clr/1981/1981_3_515.pdf

(1981)He'd, that an administrative act is only amenable within a competence suchasthecompetence ofthisCourtunder Article 146ofthe Constitution ifit isexecutory; that it is only against a decision oractoftheadministration, inrelation toaparticular matter, which is of a final nature that a recourse under Article 5 146 of the Constitution can be made; that preparatory acts cannot be made the subject of such a recourse; that the act or decision ofthe respondents complained ofisnotofanexecutory nature but a preparatory act and as such it cannot be made thesubject ofa recourse under Article 146of theConsti- 10 tution; accordingly therecoursemust fail. Application dismissed. Cases referred to: Kolokassidesv. TheRepublic

(1965)3 C.L.R. 542 at p.551; loannides and Another v. The Republic

(1979)3 C.L.R. 628 15 at p.639; Cyprus Tannery Ltd. v. The Republic

(1980)3 C.L.R. 305at p. 412. Recourse. Recourse against the decision of the respondents whereby applicants' complaint opposing an application by Helico Airlink Co. Ltd. for the granting of a licence to operate a full helicopter service throughout Cyprus was dismissed. M. Christofides, for the applicant. R. Gavrielides, Senior Counsel of the Republic, for the respondents. N. loannou (Mrs.) for Chr. Demetriades, for the interested party. Cur. adv. vult. HADJIANASTASSIO" J. read the following judgment. In the 30 present proceedings under Article 146 of the Constitution the applicant Kemek (Transport) Limited of Nicosia seeks a declaration of this Court that the decision and/or act of the Air Transport Licensing Authority, ofNicosia, dated 12thFebruary, 1980, is null and void and of no effect whatsoever. Time and 35 again it has been said that the Supreme Constitutional Court has exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any authority, organ or person exercising any executive or 516 20 25 3 C.L.R. Kemek (Transport) v. Republic Hadjianastassion J. administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person. Withthat inmindit appearsthat thefacts arethese: Helico 5 Airlink Co. Ltd. has made an application to the Air Transport Licensing Authority for the granting of a licence to operate a full helicopter airlink throughout Cyprus. Because the complainant Kemek (Transport) Limited is the owner of buses carrying passengers and goods between Nicosia, Limassol and 10 Paphos, they lodged a complaint, and opposed the application of the Helico Airlink Co. Ltd. for seeking a permit and sought a public inquiry into the whole matter. Indeed it appears that the Air Transport Licensing Authority on 12th February, 1980,dismissedtheirapplicationtobepresentandheardbecause 15 they were of the view that Kemek (Transport) Limited were not entitled to be present and to be heard. On 12th May, 1980, counsel on behalf of the respondents, the Minister of Communications and Works and theAirTransport Licensing Authority, gave notice that he would be raising 20 a preliminary point of law viz., that the decision complained of isnot anexecutoryactbutapreparatoryact,andthatsuchact cannot be the subject matter of a recourse under Article 146 of the Constitution. Finally counsel applied to this Court to be given a month to file the grounds of his opposition. 25 Indeed he went even further and made it clear that this point shouldbedecided first. As Mr. Christofides and Mrs.Ioannou raised no objection, they have agreed that it was convenient for anyone that this point should be decided first. Inevitably the case had to be adjourned and it was fixed for further 30 directions on 30th June, 1980,but on that date in the absence of Mr. Charalambous counsel for the respondents Mr. Hadjipetrou on behalf of the Attorney-General made this statement: "I am not in a position to know why the opposition has not been filed, but I shall do my best to inform my colleague to 35 file theopposition within aperiod oftwomonths". Ascounsel for the applicant as well as for the interested party did not opposethegrantingof sucha period, Mrs.Ioannou alsoapplied that the opposition should be filed within one month after the filing of the opposition by Mr. Charalambous. Then the 40 case was adjourned to 13th October, 1980, but in the absence 517 Hadjianastassion J. Kemek (Transport) v. Republic

(1981)of Mr. Charalambous it had to be adjourned once again to the 1st December, 1980. Mr. Demetriades made this statement:"This case arises out of the application of our clients to the Ministry of Communications for alicenceto operatea full helicopter air service throughout Cyprus, which, 5 asyouappreciate, isveryimportant for thetouristdevelopment in this Island. Big foreign companies are involved, but unfortunately, there is this old colonial regulation that when you apply for an air traffic permit there must be a public hearing before which any person may object. 10 So we started the public hearing at the beginning of the year. Kemek, who are the applicants, were amongst thosewhoobjected. Evenbefore enteringintothehearing, the Air Transport Licensing Authority, entirely uninvited, said that in a previous casethey decided to reject Kemek's 15 objections because they believe that they are not interested parties. Personally, I do not agree with this, because the regulations say any persons may object. When the time comes to listen to all objections, the Authority will decide, but by taking this uninvited decision, they brought 20 the whole thing to a standstill. The Licensing Authority isnot sittinganymore,becausewehaveapendingrecourse. If the applicants are right, it means that if we were going on having a hearing the whole proceedings would have been useless. The proceedings stopped and we are going 25 hereandtherefor thepurposeof Mr.Charalambousputting in an opposition. It is a situation which cannot go on. 1have written in September both to the Ministry of Communications, and Mr. Charalambous and Mr. Christofides. There was no reply from anybody. I put in a concrete 30 proposal, i.e.that the wholeproceeding before the Licensing Authority may continue, and Kemek (Transport) Ltd., io be entitled to be present and make its representationswithout prejudice totheresultofthisrecourse. There was no reply and we are still faced with the situation of 35 not having even an opposition, and you appreciate that we are exposed to everybody, because such an important application is being held for one year for practically no reason at all. Of course, the only one who is in a hurry is myself, so I have to be the one to press matters". 40 As 1 have already said, once Mr. Charalambous was not 5!8 3 C.L.R. \ \ \ Kemek (Transport) v. Republic Hadjianastassioa J. available as he was attending a public inquiry, the case was adjourned once again for another counsel to piepare andfile theopposition. Indeed,theopposition wasfiledbyMr.Gavri\ elides, and it wasbased on a single point of law, viz., that the 5 decisioncomplained ofisnotanexecutory actbuta preparatory \ one,and theiefoie, itcannot bethesubject matter of a recourse \ under Article 146of the Constitution, which lays down cleaily \that the act must be an executory act. There is no doubt that under the Regulations,theLicensing 10 Authority isthe Air Transport Licensing Authority constituted by regulation 5 of these Regulations. Indeed, under the said ColonialRegulations,theLicensing Authority under regulation 6

(1)may grant to any person applying for a licence to cairy passengers, mail or cargo by air for hire or reward on such 15 schedule journeys, and subject to such conditions, as may be specified in the licence. Furthermore, the Licensing Authority may attach such conditions to any licence as they may think fithavingregardto thenatureandcircumstances oftheapplication. In paragraph 8, the Licensing Authority shall cause 20 to bepublished, inthemanner prescribed in the First Schedule hereto, suchparticulais of any applications for licences received bythem asareprescribed in thesaid Schedule;andunderpaiagraph 9, any person may, in the form and manner, and within the time prescribed in the First Schedule hereto, make repre25 sentations or objections with regard to any application for a Iic2nc5. Finally under paragraph 10, ihe Licensing Authority may ifthsythinkfit,foi thepurposeofdeterminingapplications for licences, hold inquiries in public or in private and shall hold an inquiry in public if the applicant, or any person who 30 has duly made an objection, requires the Licensing Authority, by such notice and in such form as is prescribed in the First Schedule hereto, so to do. Before holding any such inquiry, the Licensing Authority shall give to the applicant and to any person who has duly made representations or objections with 35 regard to the application, a notice of the dateand time fixed for such inquiry and shall givetothe applicant and to anysuch person an opportunity of being heard at the inquiry. AsIhavesaidearlier,thecomplaint oftheapplicant company was to the effect that the Air Transport Licensing Authority 40 refused to allow them to make representations or objections 519 Hadjianastassiou J. Kemek (Transport) v. Republic

(1981)as regards the granting of a licence to the interested party, and feeling aggrieved, they brought the present application. On the contrary, counsel for the respondent argued that once the Air Transport Licensing Authority had interpreted the relevant Regulations of 1948, and had refused to the applicant 5 company to put before them their stand, such refusal cannot be considered as being of an executory nature but of a prepara­ tory one, and that it cannot be the subject matter of a recourse, under Article 146 of the Constitution. Indeed, counsel for the applicant company, relying on regu- 10 lation 9, pointed out that the respondents wrongly interpreted such regulation, and wrongly did not allow to the applicant ompany to put forward their representations or objections with regard to the granting of the licence or not. Counsel further relies on the Conclusions from the Jurisprudence of the 15 Council of State in Greece 1929-1959, where at pp. 236, 237 themeaning of an executory act is interpreted, andwhich reads :'Έίς προσβολήυ δι' αΙτήσεως ακυρώσεως 6έν υπόκειται οίαδήποτε πραΕις απορρέουσα έκ διοικητικού οργάνου, δρω^τος ώς τοιούτου, αλλά μόνον αί έκτελεσταΐ πρά&ις, 20 τουτέστιν έκεΐναι δι' ώυ δηλοΰται βούληση διοικητικού οργάνου, αποσκοπούσα ε(ς την παραγωγήυ έννομου απο­ τελέσματος έναντι των διοικούμενων και συνεπαγόμενη την άμεσον εκτέλεση» αΰτης διό της διοικητικής όδοϋ1. Το κύριου στοιχείου της εννοίας της εκτελεστής πράΕεως εΐναι 25 ή άμεσος παραγωγή έννομου αποτελέσματος, συνισταμένου είς τήν δημιουργίαν, τροποποίηση» ή κατάλυσιν νομικής καταστάσεως, ήτοι δικαιωμάτων και υποχρεώσεων διοικη­ τικού χαρακτηρος παρά τοις διοικουμένοις2. 'Εκτελεστός διοικητικάς πράΕεις δυυαι»ται νά άποτελοΰυ ού μόνου αί 30 εγγράφως διατυπούμεναι, αλλά και αί προφορικά!πράΕεις τώυ διοικητικών άρχων, έφ' δσον συντρέχουν οί οροί τοϋ νόμου3." ("No acts emanating from an administrative organ, acting as such, are subject to a recourse for annulment but only 35 executory acts, namely those by which the will of the admi1. 487

(36), 32

(38), 651

(40), 1890

(53), 1120

(55). 2. 17

(38), 400

(48), 1828, 2040

(50), 950

(54). 3. 33

(31), 1797

(49), 86

(54). 520 3 C.L.R. 5i \ \ \ 10 Kemek (Transport) v. Republic Hadjianastassiou J. nistrative organ is expressed intending the creation of a legal situation against the subjects and involving its direct execution by administrative means. The main element of the concept of executory act is the direct creation of a legal result, consisting of the creation, amendment or abolition of a legal situation, i.e. rights and obligations of an administrative character by the subjects. Executory administrative acts can constitute not only those expressed in writing but also the verbal acts of administrative organs, so long as the provisions of the law exist"). In the light of this statement of the law, counsel further com­ plained that once his only right was to be heard and because the respondents refused to hear him, it follows that there was a final executory act issued by the respondents which in effect 15 finally amounts that he had no right to be heard, and that his rights were violated from the decision of the Air Transport Licensing Authority. There is no doubt that in the present application the ,only question is whether the act or decision of the respondents 20 constitutes an executory act or not. What is an executory act appears in a number of cases, bothin Greece, andin Cyprus, and ΐ propose dealing first with the case of Nicos Kolokassides and The Republic of Cyprus, through the Minister of Finance,

(1965)3 C.L.R. 542 in which Mi. Justice Triantafyllides as 25 he then was, in delivering a separate judgment had this to say at p. 551:- 30 35 "An administrative act (and decision also) is only amenable within a competence, such as of this Court under Aiticle 146, if it is execuloiy (εκτελεστή), in other words it must be an act by means of which the 'will' of the administrative organ concerned has been made known in a given matter, an act which is aimed at pioducing a legal situation con­ cerning the citizen affected and which entails its execution by administrative means (see Conclusions from the Jurisprudence of the Council of State in Greece 1929-1959, pp. 236-237). I am quite aware that in Greece this attribute of an act which may be the subject of a recourse for annulment, is specifically stated in the relevant legislation (section 521 HadjianastassJou J. Kemek (Transport) v. Republic

(1981)46 of Law 3713 as codified in 1961) but in my opinion such express provision was only intended to reaffirm a basic requirement of administrative law in relation to the notion of proceedings for annulment and, therefore, such requirement has to be treated asincluded by impli- 5 cation, because of the very nature of things, in our own Article 146, though it is not expressly mentioned. An act made in the couise of the collection of income tax due, being an actmadein execution of the assessment for such income tax, is not itself an executory act—as 10 the assessment is—and cannot, therefore, be the subject of a iecourse; it is well settled in administrative law that acts of execution are not executory acts". In Andreas Ioannides andAnother v. TheRepublic ofCyprus, throughthe Public ServiceCommission,

(1979)3 C.L.R. 628 15 Mr. Justice A. Loizou, dealing with the argument of counsel whether the act or decision of the Public Service Commission was a preparatory act had this to say at p. 639:"Counsel for the respondent has argued that the part of the decision challenged by the present recourse is a 20 preparatory act and as such cannot be the subject of a recourse as same is not an executory act. No doubt the examination, as it has been called, of the merits of the applicant on the 22nd April, 1977, was a preparatory act and could not be as such the subject of a recourse 25 after the compound administrative act, of which it is a part, has been completed". In the Cyprus TanneryLtd., and The Republicof Cyprus, through The Minister of Communications and Works,

(1980), 3 C.L.R. 405, Triantafylhdes, P., in dealing whether the act 30 in question was a preparatory act or not had this to say at p. 412:"In our opinion thefilingof a recourse by the appellant was premature; and it is an inevitable corollary of this that the determination of the matter on its merits, by the 35 learned trial Judge, is to be treated as being premature too. Our reasons for reaching this conclusion are as follows: 522 3 CX.R. ^ \ \ 5 10 15 Kemek (Transport) v. Republic Hadjianastassiou J. When the recourse was filed there had not yet been reached any decision by the respondent as regards the claim of the appellant that hisproperty concerned should beexcludedfrom the ambit of the relevant order of compulsory acquisition. On the contrary, it clearly emerges from the last letter of the Ministry of Communications and Works, dated October 11, 1974, that the matter was still under consideration. This letter can only be regarded as a preparatory act which is devoid of any executory nature; therefore, it could not be made the subject of a recourse under Article 146 of the Constitution (see, in this respect, inter alia, Pavlidesv. TheRepublic,

(1977)3C.L.R. 421,426and Tanis v. The Republic,

(1978)3 C.L.R. 314, 318). It is only against a decision or act of the administration, in relation to a particular matter, which is of a final nature that such a recourse can be made (see, inter alia, in this respect, Mustafa v. The Republic, 1 R.S.C.C. 44, 47, and Haros v. 77i£> Republic, 4 R.S.C.C. 39, 44)". 20 In the light of the authorities quoted I have reached the conclusion that the act or decision of the respondents is not of an executory nature but a preparatory act and as such it cannot be the subject of a recourse under Article 146 of the Constitution. 25 Recourse dismissed, but in the particular circumstances of this case I am not making an order for costs. Application dismissed. No order as to costs. 523