clr/1984/1984_3_1494.pdf

(1984)1984 November 30 [HADJIANASTASSrOU, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION COSTAS KALISPERAS, Applicant. v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF FINANCE, Respondent. (Case No. 112/72). Administrative Law—Discretionary powers—Judicial control—Principles applicable. Constitutional Law—Discrimination—Burden of proof of, on applicant. Persons who Sustained Losses (Aid Fund) Law 2/68—Regulations made thereunder—Not ultra vires the Law. 5 Law 2/68 provided for various types of relief to persons who have agriculture as their main occupation and their property became inaccessible as a result of the Turkish disturbances in 1963. The respondent turned down applicant's application for relief on the ground that he did not have agriculture as his 10 main occupation; and hence this recourse. Held, after dealing with the meaning of "occupation",

(1)that it is not foi this Court to substitute its discretion to that of the administration and the Court will not interfere with that discretion unlessit iswronginprinciple;that the respondent wasnot wrong in deciding that applicant did not have agriculture as his main occupation and it was reasonably open to him to reach the relevant decision on the basis of the facts which were placed before him. 1494 15 3 C.L.R. Kalisperas v. Republic

(2)That the burden of proof of discrimination was onthe applicant and hehas failed to convince the Court that he was the victim of discrimination. 5

(3)That the regulations, which were made under Law2/68 were not ultra vires thelaw. Application dismissed. Cases referred to: Luckinv. Hamlyn[1869] 21 L.T.

1. 10 Recourse. Recourse against therefusal ofthe respondent to grant applicant relief under regulation 4(b)of theRegulations made under Law No.2/68for damage suffered by him as a result of the Turkish disturbances in
2. /. Mavronicolas, for the applicant. 15 A, Evangelou, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. HADJIANASTASSIOU J. read the following judgment. The matter which arises for consideration in the present case is 20 whether the applicant is entitled to receive relief under reg. 4(b)oftheregulations made under Law2/
3. Thelawprovides for a relief fund to persons who suffered damage as a result of the Turkish disturbances of
4. There is no doubt that Law 2/68 provides for various types 25 ofrelief,onewhich isthat provided in reg.4(b)which provides for assistance to persons who have agriculture as their main occupation and their property became inaccessible as a result of the Turkish disturbances in
5. So, to qualify for assistance, aperson under thelaw,must have agriculture ashismain 30 occupation andhe must have suffered loss and his lands must have remained inaccessible. Indeed, once the relevant law does not interpret the phrase "main occupation" one can turn legitimately to dictionaries. Going through Stroud's Judicial dictionary, 2nd edn. Vol.2, 1495 Hadjianastasslou J. Kalisperas v. Republic

(1984)the word "occupation" means "the trade or calling by which he ordinarily seeks his livelihood". In the case of Luckin v. Hamlyn,[1869]21 L.T. p. 366, "the business in which he is usuallyengagedtotheknowledgeofhisneighbours,(perMartin B.) and in respect of which he contracts debts, (National Mer- 5 chantile Bank Re. Haynes,49 L.J. Bank 62)and the statement of which would be sufficient to identify him to persons who have dealings with him", (per Coleridge Chief Justice in the case of Throsselv. Marsh. The Court hastoconsider whether therespondent committee 10 rightly applied the law in reaching the sub judice decision. Having perused the relevant file and in particular red 20, the respondent committee took into account inter alia how the applicant is known to the society, howhecalls himself socially and in his dealings with other persons. 15 Goingthrough thefileandthe correspondence, the applicant himself does not ever mention farming as his occupation (see reds 37, 41 and 42). Time and again it was stated by this Court that it is not for the Court to substitute its discretion to that of the admi- 20 nistration and the Court will not interfere with that discretion unless it is wrong in principle. Having given my best consideration to this matter, t have reached the conclusion that the committee was not wrong in deciding that applicant did not have farming ashis main occu- 25 pation. Indeed, it was reasonably open to the Committee to reach the relevant decision on the basisof thefacts which were placed before it. Turning now to applicant's contention that he was discriminated against viz.other applicants,there isnoground and 30 indeed no evidence before me justifying this contention. I repeat that the burden of proof was on the applicant and in these circumstances he has failed to convince me that he was the victim of discrimination. Not only the applicant did not adduce any evidence to substantiate his allegations, but the 35 files of the various persons put before me by counsel for the respondent do not show a discrimination. 1496 3 CX.R. Kalisperas v. Republic Hadjianastassiou J. Asto the other contention of the applicant that the committee did not exercise its discretion, but acted on the directions of the Legal Department, I find no merit. From the material before me. it appears that what actually 5 happened isthat the Committee, as it appears,sought the advice of the Attorney-General regarding the criteria to be taken into consideration in arriving at its decision. 10 Furthermore, as regards the allegation that the relevant regulations wereultra viresthe law, Iam of the viewthat the contention of counsel cannot stand. For all the above reasons, the recourse is dismissed. No order as to costs. Recoursedismissed. Noorder as to costs. 1497