try to achieve co-existence between the tourism and mining develop525 Hadjianastassiou J. Cytechno Ltd. v. Republic

(1979)ment aspects of the Troodos region. If necessary, it should investigate the possibility of limiting the operations of the proposed new mine to 1/3 or 1/4 of the area now under prospecting permits held by Cytechno Ltd. The locality to be chosen should be, as distant 5 as possible from the centre of the Troodos resort and the skiing valley. (

1. b)If the above compromise is not feasible, the Ministry should consider seriously authorising the renewal of the prospecting permit applied for. Such a course of 10 action appears to bejustified on the basis of the data made available to the Planning Bureau. But as already explained, these data are stated to be provisional. If it isdecided to goahead with the mine, the company should be asked to supply the Government, 15 with detailed plans on the rock waste disposal systems and other relevant information connected with the future mining operations; this is necessary, in order to enable it to build in the eventual lease agreement to be signed all the necessary safegrounds, with a view to 20 minimising future losses to agricultural income and to the scenic environment of the area. (
2. c)In future, on the basis of data from the research work completed by the Geology Department, the Ministry should try to earmark all those potential mining 25 regicis, whose development may come into conflict withalternative forms ofdevelopment,suchastourism. These regions where a conflict in land use is likely to arise, should be studied at this stage, with a view to forming a concrete view on the land-use pattern to be 30 adopted in future." On appeal, counsel based his argument on these grounds of law:"

(1)The trial Court erred in holding that thesub-judice decision was not contrary to law, that is to say, to the 35 general and well-settled principles of administrative law, and in excess and abuse of powers and that the sub-judice decision was taken (

1. a)under a misconception of fact and/or law; (
2. b)without sufficient deliberations and in a manner inconsistent with all notion of proper 40 526 3 C.L.R. 5 10 15 Cytechno Ltd. v. Republic Hadjianastassiou J. administration; (
3. c)without proper and due enquiry into and evaluation of the relevant factors and considerations; and (
4. d)without the respondents taking properly and duly into account or giving proper weight to relevant and material factors or considerations;

(2)The trial Court wrongly construed the provisions of s. 13

(4)of the Mines and Quarries (Regulation) Law Cap. 270 regarding the renewal of prospecting permits; and that s. 13

(4)casts a mandatory duty on the administration which has only a fettered competence or discretion in the matter, and they are bound to renew such a prospecting permit so long as its holder complies with the law and the terms of the permit if any;

(3)In the absence of any change of the factual position the respondents were bound to renew the prospecting permits, and as the alleged changes were immaterial and insignificant, the trial Court wrongly came to the conclusion that the alleged changes of the factual position justified the refusal of the renewal of the prospecting permits." 20 There is no doubt that by virtue of Article 23 of the Constitution, the right of the Republic to minerals is expressly reserved. With that in mind, the main question, having regard to the facts and circumstances of this appeal, is whether the Council of Ministers had properly exercised their discretionary power in 25 not renewing the five prospecting permits. In Yiangos Droushiotis and the Republic of Cyprus, through 1. The Minister of Commerce and Industry, 2. The Senior Mines Officer,

(1966)3 C.L.R. 722, Triantafyllides, J., (as he then was) dealing with the discretionary powers of the administration 30 under that law had this to say at pp. 729-730:- 35 "... the fact remains that once, under the relevant legislation (Cap. 270), a discretion has to be exercised, as to whether or not to grant a prospecting permit, such discretion has to be exercised properly; and it is well settled that in matters of discretionary powers this Court will not interfere so long as on a proper exercise thereof a decision has been taken which was reasonably open to the appropriate organ on the basis of the material before it; but this Court is bound to interfere if the said powers have been exercised in a 527 HadJhHiflstassfon J. Cytechno Ltd. τ. Republic

(1979)defective manner,as for example, when thedecision reached cannot be validly supported by the reasons given therefor, or when material considerations have not been duly taken into account As the ground on which the applications of Applicant 5 were refused did not render it reasonably open for Respondent to refuse them finally, at that stage, and as their final refusal, as then made, was clearly not otherwise based on a due consideration of all relevant factors pertaining to their individual merits, it follows that such 10 applications were turned downfinally,at the material time, in a defective exercise of the relevant discretionary powers and that the three relevant subjudicedecisions of Respon­ dent in the matter are contrary to law (in the sense that they are contrary to basic principles of Administrative Law 15 relating to the proper exercise of discretionary powers) and they have also been taken in excess and abuse of powers, and have to be annulled; it is, therefore, hereby ordered accordingly." See also on appeal the judgment of the Full Bench in the 20 Republicof Cyprusv. Yiangos Droushiotis

(1967)3C.L.R., 232 where thejudgment of thefirstinstance Judge was affirmed and the appeal was dismissed. In England, the extent of judicial control over the exercise of discretionary powers by public authorities, have occupied 25 the time of the Courts in a number of cases. In Padfield and Others v. The Minister of Agriculture, Fisheries and Food and Others, [1968] 1All E.R. H.L. 694, Lord Reid dealing with the discretionary power of the administration, said at pp. 701-702:" It was argued that the Minister is not bound to give any 30 reasons for refusing to refer a complaint to thecommittee, that if hegivesnoreasons hisdecision cannotbe questioned, and that it would be very unfortunate if givingreasons were to put him in a worse position. I do not agree, however, that a decision cannotbe questioned if no reasons are given. 35 If it is the Minister's duty not to act so as to frustrate the policy and objects of the Act of 1958, and if it were to appear from all the circumstances of the case that that has been the effect of the Minister's refusal, then it appears to me that the Court must be entitled to act. 40 528 3 C.L.R. 5 10 15 20 CytechnoLtd.v.Republic Hadjianastassiou J. A number of authorities was cited in the course of the argument, but none appears to me to be at all close to the present case. I must however notice Julius v. Lord Bishop of Oxford ([1874-80] All E.R. Rep. 43), because it was largely relied on. There the statute enacted that ;with regard to certain charges against any clerk in Holy Orders it 'shall be.lawful'. for the bishop of the diocese On the application of any party complaining thereof to issue a commission for enquiry. It was held .that the words 'it shall be lawful' merely conferred a power. Earl Cairns, L.C., said ([1874-80] All E.R. Rep. at p. 47): 'But there may be something in the nature of the thing empowered,to be done,,something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of a person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person on whom the power is reposed to exercise that power when called upon to do so.' •Lord Penzance said that the true question was ([1874-80] All E.R. Rep. at p. 51) 25 30 35 40 * whether regard being had to the person enabled, to the subject matter, to the general objects of the statute, and to the person, or class of persons, for whose benefit the power may be intended to,have been conferred, (the words) do or do not create a duty...' • and Lord Selborne said ([1874-80] All E.R.-Rep. at p. 54) that the question was whether it could be shown from any particular words in the Act or from the general scope and objects of the statute that there was a duty. So there• is ample authority for going behind the words which confer the power to the general scope and objects of the Act in order to find what was intended. In Julius' case ([1874-80] All E.R. Rep. 43), no question was raised whether there could be a discretion but a discretion so limited that it must not be used to frustrate the object of the Act which conferred it; and I have found no authority to support the unreasonable proposition that it must be all or nothing— either no discretion at all or an-unfettered discretion. Here 529 Hadjianastassiou J. Cytechno Ltd. v. Republic

(1979)the words *if the Minister in any case so directs' are sufficient to show that he has some discretion, but they give no guide as to its nature or extent. That must be inferred from a construction of the Act of 1958 read as a whole, and for the reasons which I have given I would infer that 5 the discretion is not unlimited, and that it has been used by the Minister in a manner which isnot inaccord with the intention of the statute which conferred it. As the Minister's discretion has never been properly exercised according to law, I would allow this appeal." 10 Lord Hodson, delivering a separate speech said at p. 710:'*If the Minister has a complete discretion under the Act of 1958, as in my opinion he has, the only question remaining is whether he has exercised it lawfully. It is on this issue that much difTfference of Judicial opinion 15 has emerged, although there is no divergence of opinion on the relevant Law. As Lord Denning M.R. said, citing Lord Greene, M.R., in Associated Provincial Picture Houses, Ltd. v. Wednesbury Corpn. ([1947] 2 All E.R. at p. 682): 20 ' a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider.' 25 In another part of this judgment Lord Greene drew attention ([1947] 2 All E.R. at p. 682) to that which I havementioned above,namely,thenecessity to haveregard to matters to which the statute conferring the discretion shows that the authority exercising the discretion ought 30 to have regard. The authority must not, as it has been said, allow itself to be influenced by something extraneous and extra-judicial which ought not to have affected its decision." It appears further that in British Oxygen Co. v. Board of 35 Trade,[1968] 2 All E.R. 177, the dictum of Lord Reid at p. 699 in the casejust quoted, applied in the latter case. In Laker AirwaysLtd. v. Department of Trade,[1977] 2 All E.R. 182, the Court of Appeal dealing with the powers of the 530 3 C.L.R. Cytechno Ltd: v. Republic Hadjianastassiou J. Secretary of State, under the Civil Aviation Act, 1971,s. 3

(2), held: " The plaintiffs were entitled to the relief sought for the following reasons— 5 -10 15 20 25 30 35 (i) Although s. 3

(2)of the 1971Act empowered the Secretary of State to give guidance to the CAA with respect to the functions conferred on it by s. 3

(1)that could not be construed as conferring on the Secretary of State power to give the CAA directions which, by granting a monopoly to British Airways, overrode the objectives set out in s. 3(l)(b), to secure that at least one major British airline not controlled by the British Airways Board had an opportunity to provide air transport services. Since the policy guidance issued in 1976 to the CAA amounted • t e a reversal of at least one of the objectives set out in s. 3

(1), it was, so far as it affected the plaintiffs, ultra vires. (ii) Since the prerogative was a discretionary power to be exercised for the public good, it followed that its exercise could be examined by the Courts just as any other discretionary power that was vested in the executive. In particular the Court could intervene to prevent the exercise of a prerogative power in such a way as to deprive a subject of a right conferred on him by statute. It followed therefore that, once the plaintiffs had been granted a licence under the 1971 Act, they could only be deprived of that licence in accordance with the provisions of the Act and it was an improper exercise of the prerogative power in effect to nullify that licence by withdrawing the plaintiffs' designation as a scheduled air carrier under the Bermuda Agreement (see p. 193 a to d, p. 194 a to c,p.206 a toj and p.210g to p. 211 b post); Walker v. Baird [1892]A.C. 491,Attorney-General v. Be Keysets Royal Hotel [1920] All E.R. 80, Padfield v. Minister of Agriculture, Fisheries and Food [1968] 1 All E.R. 694 and Secretary of State for Education and Science v. Metropolitan Borough of Tameside [1976] 3 All E.R. 665 applied." Lord Denning M.R., delivering the first judgment, and having 40 dealt with the exercise of the powers of the Secretary of State, 531 Hadjianastassiou J. CytechnoLtd. v.Republic

(1979)had this to say regarding the extent of the Minister's discretionary powers at p. 194:— " We have considered this case at some length because of its constitutional importance. It is a serious matter for the Courts to declare that a Minister of the Crown has 5 exceeded his powers. So serious that we think hard before doing it. But there comes a point when it has to be done. These Courts have the authority, and I would add the duty, in a proper case, when called on to inquire into the exercise of a discretionary power by a Minister of his department. 10 If it found that the power has been exercised improperly or mistakenly so as to impinge unjustly on the legitimate rights or interests of the subject, then these Courts must so declare. They stand, as ever, between the executive and the subject, alert, as Lord Atkin said in a famous passage, 15 'alert to see that any coercive action is justified in law': see Liversidge v. Anderson [1941]3 All E.R. 338 at

1. To which I would add 'alert to see that a discretionary power is not exceeded or misused'. In this case the Judge has upheld this principle. He has declared that the Minister 20 did exceed his powers. I agree with him. I would dismiss the appeal." As to the extent ofjudicial control over the exercise of discretionary statutory powers by public authorities, see also Halsbury's Laws, 3rd edn., 687,688,para. 1326;and for cases on the 25 subject, see 28 Digest (Repl.) 11-13, 3848,and for the scope and exercise of statutory powers conferred on a public body or authority, see 1Halsbury's Laws (4th edn.) paras. 18 &27 and 30 Halsbury's Laws, 3rd edn. 685, 686, paragraphs 1323-1324, 38 Digest (Repl.) 9-11
2. 30 Having considered very carefully the long and able arguments of both counsel, and having reviewed and analysed the law in a number of cases quoted, we have reached the conclusion by looking at the general scope and objects of our law, Cap. 270, that the Council of Ministers which is entrusted with a dis- 35 cretion under the said law—particularly under sub-section 4 of section 13—have a discretion to renew, or not to renew the prospecting permits, but such discretion has to be exercised properly as not to frustrate the policy and objects of Law, 532 3 C.L.R. Cytechno Ltd. v. Republic Hadjianastassiou J. Cap. 270, particularly with regard to the class of persons for whosebenefit thepowermaybeintended tohavebeen conferred. With this in mind, and having regard to the facts and circumstancesofthiscase,wewouldadopt andapplyinthepresent 5 case the principle enunciated by the father of administrative lawinEngland, Lord Reid,viz.,that thediscretion ofa Minister might nevertheless be limited to the extent that it must not be so used whether by reason of misconstruction of the statute or other reason, as to frustrate the object of the statute which 10 conferred it. It is true that the Ministers had before them the report of the Ministry of Commerce and Industry, and particularly, paragraph 10(a) and (d) at pp. 22and 23 of the report. These two paragraphs with respect, leave a lot to be desired: if one 15 goes through the bundle of the reports and particularly of the • foreign experts and our ov.n experts, who made a thorough study andcame to the conclusion that assuming the appropriate measures were taken, there was no fear for pollution of the surface and underground water. The reasons put forward in 20 that report dated 7th November, 1972, are these:- 25 30 35 "(a) Of the recent, at a large scale, agricultural development of the Solea area which will be endangered, if, in any way, by the operation of the asbestos mine, the surface and underground waters, as it is feared, are affected as well as from the dust which will be caused by the operation of the asbestos mine and will be carried by the winds and for the prevention of which there cannot be a complete certainty. (d) The realisation of the plans under preparation, for the construction of dams in Solea for further agricultural development ofthearea and thepreventionof thedestruction, on account ofexhaustion oftheunderground waters at lower areas, will face difficulties and problems by the operation of the asbestos mine on account of the possible pollution of rain water." Aswehavesaidearlier,itappearsthat alltheexpertsexpressed a different view and the fears for the pollution of the water are Hadjianastassiou J. Cytechno Ltd. v. Republic

(1979)not justified provided, of course, that appropriate measures would be taken by the appellant company. The question of judicial control regarding the discretionary powers of the administration in Greece, is dealt with also by Professor Economou, in his well-known textbook "Judicial Control of Discretionary Powers", states as follows at p. 181 :- 5 " Ό δικαστικός Ιλεγχος της διακριτικής εξουσίας έχει νομο­ λογιακούς έπεκταθή επί πλείστων Οσων περιπτώσεων καθ'ας ή Διοίκησις ενεργεί κατά τρόπου όστις αντιβαίνει είς το περί Δικαίου συναίσθημα γενικώς καί τάς αρχάς τάς συγκεκριμένας 10 πλέον, άγαθης ή χρήστης ή καλής ή εύρυθμου Διοικήσεως είδικώτερον, κατά τήν ωσαύτως ττοικίλλουσαν όρολογίαν της Νομολογίας. Είς τάς περιπτώσεις αύτάς ό διοικητικός δικαστής ελέγχει τήν ο ρ θ ό τ η τ α της μεθόδου διοικητικής δράσεως, ώς χαράκτηριστικώς συμβαίνει εϊς τάς ακολούθους 15 ομάδας διοικητικών ττράϋεων: (ήτοι).

1. ΈΤΓΙ διοικητικών πράξεων επιλογής πλειόνων ίί ίσου νομίμων λύσεων εκρίθη ότι συντρέχει ΰπέρβασις των άκρων ορίων της διακριτικής εξουσίας, οσάκις ή Διοίκησις προέκρινε τήν επαχθέστερου λύσιυ αντί της επιεικεστέρας. Έν προ- 20 κειμέυω ή έπιείκια, ύπό τήυ ευνοιαν της φιλαγάθου έπιμετρήσεως ' των αντιτιθεμένων συμφερόντων επί τω σκοπφ όπως ή διοικητική πράϋιςπαράσχη τήν μεγίστην δυνατήυπροστασίαν είς του βαρύτερου ύπό τού Νόμου πληττόμενου* ι αποτελεί έννοιαν στενώτέραυ της ορθής χρήσεως της δια- 25 κριτικής ευχέρειας, δια τοϋτο δε και ύπακτέαν, ώς εΐδος είς γένος, έυ τη κατηγορία των άκρων όρίωυ Είς άπάσας τάς ανωτέρω περιπτώσεις ή ελεγχόμενη όρθότης κρίσεως των διοικητικών οργάνων αναφέρεται είς τον δικαιότερον ή έπιεικέστερον τρόπον καθ* ου έδει υά ένεργήση 30 ή Διοίκησις, κατά τάς έχουσας ίσχύν νόμου αρχάς τής καλής Διοικήσεως καΐ δή τάς τοιαύτας των άκρων όρίωυ." And in English it reads :" The judicial control of the administrative discretion has been by case-law extended tomost caseswhere the admini- 35 stration acts in a way contrary to the sense of justice generally and in particular the by now settled principles of
2. Ίδε Μ. Δ. Στασινόπουλου: Ένθ' ανωτέρω, σ.
3. 534 3 C.L.R. 5 10 15 20 Cytechno Ltd. v. Republic Hadjianastassiou J. good or honest or proper or regular administration accord­ ing to varying terminology of the case law. In these .cases the administrative Judge checks the correctness of .the method of the administrative action as characteristically happens in the following groups of administrative acts: (viz.)
4. Inthecase of administrative acts when there is a choice between equal lawful solutions, it was decided that there is excess of the outer limits of the discretionary power whenever the administration had chosen the more onerous solution instead of the more equitable one. In this case equity in the sence of the benevolent assessment of the conflicting interest aiming at the granting of the greater possible protection to him who is most adversely affected by theLaw1, constitutes a concept narrower thanthatof the proper use of the administrative discretion and for this reason falls as a class within the genous, in the category of the outer limits In all the aforementioned cases the control of thecorrectness of the administrative organs refers to the more just and equitable way which the administration ought to have acted, according to the principles of good administration which have the force of law and particularly those relating to the outer limits." 25 See also VasosEliades Ltd. v. The Republic of Cyprusthrough the Minister of Commerce and Industry,

(1979)3 C.L.R. 259 where that principle was adopted and followed, viz., that once the administration in taking a decision had a choice between more than one but equally lawful solutions, they ought to have 30 chosen the less onerous solution and not to impose an absolute prohibition. 35 Having in mind the facts and circumstances of this case, and having relied on the authorities we have quoted,we have reached the view that the renewal of thepermits was refused in a defective manner by the administration, but, of course, we are not propared to speculate whether had it not been for that defect, that is, the pollution of the surface and underground water, the permits would have necessarily been renewed. 1. See Μ D. Stassinopoulos at p. 346. 535 H&djtanastasskm J. Cytechno Ltd.τ. Republic

(1979)Having reached that conclusion, we think it is not necessary to deal with any otherground forannulment inthisappeal,and we would setaside thedecision ofthe trial Judge and allowthe appeal Order accordingly. Noorder as to costs. 5 Appeal allowed. No order as to costs. 536 L