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(1983)1983 March 18 [SAVVIDES J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION FOURNIA LTD., Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE DISTRICT OFFICER, NICOSIA, Respondent. Case No. 271/80). Administrative Law—Administrative acts or decisions—Executory act—Confirmatory act—A decision confirmatory of a previous one of the same administrative organ is not executory unless there is a new inquiry into the matter-—Subjudice decision taken after consideration of facts which were put before the ad- 5 ministration for the first time—Is not confirmatory of any previous decision but an executory one. Administrative Law—Administrative acts or decisions—Reasoning —Need for due reasoning—Sub judice decision by its contents not reasoned—And lack of reasoning not supplemented by the 10 material in the file—Sub judice decision annulled—Moreover even if possible for contents of file toform a reasoning then such reasoning is defective because it comes in direct conflict with the reasons given by counselfor respondent in his opposition and his address and which are not recorded any where in the file as 15 being the reasons for issuing the sub judice decision. Administrative Law—Administrative acts or decisions—Misconception of fact—Even mere probability of such misconception enough to vitiate the administrative decision involved—Taking into consideration matters which were not in existence renders sub 20 judice decision bad on the ground of misconception of facts. The applicants, a limited company» who were the owners 262 3 C.L.R. 5 10 15 Fonrnta Ltd.v.Republic of a piece of land under plot 532 at Dhali village, were on the 26th November, 1975 granted a permit to sink a borehole in the aforesaid plot subject to the condition that they were not allowed to pump water from the borehole unless a permit to that effect was granted to them (condition No. 7) and to the condition that they were not entitled to sell any surplus water to any owner of adjacent properties unless a permit for such purpose was obtained (condition No. 8). On the 8th June, 1979 applicants applied for a permit to instal machinery in the said borehole and the respondent in response to such application by his letter* dated 17.9.1979 cancelled the previous condition No. 7 and substituted it by other conditions authorising, inter alia, the applicant to instal machinery in the borehole and to pump water to be used only for the irrigation of the above plot 523. 20 On the 29th April, 1980 the applicants applied** for a permit to instal a 50 h.p. and a turbine of 4 inches in diameter in their borehole and for a permittoirrigate thenearby plots 529and 186 of an area of 27 donums. Respondent replied by his letter of the 26th May, 1980 informing applicants that a permit to instal machinery was granted to them on 17.9.1979 and that "with regard to your application for an alteration of the conditions of the said permit so that the irrigated area is increased, you are informed that this cannot be done". 25 ' Hence this recourse: Counsel for the respondent raised thepreliminary objection that the decision of 26.5.1980, which is challenged by this recourse, is a confirmatory act of the decision of 26.11.1975 'whereby the permit for the sinking of the borehole was granted. 30 35. Held, (Γ) on the preliminary objection: That when a decision is confirmatory of a previous one of the same administrative organ, then it is not executory, unless there is a new inquiry into the matter; that the application of the 29.4.1980, which gave rise to the sub judice decision, was a new application putting forward all the facts, whether * The.letter is quoted in full at p. 266 post. *· The application is quoted at pp. 266-267 post. *?*3 Fournia Ltd. r. Republic
(1983)new or old, for thefirsttimeand therefore the decision referring to it must be considered as the first decision on the point and not confirmatory of any previous decision and that, therefore, the sub judice decision is not executory. Held, (II) on the merits of the recourse: 5
(1)That the reasoning of an administrative decision must be recorded so as to enable the Court to exercise control over it and absence of any record renders the sub judice decision defective; that the sub judice decision by its contents gives no reasons for the dismissal of applicants' application; that 10 the lack of reasoning in the contents ofthesubjudice decision is not supplemented by the material in the file of the administration; and that, therefore, the sub judice decision has to be annulled for lack of due reasoning. Held, further, that even if it was possible for the contents 15 of the file to form a reasoning, then, again, such reasoning would have been defective as coming in direct conflict with the reasons given by counsel both in his opposition and his address and which are not recorded anywhere in the file as being the real reasons for issuing the sub judice decision (see Hadji- 20 demetriouv. Republic
(1980)3 C.L.R. 20 at p. 26).
(2)On the contentionof Counsel for the respondent that applicants wereinterestedina licence topumpagreater quantity ofwaterinorder touseitfor the divisionof land into building sites and not for agricultural purposes: 25 That once any opinion in this respect had been formed by therespondent, theleasthehad todowastocarryoutan inquiry into the matter and ascertain the true factual situation, leaving apart thefact that incaseofan application for a divisionpermit, such application would have come to him for consideration; 30 that the fact that the respondent took intoconsideration matters which werenot in existence, renders the subjudice decision bad, on the ground of misconception of facts; that even mere probability of such misconception isenoughtovitiate theadministrative decision involved (see Mallourosv. E.A.C.
(1974)35 3 C.L.R. 220). Sub judicedecision annulled. 264 I I i 3 C.L.R. Fournia Ltd. v. Republic 1 ' 5 10 Cases referred to: Georghiades v. Republic
(1980)3 C.L.R. 486 at pp. 490-491, Eleftheriou v. Central Bank
(1980)3 C.L.R. 85 at pp. 98-100. Vorkasv. Republic
(1982)3 C.L.R. 309 at pp. 314-315; Hadjidemetriou v. Republic
(1980)3 C.L.R, 20 at p. 26: Mallouros v. E.A.C.
(1974)3 C.L.R.
  1. Recourse. Recourse against the refusal of the respondent to alter the conditions of the permit of a borehole under No.
  2. L. Papaphilippou, for the applicant. M. Kyprianou, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. SAVVIDES J. read the following judgment. The applicant, a 15 limited company, isthe owner of a piece of land under Plot 532, Sheet Plan 30/40 W.2, situated at Dhali village. On 9.10.75 the applicant applied to the respondent for a permit to sink a borehole in the aforesaid plot. Such permit was granted to the applicant on 26.11.75,under No. 039384,copy of which appears 20 under Blue 11 in the file of the administration No. W 32/74, which is before me, subject to certain conditions in which the following were included; (a) That the water would be used for irrigation purposes only, for the irrigation of Plot 532(Condition
(1)of the permit). 25 (B) That the applicant was not allowed to pump water from the said borehole, unless a permit to that effect was granted to him (Condition No.
(7)of the permit). (c) In case of surplus water, the applicant was not entitled to sellit to any owner of adjacent properties, unless a permit for 30 such purpose was obtained (Condition
(8)of the permit). (d) That an improved system of irrigation should be applied (Condition
(9)of the permit). On 8th June, 1979 applicant applied by letter (Blue 12 in the file) for a permit to instal machinery in the said borehole adding 35 that he intended to use the water for the irrigation of 30donums of adjacent land. Respondent in response to such application, 265 Savvides J. Foornia Ltd. v. Republic
(1983)by letter dated 17.9.1979 (Blue 13) cancelled the previous condition
(7)of thepennit, and substituted it by the following conditions: "Condition
(7)of the permit No. 039384 (File No. W32/ 74), issued bymetoFournia Co.Ltd.,ofNicosia, is hereby 5 cancelled and substituted by the following condition: 7(
  1. a)You are authorised to instal a pumpnot larger than 4 inches in diameter. (
  2. b)To instal a turbine motor engine, of a maximum output of 25 h.p. 10 (
  3. c)You areauthorised to pump water to beused only for the irrigation of Plot 532 of Sheet Plan XXX/40.W.4 at Dhali. (
  4. d)An improved system of irrigation should be applied." At the bottom ofthe above letter, thefollowing wasinserted: 15 "The abovecondition willbesubject toreconsideration and /or cancellation by me without any notice". On 30.10.1979 the applicant addressed to the respondent the following letter (Blue 19): . . "I refer to thepermitgrantedfor the sinkingofa borehole, 20 under No. W.32/74 dated 26.11.1975 as well as to the permit which was granted for the installation of machinery and useof thewater -permitNo.039384,dated 17.9.1979and I applyfor thegrantingofapermittoirrigatethenearby plots 217 and 582 of Sheet/Plan XXX/40 E.2. 25 I enclose copies of titles of ownership of the plots in respect of which the present application is made." It appears that no reply was sent to the above letter as no record of any reply appears in the file of the administration, before me. On 29.4.1980, applicant submitted the following 30 letter: "1apply for the grant of a pennit to instalmachinery, that is, anengine of 50h.p.output and a turbine of 4 inches in diameter, on my borehole under File W.32/74 Sheet Plan XXX/40)W.2, Plot 532 at Dhali village. , 35 266 3 C.L.R. 5 10 Fournia Ltd. v. Republic Sawldcs J. The above borehole has been tested and its water is about 30 cm. per hour and it can irrigate a much larger area than the plot in which it lies and for this reason I apply for a permit to irrigate thenearby plots 529and 186, of an area of 27donums on the same Sheet Plan and near the borehole in question, without any problem for the conveyance of the water as it appears on the attached survey plans. The water of my borehole is brackish and it is my in-' tention to plant seasonal plantations." The respondents by letter dated 26th May, 1980,rejected the application. The contents of such letter (Blue 22 of the file) read as follows:- 15 20 "I wishtorefer toyour letterdated 29thApril, 1980whereby you apply for a pennit to instal pumping machinery on the borehole sunk by virtue of Permit No. 39384 in Plot 532Sheet Plan 30/40/E4at Dhali villageand to inform you thatsuchpermithasbeengrantedtoyouon 17th September, 1979. A photocopy is attached. 2. With regard to your application for an alteration of the conditions of the said permit so that the inigated area is increased, you are informed that this cannot be done." As a result of such refusal, the applicant filed the present recourse whereby he prays for a declaration of the Court that 25 the decision and/or act of the respondents dated 26.5.1980 by which they refused to alter the conditions of the permit of the borehole under No.39384,isnulland void and ofnolegal effect whatsoeverandthatanythingomitted tobedoneshould bedone. The legal grounds on which the recourse isbased, as set out 30 in the application, are as follows: 1. The respondents acted under a misconception of facts in t hat:(
  5. a)They did not take into consideration and/or they did not assessproperly the fact that the borehole of the applicants 35 can yieldwater for irrigation of a much largerarea than thatof the plot on which it was sunk. 267 Sawides J. Fournia Ltd. v. Republic
(1983)(
  1. b)They did not take into consideration the fact that the applied alteration of thepermit concerned only the horsepower of the pumping engine and not the width of the pipes. (
  2. c)They did not take into consideration the fact that the applicants are the owners of the land intended to be irrigated which is an extension and/or continuation of the plot on which the borehole lies. 5 (
  3. d)They did not take into consideration the opinion or suggestion of the Water Development Department. 2. The respondents acted discriminatorily and with a sense 10 outside the scope of impersonal good administration. 3. In any circumstances the sub judice decision is arbitrary and/or lacks any lawful or legal result. The respondents opposed the application and by their opposition, they raised the following grounds of law: 15 1. The decision which is challenged which was communicated to the applicant on the26th May, 1980,isa confirmatory actof the decision dated 26th November, 1975, whereby the permit under No. 039384for thesinking of a well, was granted. 2. The recourse of theapplicant isout oftime. In alternative, 20 3. The challenged decision and/or act of the respondents was taken lawfully and in compliance with the provisions of the relevant legislation and inparticular oftheWellsLaw,Cap. 351. 4. The challenged decision and/or act was taken after a careful examination ofalltherelevantfactsand circumstancesofthe 25 caseand in accordance withtheexpressed policy ofthe Government. Before dealing with the other legal grounds posing for consideration in this recourse,I shalldealfirst with the preliminary objection raised by the opposition whereby it is contended that 30 the sub judice act and/or decision is not an executory act but merely a confirmatory one of a previousdecision. If such contention is upheld, then there is an end to these proceedings. Counsel for respondent contended that the sub judice decision merely confirms the decisions of the respondent dated 35 268 1 ι t 3 C.L.R. Fournia Ltd. v. Republic Savvides J. 26.11.1975 (when the original permit was issued) and 17th September, 1979 (when the permit for the installation of the machinery was granted). He argued, that the administration, at thetimeof taking thetwo previous decisions mentioned above, 5 had before it all relevant material and no new facts were sub­ mitted for reconsideration of the case by the application of the 29th April, 1980. Counsel for applicant, on the other hand, submitted that the application of the 29th April, 1980, was different from the other 10 two applications mentioned above, and new facts were intro­ duced by such application for consideration by the appropriate authority. Furthermore, he added, conditions
(7)and
(8)of the original permit did notimpose a prohibition on the applicant to apply for a permit to pump water and sell it to owners of 15 nearby plots of land. Conditions
(7)and
(8)were subject toa provision that the applicant was not allowed to pump water for irrigation of other properties, or sell it to owners of adjacent properties unless a permit for such purpose was obtained. 20 The position as to the principles governing executory and confirmatory acts is well settled by our Case Law and there is no need to repeat it. It suffices to say that when a decision is confirmatory of a previous one of the same administrative organ, then it is not executory, unless there is a new inquiry into the matter. 25 In order to decide whether the sub judice decision is a con­ firmatory one or not, I have to consider, in addition to the contents of the sub judice decision, the contents of the appli­ cation of the applicant dated 29.4.1980 which led to the sub judice decision, as well as the contents of the previous decisions 30 of 26.11.1975 when the permit to drill the borehole was granted and 18.9.1979 when the permit to instal a pump was granted, as well as the applications dated 9.10.1975 and 8.6.1979 which led to those decisions, respectively. By comparing the sub judice decision and the application of 35 29.4.1980 on which such decision was based, with the original application of 9.10.1975 and the decision taken on same, it is apparent that they are entirely different both in nature and in substance. The application of 9.10.1975 was an application for a permit to sink a borehole which was granted on 26.11.1975, 269 Sawides J. Fournia Ltd. v. Republic
(1983)subject to the conditions that the applicant was not entitled to pump water from the said borehole without a permit (Con­ dition
(7)) and was restricted to sell surplus water to any other owner of nearby land without a permit obtained for such pur­ pose (Condition
(8)). On the other hand, the application of 5 29.4.1980was for a permit to instal pumping machinery on the said borehole and irrigate the nearby plots 529 and 186. Such application could be made at any time either under Condition
(8)of the permit granted on 26.11.1975or under the proviso to sub-section
(3)of section 3of theWells Law, Cap.351,whereby 10 the holder of a pennit may, at any time, apply for the modi­ fication of anyconditionsorrestrictions imposed onsuchpermit. It is clear from the contents of the two applications which refer to different matters, and the conditions of the pennit granted on26.11.1975that thesubjudice decision cannotin any 15 way be confirmatory of that of the 26th November, 1975. 1 am coming now to consider whether thesubjudice decision is confirmatory of the decision of the 17th September, 1979, whereby a permit to instal pumping machinery was graDted to the applicant. Comparing the sub judice decision to the one 20 of the 17th September, 1979, I find the following facts: (a) The application of 8.6.1979was an application for the installation of pumping machinery in general with an addition that applicant intended to use the water for the irrigation of 30 donums of adjacent land. 25 (b) Thepermit issued totheapplicant onthe 17th Septem­ ber, 1979 in consequence thereof, substituted the ori­ ginal Condition
(7)which read as follows: "You are not entitled to pump water from the said borehole unless you apply and obtain a per- 30 mit to this effect" with a new condition, Condition 7 enabling him to instal a water pump not greater than 4 inches india­ meter and an electricmotor engine of an output of not more than 25 h.p. for the irrigation of Plot 532 only, 35 subject to reconsideration and/or cancellation by the District Officer. 270 ν 3 C.L.R. Fournia Ltd. v. Republic SaFvides J. (c) The application of the 29th April, 1980 was for the granting of a permit to instal pumping machinery of 50h.p. and for the use of the water for the irrigation of the nearby plots 529 and 186. 5 With regard to the first leg of the application of 29.4.1980, concerning the installation of machinery, after considering and comparing the two applications and decisions, I have reached the conclusion that (though not mentioned in so many words) theapplication of29.4.1980differs from theone of8.6.1979,and 10 must be treated as an application to altertheconditions (Condition
(7)) of the permit. The applicant was entitled to make suchapplication, not only underparagraph 2ofthe decision of 17.9.1979 but also under the provisions of the Law. Inthis respect,section3
(3)oftheWellsLaw,Cap.351,readsasfollows: _____ 1 5 "S.3.(l)
(2)_ 20 25
(3)In granting a permit under the provisions of subsection
(1)of this section, the District Officer may impose suchconditions and restrictions asto himmay seem necessary or desirable regarding the sinking or construction ofthewell,themanner inwhich thewater shall be taken therefrom and generally regarding the use of the water of such well: Provided that upon the application of the holder of a permit the District Officer may vary or modify any conditions or restrictions imposed in such permit.
(4)_ " Therefore, in this respect, the sub-judice decision was not a confirmatory decisionbutadecisiononanewapplication andin 30 consequence an executory act. Examiningnowthesecondlegofthesubjudicedecisionwhich concerns the use of the water for the irrigation of the nearby plots529and 186aswell,itisveryclearthat thishasnothingto do with the application of 9.10.1975 and the decision of 26.11. 35 1975(the original permit). It was one of the conditions of the original permit that the water was to be used only for the irrigation of plot 532 (Condition
(1)). But this was before the boreholewassunkand Condition
(8)whichhasnot beenaltered 271 Sawides J. Fournia Ltd. v. Republic
(1983)since, provided that in case of surplus water this could not be soldto ownersofnearbyproperty, unlessapermitwasobtained for that purpose. This did not exclude the extension of theuse of the water for other properties, subject to a permit for such purpose. At that time no application was made for the irrigation of any plot other than the one in which the borehole was sunk. 5 In the application of 8.6.1979 the second paragraph reads: "I request that the licenceapplied for be granted to methe soonest possible because I urgently require the use of the 10 water of my borehole for the irrigation of the nearby plots of an area of 30 donums." The abovepassage indicated an intention to usethe water for theirrigation of 30donumsofotherproperties,ingeneralterms, without mentioning the particular plots for which the applicant 15 wanted to use the water. In the circumstances and regard having also to the fact that theaboveletterrefers toanother letterdated 25.11.77,which,as noted by the respondent, was not received by him, I find that therewasno application, upto that timefor a permit to irrigate 20 anyspecificplototherthanplot
  1. Thedecisionof17.9.1979, was not, therefore, a decision on the point of the irrigation of any other plot but merely embodied and repeated the condition of the original permit that thewater wasto beused onlyfor the irrigation of plot
  2. The first formal application for a permit to use the water for the irrigation of nearby plots (217 and 582),isto befound in a letterdated 30.10.
  3. Thisletter,however,referstotwoother plotsandnottothosementioned intheapplication of29.4.
  4. In any case, once no reply or decision was ever taken on such 30 application, Ifind itunnecessary todealfurther withthis,asno argument has been advanced in this respect. The next step taken by applicant is his letter of 29.4.1980, to the contents of which reference has already been made and whereby inthelight of thefacts setout therein, heapplied for a permit to instal a bigger engine and irrigate two nearby plots, plots 529 and 186, of a total area of 27donums. The respon272 25 3 C.L.R. ' Fournia Ltd. v. Republic SawIdes J. dent rejected such application by letter dated 26th May, 1980 which embodies the sub judice decision. Bearingin mind all theabovefacts, 1 find that thiswasanew application putting forward all the facts, whether new or old, 5 for thefirst timeand, therefore, the decision referring to it must be considered as the first decision on the point and not confirmatory of any previousdecision. Even ifwetreat the above application asthe second oneofthe kind (thefirst beingtheone of 30.10.1979), nodecision wasevertaken on the application of 10 30.10.1979 on the question in issue, which the sub judice decision could be considered as confirming. 1have, therefore, cometo the conclusion that in respect of this legofthe application, as well, the sub judice decision is an executory one. Having found so, I come now to consider the case on its 15 merits. The grounds of law advanced in support of the application, have been mentioned earlier in this judgment. In addition to the said grounds of law which were argued by counsel for applicant, another general ground was raised by him, that is, 20 the ground of reasoning. On this last ground, counsel for applicant contended that noreasonsaregiven bytherespondent for the subjudice decision, and, as a result, the said decision has to be annulled for lack of reasoning. Counselfor therespondent ontheotherhand,inhisstatement 25 of facts in support of the opposition, stated the following in paragraph 2:~ 30 "
  5. The grounds on which the respondent relied for his refusal to allow the amendment of the conditions of.the borehole permit are that the applicants are interested in a licence to pump a greater quantity of water in order to use it in a more suitable time for the division of land into building sites and not for agricultural purposes". In his address he adopted the above, and contended that: 35 "The reason that the applicants applied for a permit for for a greater irrigation was not, in our view, in reality, the irrigation of properties for agricultural purposes, but, obviously, to achieve increase of the market value 273 Sawfdes J. Fournia Ltd. v. Republic
(1983)of their properties. This may be inferred from the fact that the water is brackish and has not been used till today not even for the irrigation of plot 532". Counsel further maintained that the reasoning of the sub judice decision may be found in thefileof the Administration, 5 which wasproduced to the Court. It isclearfrom thecontents of such file, counsel submitted, that respondent dismissed the application of the 29th April, 1980, for the same reasons that he dismissed the original application of the applicant dated 9th October, 1975 and that such reasoning may be deduced 10 from note 15 and Blue 13 in thefile. Oncethe subjudice decision by its contents givesno reasons for the dismissal of applicant's application, I have to examine thefileof theadministration which isbefore metofindwhether any reasoning exists, as suggested by counsel for respondent, 15 and whichmay supplement thelackofreasoninginthe contents of the subjudice decision. The reply of the administration to the application of 9th October, 1975, for a permit to sink a borehole,besidesthefact thatitdoesnot contain anyreasoning, it is a decision in the affirmative, granting the permit applied 20 for, subject to certain conditions, and not in the negative, as suggested by counsel for respondent in his address. The only negative reply of the administration to be found in the file is the one dated 13.12.1974, which is a reply to an application of applicant dated 15.2.1974for a boreholepermitinthesameplot. 25 In that decision which is Blue 6 in the file, the reasons given for not granting the permit are that: "(a) thesaidplot lieswithinanareawhichhasbeendeclared as a 'Water Conservation Area' on the basis of section 4
(1)of the Wells Law, Cap. 351, by a decla- 30 ration published in the official Government Gazette No 4008 dated 6.12.1956. (
  1. b)The Director of the Water Development Department in the exercise of the powers given to him by section 4 of the Wells Law, Cap. 351 refused to concur to 35 the granting of the permit applied for. (
  2. c)There is a private borehole at a distance of 600 feet". Thatonewasareasoneddecision. Asaresultofsuch refusal, 274 3 C.L.R. Fournia Ltd. v. Republic Sawides J. the applicant moved the place of its intended borehole so that the nearest existing borehole to be 1,100 feet away (Blue 10) and the respondent, acting with the concunence of the Director of the Water Development Department, who had no longer 5 any reason to withhold his concurrence, granted the permit. That decision, however, had nothing to do with the present one, and its reasoning cannot afford any reasoning for the sub judice decision, because the reasons for which that permit was not granted do not exist any longer. Note 15 to which counsel for respondent referred, is the concurrence of the Director of the Water Development Department to the granting of the original permit to the applicant. Its contents,however,cannot in anyway afford any legal reasoning to the sub judice decision which concerns an application for the amendment of the conditions of the original pennit. In fact, nothing in that note contains any reasoning of any sort for any matter. Lastly, Blue 13 in the file, which is the amended Condition
(7), does not again contain any reasoning and does not help at all in finding any reasoning for the sub judice decision. With regard to the reasons advanced by counsel for the respondent, both under paragraph 2 of the facts set out in the opposition and in his written address as being the realreasons for not granting the permit applied for by the respondent, they 25 donot, inmyopinion,constituteanyreasoningfor the subjudice decision sincethey do not appear anywhere either in the decision itself or in the file of the administration. Furthermore, such reasons are arbitrary inferences not recorded in the file, as reasonsfor refusing the application. The reasoningof an admi30 nistrative decision must be recorded so as to enable the Court to exercise control over it and absence of any record renders the subjudice decision defective. (See,in this respect, the cases of Georghiades v. The Republic
(1980)3 C.L.R. 486 at pp. 490491, Eleftheriou v. Central Bank
(1980)3 C.L.R. 85 at pp. 9835 100 and Vorkas v. Republic
(1982)3 C.L.R. 309 at pp. 314, 315). Furthermore, even if it was possible for the contents of the fileto form a reasoning, then, again, such reasoning would have been defective as coming in direct conflict with the reasons given 275 Sawides J. Fournia Ltd. v. Republic
(1983)by counsel both in his opposition and his address and which are not recorded anywhere in the file as being the real reasons for issuing the sub judice decision. In the case of Hadjidemetriou v. Republic
(1980)3 C.L.R. 20, it was said at p. 26 that: "The sub judice decision, therefore, has to be annulled 5 because the reasons given by the respondent Commission inits minutes appear to bedefinitely contrary to the relevant administrative records and incompatible with factors which were taken into account by it. If any authority is needed for this proposition it can be found in the case of Niki 10 loannou v. The Republic
(1976)3 C.L.R., p. 431, at p. 442, and the case of Georghiou v. The Republic
(1976)3 C.L.R. 74, at p. 84, where reference is made also to the conclusions from the Case Law of the Council of State in Greece 1929-1959, p. 188; to Iacovides v. The Republic 15
(1966)3 C.L.R. p. 212; and Lardis v. The Republic
(1967)3C.L.R. 64, at p. 78, as well as the decisions of the Greek Council of State in Cases 254/57 & 1839/58. Furthermore, in view of these differences in the contents of these records, the respondent Commission does not 20 appear to have carried out thedue and proper inquiry which was called for in the circumstances of the case and this failure constitutes a ground for annulling the sub judice decision also". And in a more recent case, that of Vorkas v. The Republic 25
(1982)3 C.L.R. 309, Demetriades, J., has stated, at pp. 314315: "It is obvious that the reasons given by the respondents in rejecting the objection of the applicants against their transfer to Psevdas are in direct conflict with their commu- 30 nique issued on the 12th October, 1981,as in that communique they speak about surplus of teachers in the districts of Limassol and Paphos, whilst in their letter explaining their refusal to acceed to the request of the applicants they speak about surplus of teachers in the Nicosia schools. 35 They are further, an afterthought. Though the reasoning of an administrative organ may be ascertained and supplemented from the material in the 276 3 C.L.R. Fournia Ltd. v. Republic Savvides J; filesof the administration, in the present case no such reasoning can be derived from the documents and files produced in the Court. 5 10 15 Comparing now the reasons that allegedly led the respondents to the transfer of school teachers, as they appear in their said communique, and thecontents of their letter of the 9th November, 1981, one cannot reach the conclusion that the respondents arrived at their decision in a reasonable manner. Further, it is a basic principle of administrative law that the administrative organ concerned in each case, in reaching its decision, must have carried out a proper inquiry. In the present case, it does not appear either from the relevantfilesor from their letter of the 9th November, 1981,that therespondents have gone thoroughly into the grounds put forward by the applicants in their objection against their transfer. A Therefore, the sub judice decision has to be declared null and void for lack of due reasoning and as being the resultofinsufficient inquiryonthepartoftherespondents". 20 In the light of the above, I have reached the conclusion that thesubjudicedecisionhastobeannulledfor lackofduereasoning. Though, having reached such conclusion, it would have been unnecessary for me to examine the other issues posing for determination, nevertheless, I am going to examine the 25 contention of counsel for applicant that the subjudice decision shouldalsobeannulled ontheground ofmisconception offacts, as I consider such ground very materialin the present case. In support of his contention in this respect,counselfor the respondent maintained that before the subjudice decision was 30 taken, certain facts were not taken into consideration, such as the fact that plot 532 is half-precipicious, that the borehole has a capacity of 30 cm. per hour, that its water is brackish, that theamendment appliedfor concerned theh.p.oftheengine andhad nothing to dowith thecircumference ofthepipes, that 35 the applicant was the owner of the two other plots which were adjacent toplot 532,a fact which ought tohavebeentaken into account, in view of the nature of plot 532and the capacity of the borehole in question, and, lastly, that the respondents did 277 Savvides J. Fournia Ltd. v. Republic
(1983)not ask for the viewsof the Director ofthe Water Development Department, in the matter. Inrespectofthenature ofplot 532itwassubmitted bycounsel for respondent that the fact that plot 532 is half-precipicious appears on the plans which were in the files of the admi- 5 nistration. Headded,however,that "in anycase,theapplicants had a duty to mention this fact, but on the contrary, in their application they mentioned the extent of plot 532and that this plot was to be irrigated for the cultivation of clover". This statement amounts to an admission or at least, is an indication 10 that the respondent did not direct his mind to it and, therefore, there was a misconception as to this fact. With regard to the h.p. of the engine and the capacity of the bore-hole, these facts were before the respondent and there is no indication that they were misconceived or not taken into account. Therefore, 15 acting on the principle of good and proper administration and the presumption that the administration took them properly into account, I find that there is no misconception on these points. Coming tothe allegation that therespondent did not consider 20 the fact that the applicant is the owner of the two other plots which are adjacent, I wish to observe the following: These plotsarenot adjacent with plot 532but theyaresituated near it. The sketchplan of the area washowever before the respondent, in the file of the administration, and the plots concerned were 25 indicated on that sketch as well as the route for the conveyance of the water from plot 532 to them. There is, therefore, no misconception regarding this fact. From the facts set out in paragraph 2 of the opposition and in the address of counsel for the respondent, it appears that 30 the respondent arrived at certain arbitrary conclusions regarding the intention of the applicant as to the use of the water which seemed to have influenced his mind in taking the sub judice decision. It is stated thereinthat theintention ofthe applicant to divide the land into building sites is shown by a letter in the 35 fileby which the Department of Lands and Surveys is asking to knowabouttheuseoftheboreholeinplot 532for thepurpose of assessing its market value. Counsel went on to state that the applicant, even if the water is brackish, can mix it with 278 \ 3 C.L.R. Fournia Ltd. v. Republic Savvides J. other good water and convey it to some other area for the purpose of dividing it into building sites. Once any opinion in this respect had been formed by the respondent, the least he had to do was to carry out an inquiry into the matter and 5 ascertain the true factual situation, leaving apart the fact that in case of an application for a division permit, such application would have come to him for consideration. The fact that the respondent took into consideration matters which were not in existence, renders the sub judice decision bad, on the ground 10 of misconception of facts. Even mere probability of suchmisconception is enough to vitiate the administrative decision involved. (Mallouros v. E.A.C.
(1974)3 C.L.R. 220). As to thecontention of applicant that therespondent did not ask the views of the Director of the Water Development I am 15 inclined to agree with counsel for the respondent that theviews of the Director of the Water Development are only required if a permit is to be granted. In view of my above findings, I consider it unnecessary to deal with the question of discriminatory treatment or any other 20 grounds of law which have been advanced by counsel for the applicant. Intheresult,thisrecoursesucceedsandthesubjudicedecision is annulled on the grounds of lack of due reasoning and misconception of facts. 25 In the circumstances of the case, I make no order for costs. Subjudicedecisionannulled. No order as to costs. 279

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.