clr/1986/1986_3_2109.pdf

(3)—The criteria theieunder 15 20 The applicant, who is (he ownei of two buses, which may carry I1 passengers each applied for urban bus li­ cences in respect of trie said buses for the route "Kermia Hotels-Ayia Napa Square-Makronissos and return." Two other companies objected and eventually applied for urban bus licences in respect of their own buses, the one 2109 Skaras v. The Republic (1988» capable of 50 and the other 39 passengers, for another route in the area, namely "Dome Hotel-Asterias HotelAyia Napa-Protaras-Paralimni and return". The Licensing Authority, taking into consideration the needs of the major area Paralimni, Protaras and Ayia Napa rejected applicant's application and granted the application of the said two companies. 5 Feeling aggrieved the applicant filed hierarchical re­ courses* to the respondent Minister, who dismissed them. Hence the present recourse. 10 The sub judice decision reads as follows: "Having taken into consideration all the material which has been placed before me, I arrived at the conclusion that the decisions of the Licensing Authority are correct and, therefore, Τ dismiss these recourses'*. 15 One of the complaints of the applicant is that the Mi­ nister misconceived the difference between the route for which the applicant applied and the service to a parti­ cular area and the route for which licences were granted to the two companies. 20 Held, dismissing the recourse:

(1)The Minister before whom a hierarchical recourse was heard could take any decision that the subordinate body may reasonably take, as both organs in the hierarchy were charged with the same duty—to promote the objects of the Law by the 25 application of its provisions to particular cases.

(2)Misconception of fact may consist of either the taking into account of non existing facts or the non taking into account of existing facts. Failure to make a due inquiry causing lack of knowledge of material facts amounts to a misconception of fact. The burden is on the applicant to satisfy the Court or at least to raise a doubt in its mind that the administration has acted under a misconception of fact. It is correct that the route applied for by the applirhese recourses were filed before the amendment of Law 9/82 )y Law 84/84, which established a Reviewing Licensing Authority- 2110 30 IS 3 C.L.R. 5 10 15 20 25 Skaros v. The Republic cant is a shorter one and serves a limited area, whereas the route for which licences were granted is a longer one. As, however, it appears from the record this was well known to the Minister, who took into consideration the existing means of transport, the needs intended to be served by the routes in question and the co-ordination of the transportation of passengers. The allegation as to the existence of a misconception has no merit.

(3)As it is plain from the material in the file the criteria in s. 8

(3)of Law 9/82 were taken into consideration and the discretion was exercised having regard to such requirements of the Law in the area of Paralimni - Ayia Napa, which is one of the main tourist centres of the island.

(4)What is due reasoning depends on the nature of the decision. A decision, even if laconical, may convey the reason why it was taken. Furthermore, the reasoning may be supplemen'ed from the material in the file. The decision in this case is short. It is identical with the decision in Alona Co-operative Society v. The Republic

(1986)3 C.L.R. 222. But this case is distinguishable from the case of Alona, because in Alona most of the issues raised in the hierarchical recourse had not been raised before the Licensing Authority. In this case the reasoning can be ascertained by the material in the file.

(5)There is no merit in the allegation as to lack of due inquiry and as to violation of the rules of natural justice. Recourse dismissed. No order as to costs. 30 Cases referred to: Alona Co-operative Society v. The C.L.R. 222; Republic

(1986)Christides v. The Republic

(1966)3 C.L.R. 732; 35 lordanou v. The Republic

(1967)3 C.L.R. 245; 2111 3 Skaros v. The Republic

(1986)loannides v. The Republic

(1972)3 C.L.R. 318; Mikellidou v. The Republic

(1981)3 C.L.R. 461; Skapoullis and Another v. The Republic

(1984)3 C.L.R. 554; L. and G. lacovides Enterprises Ltd., v. The Republic

(1986)3 C.L.R.

1. 5 Recourse. Recourse against the dismissal of applicant's hierarchical recourse against the decision of the Licensing Authority not to grant to him urban licences for his motor vehicles 10 licensed as tourist buses for the area of Ayia Napa. S. Karapaiakis, for the applicant. M. Tsiappa (Mrs.), for the respondents. Cur. adv. vult. STYLIANIDES J. read the following judgment. The appli- 15 cant by means of this recourse seeks the annulment of the decision of the respondent Minister whereby he dismissed the hierarchical recourse of the applicant against the decision of the Licensing Authority not to grant to him urban licences for his motor-vehicles licensed as tourist buses 20 for the area of Ayia Napa. The applicant is the registered owner of buses Reg.No. P . P . 202 and N.L. 606 which carry 11 passengers each. On 12.3.84 he applied for urban bus licences in respect of the said buses-for the following route that did not exist 25 and was not being served at the time: Kermia Hotels -Ayia Napa Square -Makronissos and return. Two companies, Ayia Napa Transport Co. Ltd. and Paralimni -Dherinia Transport Co. Ltd.. objected to the grant of the said licences and later they applied for urban licences for another 30 route: Dome Hotel -Asterias Hotel -Ayia Napa -Protaras Paralimni and return, in relation to one bus of each company, namely, J."Q. 878 and F.L. 927, capable of carrying 50 and 39 passengers, respectively. 2112 3 C.L.R. Skaros v. The Republic Stylienides J. P.E.E.A., the Professional Organisation of Motorists, objected to the grant to the applicant of the licences sought. The two aforesaid transport companies also objected. 5 Ό 15 20 25 The needs of the major area of Paralimni, Protaras and Ayia Napa were considered. The existence of a number of taxis in the area of Ayia Napa and the use of tourist buses as taxis were also taken into consideration. The necessity and probable service of the two routes—the one applied for by the applicant and the other by the two bus companies—were investigated into. The Licensing Authority, after hearing the applicant and the objectors and taking into consideration the needs of the area, they rejected the application and instead they granted the apnlication of the two motor-bus companies for the longer route. Paralimni -Protaras -Ay-a NapaMakronissos. The applicant, feeling aggrieved, challenged the decisions rejecting his applications by hierarchical recourses before the Minister. The Minister, having heard counsel for the applicant and counsel for the other two companies,.who in the meantime were promoting a un'fiealicn of their trans­ port business for the better carrying on of iheir business :snd service of the public, issued the sub judice dec'sion on 25.9.84 which was communicated to the applicant by letter dated 28.9.
2. The applicant, being aggrieved, filed this recourse where­ by he challenges the identxal sub judice decision on trie following grounds:- 30 (a) That the sub judice decision misconception of fact; was taken under a (b) That no due inquiry was made and it is contrary lo the provisions of the Motor-Car Regulations Law. 1982 (No. 9 of 1982). as amended; (c) That it is not duly reasoned: 35 (d) It was taken contrary to the principles of good administration and contrary to the rules of natural justice; and. 2113 Styliankfes J. Skaros v. The Republic

(1986)(e) That it was taken in excess and/or abuse of power. The material part of the sub judice decision reads as follows:"Having taken into consideration all the material which has been placed before me, I arrived at the 5 conclusion that the decisions of the Licensing Authority are correct and, therefore, I dismiss these recourses". These recourses were taken before the Minister under s. 4 of the Motor Transport Regulation Law, 1982, be- 10 fore its amendment by Law* 84/84 which established a Reviewing Licensing Authority. The hierarchical recourse before the Minister, who was also an administrative organ, was not intended to be an appeal. The Minister before whom a hierarchical recourse was heard could take any 15 decision that the subordinate body could reasonably take in the first instance, as both organs in the hierarchy were charged with the same duty—to promote the objects of the law by the application of its provision in particular cases. Generally, it is competent for the body exercising 20 powers in hierarchical recourses, to review the legality of the decis;ons taken in the first instance, as well as the manner in which they exercised their discretionary powers by reference to the facts of the case—(Alona Co-operative Society v. Republic,

(1986)3 C.L.R. 222). 25 I shall consider the grounds on which the validity of the sub judice decisions were challenged. Misconception as to facts may consist of either the taking into account of non existmg facts or the non taking into account of existing facts; failure to make a due in- 30 quiry causing lack of knowledge of material facts amounts to misconception of fact—(Christides v. The Republic,

(1966)3 C.L.R. 732; lordanou v. The Republic,

(1967)3 C.L.R. 245; loannides v. The Republic,

(1972)3 C.L.R. 318; Mikellidou v. The Republic,

(1981)3 C.L.R. 461; 35 Skapouttis and Another v. The Repubic,

(1984)3 C.L.R. 554). The burden lies on the applicant to satisfy the Court 2114 5 O.L.R. Skaros v. The Republic Styllanide* J. that the respondent has acted under a misconception of fact or at least to raise a doubt in the mind of the Court in this respect. A probability that the misconception has led to the taking of the decision complained of is sufficient to 5 vitiate an administrative act. It is the allegation of the applicant that the Minister misconceived the difference between the route for which the applicant applied and the service to a particular area and the route for which licences were granted to the two other 10 transport companies. It is correct that the route for which the applicant applied is a shorter one and serves a limited area whereas the route for which the licences were granted to the others is a longer one but this, as it appears in the record, was well known to the Minister. He took into con15 sideration both the existing means of transport, the needs intended to be served by the two routes and the co-ordination of the transportation of passengers necessary in the public interest. This emerges from the material before him which he took into consideration. I see no merit in the 20 allegation that the sub judice decision was taken under a misconception of fact. The material parts of the Road Transport Regulation Law, 1982 (No. 9 of 1982) that govern the matter are Sections 5

(3), 14 and 8, particularly s. 8

(3). In s. 8

(3)a 25 number of criteria are enumerated which have to be taken into consideration by the Licensing Authority in exercising its discretionary powers in granting a licence. Among these are the transport needs which the applied for route intends to serve; the existence of other licensed 30 transport enterprises offering the same or similar transport services in the area; the degree and regularity to which such services are adequately and regularly offered; the necessity of co-ordinating the transportation of passengers in the area for the purpose of achieving adequate and 35 effective transport services; the avoidance of damaging competition among persons involved in such transportation and the extent to which the proposed route is necessary or desirable in the public interest. In the present case the Licensing Authority and the 40 Minister exercised their power and discretion having regard 2115 Stylianides ~ j . Skaros v. The Republic

(1986)to these particular requirements <ot the Law in the area of Paralimni -Ayia Napa, which is one of the main touristic centres of the island. This is plain from the whole ma­ terial in the file. Paralimni and Ayia Napa are two neigh­ bouring areas which have been rapidly developed into 5 touristic areas with many tourists moving around. Tncy need besides taxi services, public service by bus. Theie should be a co-ord.nation of the transportation of the passengers in the whole district in the public inieresi; that the trasportation should be made by buses but noi of a 10 capacity of 11 passengers as the tourist buses of the applicant and that the route be longer to cover the line Paralimni -Protaras -Ayia Napa - Nissi Beacp. - Makionissos and return. The more limited route sougnt b> the appi cant, i. e. Kermia -Ayia Napa Square -Makionissos and return, 15 Would not satisfy the requirements set dewn in Subsection

(3)of the Law. An administrative decision should be icascnea. 'what i.s due reasoning is a question of degiee dependant upon the nature of the decision concerned. A decision even if lu~o- 20 nical may convey the reason why u was, take.;. i*\uikeimore, the reasoning may be supplemented by u.e \\i.< ... i! before the administrative Authority—(A Inn:; Ci~'im"jratnc Society v. The Republic, (supra); L. Λ (J hiri , :'·". Enter­ prises Ltd. v. The Republic. Case N'.. 6(;0 /.5. d " ^ion de- 25 livered on 8.11.86).* The sub judice decision is short, it i^ dciHicai with the decision in the hierarchical recourse m th: c::sc of Afona Co-operative Society which this Couii annullc-i ior lack , of due reasoning. Alona case, however. • dm1nej.s ;.i-"h 30 from the present case in that most of the .ssues ra -vd vr, the hierarchical recourse were not raised before the L censing Authority. In the hierarchical recourse before the Μιν '*r Alona Co-operative Society challenged the decision on the grounds that it was contrary to Law, that it violated Article 35 25 of the Constitution, that the Licensing Authority acted in excess or abuse of power, etc. These were grounds of law which were not decided by the Licensing Authority and there was no material in the file to supplement the * Pecorted in (19861 3 C I R 2101 2116 3 C.L.R. Skaros v. The Republic Stylianides J. reasoning of the decision of the Minister. I said at page 229:- 5 10 "Most of the points raised in the appeal in the hierarchical recourse are not part of the decision under review by the Minister. The Minister simply sa:d that the decision of the Licensing Authority was correct and he reached such conclusion on the material before him. He gives no reason whatsoever why he arrived at such a conclusion and no reason whatsoever for such decision is found in the records related thereto." In the present case the reasoning can be ascertained from the file and the material to which reference is made. The sub judice decision satisfies the requirement of rea15 soning for an administrative decision. The allegation that no due inquiry was made is totally unfounded. A due and exhaustive inquiry was made and all interested parties and al! officials were heard and there is no aspect of the case that was not examined or 20 inquired into. The applicant complains that the rules of natural justice were violated. This is a vague allegation. The rules of natural justice are by now well settled and defined in the jurisprudence of this Court. 'iS The applicant was granted the opportunity to be heard. The Minister was neither biased nor likely to be biased. He WHS not the Judge of his cause. He had no interest in the case and none of the rules of natural justice or the norms of good administration have been contravened. 30 Tn view of the aforesa-d this recourse fails. The sub judice decision is confirmed. Case dismissed—No order as to costs. Recourse dismissed with no order as to costs. 2117