(1983)1983 August 4 [SAVVIDES, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION MICHALIS HADJICLEANTHOUS, Applicant, v, THE MINISTER OF COMMUNICATIONS AND WORKS THROUGH THE ATTORNEY-GENERAL, Respondent, (Case No. 71/79). Administrative Law—Administrative acts or decisions—Reasoning— May be supplementedfrom the material in the file—Moreover applicant had knowledge of all the materialthat led to thesub judice decisions since he was present at the hearingbeforethe Administrativeorgan concerned—Change of attitude by admi- 5 nistrationwithinshort time-Specialreasons shouldbe given for such change—Change of attitude in this casedue to change of circumstances—No special reasons required. Administrative Law—Misconceptionof fact—Burden of proofHow discharged. This was a recourse against the decision of the respondent Minister whereby applicant's hierarchical recourse against the decision of the licensing authority granting a road service licence for the route Kalavassos-Limassol to bus No. CU 983 owned by the interested party was dismissed. 15 Counsel for the applicant mainly contended: (
- a)That as far as the decision* of the Licensing Authority isconcerned, whichwascommunicated tothe applicant on the 8th June, 1978, no reasoning was given and The decision is quoted at p. 821 post. 810 10 3 C.L.R. 5 10 15 HadjiCleanthous v. Republic that the Minister* when dealing with the hierarchical recourse instead of allowing the appeal on the ground of lack of reasoning,heconfirmed the decision without giving any additional ground for having done so and merely repeated the decision of the Licensing Authority; and that in view of the fact that the sub judice decision affects the interests of the applicant it should have been specially reasoned. (
- b)That.the Licensing Authority took its decision, which was subsequently affirmed by the Minister, only a few months after theprevious Minister of Communications and Works had dismissed a similar application of the interested party; and that due to the short time that elapsed between the previous decision dismissing the application of the interested party and the new decision granting such permit, special reasons should have been given for the change of the attitude of the Licensing Authority and the Minister. (
- c)That the respondent acted under a misconception of fact. - 20 25 30 [35 Held,
(1)that though the decision of the licensing authority does not contain any reasoning at all it is an accepted principle of administrative law that the reasoning may be supplemented from the material in the file; that the reasoning of the decision of theLicensing Authority is contained in the minutes of the meetingoftheAuthority; andthat applicantwasallalongaware of the proceedings and since he was also present at the hearing before the Licensing Authority there is no doubt that he had knowledge of all the material and details which led to the decision taken by the Licensing Authority; that with regard to the decision of the Minister, it is clear that he took his decision bearing in mind the result of the inquiry carried out by the Inland Transport Department the representations of the parties and all other material before him, considerations which he communicated to the applicant by informing him of his decision; and that the contents of the decision of the * Thedecision of the Minister isquoted at p. 817 post. 811
(1983)HsdiiCfeanthoos τ.Republic Minister, as communicated to the applicant, is duly reasoned; accordingly contention (a) should fail.
(2)That though when there is a change of attitude by the administration it is necessary that a more specific reasoning be given by stating the reasons which were taken into consider· 5 ation for justifying such change, in this case the change of attitudewas due to a change of circumstances; and that inview of such change of circumstances there was no need for special reasons to be given why the respondents departed from the previous decision; accordingly contention (b) should fail. 10
(3)That the burden of proof regarding the existence of a misconception of fact lies onan applicantwho allegesit because there is a presumption against the existence of such miscon ception and that the burden is discharged if the misconception is proved to exist or if it is shown that it is most probable that 15 it exists; that though the applicant has advanced a number of allegations as to misconception he did not call any evidence in support of his allegations; that, therefore, applicant failed to discharge his burden of proving any misconception and in the light of the totality of the material before this Court it has 20 not been persuaded that theexistence of thealleged misconcept ion was most probable or "so sufficiently probable as to raise a doubt in my mind"; accordingly contention (c) should, also, fail. Application dismissed. 25 Cases referred to: Miltiadou v. CYTA
(1982)3 C.L.R. 555 at pp. 557, 580, 581; Christodoulou andAnother v. CYTA
(1978)3C.L.R. 61 at p. 69; Nicolaides v. GreekRegistrarof Co-OperativeSocieties
(1965)3 C.L.R. 585 at pp. 600-601; Mallourosv. E.A.C.
(1974)3 C.L.R. 200 at p. 224; Kontos v. Republic
(1974)3 CX.R. 112 at pp. 127-129; HadjiMichael v. Republic
(1972)3 C.L.R. 246 at p. 252; Thalassinos v. Republic
(1974)3 C.L.R. 290 at p.
- 812 30 3 C.L.R. HadJiOeanthous τ. Republic Recourse. Recourse against the decision of the respondent Minister of Communications andWorks whereby applicant'shierarchical recourseagainst thedecisionof theLicensing Authority granting 5 a road service licence for the route Kalavassos-Limassol to bus No. C.U. 983 was dismissed. 10 P. Soteriouyfor the applicant. CI. Theodoulou (Mrs.), Counsel of the Republic, for the respondent. Cur. adv.vult. J. read the following judgment. The applicant by this recourse seeks a declaration of the Court that the act and/or decision of the Minister of Communicationsand Works, dated 21.11.1978, by which his hierarchical recourse against 15 thedecision of the Licensing Authority granting a road service licence for the route Kalavassos—Limassol to bus No. CU 983 owned by Panayiotis Polycarpou of Kalavassos was dis missed, is null and void and of no legal effect whatsoever. SAWIDES The facts of the case are as follows: 20 Theapplicantwho comes from Vassa Kellakiou, is a profes sional bus owner and driver for many years, and has been serving the route Kalavassos-Limassol since
- He was originally the owner of bus No. EW 336 of 36 seats which he substituted with bus No. JJ 773,of 55 seats licensed toserve 25 the route Vassa Kellakiou-Kalavassos-Limassol. The interested party comes from Kalavassos and is also a professional bus owner operating his bus No. CU983, licensed to carry workers on contract from Limassol to Vassiliko. He is also the owner of another bus No. HM 993, of 50 seats 30 licensed to carry passengers on the route Kalavassos-Limassol. Thereisalso anotherbus No.BF570,ownedby athirdperson Menelaos Lambrou, also of Kalavassos, licensed to serve the ' route Kalavassos-Limassol three days a week. On 31.1.1977, the applicant applied to the Licensing Author35 ity for a licence to substitute his old Bus No. EW 336 of 36 passenger seats, with a new one, No. JJ 773 of 55 passenger seats. On 14.3.1977, before the application of the applicant 813 Sarvtdes J. HadjiCleantbous v. Republic
(1983)was considered by the Licensing Authority, another application was made, by Mr. Menelaos Lambrou, for a new road service licence on the route Kalavassos-Limassol, for his bus No. CY
- Later on, another application for a new licence on the same route was made by the interested party for his bus No. 5 EQ
- These last two applications were later withdrawn and substituted by a new application dated 20.9.1977 by Mr. Polykarpou, the interested party and Mr. Lambrou jointly for the grant of a licence for bus No. CU 983 on the route Kalavassos-Limassol (see blues 1 and 2 of exhibit 1). The 10 applicant objected to the granting of such licence. The Licensing Authority at its meeting on 8.11.1977 (the minutes of which appear in blue 10 of exhibit 1), decided to grant the application of the applicant for the substitution of his bus and dismiss the application of the interested party for a new road 15 service licence, on the ground that by the substitution of bus EW336bya newone of greatercapacity, the needsof theroute wereserved in full. The interested party appealed against both decisions of the Licensing Authority to the Minister of Communications and 20 Works, who, by his decision dated 26.1.1978 dismissed the said appeals and confirmed thedecisions of the Licensing Authority (blue 13 of exhibit 1). The above decisions of the Minister were communicated, by letter dated 7.2.1978, to the interested party, who on 17.2.1978, applied again for a new licence for 25 his bus No. CU 983, on the same route. His application was supported by a letter from the Village Committee and the Improvement Board of Kalavassos addressed to the Licensing Authority, in which it wasstated that a transportation problem existed at Kalavassos for the transportation of students and 30 labourers and a request was made for the granting of a road service licence to bus No. CU 983, for the transportation of students and labourers to Limassol (blue 20 in exhibit 1). As a result of such application, an inquiry was carried out bytheInland Transport Department oftheMinistryofCommu- 35 nications & Works, to ascertain the number of passengers usingtherouteinquestion. Suchinquirywaseffected bycheckingthe route for sixdays between the 3rd and the 10thAugust, 1978, at a point outside Kalavassos and recording the number of passengers carried daily from Kalavassos to Limassol. The 49 814 3 C.L.R. HadjiCleanthous v. Republic Sawldes J. result of such check (which appears in blue 29 of exhibit 1), was to the effect that the route was adequately served by the licensed buses only on the dates on which bus No. BF 570 of 32 seats, licensed to serve the route three times a week, was 5 circulating. On the other four days there was a number of 4-14-17-14 passengers respectively, in excess of the number of seats of licensed buses. The inspector who carried out the check,submitted his report tothe InlandTransport Department of the Ministry of Communications & Works (blues 30-34 in 10 exhibit 1) in which he stated (blues 30-31) that there existed a transport problem on the route, which he discussed with all interested parties, including the applicant in this recourse, as well as the motorists' unions, and with the exception of the applicant, all other parties did not object to the granting of 15 the licence to the interested party. As a result of such inquiry, the Licensing Authority at its meeting of the 25.4.1978decided to invite all interested parties, including the motorists' unions, to attend the meeting of the Authority of 16.5.1978, at which a decision was to be takenon 20 the matter, and make their representations. Following such decision, a letter was sent on 3.5.1978 to the applicant in the present recourse, the interested party, the owner of bus BF 570 Menelaos Lambrou, the Asgata Bus Company and the motorists' unions to attend the above meeting. 25 Fromtheminutesof thehearingbefore theLicensing Author ity, which took place on 16.5.1978(blues 38-42) it appears that both theapplicant and theinterested party, as wellas therepre sentative of Asgata Bus Co. Mr. Vassiliades who was also the owner of bus GD 92 licensed to take passengers on the same 30 route and the representative of PEEA (a motorits' union) were present. Only the applicant objected to the granting of the licence to the interested party whilst all other parties present at the hearing gave their consent to its grant. The Licensing Authority after hearing the views of all parties concerned, 35 decided togrant a rural bus licencefor bus CU983 of theinter ested party and by letter dated 8th June, 1978 informed the applicant of its decision to the effect that his objection was rejected and that a licence was granted to the interested party. Thecontents of such letterread(blue44of exhibit 1)as follows: 40 " 'Επιθυμώ δπω$ αναφερθώ εΙ$ τήν έπιστολήν σο*ήμερο815 Savvides J. Hadjideantbous τ. Republic
(1983)μηνίας διά της οποίας ένίστασθε sts τήν χορήγησιν αδείας αγροτικούλεωφορείουδιάτό ΔημοσίαςΧρήοεως όχημα ύ π ' άρ. CU 983 επί της διαδρομήςΚαλαβασοΰΛεμεσοϋ, καΐ να σας πληροφορήσω ότι ή 'Αρχή 'Αδειών κοπά τήν συνεδρίαν αύτης της 16.5.1978 εξητασε καί ενέκρίνε τήν ώς άνω αΐτησιν. Ωσαύτως τό λεωφορείον θά δύναται νά μεταφέρηεργάτες άπότήν Λεμεσόν είς τό Μεταλλεϊον Βασιλικού, ως καί προτερον. 5 Μετά τιμής, (ύπ.) Σ. Ι. Δημητριάδης Πρόεδρος Αρχής Άδειων". 10 ("I wish to refer to your letter dated _~ by which you object to the grant of a rural bus licence to the public use vehicle No. C.U. 983 for the route Kalavasos-Limassol, and to inform you that the Licensing 15 Authority at its meeting of 16.5.1978 has examined and approved the above application. The bus may also carry labourers from Limassol to Vassiliko Mine as before. Yours truly (Sgd.) S.I. Demetriades, 20 Chairman, Licensing Authority"). As a result, the applicant filed on 24.6.1978 a hierarchical recourse against the above decision of the Licensing Authority (reds 1-4 in exhibit 2) which was fixed for hearing before the Minister on 24.10.
- On 25.9.1978, before the hearing of this hierarchical recourse, the applicant addressed a letter to the Licensing Authority (red 8 in exhibit 2) by which he informed them that on the first day of the new academic year he transported only 15 students and two other passengers, thus leaving 38 empty seats in his 30 bus, whilst the interested party contravened the law with his bus CU 983 whilst the hierarchical recourse was still pending. He also asked for a new check on the route. On the 3rd October, 1978, he sent another letter, addressed to the Minister, t o which he attached his previous letter to the Licensing 35 Authority, repeating what he has said in that letter and stating (with reservation of any rights of his) thatinview of the situation he could not circulate his bus any longer until the matter was finally settled (red 9). 816 25 3 C.L.R. HedjlCleantbous r. Republic Savrides J. The members of the Village Commission of Kalavassos addressed, on 8.10.1978, a letter to the Minister, to which they attached two other letters, one sent by them to the ex Minister of Communications and Works on 12.4.1977, and the other 5 written bytheparents ofa number of students from Kalavassos dated 16.2.1978 and addressed to the Licensing Authority. By these letters which appear in exhibit 2(reds 10-13), the parents and the Village Commission of Kalavassos were asking for the granting,of the licence to the interested party because for 10 personal reasons, they did not want the applicant. The hearing of the recourse before the Minister finally took place on 14.11.
- At the hearing both the applicant and the interested party were present with their counsel. They made their representations and advanced their arguments (reds 15 17-21 of exhibit 2). Thedecision ofthe Minister wastaken on21.11.1978andwas communicated to the applicant by letter dated 29.11.1978 (reds 23-24). It reads as follows: 20 25 "Having taken into consideration the law in force, the representations of the persons interested and all material put before me, especially the check carried out by the Department of Inland Transport, on the passengers using the route Kalavassos—Limassol, I have reached the conclusion that the Licensing Authority rightly granted the subjudice licence for the better service of the public using the said route.
- For these reasons the above recourse is dismissed'*. Theapplicant thenfiledthepresentrecourse,againsttheabove decisionoftheMinister,whichisbasedonthefollowing grounds 30 of law: 35 "
- The act and/or decision of the Respondent was taken under a misconception of fact in that the transportation needs and alltheexistingmeans of transport werenot duly taken into account and/or is not justified by the existing transportation needs.
- Theactand/or decisionof theRespondentwastaken in abuse of power and/or on the basis of a wrong exercise of discretionary power and/or constitutes an abuse of 817 Sanides J. HadjiCieanthous v. Republic
(1983)power in that the facts and circumstances of the case do not justify the lawful granting of the licence.
- The act and/or decision of the Respondent isunjustified and/or is based on a defective and/or misconceived reasoning.
- The administrative procedure as a whole, which resulted in the issue of the sub judice act and/or decision is contrary to the Constitution, the relevant Laws and Regulations and the principles of goods administration and is, therefore, void. 5 10
- The respondent and its subordinate organs in issuing theirsubjudiceactand/ordecision,took intoconsideration, unlawfully and irregularly, material which is irrelevant and groundless and/or which were not lawfully entitled to take intoconsideration for the purpose of issuing the subjudice 15 decision and/or the truth and foundation of which they didnot examineand/orwhichwasnotproperlyand lawfully examined". Counsel for applicant contended that as far as the decision of the Licensing Authority is concerned, which was communi- 20 cated to the applicant on the 8th June, 1978, no reasoning is given and that the Minister when dealing with the hierarchical recourse, instead of allowing the appeal on the ground of lack of reasoning, he confirmed the decision without giving any additional ground for having done so and merely repeating the 25 decision of the Licensing Authority. He further added that in view of the fact that the subjudice decision affects the interestsoftheapplicant it shouldhavebeen speciallyreasoned. He hasalsomadespecialmentionofthefact that thesameLicensing Authority, a few months before the sub judice decision, dis- 30 missed a similar application of the applicant on the ground that theneeds of the route did notjustify the granting of anew licence. Theinterested partyhad appealed tothethen Minister of Communications and Works who had also dismissed his appeal on the same ground, only within a month before the 35 interested party submitted his new application which led to the sub judice decision. In view of that, counsel for applicant submitted, the Licensing Authority and the Minister should have given full and detailed reasons why they changed their previous decisions. 40 818 3 C.L.R. HadjiCleantbous v. Republic SawMes J. Counselfor thereaspondent hasarguedthat it isnot thedecision of the Licensing Authority that is in issue in the present case^ but that of the Minister. He added that in any event, the decision of the Licensing Authority is duly reasoned and 5 that even if itwasnot thedefect hasbeencured bythedecision of the Minister which is the final decision and which is duly reasoned. in the case of Mitidou v. CYTA
(1982),3 C.L.R. 555, I held that the decision of both the First and Second Instance Disci10 plinary Board form one composite administrative act and when it is completed the decision of the First Instance Board merges in the final act. Thus, at page 577, I said:- 15 20 "It iscorrect that inthecaseof a composite administrative act, if the component parts have the characteristics of an executory act, they preserve their executory character and each one of them is capable of being challenged by recourse. But when the composite administrative act is completed, the independent intermediate parts merge into the final act and their executory character is lost by such changes and cannot be challenged individually". And after making reference to certain Greek authorities and previous decisions of this Court, I concluded as follows at pp. 580, 581:- 25 30 35 "Reverting now to the case under consideration I have come to the conclusion that the decision of the First Instance Disciplinary Board has merged in the decision oftheSecond InstanceAppellateBoardandinconsequence it has lost its executory character andcannotbechallenged by the present recourse. The only decision that can be challenged is that of the Second Instance Disciplinary Board. It is,'however, well settled that though the last decision of a composite administrative act is the only one that can be challenged, nevertheless, once the intermediate component parts are a legal prerequisite to the final act, their validity may be examined in deciding the validity of thefinalact, as the invalidity of a part of a composite administrative act renders all acts which follow, including thefinalconcluded act, nullandvoid. (SeeKyriacopoulos 819 Sawides J. HadJiCleaBtbous τ. Republic
(1983)—Greek Administrative Law, Vol. 3 at p. 99, Tsatsos— Recourse for Annulment, 3rd Ed. at p. 152, Conclusions from theJurisprudenceof theGreekCouncilof State
(19291959)at p. 24 and also our own case law. See, inter alia, Orphanides v. TheRepublic
(1968)3 C.L.R. 385, at p. 392, 5 Nemitsas IndustriesLtd. v. The Municipal Corporation of Limassol andAnother
(1967)3 C.L.R. 134, Savvas HjiGeorghiou v. TheRepublic
(1974)3 C.L.R. 436 at p. 445, Ero Angelidou and Others v. TheRepublic
(1975)3 C.L.R. 404, Christodoulou andAnotherv. CYTA
(1978)3 C.L.R. 10 61, Ioannouv. ElectricityAuthority
(1981)3 C.L.R. 280 at p. 299). Therefore, though the decision of the First Instance Board cannot be challenged by the present recourse, the grounds of appeal advanced against the validity of such 15 decisionandargued before theSecondInstance Disciplinary Board and which were rejected by such Board may be grounds of law in considering the validity of the decision of the Second Instance Disciplinary Board. For this reason, I find that grounds 1-15 of this recourse, though 20 directed against the decision of the First Instance Disci plinary Board being grounds of law intended to establish the irregularity or the validity of acts or decisions which preceded the decision of the Second Instance Disciplinary Board, which is the final decision challenged under para- 25 graphΒof theprayer inthisrecoursehave tobeexamined". In the present case although the decision of the Licensing Authority has merged in the decision of the Minister, since the question of reasoning of that decision was one of thepoints raised insupport of thehierarchicalrecourse before theMinister 30 it can be examined in this recourse. Now,examining thedeci sion of the Licensing Authority as it was communicatedto the applicant (blue 44 in exhibit 1) I find that it does notcontain any reasoning at all. It is however, an accepted principle of administrative law that the reasoning may be supplemented 35 from the material in the file. In this respect, reference may be made to the extract from the minutes of the meeting of the Authority dated 16.5.1978, p. 17, which appears in blue 38 in exhibit 1and containsthedecision of the Licensing Author ity. It reads as follows: 40 820 3 CL.R. 5 10 HadjiCIeanthous v. Republic Savrides J. "The Licensing Authority having heard with attention what was said on behalf of those interested and having taken into consideration all the material in thefiles,finds that there exists a transportation problem for the service of the community of Kalavassos and it therefore decides to grant a rural bus licence to the applicant on the route Kalavassos-Limassol for his bus No. CU 983. The bus may also transport workers from Limassol to Vassiliko mine, as before. TheLicensingAuthority alsodecidedtocancelthelicence of vehicle GD 92 to take passengers from Kalavassos, in view of the statement of Mr. Vassiliades". The reasoning of the decision of the Licensing Authority iscontained in the above quoted extract and the applicant was ]5 allalongawareoftheproceedingsand sincehewasalsopresent at the hearing before the Licensing Authority there isno doubt that he had knowledge of all the material and details which led to the decision taken by the Licensing Authority. I, therefore, find no merit in this part of the argument of counsel for 20 the applicant. I come now to consider the reasoning of the decision of the Minister, that isthe subjudice decision, reference to which has already been made earlier in this judgment. From its text, it is clear that the Minister took his decision bearing in mind 25 the result of the inquiry carried out by the Inland Transport Department, the representations of the parties and all other material before him, considerations which he communicated to the applicant by informing him of his decision. Having considered the contents of the decision of the Minister, as 30 communicated to the applicant, I find that it is duly reasoned. It wasthe contention of counsel for applicant that theLicensing Authority took its decision, which was subsequently affirmed by the Minister, only a few months after the previous Minister ofCommunicationsandWorkshaddismissedasimilar 35 apphcation of the interested party. Dueto the short time that elapsed betweenthepreviousdecisiondismissingtheapphcation of the interested party and thenewdecision granting such permit, counsel submitted, special reasons should have been given 821 Sawides J. HadjiCleantboas v. Republic
(1983)for the change of the attitude of the Licensing Authority and the Minister. In the Manual of Administrative Law by Spiliotopoulos in paragraph 456 at pp. 420, 421 it reads: "—„Είδικώτ€ρσν, ή μεταγενέστερα μεταβολή τοϋ περιε- 5 χομένου της εννοίας, της οποία? τόν καθορισμόν 6 εφαρμο στέος κανών δικαίου αναθέτει είς αυτό, δέν συνιστά άνισον άσκηση* της διακριτικής εύχερίας, έκτος έαν τό αΙφνίδιον της τοιαύιης μεταβολή? έδημιούργησεν αδικαιολογήτως εξαιρετικά; δυσχερείας διά τόν διοικούμενου καΐ αντίκειται 10 εϊς τήν αρχήν της επιεικείας". (*' Especially the later change of the contents of meaning,whose definition therule of law applicable entrusts to it, does not constitute unequal exercise of the discretion ary power, unless the sudden change has created unjustifiably special hardships for the subject and is contrary to the rule of leniency"). It appears that the above proposition was based on the de cision of the Greek Council of State in Case S.E. 2387/1966 in which it was held that: 15 20 "Δεδομένου όμως ότι πρό βραχέος χρόνου ή ομοίου περιε χομένου προτασις τοϋ Δήμου είχε κριθή ύπό τοϋ Ιδίου Συμβουλίου απορριπτέα καΐ τελικώς απερρίφθη ύπό του Υπουργού Δημοσίων "Εργων, κρίνοντος, κατά τ* ανωτέρω, τήν προταθεΐσαν τροποποίησιν ώς μή έπιβαλλομένην ύπό 25 κοινής τίνος ανάγκης καΐ πολεοδομικώς άσύμφορον, έπεβάλλετο ήδη είδικώτερα αίτιολόγησις της μεταστροφής τών έπ! τοϋ θέματος απόψεων της Διοικήσεως, διά παραθέσεως τών λόγων, οϊτινες εκρίθησανδικαιολογοΰντεςτήν μεταστροφήν ταυτην.. ". 30 The English translation of which reads as follows: ("Given that a short time earUer the submission of the Municipality of similar context was considered by the same Council as unacceptable and was subsequently dismissed by the Minister of Public Works who, after consideration 35 of the above, decided that the submitted alteration was not deemed as having to be imposed as a result of a public need and was not from the town planning aspect beneficial, it was necessary that a more specific reasoning of the change 822 3 C.L.R. HadjiCIeanthous τ. Republic Sawldes ,f. of theopinionof theAdministrationonthesubject begiven by stating the reasons which were taken intoconsideration for justifying such change"). In thepresent case it is true that thenew decision was taken 5 only a few months after the previous decision dismissing the application of the interested party. The previous decision of the Minister,however, though taken onthe26th January, 1978, was based on the material before him and the circumstances existing in November, 1977, when thedecision of the Licensing 10 Authority was taken. The new Decision of theLicensing Au thoritywhichwas takenon 16.5.1978 was based onnewfactsand in particular on a new inquiry as to the use of the route by the carrying out by the Inland Transport Authority of a check on the road inApril, 1978 which, together with therepresentations 15 of all parties interested for the proper functioning of theroute, created new material and factual situation at the timewhenthe sub judice decision was taken, justifying both the Licensing* Authority and the Minister to exercise their discretion in the way they did. In view of such change of circumstances, there 20 was noneedfor special reasons tobegiven why therespondents departed from the previous decision. Irrespective of that, however, even if special reasons for such departure would be necessary, such reasons may befound inthesubjudice decision oftheMinisterinwhichspecial reference ismadetothecheckon 25 the route which took place in April, 1978, after the previous decision was taken. I, therefore, find that this ground fails. Thenextground1proposetoexamineisthatofmisconception of fact. Counsel for applicant has argued in this respect that the Minister should have ordered a new check on the route 30 before issuinghis decision inviewof thenew academicyearand the fact thatmost of thepassengers using theroutearestudents. He has also argued that a number of the passengers boarding the buses get off at thejunction of Kalavassos road with the Nicosia - Limassol main road which is about two miles away 35 from thevillage,inordertofind othermeansof transportto go to Larnaca, since for administration purposes, the village of Kalavassos belongs to thedistrict of Larnaca. Forthisreason, counsel contended,the check should have been carried out on the Nicosia -Limassol main road and that therefore, the result 4Q of such check was wrong. He also submitted that the check 823 Sawldes J. HadjiCteantboas v. Republic
(1983)was carried inaway prejudicial tohis clientandinsucha way as to lead to wrong inferences. Counsel for the respondents, on the other hand, has argued that the check had been carried out in accordance with the standing practiceof the Licensing Authority and it was reasonably open to therespondents to base their decision on it. That, in any case, the burden of proving misconception lies on the party who allegesit andapplicantdid notdischarge thisburden. 5 Misconception of fact is a ground which has to be proved and there is a presumption against it. In this respect inSpi- 10 liotopoulos Manual on Administrative Law, pp. 416, 417, para graph 453, it is stated that: "Διά ναέπίφέρητήν όχύρωσιντής προσβαλλομένης πράξεως ή πλάνη περί τά πράγματα πρέπει α) νά είναι ουσιώδης (ΣΕ 1664/1962), δηλαδή νά έχη έπίδρασιν έπ! τής κρίσεως 15 τοϋ διοικητικοϋ οργάνου καΐ β) νά αποδεικνύεται έκ τών στοιχ£ίων τοϋ φακέλλου ή δι* επαρκώνστοιχείων υποβαλ λομένων ύπό ιού προβάλλοντος τόν λόγον τοΰτονακυρώ σεως αΐτοϋντος (ΣΕ2809/1969). Δεδομένου δέ ότι ήπλάνη περί τά πράγματα δέν λαμβάνεται αυτεπαγγέλτως ύτΓ 20 όψιν ύπό τοϋ δικαστηρίου, άλλα πρέπει οπωσδήποτε νά προταθή ύπό του αΐτοΰντος, δημιουργείται τεκμήριον κατ*αύτης". The English translation reads as follows: ("In order to cause theannulmentof the subjudice act the 25 misconception of fact must a) be material (CS 1664/1962), in other words to affect thejudgment of the administrative organ and (b) be proved by the material in the file or by sufficient material submitted by the applicant propounding this ground for annulment (CS 2809/1969). Since mis- 30 conception of fact is notexamined by theCourtex proprio motu,buthastobepleadedby theapplicant,apresumption is raised against it.") Ithas, however, been accepted by our Courts that even when a probability of any misconception of fact exists, the decision 35 concerned should be annulled. In this respect, in the case of Nicolaides v. The GreekRegistrar of the Co-operative Societies etc.
(1965)3 C.L.R. 585, Triantafyllides, J. (as he then was) stated at pp. 600 - 601 that:824 3 C.L.R. 5 10 15 20 25. 30 HadjiOeanthbus v. Republic Sawldes J. "The burden of proof regarding the existence of such a misconception lies on ah applicant who alleges it, because there is a presumption against the existence of such misconception. Such burden is discharged if the misconception isproved to exist or ifit isshown that it ismost probable that it exists, (vide Stasinopoulos, Law of Administrative Disputes,
(1964)p. 222and Stasinopoulos, Lawof Administrative Acts
(1951)p. 305)'. Moreover, once the applicant in a case succeeds in showingasprobable the existence ofsuch a misconception, it isopen to an Administrative Court, beingindoubt as to the existence of such a misconception, to annul the sub judice decision - so as to render possible a re-examination by the administration - rather than to call for further evidence before it for the purpose of resolving such doubt (videStasinopoulos
(1951),supra,p. 305,andalsoPhotiades and The Republic, 1964 C.L.R. 102). In the light of the totality of the material before me, I have reached the conclusion that it is most probable, bordering on certainty, that theviewthat Applicant, in the matter of the expenses in question has acted fraudulently, in the manner suggested - on the basis of exhibit 22 - by Mr. Smyrnios in paragraph 2 of exhibit 23, is a misconception. It follows, therefore, that by adopting as he did exhibit 23, Respondent has acted on the strength of amost material misconception in dismissing Applicant from all his offices in the Co-operative movement, as aperson unfit to hold any office therein and as a person who on the strength of the past practice in such matters had to be dismissed. Asa result I am bound to annulthe decision of respondent set out in exhibit 1. 35 40 Even if I were only of the opinion that the existence of the said misconception was not most probable, as I have found ittobe,butonlysosufficiently probableastoraisea doubt in my mind on the point, then on the basis of the aforementioned principles of Administrative Law, I would still have annulled the subjudice decision of Respondent, thus openingthewayfor afresh examination of thematter by Respondent, rather than adopt thealternative courseof 825 Savrides J. HadjiCIeanthous v. Republic
(1983)calling further evidence before me, in an effort to clear up definitely the question of the existence or not of the said misconception. The latter course would have entailed a lengthy and detailed examination into a lot of relevant circumstances and such examination isone that should and 5 could be made more properly in the first instance by Respondent, the officers under him and the Societies concerned." The same principle has been repeated in a number of cases like Mallouros v. E.A.C.
(1974)3 C.L.R. 220, 224; Kontos v. 10 Republic
(1974)3 C.L.R. 112,pp. 127 - 129; HadjiMichael v. Republic
(1972)3 C.L.R. 246, 252; Christodoulou v. CYTA
(1978)3 C.L.R. 61, 69; and the Full Bench case ofThalassinos v. Republic
(1974)3 C.L.R. 290, 294. The applicant in the present case has advanced a number of 15 allegations asto the wrongwaythat the check onthe routewas carried out and as tohowsuchcheck shouldhavebeen effected, on which he invited the Court tofind that there was a misconception of fact. Though the burden of proving misconception lied on theapphcant, hedid not callany evidence in support of 20 any ofhisallegations nor did hesummontheresponsible officer who carried out the check on the route and who mentioned in hisreport which is in thefile before me, that the route wasnot sufficiently served,to submithimtocross-examination toanswer the points raised by counsel for applicant in his address, and if 25 need be, to call evidence to contradict him on any material point. Neither did the apphcant himself give any evidence in support of his allegations "which might have necessitated the calling of evidence by the respondents. I, therefore, find that the applicant failed to discharge his 30 burden of proving any misconception and in the light of the totality of the material before me, I have not been persuaded that theexistenceof theallegedmisconception wasmost probableor "so sufficiently probableastoraiseadoubt inmymind." In the result, this recourse fails and ishereby dismissed. In 35 the circumstances of the case, I make no order for costs. . Recourse dismissedwith noorderasto costs. 826