clr/1986/1986_3_2171.pdf

(1986)Street Widening Scheme made by a Municipal Committee treated, as filed, as being, also, directed against decision of Minister of Interior to dismiss objections filed under s. 18 of Cap. 96—As they were so treated, it cannot be said that tfiey were filed out of time, even though decision of 5 Minister is not expressly referred to therein, By means of these recourses the applicants have challenged a street widening scheme made by the Muni­ cipal Committee of Lamaca. On 23.8.83 all these re­ courses, as initially made, were dismissed on the ground 10 that the sub judice decision had lost its executory character in view of, the fact that the applicants had resorted to the remedy provided for by s. 18 of Cap. 96 by objecting to the Minister of Interior, who had given a final deci­ sion, dismissing the objection. The question whether 15 these recourses could be treated as having challenged the decision of the Minister was left open. On 1.9.84 the Court held that they could be so treated. The decision of the Minister consists of one word: "Dismissed". In taking it he had before him a minute 20 stating that the Director of Town Planning and Housing, the District Officer of Lamaca and the Attorney-General were recommending for various reasons the dismissal of the objections. The views of the Munic'pal Committee of Larnaca do not appear to have been placed before the 25 Minister. Held, annulling the sub judice decision:

(1)What matters in an administrative recourse are not the parties to it, but its subject-matter. In order, however, to avoid even the slightest complication, it is directed that the title of the recourses be amended so that the Minister of the Interior will appear as respondent, too.

(2)The failure to seek and to take into account the views of the Municipal Committee of Larnaca resulted in lack of due inquiry.

(3)Moreover, the decision lacks due reasoning. Even though the reasoning may be derived from the admini­ strative records, if this cannot be done with sufficient 2172 30 35 3 C.L.R. Demetriou v. Μ'paI Committee Larnaca 10 certainty, the relevant decision lacks due reasoning. In view of the difference between the reasons given by theDi­ rector of Town Planning and Housing and theDistrict Officer of Larnaca, on the one hand, and the reasons given by the Attorney-General, on the other hand, the reasoning in this case cannot emerge from the records with cer­ tainty. Furthermore, the reasoning given by the Ministry of Interior in a letter addressed to the applicants after the decision had been taken must be treated as adopted ex post facto by the Director-General of the Ministry. 15

(4)It cannot be said that these recourses were made out of time as far as the decision of the Minister is con­ cerned, because as it has already been found they could be treated, as filed, as being made against the decision of the Minister as well. 5 Sub judice decision annulled. No order as to costs. Cases referred to: 20 Cyprus Transport Co Ltd. v. The Republic

(1969)3 C.L.R. 501; Lambrakis v. The Republic

(1970)3 C.L.R 72; Lambrou v. The Republic

(1970)3 C.L.R. 75; Christodoulouv. The Republic, 1 R.S.C.C. 1; Alvanis v. CY.T.A.

(1984)3 C.L.R. 42; 25 Constantinou v. The Republic

(1984)3 C.L.R. 1548; Savva v. The Republic

(1984)3 C.L.R. 1552; Constantinides v. The Republic

(1967)3 C.L.R. 7; Ploussiou v. Central Bank

(1978)3 C.L.R. 18. Recourses. 30 Recourses against the validity of a street widening scheme published, by the Municipal Committee of Larnaca, in the Official Gazette, under section 12 of the Streets and Buildings Regulation Law, Cap. 96, for the straightening 2173 Demetriou v. M'pal Committee Larnaca

(1986)nd widening of Ayia Phaneromeni Avenue in Larnaca. L. Papaphilippou, for the applicants. G. Nicolaides,for respondent No.

1. CI. Theodoulou (Mrs.), Senior Counsel of the Repu­ blic, for respondent No.
2. Cur. adv. vult. TRIANTAFYLLIDES P. read the following judgment. By leans of these recourses the applicants have challenged the ilidiry of a scheme which was published by the Municipal ommittee of Lamaca, in the Official Gazette of the Re- 10 jblic, on the 5th July 1974, under section 12 of the ireets and Buildings Regulation Law, Cap. 96, for the raightening and widening of Ayia Phaneromeni avenue ι Larnaca. On the 23rd August 1983 all these recourses, as initially 15 ade against only the decision of the Municipal Committee ! Lamaca to adopt and publish the said scheme, were smissed, because such decision lost its executory nature view of the fact that the applicants had resorted to the medy of objecting to the Minister of Interior, as provided 20 τ by section 18 of Cap. 96, and the Minister of Interior id given a final decision dismissing the applicants* obctions. In dismissing the present recourses as initially made, I ited, at the time, that it was open to counsel for the If iplicants to consider whether it could be maintained that e aforesaid decision of the Minister of Interior might be ;ated as having been challenged, too, by means of these courses. On the 1st September 1984, after having heard arguments 30 counsel, I decided to treat these recourses as being ned at, also, the decision of the Minister of Interior by ;ans of which there were dismissed the objections of the plicants against the street-widening scheme in question, d I decided, therefore, to proceed to hear and determine 35 ;h recourses accordingly. 2174 5 3 C.L.R. 5 10 15 20 25 Demetriou v. ΜpaI Committee Larnaca Trlantafyllides Ρ After my said decision of the 1st September 1984 ii was not really necessary' for the Minister of Interior to be joined formally, by amendment of the title of the recourses. as a party to them, since I had found that the recourses. could be treated as having been aimed, also, at his deci­ sion to reject the objections of the applicants against the aforesaid street-widening scheme. In proceedings by way of an administrative recourse what matters are not the parties to the recourse but its subject-matter, that is the administrative act, decision or omission which is challenged by means of the recourse (see. in this respect, Cyprus Transport Co. Ltd. v. The Republic,

(1969)3 C.L.R. 501, 502, Lambrakis v. The Republic,

(1970)3 C.L.R. 72, 73 and Lambrou v. The Republic,

(1970)3 C.L.R. 75, 79). In order, however, to avoid even the slightest forma complicat'on in this respect I have no difficulty in directing even at this stage, that the title of these proceedings shouk be hereby amended so that the Min : ster of Interior wil appear as a respondent, too; and in doing so I follow the practice adopted in Christodoulou v. The Republic, 1 R.S. C.C. 1, 9. Nor can it be said that these recourses were made out of time in so far as the aforementioned decision of the Minister of Interior is concerned because I have already found that these recourses as filed could be treated as be*'ng aimed at such decision as well, even though it is not expressly referred to in them. The decision of the Minister appears, from the official SO records before me. to have been reached on the 20th February 1975 (see minute No. 5 in the file of the Mi­ nistry of Interior No. 27/1959/105). 35 The decision of the Minister consists of one word '•Απορρίπτονται" ("Dismissed"): and he put his signature under this word. The Minister had before him, at that time, a nrnute prepared by an administrative officer in his Ministry 2175 Triantafyllides P. Demetriou v. M'pal Committee Larnaca

(1986)which is dated 19th February 1975 (see minute No. 4 in the said file). In such minute it was stated that the Director of Town Planning and Housing, the District Officer of Larnaca and the Attorney-General were recommending, for various reasons, the dismissal of the objections; and, as a result, the administrative officer put forward to the Minister a proposal to that effect. 5 It is very strange, indeed, that though the objections were made against a street-widening scheme adopted by 10 the respondent Municipal Committee of Larnaca there is no reference at all in the aforementioned minute to the views of the Committee about the fate of the objections of the applicants; and there do not appear to have been placed before the Minister of Interior any views of the 15 said Committee in respect of such objections. I am bound to treat the failure to seek, and to take into account, the views of the Municipal Committee of Larnaca as resulting in lack of due inquiry which rendered the exercise of the relevant discretionary powers of the Minister 20 of Interior defective and, -consequently, his sub judice decision has, in any event, to be annulled for this reason (see, in this respect, inter alia, Alvanis v. The Cyprus Tehcommunications Authority,

(1984)3 C.L.R. 42, 46, Constantinou v. The Republic,

(1984)3 C.L.R. 1548, 1550 25 and Savva v. The Republic,

(1984)3 C.L.R. 1552, 1554). Moreover, in view of the way in which the Minister dismissed the objections of the applicants with only one word, as aforesaid, it is impossible to know whether he has adopted the reasons which were given in this connection by 30 the Director of Town Planning and Housing or by the District Officer of Larnaca, which coincided to a certain extent, or by the Attorney-General of the Republic which were of an entirely different nature; and it is well settled that even though the reasoning for an administrative deci- 35 sion may be derived from the relevant administrative records if this cannot be done with sufficient certainty then such decision lacks due reasoning and has to be annulled; 2176 3 C.L.R. 5 10 Demetriou v. Μ'paI Committee Larnaca Triantafyllides P. and this is what has happened in the present instance and, consequently, the sub judice decision of the Minister has to be annulled for this reason, too (see, in this respect, Constaiitinides v. The Republic,

(1967)3 C.L.R. 7, 13 and Ploussiou v. The Central Bank of Cyprus,

(1978)3 C.L.R. 18, 26). I should point out, at this stage, that in view of the nature of the powers which are conferred by the relevant legislation on the Minister of Interior it would, normally, be expected that there would be given by him a sufficiently reasoned decision rejecting or accepting an objection against a scheme such as the present one. I must state, too, that the reasoning given by the Mini­ stry of Interior for the dismissal of the applicants' ob15 jections, in a letter dated the 25th February 1975, which was addressed to the applicants, cannot, in the circum­ stances of the present cases, be regarded as the reasoning for the sub judice decision of the Minister and must be treated as being simply reasoning adopted ex post facto 20 administratively by the Director-General of the Ministry of Interior, as a result of the dismissal of the objections by the Minister. The said reasoning has been based on what was contained in the minute prepared by the ad­ ministrative officer by whom there was referred the mat25 ter to the Minister, but, as already pointed out, the con­ tents of such minute, in view of the references therein to different views of various organs, are not of such a nature as would render it possible to know with certainty which were the reasons adopted by the Minister in re30 jecting the objections of the applicants. For all the foregoing reasons these recourses succeed against the sub judice decision of the Minister of Interior. which is hereby annulled; but with no order as to the costs of these cases. 35 Sub judice decision atinulled. No order as to costs. 2177