clr/1985/1985_3_2067.pdf

(1985)additional seat on the said car for the transportation of labourers for agricultural purposes. This application was dismissed on the following grounds, namely that the addition of the seat applied for would be "dangerous from the safety point of view" and that in such a case "the S dimensions of the seats will not correspond to the provisions of the respective legislation" Hence the present recourse. The evidence adduced showed that the only differences between a Volks Wagen, van type and a Volks Wagen 10 saloon are that in the case of the van the factory instead of filling the sides at the rear part of 'he car with glass panes it fixes metal panels and that in the case of a saloon car it fixes a seat all along behind the driver, whereas in the case of the van it does not fix this seat 15 A van can be converted into a saloon car by affixing on it the rear seat for which there exist certain fittings foi f'xing the same and replacing the metal panels with glass panes By effecting such a modification a van impoited ab "goods vehicle" will be converted into a saloon car This 20 aspect, however, has not been made an issue in the present case Counsel for the applicant argued inter alia that though under the new Regulations there is a provision for the fixing of a grill behind the drivers seat, no such provision 25 existed in the old Regulations (Motor Vehicles and Road Traffic Regulations, 1973) and that in any event such grill can be placed at the rear of the passengers seat Held, annulling the decision

(1)As the sub judice decision was taken whilst the old regulations of 1973 were in 30 force the case should be determined on the basis of such regulations and not on such regulations as amended m 1984.

(2)The reasons given for the sub judice decision are general and no particulars are given in support of same. The 35 evidence showed that no question of danger from the safety point of view arises; and nothing has been put forward supporting the contention that the dimensions of the seat will not correspond to the provisions of the respective legislation. 2068 40 3 C.L.R. loannou v. Republic

(3)In the light of the material before the Court the sub judice decision is not sufficiently reasoned. There is nothing in the file of the administration adding to or supplementing the reasoning. 5

(4)The respondents failed to carry out a due inquiry as to whether the fixing of a seat in this particular type of van will be the cause of any dangers.

(5)For all the above reasons the sub judice decision has to be annulled. 10 Sub judice decision annulled. No order as to costs. Recourse. 15 Recourse against the refusal of the respondents to issue to applicant a permit to fix an additional seat on his motor vehicle MS 296, which was registered as "light goods vehicle," for the transportation of passengers for agricultural purposes. N. Pelides, for the applicant. 20 A. Papasavv'as, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. SAWIDES J. read the following judgment. Applicant is a farmer and owner of a car under Registration No. MS 296, Volks Wagen, diesel, van type. Such car was, upon its 25 importation, registered on the application of the importers on 29.9.81 as a "goods vehicle-light" and it was licensed as such. On the 12th November, 1981, applicant submitted an application to the Ministry of Communications and Works for a permit to fix an additional seat on the said 30 car for the transportation of labourers for agricultural purposes. After consideration of the application the appropriate Authority refused same and the reasons for so doing, were communicated to the applicant by letter dated 9th December, 1981, sent by the Ministry of Communications 35 and Works—Inland Transport—Service on Inspection of Motor Vehicles the contents of which read as follows: 2069 4 Μ Μ · Μ Ι v. ItapvMic (tM6) "I wish to refer to your application on Form agri­ culture 248 dated 12th November, 1981, whereby you are applying for a permit to place an «4ditional seat on your light goods vehicle under Reg. MS 296 for the transportation of passengers for agricultural purposes. 5

1. I wish to inform you that the matter has been con­ sidered and your application cannot be approved as in case you will place seats on the floor of the body of the said light goods vehicle, besides the fact that the 10 dimensions of the seats will not correspond to the pro­ visions of the respective legislation, it will be dange­ rous from the safety point of view." As a result, applicant filed the present recourse whereby he prays forA declaration of the Court that the administrative deci­ sions and/or the administrative decisions of each one of the respondents and/or the act and/or acts of them, to refuse to issue a permit to use the registered vehicle MS 296 for the transportation of passengers for agricultural purposes is null and void and of no legal effect. 15 20 The grounds of law relied upon in support of the appli­ cation, are the following:
2. The respondents acting in abuse and/or in excess of power in the exercise of their discretion in violation of the 25 existing legislation and the Regulations decided to deprive the applicant of his right to obtain a permit of use for his registered vehicl' MS 296 for carriage of passengers for agricultural purposes and/or they failed to give due weight to the interpretation of the relevant law, the Motor Vehi- 50 cles and Road Traffic Law, 86/72 and/or the Regulations made thereunder (159/73).
3. The respondents acted in violation of Law 86/72 and of the Regulations made thereunder, in reaching their de­ cision contained in the letter dated 9th December, 1981, 53 refusing the application of the applicant which was lawful and in accordance with the Regulations.
4. The sub judice act and/or decision in its totality and/or 2070 3 C.L.R. 5 loannou v. Republic Sawides J. the procedure followed for the issue of the sub judice decision and/or act is illegal and/or void and in excess of the powers of the respondents in that it is contrary to the law and/or the principles of good administration and/or natural justice.
5. The sub judice decision and/or act lacks due reasoning and/or the reasoning is defective, vague, unjust and illegal... The application was opposed on the ground that the sub judice decision was taken properly and in accordance with 10 the law and in due exercise of the powers vested in the respondents under the Law and the Regulations and after all relevant facts and circumstances of the case were taken into consideration. It has been the contention of counsel for applicant by his written address that the respondents acted in violation of regulations 50

(6)and 55 (l)(

1. d)of the Motor Vehicles and Road Traffic Regulations. 1973 in refusing to grant the permit applied for. Also, that they acted arbitrarily in that there is no substantial difference between a light goods 30 vehicle of the Golf type and an ordinary saloon car of the same make which is imported with the seats affixed on it. Counsel further contended that the respondents had granted permits to the owners of similar type of vehicles and, therefore the reasons they mentioned in their letter 25 sent to him. for refusing his application, are not valid. In conclusion he submitted that the refusal is not duly reasoned and that the reasons contained in the letter of the Senior Inspector of Motor Vehicles are entirely unfounded. 15 30 Counsel for the respondents, on the other hand, in his written address contended that the legal grounds advanced by counsel for applicant in support of his recourse are entirely unfounded in that - (
2. a)No concrete grounds of abuse of power are set out and no evidence substantiating such allegations has been 35 adduced and that from the material in the relative files no inferences can be drawn that there was an abuse of powers. (
3. b)The respondents have not acted in violation of the Motor Vehicles Regulations but on the contrary they acted within the spirit and letter of such Regulations. 2071 Sawides J. loannou v. Republic

(1985)(c) The allegations of the applicant that respondents' decision was illegal and/or violating the principle of good administration, have not been substantiated. In the circumstances of the present case and in the light of all material before the respondents, the respondents exercised their dis- 5 cretion properly and in accordance with the well established principles of administrative law and good administration. Concerning the contention of counsel for applicants that the respondents had in the past granted similar permits, counsel for the respondents refuted such allega- 10 tion and contended that in any event one cannot rely on an allegation of equal treatment in case of an illegal act. Counsel for applicant in support of his contention that the fixing of the seat and its dimensions do not contravene any provision of the law and that there is no difference be- 15 tween a Volks Wagen van of the type of the one in question and a Volks Wagen saloon car, called as witness a qualified automobile engineer, namely Mr. Alkis Longinos who gave evidence before this Court. This witness produced a leaflet showing the specifications and the body structure 20 of a Volks Wagen van of the type owned by the applicant and explained that the body structure of the Golf type is the same with that of a saloon car of the same type. The only difference is that in the case of the van the factory instead of filling the sides at the rear part of the car with 25 glass panes, it fixes metal panels. Also, in the case of the saloon car it fixes a seat all along behind the driver, whereas in the case of the van it does not fix this seat. In the caseof the vans the space where the rear seat can be placed, is covered with a wooden cover to bring it to the same level 30 with the rest of the floor of the car and if a seat is to be placed, then this cover may be removed and a rear seat may be fixed in the same way as in the saloon car and be as safe as in the case of a saloon car of the same make. The witness mentioned in his evidence, and this also ap- 35 pears in exhibit 1 (under (A)), that in the case of the van type there is a wooden board affixed at the rear part of the front seat reaching upto the height of the back of the seat, the object of which is to protect the driver and the passenger next to hiin from any risk from goods placed behind 40 the seat which may move about in the van when the van is in motion. In case a rear seat is affixed on the van such 2072 3 C.L.R. loannou v. Republic Sawides J. wooden board may be affixed at the back of the rear seat to avoid any eventuality of the goods creating any risk for the passengers. Counsel for applicant sought to rely on the provisions 5 of Regulation 50

(6)of the Motor Vehicles and Road Traf­ fic Regulations, 1973, which were made under the provi­ sions of the Motor Vehicles and Road Traffic Law, 1972 (Law 86/72) and its subsequent amendments, and were published in the official Gazette of the Republic No. 10 . 1023 of 13.7.1973, Supplement No. 3, Part 1, page 571, Notification 159. In making a clarification after the evi­ dence was concluded counsel for applicant submitted that though under the new Regulations of 1984 there is a pro­ vision for the fixing of a grill behind the driver's seat of 15 a goods vehicle, no such provision existed in the old Re­ gulations. In any event counsel concluded such protective grill could, according to the evidence adduced by him, be placed at the rear of the passengers seat. Counsel for the respondents on the other hand submitted that notwithstanding the fact that the requirement for the fixing of a protective grill at the back of the driver's seat was introduced under the new Regulations a provision to the same effect may be inferred from the provisions of para. 12 of regulation 49 of the Regulations which was in 25 force at the material time. 20 Regulation 50

(6)to which reference has been made by counsel for applicant provides as follows: 30 35 «

(6)απαγορεύεται ή μεταφορά εντός φορτηγού μη­ χανοκινήτου όχήματoc, οιουδήποτε έτερου προσώπου, πλην τοϋ έκμισθώσαντος το όχημα ή τοϋ ιδιοκτήτου τοϋ οχήματος ή των αύτω μεταφερομένων αγαθών, των υπηρετών ή τοϋ αντιπροσώπου τοϋ ιδιοκτήτου ή εκμι­ σθωτού. Τά οϋτω μεταφερόμενα πρόσωπα επιπροσθέ­ τως τοϋ όδηγοϋ εν ούδεμιρ περιπτώσει δύνανται νά ύπερβώσι τά τρία, εξαιρέσει δε ενός προσώπου, όπερ δύναται νό κάθηται έπϊ των μεταφερομένων αγαθών, τά έν τω όχήματι μεταφερόμενα πρόσωπα δέον όπως κάθηνται εις δεόντως ήσφαλισμένα καθίσματα: Νοείται ότι εις ελαφρά φορτηγά μηχανοκίνητα όχή· 2073 Sawides J. loannou v. Republic

(1985)ματα, χρησιμοποιούμενα ύπά προσώπων απασχολουμέ­ νων εις την γεωργίαν, επιτρέπεται ή μεταφορά προσώ­ πων διά γεωργικούς σκοπούς, έφ' όσον τό όχημα δια­ θέτει προσηκόντως ήσφαλισμένα καθίσματα. Διά τους σκοπούς της παρούσης παραγράφου 'γεωργια* περιλαμβάνει τήν κηπουρικήν, τήν φρουτοπαραγωγήν. τήν ηαραγωγήν απόρων, τήν γαλακτοκομϊαν, τήν κτηνοτροφίαν, τήν άνάπτυξιν κήπων και φυτωρίων, ό όρος δέ 'γεωργικός' θέλει τύχει αναλόγουερμηνείας». 5 ("

(6)no person shall be carried in a goods vehicle 10 other than the hirer of the vehicle or the owner of the vehicle or of the goods carried therein or the ser­ vants or agent of the owner or hirer. The persons so carried shall not exceed three in all, excluding the driver, and, with the exception of one person who 15 may sit on the goods carried in the vehicle will be seated on properly secured seats: Provided that in light goods vehicles used by per­ sons engaged in agriculture, persons may be carried for agricultural purposes if the vehicle has properly 20 secured seats. For the purposes of this paragraph 'agriculture' in­ cludes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock, the use of land as marked gardens and nursery grounds, 25 and the term 'agricultural' shall be interpreted accordingny*). Regulation 49

(12)of the Motor Vehicles and Road Traffic Regulations, 1973 on which counsel for respondent sought to rely, is one of the regulations under part V 30 which refers to the "Condition and accessories of motor vehicles and general conditions for their road use." It pro­ vides as follows: «

1. Τηρουμένων τών διατάξεων των Κανονισμών
2. 51 και 52, ουδείς θέλει προκαλέσει, άνεχθή ή έπι- 35 τρέψη τήν χρήσιν μηχανοκινήτου οχήματος έφ' οιασδή­ ποτε οδού, ουδέ οδηγήσει ή αναλάβει τήν εύθύνην ή τόν ελεγχον μηχανοκινήτου οχήματος δτε τοϋτο χρη2074 3 C.L.R. I l l inn v. flipι * II- « M « M M J. oiuonoieiToi έφ' οιοσδήποτε ο6οϋ, CKTOC εον *φ4ΐωcnv οι ακόλουθοι δ*ατα€εκ;: 5 10

(12)ή κατοσταοκ; novroc μηχανοκινήτου *H%IUIUC ώς καί απάντων των εξαρτημάτων ούτοϋ 6εον όπως είναι τοιαύτη ώστε νά μή προκαλή ή νά ενδέχεται νά προκαλέση κίνδυνον εις οιονδήποτε εν τφ όχήματι ή έπ' αύτοϋ ευριοκόμενον πρόσωπον ή eic πρόσωπον επί της όδοϋ ή εκ; πρόσωπον εντός ή έπι έτερου οχήμα­ τος έπ! τής όδοϋ» ("49. Subject to the provisions of Refutations 50, 15 51 and 52 no person shall cause, suffer or permit a motor vehicle to be used on a road or shall drive or have charge or control of a motor vehicle when the same is used on a road unless the following provisions are observed: 20

(12)the motor vehicle and all fittings thereof shall be in such condition as not to cause, or be likely to cause, danger.to any peron in or on the motor vehi­ cle or on the road or in or on any other vehicle thereon;**). 25 The Motor Vehicles and Road Traffic Regulations, 1973 were amended in 1984 but as the present case con­ cerns a decision taken whilst the old regulations were in force, I shall proceed to examine the case on the basis of the regulations of 1973. 30 It is common ground that the vehicle in question was imported and registered as a "Goods vehicle-light" and not as a saloon car. As it emanates from the evidence before me, there is no substantial difference in the body structure of saloon and a goods vehicle van of this make. The 35 only difference is that the saloon car has an additional seat behind the driver's seat and glass panes on the rear parts instead of the metal panels of the van. A van can be con­ verted into a saloon car by affixing on it the rear seat for which there exists certain fittings for fixing same and re40 placing the metal panels on the sides with glass panes. 2075 Sawides J. loannou v. Republic

(1985)When such modifications are effected then there is no difference between the two cars. Notwithstanding the fact that a van can be converted into a saloon car there is no doubt that the nature of the car and the object for which it was imported and registered 5 would be changed and most likely an increased import duty may have to become payable. By effecting such modification, a van imported as "Goods-Vehicle" will be converted into a saloon leaving the same space for carriage of goods in both cases. In the present case, however, I am not asked 10 to examine this aspect of the case, as the refusal of the respondents was not based on such ground and there is no such issue before me. The reasons for refusal as stated in the letter of respondents 3 and the tenor of the arguments before md is that: 15 (

1. a)The dimensions of the seat will not correspond to the provisions of the respective legislation. (
2. b)It will be dangerous from the safety point of view. The said reasons in the way they are expressed are general and no particulars are given in support of same. On 20 the evidence before me which has not been contradicted by the respondents, it clearly emanates that no question of danger from the safety point of view arises as proper seats can be fixed on this type of van as in the case of a saloon car of the same make and no problem would arise con- 25 cerning the safety of either the passengers or the public. As to the first ground of refusal no argument has been advanced by counsel for respondents and nothing has been put forward supporting the contention that the dimensions of the seat will not correspond to the provisions of the 30 respective legislation. In the present case in the light of all the material before me I have come to the conclusion that the sub judice decision is not sufficiently reasoned and there is nothing in the relevant file of the administration adding to or supple- 35 menting such reasoning. Furthermore, I find that there was lack of due inquiry by the respondents as to whether the fixing of a seat in 2076 3 C.L.R. loannou v. Republic this particular type of van would be the cause danger. Sawides J. of any For the above reasons I find that the sub judice decision has to be annulled. As I have already mentioned I leave 5 the question open as to whether the modification sought to be carried out may amount to a conversion of the van in question from a "goods vehicle light" into a saloon car, contrary to law. In the result, the sub judice decision is annulled but with 10 no order for costs. Sub judice decision annulled. No order as to costs. 2077