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(1983)1983 February 10 [A'. Loizou, J.] IN T H E MATTER OFARTICLE 146 OF THE CONSTITUTION KEM (ΤΑΧΓ) LTD., Applicant. THE REPUBLIC OF CYPRUS,THROUGH THE CHAIRMAN OF PERMITS AUTHORITY, Respondent {CaseNo. 50βΟ). Motor transport—Road use licence·—Existence of, does not constitute an authority to do anything else outside such licence—Road use licence for carriage of passengers on contract—Application for road use licence, in respect of same vehicles,for carriage of passengers on contract from other places within the same 5 town—Call for the exercise of the discretionary powers of the respondent Authority under section 8
(2)of the Motor Transport (Regulation) Laws—See, also, section 7
(4)(e) of the Laws. On the 30th June 1979, the applicant Company, after competi­ tion, entered into a written agreement with the Charteredhouse Estates Ltd., owners of the "POSEIDONIA" hotel for the transportation of their staff which works on a twentyfour hour shift basis. 10 - The applicant Company applied thereupon to the respondent Authority for the issue of a road use licence for three of their 15 vehicles which have a capacity of 50 seats, 36 seats and 55 seats respectively, for the transport of the staff of the hotel "POSEI­ DONIA" from the various quarters of Limassol to it and viceversa as a contract carriage. The said vehicles had a road service licence for the carriage of passengers on contract with 20 regard to the British Sovereign Bass Areas. The application of the applicant Company was examined by the Limassol District Transport Controller who referred 42 3 C.L.R. 5 Kem Taxi v. Republic to the location of "POSEIDONIA" as being on the Limassol— Nicosia trunk road within the urban transport traffic area of Limassol and that it engages 135 employees on shifts and that the work would be done in accordance with the relevant contract. 1 10 15 20 The respondent Authority then invited at its offices the applicant Company and the urban Buses Company of Limassol to make their representations, as well as other interested parties. After examining their representations and all the material in the file it rejected the applications by its subject decision* mainly on the ground that "the route for which the licence is sought by KEM (TAXI) for the transportation of the staff of the hotel 'POSEIDONIA' lies wholly within the urban traffic area of Limassol which is served by the Limassol Bus Company. The granting of such a licence to Company KEM (TAXI) LTD. will offend the provisions of section 8
(2)(b)(c) and 7
(4)(e) of the Motor Transport (Regulation) Laws" and on the ground that "the Limassol Bus Company by a statement of its representative undertakes the performance of this route by its licensed buses which it can substantially arrange for this purpose". Upon a recourse by the applicant 25 30 35 Company: Held, that the existence of a road service licence does not constitute an authority to do anything else outside such licence and the submission that the function of the appropriate Authority in such a case is only to regulate the terms of an existing licence under section 8
(4)of the Motor Transport (Regulation) Laws cannot be upheld; that as in every other case thelicensing Authority has to exercise its discretion as provided by section 8 of the Law and in particular sub-section 2 thereof; that although this Court does not subscribe to the view that there wasno question of a newlicence beingissued but only a variation of the terms of the existing one, yet even if as a matter of administrative arrangement there would have been eventually one licence issued covering both instances, namely giving effect to the contract with the Sovereign Base Areas and to that of the "POSEIDONIA" hotel, such an extension of the original licence definitely called for the exercise of the Authority's discretionary powers and in so doing the Authority should have regard to the matters set out in section 8** sub-section 2; * The subject decision is quoted io full at pp. 45-47 post. * Section 8
(2)is quoted at p. 49 post. 43 . \ Kern Taxi v. Republic
(1983)that this is in fact what the respondent Authority did and the reasons for its discretion are to be found in their decision.
(2)That the contention of the applicant that the respondent Authority ignored two basic factors which were within its knowledge, namely'that the licence applied for was in respect 5 of contract carriage and that the Limassol Bus Company had no licensed vehicles for the carrying out of such a contract carriage, is not substantiated by the contents of the subject decision the basis of which has been that such a licence could not be granted as it offended paragraphs (b), (c) of sub-section 10 2 of section 8, whereby the extent to which the needs of the proposed routes or any of them are adequately served and the extent to which the proposed service is necessary or desirable in the public interest had to and were duly taken into consideration; that in the circumstances the exercise of the respondent's 15 discretion wasproperly madehavingclearlytaken intoconsideration all necessary material and there appears to have been neither a misconception of Law nor a misconception of fact, nor anything to suggest that it took into consideration any extraneous matter; that it further took into consideration the 20 provisions of section 7
(4)paragraph (e) of the Lawto the effect that no passenger who usually or as a rule travels at or about the time of the route will be included among the passengers ofthevehiclefrom anypartoftheroute;accordinglytherecourse should fail. 25 Application dismissed. Recourse. Recourse against the decision of the respondent whereby he did not approve and/or refused and/or prohibited the use of three of applicants' vehicles as contract carriage for the 30 transporation of the staff of "Poseidonia" hotel in Limassol to and from the said hotel. A. Panayiotou, for the applicant. R. Gavrielides, Senior Counsel of the Republic, for the respondent. P. Ioannides, for the interested party. Cur. adv. vult. A. Loizou J. read the following judgment. By the present recourse the applicant Company seeks a declaration that the 44 35 3 CX.R- Kern Taxi v. Republic A. Loizou J. act and/or decision of the respondent Authority, dated 8th January 1980, by which they did not approve, and/or refused and/or prohibited the use of their vehicles under Registration No. H.N. 431, A.Y. 553 and G.A. 681 as contract carriage 5 the transportation of the staff "POSEIDONIA" hotel in Limassol to and from the said hotel, isnull and void and of no effect whatsoever. Onthe30th June 1979,theapplicant Company,after competition, entered into a written agreement with the Charteredhouse 10 Estates Ltd., owners of the said hotel for the transportation of their staff which works on a twenty-four hour shift basis. The applicant Company applied thereupon to the respondent Authority for the issue of a road use licence for their aforesaid vehicles which have a capacity of 50 seats, 36 seats and 55 35 seats respectively, for the transport of the staff of the hotel "POSEIDONIA" from the various quarters of Limassol to it and vice versa as a contract carriage. The said vehicles had a road service licence for the carriage of passengers on contract with regard to the British Sovereign Base Areas. 20 The application of the applicant Company was examined by the Limassol District Transport Controller who referred to the location of "POSEIDONIA" as being on the Limassol —Nicosia trunk road within the urban transport traffic area of Limassol and that it engages 135 employees on shifts and 25 that the work would be done in accordance with the relevant contract, copy of which has been produced as an exhibit, attached to the written address of counsel. The* respondent Authority then invited at its offices the applicant Company and the Urban Buses Company of 30 Limassol to make their representations, as well as other interested parties. After it examined their representations and all the material in the file it rejected the applications by its subject decision which was communicated to the applicant Company by letter dated the 15th January 1980, Appendix 35 "A", which reads as follows: "I wish to refer to your applications dated 30th June 1979 for the grant of a licence to the public service buses under registration No. H.N. 431,A.Y.553 and G.A. 681 for the 45 A. Loizou J. Kern Taxi v. Republic
(1983)transport of the staff of the "POSEIDONIA" hotel from the various quarters of Limassol to the hotel "POSEIDONIA" and I regret to inform you that theLicensingAuthority at its meeting of the 8th January 1980 considered the applications and having taken into consideration the materialinthefiles andtheopinionoftheAttorney-General of the Republic on the aforesaid subject, decided to reject the applications for the following reasons:- 5 (a) The three aforesaid vehicles after application by the Company KEM (TAXI) LTD were granted road-use 10 licenceoncontract,dated 11thAugust 1976for thecarrying out of routes in accordance withcontracts of the Company with the British Bases. The said licence wasrenewed from year to year and on the27th September 1979the Company KEM (TAXI) LTD bynew applications asked the renewal 15 of the said licences after it paid the prescribed fees on the same date and having attached the relevant contract with the Bases which was due to expire on the 2nd July 1980, with a right of extension by either side (see file HN 431 page 37). 20 In view of the aforesaid the granting of the licences applied for is contrary to the provisions of Section 7
(5)of the Motor Transport (Regulation) consolidated Law, given that the licence for the transport of the personnel of "POSEIDONIA" hotel applied for is neither for the tour 25 of touristic groups, nor transport of groups for excursions. (b) The route for which the licence is sought by KEM (TAXI) for the transportation of the staff of the hotel "POSEIDONIA" lies wholly within the urban traffic area of Limassol which isserved bythe Limassol BusCompany. 30 The granting of such a licence to Company KEM (TAXI) LTD will offend the provisions of Section 8
(2)(b)(c) and 7
(4)(
  1. e)of the aforesaid Laws. (
  2. c)The Limassol Bus Company by a statement of its representative undertakes the performance of this route 35 by its licensed buses which it can substantially arrange for thispurpose. .As far asthefees for whichtherepresentative of KEM (TAXI) LTD allege that they are unprofitable, 46 3 C.L.R. Kem Taxi v. Republic A. Loizou J. same can be fixed by the Licensing Authority after a study by the Inland Transport Department. 5 (
  3. d)The Licensing Authority arrived at its present decision exercising its discretionary power and after taking into consideration the public interest as the granting of the licence applied for would have as a resultthe disorganization of the already existing transport network which is intended to serve the public with reasonable controlled fares." By virtue of section 7
(1)of the Law as amended "no public 10 service vehicle shall be used for any service on any road unless it is licensed under the provisions of this Law and subject to the conditions of such licence." Subsection 4 of the same section regulates the licensing of public service vehicles for use as a contract carriage. This 15 subsection 4 reads as follows: "
(4)Έν περιπτώσει αδείας άδικης χρήσεως δι' όχημα προς έκτέλεσιν μεταφορών έπί συμβάσει θά ίσχύωσιν αί κάτωθι διατάξεις (α) ή άδεια Θά είναι έν τω νενομισμένω τύπω" 20 (β) ή άδεια θά καθορίζη ότι αί διευθετήσεις δια τήν έπί τό αΟτό συνάντησαν των επιβατών δέν θά γίνωνται Οπό τοϋ κατόχου της αδείας ή τοϋ Ιδιοκτήτου ή τοΰ όδηγοϋ .τοϋ οχήματος ή ύφ* οιουδήποτε προσώπου λαμβάνοντος άμοιβήν δια τάς διευθετήσεις ταύτας- 25 (γ) ουδεμία γνωστοποίησις θά δίδεται προς τό κοινόν έν σχέσει προς τήν προτιθεμένην διαδρομήν ή τάς γενομένας διευθετήσεις· 30 35
(6)άπαντες οι έπιβάται θά έπιβιβάζωνται έκ της αύτης αφετηρίας ή πλειόνων αφετηριών καΐ θά μεταφέρωνται ^S τό αυτό τέρμα ή πλείονα της διαδρομής ώς ήθελεν όρισθη Οπό της αρχής άδειων (ε) ουδείς επιβάτης όστις συνήθως ή κατά κανόνα ταξιδεύει κατά ή περί τόν χρόνον της διαδρομής έπί της διαδρομής ταύτης θά περιλαμβάνηται μεταξύ των επιβατών ή α ^ έπιβιβάζηται τοϋ οχήματος άπό οιονδήποτε μέρος κατά τήν διαδρομήν: Νοείται ότι ή αρχή άδειων δύναται διά της χορη- 47 A. Loizou J. Kern Taxi v. Republic
(1983)γουμένης αδείας νά έτπβάλη οίουσδήποτε άλλους όρους βά έκρινε πρέπον Οπό τάς περιστάσεις". In English it reads: ("
(4)In the case of a road servicelicence for vehicles for the carrying out of transport as a contract carriage there will apply the following provisions: 5 (
  1. a)The licence shall be in the prescribed form; (
  2. b)The licence shall specify that the arrangements for the meeting of passengers for thepurpose willnot bemade by the holder of the licence or the owner or the driver 10 of the vehicle or by any other person receiving re­ muneration for such arrangements. (
  3. c)No notification will be given to the public in relation to the intended route or the arrangements made. (
  4. d)AU the passengers will board from the same starting 15 point or more thanonepoints and they will be carried to thesameterminal or morethanoneterminals of the . route as shall be specified by the licensing Authority. (
  5. e)No passenger, who usually or as a rule travels at or about the time of the route on such route will be in- 20 eluded among the passengers or will board the vehicle from any other place during the route: Provided that the licensing authority may impose by the licences granted such other conditions as it may think proper in the circumstances"). This amendment of the Law was introduced by section 4 paragraph (b)ofamendingLaw45of 1971whichalsointroduced a definition of vehicle for carriage on contractwhich is defined as meaning a public service vehicle not carrying passengers at separate fares per passenger. It is clear that this Law made a 30 radical change in this field and it is in this relation that the grounds of law relied upon on behalf of the applicant company have to be examined. Reference may also be made to subsection 5 which provides that vehicles for which thereexist a road service hcencemay, in 35 addition, carry out carriage of passengers consisting of tourist parties and parties of passengers on an excursion to a fixed 48 25 3 C.L.R. Kern Taxi v. Republic A. Loizou J. destination. It is clear therefore that the existence of a road service licence does not constitute an authority to do anything elseoutside suchlicenceand thesubmission that thefunction of the appropriate Authority in such a case isonly to regulate-the 5 terms of an existing licence under section 8 subsection 4 of the Law cannot be upheld. As in every other case the licensing Authority has to exercise its discretion asprovided by section 8 of the Law and in particular subsection 2 thereof which sets out the criteria to which regard must be had in its exercise. 10 Section 8 subsection 2 reads as follows: "In exercising such discretion the licensing Authority shall have regard to the following matters> (
  6. a)the suitability of the route on which a service may be provided under the licence: 15 (
  7. b)the extent, if any, to which the needs of the proposed routes or any of them are adequately served; (
  8. c)theextenttowhichtheproposed serviceisnecessaryor desirable in the public interest; 20 (
  9. d)the needs of the area as a whole in relation to traffic (including the provision of adequate, suitable and efficient services, the elimination of necessary services) and the provision of unremunerative services and the co-ordination of all forms of passenger transport". And section 8
(6)reads as follows: 25 "The provisions of this section shall be so applied as to give all concerned equal opportunity of gain as far as possible." Although I do not subscribe to the view that there was no question of a new licence being issued but only a variation of 30 the terms of the existing one,yet even if as a matter of administrative arrangement there would have been eventually one hcence issued covering both instances, namely giving effect to the contract with the SovereignBaseAreasand to that withthe "POSEIDONIA" hotel, such an extension of the original 35 licence definitely called for the exercise of the Authority's discretionary powersand in sodoing theAuthority should have 49 A. Loizou J. Kem Taxi v. Republic
(1983)regard to the matters set out in section 8 subsection 2 hereinabove set out. This is in fact what the respondent Authority did and the reasons for its discretion are to be found in paragraphs (
  1. b)and (
  2. c)of their decision as embodied in Appendix A. 5 The contention of counsel for the applicant Company that the respondent Authority ignored two basic factors which were within its knowledge, namely that the licence applied for was in respect of contract carriage and that the Limassol BusCom- io pany had no licensed vehicles for the carrying out of such a contract carriage, is not substantiated by the contents of the subject decision the basis of which has been that such a licence could not be granted as it offended paragraphs (b), (
  3. c)of subsection 2of section 8, whereby the extent to which theneeds of 15 proposed routes or any of them are adequately served and the extent to which the proposed service is necessary or desirable in the public interest had to and were duly taken into consideration. This was obviously done on the basis of the material before them and after havingheard the representationsmade on 20 behalf of all having an interest in the matter and after having considered the prevailing conditions with regard to the route in question. In the circumstances the exercise of itsdiscretion wasproperly made having clearly taken into consideration all necessary 25 material and there appears to have been neither a misconception of Law nor a misconception of fact, nor anything to suggest that it took into consideration any extraneous matter. It further took into consideration the provisions of section 7
(4)paragraph (e) of the Law to the effect that no passenger 30 who usually or as a rule travels at or about the time of the route will beincluded among the passengers of the vehicle from any part of the route. This issoas obviously the existingservicescarried out by the Limassol Bus Company could adequately serve the staff of the 35 "POSEIDONIA" hotel and would have been against public interest to take them away from them for the mere sake of multiplying the vehicles licensed to operate on that same route 50 3 C.L.R. Kern Taxi v. Republic A. Loizou J. at theexpenseofcourse oftheexistingonesand not on account of any new demands. For all these reasons this recourse must fail and in the circumstances is hereby dismissed but in the circumstances there 5 will be no order as to costs. Recourse dismissed. No order asto costs. 51

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