0984) 1984 July 3 [MALACHTOS, J.] IN THE MATTER O F ARTICLE 146 OF THE CONSTITUTION TAKIS MICHAEL, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF COMMUNICATIONS AND WORKS, Respondent. (CaseNo. 59/81). Administrative Law—Misconception of fact—Presumption that an administrative decision is reachedafter a correctascertainment of thefacts—Rebutted if applicantsucceedsin establishingthat there exists at least a probability that a misconception has led to the taking of the decisioncomplainedof—Applicant failed to establish any misconception of fact. 5 Constitutional Law—Discrimination—Article 28 of the Constitution— Burden of establishing discriminatory treatment is upon theapplicant-—Whofailed to do so or to establish that there was contravention of the Rules of natural justice. 10 The applicant, who comes from Pera Chorion Nisou, applied to the Licensing Authority for a rural taxi licence for his vehicle under registration No. HZ333 to be stationed at his village. Inhisrelevant report theNicosia District Transport Controller stated that the vehicle HZ333 was registered as a public service 15 vehicle stationed at Vavatsinia village and that the applicant was a motor car dealer in Nicosia and hewasnever in possession of a rural taxi road service licence. Furthermore, the motorists unions were objecting for the granting of such a licence. The Licensing Authority, after hearing the applicant and the interested persons and after taking into consideration all the facts put before it, dismissed the application on the ground that the transport needs of Pera Chorion Nissou, were adequately served. The respondent Minister dismissed applicant's hierarchical recourse against the above decision of the Licensing Authority and hence this recourse. 974 20 25 3 C.L.R, Michael τ. Republic Counsel for the applicant mainly contended: 5 1. That the act and/or decision of the respondent was taken under a misconceptionof facts in thathewronglydecided that the transport needs of Pera Chorion Nissou were adequately served. 2. That the act and/or decision of the respondent is not duly reasoned and/or not sufficiently reasoned. 10 3. Thatthesubjudice decision was takenfor thepurpose of favouring otherpersons in discrimination of theapplicant contrarytoArticle 28of theConstitutionandtheRules of Natural Justice. 20 Held, (I)thatthereexistsapresumptionthatan administrative decision is reached after a correct ascertainment of the relevant facts; that such presumption, however, can be rebutted if a litigant succeeds in establishing that there exists at least, a pro bability thatamisconceptionhasledtothetaking of thedecision complained of; that no documentary or oral evidence was adduced on the part of the applicant to establish the allegation that there exists any misconception of fact on the part of the respondent; and that, therefore, contention
(1)must fail. 25
(2)Thatthereasoning appears inthedecision itself and isthat the needs of the village of Pera Chorion Nissou are served sufficiently by the licensed vehicles of the village and the sur rounding area, and is not the objection of the motorists organizations; and that, therefore, contention
(2)must fail. 15 30 35
(3)Thatnoevidence was adduced by theapplicantthathe was indeed subjected to discriminatory treatment or that other licences wereat the timegranted to other persons, as healleges; that, further, there is nothing to suggest that the Minister in reaching the sub judice decision acted in contravention of the Rules of Natural Justice or with the intention of favouring others; and that, therefore, contention
(3)must, also, fail. Application dismissed. Cases referred to: Republic v. Ekkeshis
(1975)3 C.L.R. 548 at pp. 555-556. Recourse. Recourse against the refusal of the respondent to grant a 975 Michael v. Republic
(1984)rural taxi licence to applicant in respect of his vehicle No. H.Z.
- Karapatakis,for the applicant. CI. Theodoulou (Mrs.), Counsel of the Republic, for the respondent. 5 Cur.adv.vult. MALACHTOSJ. read the followingjudgment. Inthis recourse the applicant claimsadeclaration oftheCourt that theact and/ or decision of the respondent authority dated 3rd December, 1980, by which his application for a rural taxi licencein respect 10 of his vehicle under Registration No. HZ 333 was rejected, is null and void and of no legal effect whatsoever. The relevant facts of the case are as follows: The applicant, whocomesfrom PeraChorionNissou,applied to the LicensingAuthority for a rural taxilicencefor hisvehicle 15 under Registration No. HZ 333 to be stationed at his village. In his relevant report the Nicosia District Transport Controller stated that the vehicle HZ 333wasregistered asa public servicevehiclestationed at Vavatsinia villageand that theapplicant is a motor car dealer in Nicosia and he wasnever in pos- 20 session of a rural taxi road service licence. Furthermore, the motorists unions were objecting for the granting of such a licence. The Licensing Authority, after hearing the applicant and the interested persons and after taking into consideration all the 25 facts put before it, dismissedtheapplication oftheapplicant on the ground that the transport needs of Pera ChorionNissou, were adequately served. Againstthisdecision of theLicensingAuthority the applicant filed on 3.7.80 a hierarchical recourse to the Minister of Com- 30 munications and Works, who,after considering the case,issued on 27.11.80, the following decision: "Having in mind the law in force and all the real facts, which have been put before me, I have come to the conclusion that the Licensing Authority rightly decided that 35 the needs of the village of Pera Chorion Nisou were adequately served bythelicensed vehiclesofthe villageandthe surrounding area and for this reason did not grant the licence applied for. Consequently, the above recourse is dismissed". 40 976 3 C.L.R. Michael v. Republic Malachtos J. As a result, the applicant on the 10th February, 1981,filed the present recourse. Asitappearsfromthewrittenaddressofcounselfor applicant, the application is based on the following three grounds: 5
- That the act and/or decision of the respondent was taken under a misconception of facts in that he wrongly decided that the transport needs of Pera Chorion Nissou were adequately served. He,himself,did not carry out an inquiry but herelied on the findings of the Licensing Authority which, at the same 10 time, issued another decision in which it verified the existence oftransportneedsandissuednewtaxilicencesfor thesamearea, to other persons. According to the principles of Administrative Law, there exists a presumption that an administrative decision is reached 15 after a correct ascertainment of the relevant facts. Such presumption, however, can be rebutted if a litigant succeeds in establishing that there exists at least, a probability that a misconception has led to the taking of the decision complained of. (See inter alia, Stassinopoulos on the Law of Administrative 20 Acts - 1951 page 304). Ample authority can also be found in the case of TheRepublic y. Ekkeshis
(1975)3 C.L.R. 548 at page 555 to 556 where it is stated that: 25 30 35 "No doubt, discretionary powersmust beexercised without a misconception about a material fact. If that happens, the decision reached is contrary to law, in the sense that the law was applied on a wrong factual basis. On the otherhand,thereexistsapresumptionthatanadministrative decision isreached after acorrectascertainment of relevant facts, though suchpresumption can berebutted if a litigant succeedsinestablishing, that thereexistsat leasta probabilitythatamisconceptionhasledtothetakingofthedecision complained of. The burden of establishing that an administrative decision was reached on the basis of·a misconceptionabout a materialfact, liesonthepersonchallenging thevalidity of suchdecision onthisground. Furthermore, a decision may be annulled if an administrative court is satisfied that it is very probable that such decision was reached as a result of a factural misconception. In such a 977 Malachtos J. Michael v. Republic
(1984)case, the annulment is not ordered because factualmisconception has been estalished, but in order to rid the administrative decision concerned of the suspicion that it was based on a factual misconception." In the present case no documentary or oral evidence was adduced on the part of the applicant to establish the allegation that there exists any misconception of fact on the part of the respondent. Therefore, this ground fails. 5
- That the act and/or decision of the respondent is not duly reasoned and/or not sufficiently reasoned. 10 On this point counsel for applicant alleged that the fact that the motorists organizations were objecting is not a reason or, rather,asufficient reasonfortheissueofthedecisioncomplained of. I must say that Ifind no merit in this contention of counsel for applicant. Thereasoning appears in thedecision itself and isthat theneedsofthevillageofPeraChorionNissouareserved sufficiently by the licensed vehicles of the village and the surrounding area, andis not the objection of themotorists organizations.
- That the subjudice decision was taken for the purpose of favouring other persons indiscrimination of the applicant contrary to Article 28ofthe Constitution andthe Rules of Natural Justice. As regards this ground, again no evidence was adduced by 25 the applicant that he was indeed subjected to discriminatory treatment or that other licences were at the time granted to other persons, as he alleges. Nor is there anything to suggest that the Minister in reaching the sub judice decision acted in contravention of the Rules of Natural Justice or with the 30 intention of favouring others. Intheresult,thisrecoursefailsandisdismissedbut,underthe circumstances, I make no order as to costs. Recoursedismissedwithnoorderasto costs. 978 15 20