(1983)1983 August 26 [LORis, J.] IN THE MATTER OFARTICLE 146OF THE CONSTITUTION BORCHARD LINES LTD., Applicant, v. THE MUNICIPALITY OF LIMASSOL, Respondent. (Case No.48/83). CZECHSLOVAK DANUBE NAVIGATION, Applicant, v, THE MUNICIPALITY OF LIMASSOL, Respondent. {CaseNo.49/83). Statutes—Construction—Departurefrom theordinary literal meaning —When possible—Construction of para, (στ) of Part I of the Tenth Scheduleto the MunicipalCorporations Law, Cap.240 (as enacted by Law 42/82). Professional tax—Imposition unders. 158of the Municipal Corpora tions Law,Cap. 240—Decision of Municipality"final and con clusive"—Cannot be challenged by meansof an "objection"— Decision taken onsuch objection, reducing thetax,taken without competence—Annulled. AdministrativeLaw—Recourseto the organ whichhas taken the relevant decision—Possible if theLawallowssuch a recourse—But not wherethe Lawforbids samebyprovidingthat thedecision will be "final and conclusive"—Any decisiontaken upon such 904 3 C.L.R. Borchard Lines v. M/tyL/ssol αrecourse isinvalidastakenby anorgan which hasno competence —"Χαριστική Προσφυγή"—"Αϊτησι*θεραττείαξ". Words and Phrases—"Χαριστική Προσφυγή"·—"Αΐτησι$ βεραTreias". 5 Municipal Corporations Law,Cap.240—Construction of "registered in Cyprus" in para, (στ) of Part I of the Tenth Scheduleto the Law. Practice—Recourse for annulment—Amendment of the prayer in the recourse at stageof delivery ofjudgment. 10 15 20 25 30 The applicants were two different oversea companies which although not registered in Cyprus were carrying on shipping business in Limassol. Both of them did notapply to theMuni cipality of Limassol for a professional licence as envisaged by section 157
(1)of the Municipal Corporations Law, Cap.
- Therespondent Municipality having imposed professional tax of £200.- to each one of the applicants informed them of such imposition by letter dated 20.7.
- Applicants did not challenge this decision by means of a recourse under Article 146.1 of the Constitution but they wrote totherespondentMunicipality objecting totheabove imposition of professional tax. The respondent by letter dated 25.11.1982 informed the applicants that the professional tax was reduced from £200.-to£175.-. Hencethese recourses for a"declaration to the effect that the decision of the respondent to impose on the applicant professional tax amounting to £175- for the year 1982, is void and devoid of any effect". Counsel for the applicants mainly contended that both the applicantsbeing oversea companiescarrying onshipping business in Limassol but not registered in Cyprus, should not have been taxed under para,(στ) of the Tenth Schedule* Part I of Law 42/82, but instead should be taxed under para, (n)of the same Schedule of the Law, whereby the professional tax envisaged does not exceed £100.-. The Companies Law, Cap. 113 provides, inter aha, that all Para,(στ) of the schedule provides that oversea companies registered in Cyprus shall pay an annual fee not exceeding£500;and para. (n) provides that other persons or corporate bodies not falling intoany one of the above categories shall pay an annual fee not exceeding £
- 905 Borchard Unes τ. M/ty L'/ssol
(1983)oversea Companies which establish a place of business within the Republic are required todeliver tothe registrar of Compa nies certaindocumentsfor registration(vide s.347(l)); failure to comply entails a penalty (vide s.353); and the obligation of the oversea company concerned does not cease unless and until the respective company ceases to have a place of business in , Cyprus (vide s.347
(4)). 5 Under section .157* of Cap. 240 the Municipal Committee shall determine the fee payable in the case of persons applying for alicencetocarry anytradeorprofession withinthemunicipal 10 limits but the person aggrieved may appeal to the District Officer whose decision shall be final and conclusive; and, under section 158**,in thecase of thosewho fail to apply for alicence the Municipal Committee may determine the fee payable and ^ its decision shall be final and conclusive. 15 Held, after directingamendmentof the prayer for relief so as to insert the date of the subjudice decision:
(1)That if the words "registered in Cyprus" in para,(στ) to the Schedule of the Law are taken in their ordinary literal meaning are apt to lead to anomalous results because oversea 20 companies carrying on shipping business in Cyprus, which failed to register in Cyprus in direct violation of the Law will find themselves in a better position than those law-abiding oversea companies which fulfilled this legal obligation for registration, as the former will not be liable to professional 25 tax whilst the latter may be held liable to pay up to £500professional tax; that such a construction would not only be contrary totheintention oftheLegislature,whichcouldnothave envisaged such anomaly, but would even destroy what the Le gislature intended to establish; that this is the case where this 30 Courtisjustified indepartingfrom theplainwords of thestatute as it is satisfied that all theelementsjustifying such a departure exist (see Stock v. Frank Jones(Tipton) Ltd. [1978] 1All E.R. at p. 954 (H.L.)); and that, therefore, the crucial words "re gistered in Cyprus" shall be construed to mean "under an 35 obligation to be registered in Cyprus" thus obviating the anomaly without detriment to the legislative objective, and * Section 157.is quoted at. p. 913 post. ·* Section 158 is quoted at p. 913 post. i, 906 3 C.L.R. 5 10 15 20 25 30 Borchard Lines v. M/ty L/ssol without substantially altering the language of the statute which is susceptible to this minor modification required to obviate the anomaly. Accordingly itwas opentotherespondent toimpose, as hedid,in thecase of applicantsin bothrecourses, professional tax pursuant to the provisions of para, (στ) of the TenthSche dule Part 1 of Law 42/82.
(2)That since the professional tax in these recourses was imposed under s.158 of Cap.240 the decision of the Munici pality is "final and conclusive" and (a) it cannot be impugned by means of a hierarchical recourse (as in thecase of s.157)and (b)at thesame timeitcannotbechallenged by what is described in the present recourses as "objection" to the Municipality for the taxation imposed, which is in effect what is termed as "χαριστική προσφυγή or αΐτηοι* θεραπείας" in Greek Administrative Law; that such an application-recourse can be submitted to the same Administrative Organ, which has already given its decision on the matter, when the relevant Law allows such an application-recourse or where the Law is silent, but not where theLaw forbids sameby providing thatthedecision of the Municipality will be "final and conclusive"; that, therefore, therespondenthadnocompetenceunders.158tore-examinethe cases and take a new decision thereby reducing the professional tax originally imposed to £175; accordingly the sub judice decisions were taken in direct conflict of the relevant Law by an organ who had, thus, no competence. Therefore, they will be annulled on this ground, not for the reasons relied upon by the applicants.
(3)That despite the annulment of the sub judice decisions, the original decisions of the respondent Municipality communicated to the applicants on 20.7.82 stand; they were lawfully taken as above stated, and they were never challenged by a re course under Article 146 of the Constitution; they are,there fore, valid and binding upon the applicants. Subjudice decisions annulled. 35 Cases referred to: Dafnides v. Republic, 1964 C.L.R. 180; Holy See of Kitiumv. Municipal Council of Limassol, 1 R.S.C.C 15; Megalemou v. Republic
(1968)3 C.L.R. 581; 907 Borchard lines τ. M/ty L/ssol
(1983)Christodoulou v. Republic, 1 R.S.C.C. I; Sotiropoulou v. Republic
(1968)3 C.L.R. 596; S/«>cA: v. Frank Jones (Tipton) Ltd. [1978] 1All E.R. 948 at p.
- Recourses. 5 Recourses against the decision of the respondent to tax applicants under para, (στ) of the 10th Schedule Part I of Law 42/82 instead of para (n) of the above law. G. Michaelides, for applicants. J. Potamitis, for respondents. 10 Cur. adv. vult. LORIS J. read the following judgment. These two recourses, which present common factual and legal issues, were on the application of all concerned heard together. Applicants in the above mentioned recourses, are two diffe- 15 rent oversea companies which were carrying on shipping busi ness at the material time in Limassol, Cyprus; by virtue of the present recourses they impugn the relevant decisions of the Municipality of Limassol whereby professional tax amounting to £175.-was imposed on each oneof the applicant companies 20 separately for the year
- The complaint of applicants in both cases is the same: They were taxed under para, (στ) of the 10th Schedule Part1 of Law 42/82, both being oversea but unregistered companies, whilst they should be taxed under para (η) of the same Law 25 whereby the professional tax could not exceed £100.-. Pursuant to directions of this Court written addresses were filed by both sides in both recourses; after the filing of their reply by applicants in both cases, counsel on both sides stated that they were adducing no evidence and that they did not 30 wish to add anything further, so judgment was reserved. On examination of both cases it was revealed that certain facts, which were touching thefundamental issueof timewithin which the relevant recourse ought to have beenfiled,were not stated clearly and unequivocally; I have directed the re-opening of 35 both cases under rules 19 and 12 of the SupremeConstitutional Court Rules (vide Dafnides v. The Republic, 1964 C.L.R. 180) 908 3 C.L.R. Borchard Lines v. M/ty L/ssol Loris J with a view to ascertaining facts connected with the crucial issue of time the strict observance of which renders a recourse justiciable (The Holy See of Kitium^v. The Municipal Council of Limassol,1 R.S.C.C. 15) and has to be elucidated even by 5 the Court acting ex proprio motu (Megalemou v. The Republic
(1968)3 C.L.R. 581). At the re-opening of both cases on 26.7.1983 counsel for both applicants produced—counsel for the respondent Municipality consenting—«x. 1, 2 & 3 (Case No. 48/83) and ex. 1A, 10 2A, & 3A (Case No. 49/83) counsel for applicants made also certain statements which appear on record, on two of which emphasis has to be layed at this stage, being of utmost importancefor theconsideration bythisCourt of thenatureand effect of the decision of the respondent, communicated to each one 15 of the applicants separately by identical lettersdated 25.11.1982 (ex. 3 and 3A respectively). The two statements made by counsel for applicants on which I lay stress are the following: 20 (
- i)Neither oftheapplicantsever applied to the Municipal Committee of Limassol for a licence with a view to carrying their shipping business in Limassol. (
- ii)Noneoftheapplicants impugned bymeansof recourse underArticle 146theoriginaldecisions of the respondent dated 20.7.1982 (exhibits 1and 1A respectively). Counsel for respondent on 26.7.1983 confirmed the facts 25 stated by counsel for both applicants and made several statements himself, which appear on record, the most significant beiDghis statement to theeffect that the second decision of the Municipality communicated to each one of the applicants on 25.11.1982 (exhibits 3 and 3A respectively) was ultra vires 30 taken in direct conflict with' the Municipality Laws. The uncontested facts of both cases as now supplemented at the re-opening of these cases on 26.7.1983 are briefly as follows: 35 1. Applicants in both recourses were at the material time oversea companies which although not registered in Cyprus were carrying on shipping business in Limassol, Cyprus, through their agents "The Cyprus Shipping 909 Loris J. Borchard Lines v. M/ty L/ssol
(1983)Co.", formerly of Famagusta and now (as well as at all material times) of Limassol. 2. Both applicants did not apply to the Municipality of Limassol for a professional licence as envisaged by s. 157
(1)of the Municipal Corporations Law, Cap.240 (as incorporated by reference into the provisions of Law 64/64). 5
- The respondent Municipality imposed professional tax of £200.- to each one of the applicants separately and informed each one by letter dated 20.7.82,accordingly 10 (exh. 1in case No.48/83-Exh. 1A in caseNo.49/83).
- The agents of Applicants in Cyprus, in case No. 48/83 addressed to the respondent Municipality a letter dated 3.8.82 (exh. 2) and in respect of applicants in case No. 49/83 a letter dated 28.7.82 (exh. 2A) objecting to the 15 aforesaid imposition of professional tax on 20.7.
- It is significant to note that both applicants in their aforesaid objections (ex. 2 & ex. 2A), which are identical, they are simply complaining against the amount of taxation maintaining that they should be taxed "accord- 20 ing to Law" with the amount of £100.- only.
- By identical letters dated 25.11.82 the respondent informed each applicant separately (exh. 3 in case No. 48/83, exh. 3A in caseNo.49/83)that "according to the decision of the Municipal Committee of Limassol taken 25 on its last meeting, the professional tax, which was imposed on you in respect of the year 1982 is reduced from £200.- to £175.- _.._ __" Both applicants obviously dissatisfied from the contents of exhibits 3 and 3A respectively, filed the present recourses 30 praying for: "Declaration to the effect that the decision of the respondent toimposeontheapplicant professional taxamounting to £175.- for the year 1982, is void and devoid of any effect". The prayer in both recourses is identical; and at the same timesomewhatvague; itdoesnot saywhen thedecisionofthe 910 35 3 CX.R. Borchard Lines v. M/Iy L/ssol Loris J. respondent wastaken or at least when samewascommunicated to the applicants. This was one of the reasons I have decided the re-opening of the cases as aforesaid; and the material facts relied upon by the applicants werenot clear and unequi5 vocal thus blurring the issue of time; furthermore, copies of all documents in thepossession of the applicants referred to in therecourseswerenot originally accompanying the applications as envisaged by rule 4
(2)(c) of the Supreme Constitutional Court Rules: such documents were only produced at the 10 re-opening of these cases (they are now exhibits 1, 2, 3 in recourse 48/83 and exhs. 1A, 2A, 3A in recourse 49/83). Even now after the filing of the documents in question and the recording of statements made by counsel, 1 feel that both prayers should be amended in order to contain the date at 15 least of the communication of the aforesaid decisions of the respondent to the applicants in viewof the fact that the professional tax in 1982was imposed on 2occasions; now that it is clear that the decision of the respondent dated 20.7.82 was not impugned by a recourse under Article 146of the Constitution, 20 now that we know that both applicants did not applyto the municipal committee of Limassol for a licence, and therefore they could not and in fact they were not taxed originally pursuant to the provisions of s. 157
(1), but according to theprovisions of s. 158,- with all the consequences that follow when 25 one submits an objection to taxation imposed under s. 158and we shall have the opportunity of examining at length the said consequences at a later stage of this judgment, I feel that both prayers should be amended so that they will succinctly indicatethedate onwhichtheseconddecisionoftherespondent 30 (which is, in substance and in fact, being impugned by means of the present recourse) was communicated to the applicants; thisdate appears in exhibits 3and 3Arespectively and on both occasions is the same; it is the 25.11.82. It istherefore hereby directed that prayers in both recourses 35 as above, be amended by the insertion therein immediately after thewords"thedecisionoftherespondent"ofthe following words"communicated totheapplicantbyletterdated25.11.82". There is authority for such an amendment (Christodoulou v. The Republic, 1R.S.C.C. 1,Sotiropoulou v. The Republic
(1968)911 Loris J. Borchard Lines τ. M/ty L/ssol
(1983)3 C.L.R. 596) at this late stage, which cannotanyway prejudice any party or the interests of justice. Such amended prayers need not be served on therespondent and any other formalities that might have been required under ordinary circumstances are hereby dispensed with. 5 The grounds of Law on which both applicants rely are iden tical in both recourses; they read as follows: "
- The taxation imposed contravenes the Municipality Laws 1964 to 1982 and in particular Law No. 42 of 1982 section 3, Tenth Schedule, Part I. io
- The taxation imposed is arbitrary, not based on the provisions of the Law and therefore void having been made in excess and/or abuse of power". The respondent Municipality in its opposition filed in both recourses maintainsthatthesaid taxationwas onbothoccasions lawfully imposed as both companies, being oversea companies carrying on shipping business at the material time in Limassol, were liable to professional tax, for the year 1982, on the scale envisaged by the provisions of para, (στ) of the 10th Schedule, Part I, of Law 42/
- 15 20 Before examining the substance of both recourses, I feel that I should refer briefly to theposition in respect of theMunici pality Laws and set outthespecific sectionsrelevant tothecases under consideration. Most of the provisions of the Municipal CorporationsLaw, Cap. 240 (the force of which came to an end by expiration on 31.12.62) and in particular sections 136 to 181, both inclusive, together with the Schedules referred to therein, were incorpo rated by reference into the provisions of Law 64/64 (vide s. 8
(2)of the Law). Law 64/64 which was repeatedly amended (by Laws: 15/66, 9/70, 47/70, 89/70, 87/72, 73/79, 26/81 and 42/82) is now the basic Law regulating mattersin connectionwith Municipalities; I shall be referring in the present judgment to the aforesaid Laws as theMunicipalitiesLaws 1964to 1982notingatthesame 35 time that the 1983 amendment(Law No.22/83) is inapplicable to the present recourses. 912 25 30 3 CUR. Borchard lines τ. M/ty L/ssol Lorb J. Section 156 of Cap. 240 reads as follows: "156. 5 No person shall, within any municipal limits, carry on, exercise or practice any business, trade, calling or profession for profit unless he has obtained a licence so to do in accordance with the provisions of this Law; Provided that " Section 157
(1)of Cap. 240 reads as follows: "157
(1))o 15 Any person desiring to carry on, exerciseor practice, for profit, any business, trade, calling or pro fession within any municipal limits shall apply to the (municipal committee) for a licence and the (committee) shall determine the fee payable there for, not exceeding the appropriate fee set out in Part I of the Tenth Schedule of this Law: Provided that(a) any person aggrieved may, within 20 days (vide s. 2 of Law 42/82) from theday of the notifi cation to him of such determination, appeal to the District Officer of the district whose decision shall be final and conclusive; 20 Section 158 of Cap. 240 reads: "158. 25 30 If any person fails to apply to the (municipal com mittee) for a licence, as in section 157 of this Law provided, within one month of his having commen ced or recommenced to carry on, exerciseor practice any business, trade, calling or profession, the (Com mittee) may determine the fee payable by such per son, not exceeding the appropriate fee set out.in Part 1of the Tenth Schedule to this Law, and enter his name in the register of trade licences and the decision of the (committee) shall be final and con clusive". 1 Part I of the Tenth Schedule to the Law which provides for 35 the appropriate fees payable for the year 1982 is setout in s.3 of Law 42/82; paragraphs (στ) and (η)thereof - the relevant 913 Loris J. Borchard Lines v. M/ty L/ssol
(1983)paragraphs in connection with the cases under consideration read as follows: (The translation in English is mine) TENTH SCHEDULE PART 1 5 (Sections 157and 158) " I . Annual Licences: * (a) Annual fee not exceeding £ — Φ) „ (y) _
(6)(ε) . _ _ (στ) Oversea companies registered in Cyprus and 10 carrying on insurance, shipping, air-carriage, banking and other commercial business £500.(ζ) _ „ „ . _ _ _ — „ _ _ _ ; (η) Other persons or corporate bodies not falling into anyone of the above categories £100.-" Having dealt with the basic Law regulating matters in ^$ connection with Municipalities with special reference to sections providing for the imposition of professional tax, I consider it convenient, at this stage, to deal as well with the relevant provisions of our Companies Law, Cap. 113, which regulate the position of companies incorporated outside the Republic which have established a place of 20 business within the. Republic. Section 346" of-Cap· Ί13 reads as follows: "346. Sections 34^7 >o 353,both inclusive, shall apply to all oversea Companies, that is to say, companies in corporated outside the (Republic) which, after the 25 commencement of this Law, establish a place of business within the (Republic), and companies in corporated outsidethe (Republic) whichhave, before 914 3 C.L.R. Borchard Lines v. M/ty L/ssol Lorls J. the commencement of this Law, established a place of business within the (Republic) and continue to have an established place of business within the (Republic) at the commencement of this, Law." 5 10 15 20 Section 347 of Cap. 113 reads: "347
(1)Oversea companieswhich,after the commencement of this Law, establish a place of business within the(Re public) shall, within one monthof the establishment of the place of business, deliver to the registrar of companies for registration (a)l :-.^(b) : (c) "
(2). .
(3)Oversea companies, other than those mentioned in sub-section
(1),shall, if at thecommencementof this Law they have not delivered to theregistrar in the case of a company mentionedin sub-section
(1)of section 146 of the Companies (Limited Liability) Law, the documents and particulars specified in sub-section
(1)of that section continue subject to the obligation to deliver those docu ments and particulars in accordance with the said Laws.
(4)If any oversea company ceases to have a place of business in the (Republic), it shall, forthwith, give notice. of the fact to the registrar of companies and, as from the date from which noticeis given,theobligation of thecom pany todeliver any documenttotheregistrar shall cease." Reverting now to the facts of both cases: As stated earlier 25 on in the presentjudgment the complaint of theapplicants in bothcases isthattheybothbeingoversea companiescarryingon shipping business in Limassol at the material time, but not registered in Cyprus, should not have been taxed under para. (στ) of the Tenth Schedule Part I of Law 42/82, but instead 30 should be taxed under para (η) of the same Schedule of the Law, whereby the professional tax envisaged does not exceed £100.-. This is themainissue, thesubstance inboth recourses; but at the re-opened hearing of both cases another issue arose 35 posing a crucial question indeed: Could the respondent exa mine the objections of both applicants and take a secondde915 Lorts J. Borchard Lisa τ. M/ty L/ssol
(1933)cision on the matter in view of the clear and unambiguous provisions of s.158 of Cap. 240 to the contrary? My primary task indeciding themain issueis toexaminethe relevant legislation and pronounceinthefirst placewhetherthe crucial words "registered inCyprus" will be taken to bear only 5 their ordinary literal meaning or whether they are susceptible to any other construction. It must be borne in mind always that our Companies Law, Cap. 113 provides inter alia that all oversea Companies which establish a place of business within the Republic are required 10 to deliver to the registrar of Companies certain documents for registration(vide s. 347
(1)); failure to comply entails a penalty (vide s. 353); and the obligation of the oversea companycon cerned does not cease unless and until the respective company ceases to have a place of business in Cyprus(vide s. 347
(4)). 15 Section 3 of Law 42/82 which has repealed and replaced the oldTenthSchedulePartI,was obviously enacted with aviewto regulating professional tax to be collected from private in dividuals and corporate bodies by adjusting the scales of the tax payable to present financial realities in the Republic; 20 paragraph (στ) thereof provides that companies incorporated outside the Republic and carrying on business within the Republic,are liable to pay up to £500.-professional tax. It is unfortunate that the Legislature inserted in the provisions of para, (στ)thewords "registered in Cyprus" thereby treating the 25 obligation for registration envisaged by Cap. 113 as already executed; but what happensif theoversea companyconcerned fails to register? I presume that such a registration cannotbe specifically enforced although it is clear that the oversea com pany in default will suffer a penalty (envisaged by s. 353 of 30 Cap. 113); nonetheless thepenalty will notsolve the problem of the Municipality if the words "registered in Cyprus" in para, (στ) of the Schedule to the Law are given their ordinary literal meaning. These oversea companies having an establi shed place of business and carrying on business within the 35 Republic,which failed to register in Cyprus in direct violation of the Law, willfind themselves in a better position than those law-abiding oversea companies which fulfilled this legal obli gationfor registration, as theformer will notbe liable to pro916 3 CL.R. Borchard Lines v. M/ly L/ssol Loris J. fessional tax whilst the latter may be held liable to pay up to £500.- professional tax. It is therefore clear that the words "registered in Cyprus" (inpara,(στ)totheScheduleof the Law) takenintheir ordinary 5 literal meaning are apt to lead to anomalous results; thus two oversea companies carrying on shipping business in Cyprus, liable in all other respects to professional tax, cannot be so taxed if the words "registered in Cyprus" are given their ordi nary literal meaning. Such a construction would not only be 10 contrary to the intention of the Legislature, which could not have envisaged such anomaly, but would even destroy what the Legislature intended to establish. Having given the matter anxious consideration I hold the view that this is a case where I amjustified in departing from 15 the plain words of the statute, as I am satisfied that all the elements stated by Lord Simon of Glaisdale in Stock v. Frank Jones(Tipton)Ltd [1978J 1 All E.R. 948 (H.L.) at p. 954 are present in this case: 20 " A Court would only be justified in departing from the plain words of the Statute were it satisfied that
(1)there is clear and gross balance of anomaly; 25
(2)parliament, the legislative promoters and the drafts man, could not have envisaged such anomaly and could not have been prepared to accept it in the interest of a supervening legislative objective;
(3)the anomaly can be obviated without detriment to such legislative, objective;
(4)the language of the statute is susceptible of the modi fication required to obviate the anomaly." 30 1 have decided, therefore, to construe the crucial words "registered in Cyprus" to mean "under an obligation to be registered tn Cyprus" thus obviating the anomaly without detriment to the legislative objective and without substantially altering the language of the statute which is susceptible to this 35 minor modification required to obviate the anomaly. Inthecircumstancesit was opentotherespondenttoimpose, 917 Loris J. Borchard Lines v. M/ty L/ssol <1983> as he did, in thecase of applicants in both recourses, professio nal tax pursuant to the provisions of para, (στ) of theTenth Schedule Part I of Law 42/82. As already stated the respondent communicated its decision to each one of the applicants on 20.7.82. This is the original 5 decision of therespondentwhich was never impugned by either applicant by means of a recourse under Article 146 of the Constitution. I shall now proceed to examine the nature and effect of the second decision of the respondent on the same subject-matter 10 communicated to the applicants on 25.11.82 (the sub judice decision) given in reply to the "objection" of the applicants on the original decision. As stated earlier on in the present judgment neither of the applicants in the present cases applied to the Municipality of 15 Limassol for a professional licence envisaged by s.l57(
- l)of Cap. 240, although they were both carrying on shipping busi ness in Limassol; so the respondent Municipality imposed on each one of the applicants separately professional tax amounting to £200.-and informed by noticedated 20.7.82each 20 applicant accordingly (vide ex. 1 and ex. 1A respectively). It was established positively before me and I am satisfied beyond any doubt that the said professional tax was imposed by the respondent pursuant to the provisions of sections 158 of Cap. 240. It is abuntantly clear from the provisions of the aforesaid two sections, set out verbatim earlier on in the present judg ment,thatadecision of theMunicipality imposing professional tax under s.l57(
- l)of the Law can be impugned by means of "appeal" to the District Officer as envisaged by s. 157(l)(a), 30 whilst a decision under s.158 "shall be final and conclusive." In other words a taxation under s.157 can be impugned by a hierarchical recourse to the District Officer, a hierarchically superior organ, within 20.days from theday of thenotification of the decision of the Municipality to the tax payer (such 35 hierarchical recourse in the Greek Administrative Law is termed ένδικοφανήξ ιεραρχική προσφυγή) whilst in the case of taxation under s.158 the decision of the Municipa lity is "final and conclusive" i.e. (
- a)it cannot be impugned by 918 25 3 C.L.R. Borchard Lines \. M/ty L/ssol Loris J . means of a hierarchical recourse (as in the case of s. 157) and (b)at the same time it cannotbe challenged by what is described in the present recourses as "objection" to the Municipality for the taxation imposed, which is in effect what is termed 5 as "χαριστική προσφυγή or αίτησις θεραπείας" in Greek Administrative Law. Such an application-recourse can be submitted to the same Administrative, Organ, which has already given its decision on the matter, when the relevant Law allows such an application-recourse or where the Law is silent, 10 but not where the Law forbits same by providing that the de cision of the Municipality will be "final and conclusive". Professor Tsatsos in his work on "Application for Redress as Administrative Recourse" 2nd edition at p. 38 states the following: 15 " 'Οπωσδήποτε απαράδεκτος είναι ή χαριστικήπροσφυγή τόιε μόνου όταν υποβάλλεται uvtKa πράξεως οριστικής και άνεκλήτου κατά νόμου". ___ 20 ("However the application-recourse is unacceptable only when it is submitted in respect of a definite and irrevocable act under the law"). Relevant in this respect is also the decision 537/37 of the Greek Council of State which states inter alia the following: 25 30 35 " -ή ήδη προσβαλλομένηάπόφασις της Επιτροπής (Απαλ λοτριώσεων) ταύτης είναι κσπά τό άρθρον 67 παρ. 4 τού 'Αγροτικού Νόμουοριστική καΐ αμετάκλητος,μήυποκείμενη ούδ' εις άκύρωσιυΟπό Ιεραρχικώς προϊσταμένου διοικητικού οργάνου, ούδ' είς άνάκλησιυύπό της έκδούσης ταυτην 'Επι τροπής, συυεπώςή υποβολήτης ένλόγφ αίτήσεως θεραπείας ήυ ματαία". ("— the already attacked decision of this Committee (Aquisitions) is by virtue of section 67 para. 4 of the Rural Law definite and irrevocable, not being subject either to annulment by the hierarchically superior administrative organ or to revocation by the issuing Committee,therefore the submission of the said application for redress is in vain"). Needless to add that the original administrative decision which is final and conclusive by therelevant Law, in the present 919 Loris J. Borchard Lines τ. M/ly L/ssol
(1983)case the decision of the Municipality, although it cannot be challenged by means of an administrative application-recourse it can always be impugned before an administrative Court. Thus the original decision (dated 20.7.82) of the respondent inbothrecourses inhand,couldbeimpugned only by arecourse 5 under Article 146 of the Constitution; both applicants re frained from taking such a course. Instead they submitted "objections*' to the same Administrative Organ (which had given its original executory and valid decision) contrary to the provisions of s. 158 of Cap. 240: inspite of the fact that the 10 respondent had no competencewhatever anymore,it proceeded in re-examining both cases (after a new enquiry or without a new enquiry it is immaterial) and took a new decision thereby reducing the professional tax originally imposed to £175.·, communicating its said second decision to each one of the 15 applicants on 25.11.82. This seconddecision of therespondentisnowbeingimpugned by each one of theapplicants separately; but these secondde cisions are void ab initio; they were taken in direct conflict of therelevant Law by anorgan who had,thus,nocompetence. 20 Therefore, both these decisions have to be annulled on this ground, not for the reasons relied upon by the applicants. In theresult both subjudice decisions communicatedtoeach one of the applicants on 25.11.82 age hereby annulled for the reasons stated above. 25 I feel it my duty to pointbut though,that,despite the annul ment of the sub judice decisions, the original decisions of the respondent Municipality communicated to the applicants on 20.7.82 stand; they were lawfully taken as above stated, and they were never challenged by a recourse under Article 146 of 30 the Constitution; they are therefore valid and binding upon the applicants. Inviewof thepeculiar facts pertainingtoboththeserecourses Ishallrefrain from makinganyorderastocosts thereof. Subjudicedecisions annulled. Noorderas to costs. 35 920