clr/1983/1983_3_426.pdf

(1)(afterstating theprinciplesgoverning thenatureof a hierarchicalrecourse -videpp. 431-432post)thatno duty is cast upon the Minister as such to reason specifically anydeviation from the course approved by the Licensing Authority.

(2)That the test by which the validity of the decision of the Minister must bejudged is the same with that applicable to the Licensing Authority. It is this: Whether it was^ reasonably opentotheMinister,inviewof theprovisions of thelaw andthe material before him, to decide as he did; that not only it was reasonably open to the Minister to arrive at the decision he did on the material before him,but onemightarguewithadegreeof justification that, his decision was objectively conducivetothe promotion of thepurposes of the law to ensure theprovision of adequate transport services for the disposal of sewage, an all important consideration for the comfort of the public and observance of appropriate sanitary and hygienic conditions; accordingly the recourse must fail. Application dismissed. Cases referred to: EfstathiosKyriacou and Sons and Othersv. Republic

(1970)3 CX.R. 106 at p. 116; Petrides v. Republic

(1983)3 CX.R. 216. Recourse. Recourse against the decision of the respondent to grant to the interested party a permit entitling him to operate a vehicle as a cesspool emptier. A. S. Angelides, for the applicant. D. Papadopoulou (Mrs.), for the respondents. S. Karapatakis, for the interested party. Cur. adv. vu/t. PIKIS J. read the following judgment. On 3,3.1981 the c interested party applied to the Licensing Authority under the provisions of the Road Transport Regulation Law - 1964 (as 427 Pikis J. Tsouloftas v. Republic

(1983)amended), to be issued withCarrier A' permit, entitling him to operate a vehicle as a cesspool emptier. An inspector of the Ministry of CommunicationsandWorkswasinstructed tostudy the matter and report to theAuthority. Hemade, sofar aswe may gather, asurveyoffactsbearingontheapplication,inorder 5 to furnish the factual background for the deliberations of the LicensingAuthority, inareportfiled on30.3.1981 heexamined the needs of thetown of Limassolfor cesspool emptiersand the degree to which they weremet and, noted the stand of licensed operators to the desirability of issuing the permit sought for by 10 the interested party. It emergesfrom his report that Limassol is rapidly developing into a commercial and industrial centre,a state of affairs that generates, as onemay infer from his report, an increased demand for cesspool emptiers. Over the last six years, many blocks of flats went up and many are under con- 15 struction. Thelicensed operators,fourteen innumber, objected to the grant of apermit to theinterested party. The views of the inspector as to the rise in demand for cesspool emptiers are supported by the report of the municipal doctor, submitted on 23.3.1981, whorecommended the grant of 20 additional permitsinordertoeaseacuteproblemscreatedbythe construction of new buildings. Such permits would contribute to the sustainance of appropriate hygienic and sanitary conditions. The Cyprus Hotel Association, by a report dated 29.8.1980, informed the authorities that the situation with 25 regard to the disposal of sewageat Limassol was unsatisfactory becauseofgreatincreasesinthechargesfor theservicesrendered by operators of cesspool emptiers and delays and anomalies encountered in the disposal of sewage. By the time the sub jndicedecision wastaken, somemorepermitshad beengranted. 30 They queried whether it wasfeasible to grant additional permits for the operation of cesspool emptiers to ease the existing unsatisfactory situation. The inference from the above isthat all the aforementioned officials and authorities subscribed to the viewthere wasa shortage ofvehicles for the disposal of sewage 35 intheLimassol area and, inclinedtothegrantofnewpermitsas a means of satisfying road transport needs of Limassol with regard to the disposal of sewage. Before taking a decision on the application of the interested party, theobjections of existingoperatorswereheard on25.6.81 40 428 3 C.L.R. Tsouloftas v. Republic Pikis J. at the invitation of the Licensing Authority. They raised objection to the grant of a permit to the interested party on general and specific grounds. In their opinion, theneeds ofthe town of Limassol were, in the area under consideration, ade5 quately satisfied by existing licensed operators. In addition, they objected to the interested party being furnished with a licence because of (a) his repeated violations of the law and, 10 (b) the fact that he voluntarily ceased to operate cesspool emptiers by disposing of his vehicles in times past. What they wanted to convey by these objections, was that interested party was not a bona fide applicant for a permit but, one seekinga permit with a viewto realising aprofit from the sale of a licensed vehicle in time to come. On 6.8.1981 the 15 Licensing Authority rejected the application of the interested party for the following reasons:(i) The fact that interested party was formerly a licensed operator and disposed of his vehicles. (ii) The objections of licensed operators, and because 20 (iii) existing needs were satisfactorily met. The interested party lodged an appeal before the Minister, in accordance with the provisions of s.6 of the Road Transport Regulation Law 1964, as amended by Law 81/72. Section 6

(1)conferred a right to a party aggrieved from the decision of 25 the Licensing Authority to make a hierarchical recourse to the Minister of Communications and Works within twenty days, a rightduly exercised by the interested party. Thus, the matter came before the Minister who was dutybound, in accordance with s.6

(2)of the aforesaid law, to deal with the recourseexpeditiously, after affording opportunity to the appellant to be heard in the matter. Before decision was taken, there took place an important development. It was this: Some of the objectors, a sizeable proportion of them, seven in number, lifted their objections to the grant of a permit to the interested party and, more important still, they urged the Authorities to granting a permit, accepting the version of the interested party astohowandinwhatcircumstanceshedisposed of, inthepast, the cesspool emptiers he was licensed to operate. They ack429 Pikis J. Tsouloftas ?. Republic

(1983)nowledged that dire necessity compelled him to part with his vehiclesinthecourse of an illnessthat made necessary a visit to the United Kingdom for treatment. The Minister decided, on 15.4.1982, to grant a permit to the interested party, in the interests of the road transport needs of 5 the Limassol area. Twelve of the licensed operators objected to the decision and filed the present recourse. The legitimacy of their interest to seekjudicial reviewofthe subjudicedecision was not questioned, evidently because of the repercussions upon their financial interests from the grant of an additional 10 permit. Itwaswith great surpriseIdiscovered, inthecourseof studying thefiles of the casethat, at least four of the applicants had consented to the grant of a permit to the interested party and signed, along with other colleagues, the petition to the Minister of 17.9.1981. Unlessweareconfronted with a strange 15 coincidence arising from synonymity, four of the applicants, namely Nicolas Antoniou, Antonakis Nicolaou, Leonidas Demosthenous and Costas Christofi, while purporting to approbate the grant of a permit, they reprobated the decision taken because it was allegedly vitiated by the ulterior motives 20 of the interested party. Neither counsel drew my attention to this contradictory state of affairs. How and in what circumstances it was allowed to arise, I have no knowledge. The decision is challenged, mainly on two grounds:(

1. a)For failure on the part of the Minister to conduct a 25 proper inquiry, includingan omission tohear objectors afresh and, (
2. b)for failure to reason departure or deviation from the decision of the Licensing Authority. Mr.AngelidesarguedhiscaseonthepremisethattheMinister 30 was under a duty to reason specifically his disagreement with the decision of the LicensingAuthority, inthe wayan appellate tribunal reasons interference with the deliberations of a hierarchically inferior tribunal. Although he does not specifically draw this parallel, this is the inescapable inference from his 35 argumentation. Mrs. Papadopoulou submitted for the respondents that the Minister was at least, as free to decide the matter either way, as the Licensing Authority were, with no 430 3 C.L.R. Tsouloftas v. Republic Putis J. obligation on his part to indicate specifically his reasons for taking a contrary view of the matter. This proposition has the assent of Mr. Karapatakis, as well, who joined in the submission of Mrs. Papadopoulou, on behalf of the interested party. 5 Hierarchical Recourse—The Principles: A hierarchical recourse is not a judicial proceeding in any sense. It is not intended to review the correctness of the hierarchically subordinate organ'sdecision byreference tothe soundness of the reasoning propounded in support thereof but, to 10 establish a second tyre in the decision-taking process, designed to eliminate mistakes as well as abuse of authority by subordinates. Hence it isat least asfeasible for the superior in hierarchy to take any decision that the subordinate body could reasonably take in the first instance. Both organs in the hierarchy arc 15 charged with the same duty—to promote the objects of the law by the application of its provision in particular cases. Some authors suggest that the hierarchically superior organ should be allowed greater latitude and should enjoy correspondingly wider discretion because it is credited with more knowledge 20 and experience to evaluate the needs of the service and the implications from a particular decision on the purposes of the law, in comparison to the subordinate organ, (see, Tsoutsos, Administration and the Law—1979, pp. 63, 64). Generally, it is competent for the body exercising powers 25 on a hierarchical recourse, to review the legality of the decision taken in the first instance, as well as the manner in which they exercised their discretionary powers by reference to the facts of the case. (See, Speliotopoulos, Manual of Administrative Law—1977, Vol. 1, pp. 221, 222; Stassinopoulos, Law of 30 Administrative Action—1951, pp. 177, 178). There is direct authority for the view that the Minister of Communications and Works, in exercising the powers vested in him by s.6 of the Road Transport Regulation Law—1964 (essentially reproduced by s.4 of Law 9/82, promulgated in the 35 Gazette on 19.3.1982, a law amending and consolidating the Road Traffic Regulation Laws), acts in an administrative capacity and not in a quasi judicial one, notwithstanding the use of the word "appeal". (See, Efstathios Kyriacou & Sons Ltd. and Others v. Republic

(1970)3 C.L.R. 106, 116). As Trianta431 Pikls J. Tsouloftas v. Republic

(1983)fyllides, J., as he then was,noted in the aforesaid decision, the Minister enjoys a wide discretion in exercise of the powers vested in him by the relevant provisions of the law. Thesubmission that thedecision of the Minister isvulnerable to be set aside for failure toreason departure from thedecision 5 oftheLicensingAuthority,isill-founded andmustbedismissed. NodutywascastupontheMinisterassuchtoreason specifically anydeviationfrom thecourseapprovedbytheLicensingAuthority. Thetestbywhichwemustjudgethevalidityofthedecision of the Minister isthe samewiththat applicable tothe Licensing 10 Authority. It is this: Whether it was reasonably open to the Minister, inview of theprovisions ofthelawandthematerial before him, to decide as he did. As L. Loizou, J. pointed out in a recent decision, in Case No. 409/80, on 11.3.1983— Petridesv. The Republic(unreported as yet)*, the brevity of 15 the decision of the Minister is not in itself indicative of lack ofduereasoningand thereasoningmay, likeeveryother species of administrative action, be supplemented by the material in thefileofthecase. Solongasthedecisionconveysonexamination of its contents and the background thereto the reasons 20 why a given decision is taken, it cannot be faulted for lack of due reasoning. Onexamination ofthecontentsofthedecisionoftheMinister in this case, it emerges that he took the viewthat by approving the application for the grant of a permit to the interested party, 25 the transport needs of the Limassol area would be best served. There was ample material before him tojustify this view, outlined earlier, suggesting the available services were inadequate, a shortage that created problems for thepublic and posedrisks to hygienic and sanitary standards.' The objections of licensed . . operators to the person of the interested party that, evidently carried weight with the Licensing Authority bearing in mind their decision, must have lost part of their force by the withdrawal of the objections by seven of them and their affirmation of the version of the interested party as to how and in what circumstances he disposed of the cesspool emptiers he was licensed to operate in the past. It is probable indeed that the Licensing Authority would have come to the same decision as Reported in this part at p. 216. 432 3 C.L.R. Tsouloftas v. Republic Pikis J. theMinister iftheyhadbefore themtheletterinquestion. How and in what circumstances someof them cameto complain and joined in the present proceedings as applicants, is a matter of conjecture. No explanation was given about it by counsel 5 for the applicants. It is unnecessary to explore the matter further, except note that the complaint voiced by them in these proceedings has lost much of its force. Not only it was reasonably open to the Minister to arrive at the decision he did, but one may argue with a degree of 10 justification that, his decision is objectively conducive to the promotion of the purposes of the law to ensure the provision of adequate transport services for the disposal of sewage, an all important consideration for the comfort of the public and observance of appropriate sanitary and hygienic conditions. 15 The recourse is dismissed, it is with some reluctance I have decided to make no order as to costs. Let there be no order as to costs. Recoursedismissedwith no order as to costs. 433