<1984)> 1984 January 14 [PIKIS. J ] N . T H E M A T T E R O F A R T i C L E !46 O F T H E C O N S T I T U T I O N P A N A Y I O T A PARASKEVA A N D A N O T H E R . Appl uants, T H E M U N I C I P A L C O M M I T T E E O F LIMASSOL, Respondents {Case No. 166/83) \dmtnistiati\e Law—Retowu fm innulment—Decision emanating, in the face of it, ft om an oi^un ivmpetent wider the law to decide a mattei, is Ittigable b\ wa\ ,/( iccourse and may be set aside notwithstanding defects in its n'l.r including the absence of a formal decision idmimstiatne Law—Competent ι - , palliation for building permit —Decided by Municipal Engttua ιhough it is within competence of Municipal Committee—Annulled nn ground of lack of compet ence on the pait oj the Municipal engineer to decide the matter, and usuipation of authouty on hi· pent 5 10 Practice—Recoiuse joi annulment—Competence of the oigan that issued sub jitdice decision—Maybe lit eded by the Court ex pioprio mottt The applicants in tins.recoursechallenged the.decision-of the respondents, which was communicated to them by the Municipal 15 Engineer, refusing their application lor a building permit for the development of their propeity at Limassol Before the hearing of the recourse applicant 0 sought paiticuldrs of the decision whereupon it transpired that the respondents never took the decision outlined in the letier of the Municipal Engineer 20 On the question whethei the ahwmi of any decision from the Municipal Committee denuded tin mottrse oj. Ittigable issues and on the merits oj the mom si 54 3 C.1..R. 5 10 Paraskeva and Another v. Municipal Committee L'ssol Held,
(1)that a decision emanating, on the face of it, from an organ competent under the law to decide a matter, is Htigable by way of recourse and may be set aside notwithstanding defects in its issue, including the absence of a forma! decision, but always subject to the decision outwardly appearing to have emanated from a body having authority in law to deal with the matter; that the contention that discovery of the true facts of the case has sapped the recourse of substance, is untenable because of the status of a municipal engineer in the organisation of the respondents and the power vested in the corporation to delegate its functions to nominated persons (see, inter alia, s. 3
(4)(a) of Cap. 96). 15
(2)That oncejurisdiction vests in the Court to take cognizance of the decision, the decision must necessarily be annulled on grounds of lack of competence on the part of the municipal engineer to decide the matter and, usurpation of authority on his part as well. 20 Held, further, that questions affecting the competence of the organ who issued the decision, are of capital importance in revisional proceedings, and may even be heeded by the Court ex proprio motu in the absence of a submission to that end (see, inter alia. Decision of the Greek Council of State in 643/68). Sub judice decisionariimlled. Cases referred to: 25 Antoniadcs and Others v. Municipality oj Paphos
(1982)3 C.L.R. 848; Decisionsof the Greek Council of State in Cases Nos.: 252/63, 2223/
- 1497/70 and 643/
- 30 Recourse. Recourse against the refusal of the respondents to grant applicants a building permit for the development of their property at Ayios Georghios Quarter, Limassol. E. Lemonaris, for the applicants. Y. Potamitis, for the respondents. 35 Cur. adv. vult. 55 Paraskeva and Another v. Municipal Committee L'ssol
(1984)PIKIS J. read the following judgment. The applicants challenge a decision of the respondents, the Municipal Committee of Limassol, communicated to them by the engineer of the Municipality on their behalf on 3.2.83, refusing their application for a building permit for the development of their property at 5 Ay. Georghios Quarter, Limassol. According to the terms of ihe letter, permission was refused in order to facilitate the implementation of a contemplated road construction scheme affecting Syggrou Avenue at Limassol. In the reasons elicited in support of the application, it was 10 contended the decision of the respondents was bad and ought to be set aside because it contravened their rights under Article 23 of the Constitution, it was taken in excess of the powers vested in them by law and, lastly, it violated the provisions of sections 3 and 9 of the Streets and Buildings Law, Cap. 96. 15 In their opposition the respondents vouched for the validity of the decision justified bythe planned road works in connection with the aforementioned avenue. Before the hearing of the recourse applicants sought particulars of the decision and an opportunity to inspect it. Whereupon it transpired, as counsel 20 for the respondents ackonwledged in a letter addressed to the advocate of applicants on 28.11.83, that the respondents never took the decision outlined in the letter of their engineer. Hence the case took a different complexion from the one adumbrated in the pleadings of the parties. 25 Faced with the true circumstances of the case, counsel for the applicants submitted the decision must be annulled on grounds of lack of competence. In support, he cited the decision of Demetriades, J., in Antoniades And Others v. M'ty of Paphos
(1982)3 C.L.R.
- For the respondents it was submitted 30 that the recourse must be dismissed, albeit with costs in favour of applicants, in the absence of any decision issuing from the Municipality, affecting the application for a building permit, an absence that denuded the recourse of litigable issues. On a review of the pertinent principles of administrative law, 35 it appears that a decision emanating, on the face of it, from an organ competent under the law to decide a matter, is litigable by way of recourse and may be set aside notwithstanding defects in its issue, including the absence of a formal decision; but 56 3 C.L.R. Parasketa and Another \. Municipal Committee L'ssol Pikis .
- always subject to the decision outwardly appearing to have emanated from a body having authority in law to deal with the matter. A series of decisions of the Greek Council of State, affirm the soundness of the above propositions in law (see, inter 5 alia, Decisions in 252/63, 2223/63 and 1497/70). Only where lack of competence is markedly prominent, manifest one might say, should the Court conclude that no cognizable decision has come into being - Conclusionsfrom the Greek Counciloj' State 1929-59, p.
- 10 On consideration of the facts of the case, the contention that discovery of the true facts of the case has sapped the recourse of substance, is untenable because of the status of a municipal engineer in the organisation of the respondents and the power vested in the corporation to delegate its functions to nominated 15 persons (see, inter alia, s.3
(4)(a) - Cap.%). The absence of any reply, whatever, to the application for a permit, subsequent to the letter of the municipal engineer, makes it all the more imperative to review a decision purporting to emanate from the Municipality of Limassol and communicated by an official to 20 whom the respondents could, in the ordinary course of events. entrust authority to communicate their decision. Oncejurisdiction vests in the Court to take cognizance of the decision, the decision must necessarily be annulled on grounds of lack of competence on the part of the municipal engineer to 25 decide the matter and, usurpation of authority on his part as well. Questions affecting the competence of the organ who issued the decision, are of capital importance in revisional proceedings, and may even be heeded bythe Court ex proprio motu in the absence of a submission to that end (see, inter alia. Deci30 sion of the Greek Council of State in 643/68). In the result the recourse succeeds. The decision is set aside. The respondents are adjudged to pay the costs of the applicants. Order it terms. 35 Subjudice decisionannulled. Respondents to pay applicants*costs. 57