clr/1986/1986_3_2371.pdf

(2)of Law 40/69 as amended by Law 17/73—Lodging Houses—Licence to keep—// i's in rem and not in personam. Licences—Nature of in relation to a person or thing—A matter of construction of the relevant legislation. 10 15 The applicant had a licence to operate a lodging house under the name of "Maroulla" situated at No. 14 Pantelis Katelaris Street in Nicosia. At the end of February, 1976 the applicant delivered vacant possession of the said premises to their owner in compliance with an eviction order of the Court issued in proceedings by the owners for the applicant's eviction from such premises on the ground of demolition and reconstruction. On 8.3.76 the applicant applied in effect for a licence to continue her profession in other premises. The appltca2371

(1986)Plakidou v. C.T.O. tion was finally rejected on the ground that the respondents ''do not have power to grant a licence for the functioning of a new building on the basis of s. 25(A) or any other section of the Hotels Law" Hence the present recourse. Counsel for the applicant 5 submitted that the purpose of s. 25 A

(2)of Law 40/69* as amended by Law 17/73 was to protect persons, who were in the catering business before its enactment :tnd could not come up to the standard required by the new law and, therefore, the licence granted was a personal one 10 transferable to any building, whereas counsel for the respondents submitted that such licence was mostly in rem and partly in personam. Held, dismissing the recourse:

(1)As it has been held in Kaminaros and Another v. The Republic

(1971)3 C.L.R. 445 "whether and how a licence relates to a person or thing is a matter to be decided by construing the provisions of the relevant legislation". 15

(2)From the provisions of the relevant legislation and the regulations made thereunder it is clear that the licence 20 issued for the keeping of a lodging house to a person is not a personal one, but concerns the state of the premises to which it relates. Tt is a licence in rem not in personam.

(3)Even if it is assumed that such licence is partly in 25 rem and partly in personam, and since the building at No. 14 Pantelis Katelaris Street was demolished, applicant's licence came to an end and so it could not be transferred to another building. Recourse dismissed. No order as to costs. Cases referred to: Kaminaros and Another v. The Republic

(1971)3 C.L.R. 445; • This Law repealed the Hotels Buildings (Regulation) Law, Cap Lodoing 139 2372 Houses and Publ : c 30 3 C.L.R. Piakidou v. C.T.O. Christodoulou v. The Republic

(1972)3 C.L.R. 290; Lordos and Others v. The District Officerof Limassoland Another

(1976)2 C.L.R.

1. Recourse. 5 10 Recourse against the refusal of the respondent to renew applicant's licence for the operating of her lodging house at No. 14 Pantelis Katelaris Str., Nicos:a, which she was operating till the end of February,
2. for another building, G. Ladas, for the applicant. N. Charalambous, Senior Counsel for the respondent. of the Republic, Cur. adv. vult. MALACHTOS J. read the following judgment. The applicant 15 in this recourse claims the following remedies: 20
3. \ declaration of the Court that the decision of the Cyprus Tourism Organization not to renew the licence of the applicant for the operating of her lodg:ng house under the name of "Maroulla" situated at No. 14 Pantelis Katelaris Street in Nicosia which she was operating till the end of February, 1976, for another building, which decision was communicated to her by letters of the Organ;zation dated 13.4.76 and 31.5.76, is null and void and of no legal effect as being contrary to Law, and 25
4. A declaration of the Court that the omission of the Cyprus Tourism Organization to renew the licence for the operating of the above lodging house at No. 14 Pantelis Katelaris Street, where it was operating up to the end of February, 1976, for another building, is null and void and 30 whatever has been omitted ought to have been performed. The following are the facts of the case: The applicant as from 1952 was operating a lodging house at various addresses in Nicosia in accordance with the provisions of the Hotels, Lodging Houses and Public 35 Buildings (Regulation) Law, Cap.
5. After I960 she was 2373 Malachtoa J. 'Plekidou v. C.T.O.

(1986)operating one under the name of "Maroulla" situated at No. 14 Pantelis Katelaris Street. The last licence issued to" her for this purpose was under the Hotels and Tourists Establishments Law of 1969 (Law 40/69) as amended by Law 17/73, for the period as from 1.1.74 to 31.12.

1. 5 In 1972 the premises at 14 Pantelis Katelaris Street were sold by their owners to Ktimatiki Eteria Kalisperas Ltd., who, in March 1974, obtained a building permit for demolition and reconstruction of the premises and for this purpose they instituted proceedings before the 'N;cosia 10 District Court for eviction of the applicant. The applicant finally in compliance with the Order"of the Court delivered vacant possession of the building at the end of February,
2. In or about the beginning of March, 1976, she found suitable premises to establish her lodging house and entered 15 into an agreement with the owners thereof on condition that the relevant licence would be granted by the respondent authority to her. The applicant on 8.3.76 addressed the following letter to the respondent authority: "Lodginghouse 'Maroulla'Licence No.
3. 20 With reference to my licence for the operating of the above mentioned lodging house I would like to inform you that as from January, 1976, in persuance of a judgment of the Court of Nxosia I have Ieft~the premises at No. 14 Pantelis Katelaris Street for 25 reasons of demolition. By my present application I would like to bring to your knowledge that I am negotiating the renting of suitable premises for the continuation of my profession and I already have in mind a first floor 30 building situated at No. 13 Andreas Demetriou Street, Nicosia, consisting of six bedrooms: I thank you in advance and I hope that my application will receive the proper attention." On 13.4.76, she .received the following answer from the 35 Director-General of the Cyprus Tourism Organization: "1 acknowledge receipt of your letter dated the 8th March, by which you inform uY-that the lodging' house 2.274, 3 C.L.fi. Plakidou v. C.T.O. Malachtos J. by the name of 'Marculla* under your management situated at Pantelis Katelaris Street in Nicosia has ceased operating. 5 Please note that the provisions of the Hotels Laws do not pernrt the establishment of new lodging houses other than those operating on the coming into force of the Law (June 1969)". After the receipt of the above letter the applicant made certain representations to the Director-General of the Cy10 prus Tourism Organization, who, finally, after obtaining legal advice. wro*e another letter to her dated 31st May,
4. which reads ?s follows1: "1 refer to 'he subject of the proposed establishment by you of ? lodg;ng house. 15 20
5. In continuation of my letter of the 13th April, 1976, in relat'on to this subject. I wish to inform you that, after obtaining legal advice, the Board of Directors of the Organization does not possess- the power to grant a licence for the functioning of a new bu:lding. as a lodging house on the basis of the existing provisions of section 25A or any other section of the Hotels Laws." The applicant then feeling aggrieved, recourse.- 25 30 35 filed the present The only point in issue, as argued by counsel for the parties in tirs recourse; is' the interpretation'of sect:on 25A subsection

(2)of the Hotels and Tourist Establishments Law.. 1969 (Law 40/69). as amended by Law 17/73: This section reads as1 follows: "

2. Irrespective of any other provision of the present Law, in case in which in any lodging house existing at the t'me of coming into operation of the present law,-and operating .before the 13th June, 1969, on the basis of a licence granted under the Hotels, Lodging Houses and Public Buildings (Regulation) Law,, and of which the operating continues after the 2375- Malachtos J. Plakidou v. C.T.O.

(1986)above period, no classification can be made for the issue of a licence to operate on the basis of the provisions of sections 7 and 8, or the completion of unfinished building specifications is not rendered feasible, as if it were a hotel in accordance with the 5 provisions of subsection 4 of section 24, the Board of Directors may grant an operating licence of it, characterised as lodging house (hereinafter referred to as 'lodging house') ". It should be noted here that on the 13th June, 1969, 10 came into force the Hotels and Tourist Establishment Law

1. which repealed the Hotels Lodging Houses and Public Buildings (Regulation) Law, Cap.
2. Section 25 of this Law reads as follows: "All existing lodging houses operating under a 15 licence granted under the provisions of the Hotels, Lodging Houses and Public Buildings (Regulation) Law, shall be permitted to operate for the period of two years from the coming into operation of this Law, after the expiry of which they shall compulsorily dis- 20 continue their business unless they shall obtain a Hotel licence in accordance with the provisions of this Law and Regulations". Counsel for applicant submitted that the object of section 25A

(2)was to protect those persons who, although 25 in the catering business before the enactment of the Law could not come up to the standard required by the new Law and so the licence granted was a personal one and, therefore, transferable to any building of the person to whom the licence is granted. 30 On the other hand, counsel for the respondent authority submitted that it is clear from the wording of section 25A

(2)of the new Law and the wording of section 3 of the old Law, Cap. 139, and the regulations made thereunder, that the licence granted was mostly in rem and partly in per- 35 sonam. In our case since the rem did not exist at the material time the licence could not be transferred to another building. In Frixos Kaminaros and Another v. The Republic. through the Permits Authority,

(1971)3 C.L.R. 445, it has 40 2376 3 C.L.R. 5 Plakidou v. C.T.O. Malachtos J. been decided that "Whether and how a licence relates to the person or thing is a matter to be decided by construing the provisions of the relevant legislation." The above principle was followed in the case of Christodoulou v. The Republic,

(1972)3 C.L.R. 290 and in the case of Lordos and Others v. The District Officer of Limassol and Another,

(1976)2 C.L.R. 145. In the case in hand it is clear from the provisions of the relevant legislation and the regulations made thereunder, 10 that the licence issued for the keeping of a lodging house to a person is not a personal one but concerns the state of the premises to which such licence relates. It is, therefore, a licence in rem not in personam. Even if we assume that the licence with which we are concerned is a licence both 15 in rem and personam, then, again, since the building at No. 14 Pantelis Katelaris Street, was demolished, the licence came to an end and so it could not be transferred to another building. For the reasons stated above, this recourse fails and is 20 hereby dismissed, with no order as to costs. Recourse dismissed. No order as to costs. 2377