clr/1986/1986_3_717.pdf

(1985)3 C.L.R. 979. 717 Kypr^rpsulos ν Licensing Authority

(1986)they intended ίο leioke. applicant's licence in compliance with the annulling ludument of the Court Held, dismissing ιhe lecourse (i) The respondent aalhonty spoke of eancelhn^ not revoking the appli­ cant's road sen ice K e r c e Jt follovvs that 'he submisiiLin of coi' iiel foi the icsponJent is untenable

(2)The sub j u d ' c decision is noi justiciable under Article 146 of the Consiiiutioo because it lacks executory charactet indeed 1 hc respondent could not cancel a licence which had already bc^n cancelled by the Court ^ 10

(3)If the sub judice decision were an executory act it would have been annulled bv reason of lack of due 'nqiiT\ md due reasoning Ret ource dismissed 15 No Order as to costs. Cases referred ίο Voikns and O'lwt \ \ rtu· Republic

(1984)3 C.L.R.

1. Recourse Recourse against the decision of the respondent whereby the road seivicc licence in respect of applicant's bus under 20 registration N o D S 408 was cancelled L Clertdes, for the applicant. R. Gavnelides, Senioi Counsel of the Republic, for the respondent. Cur (idv Milt. KOURRIS J read the following judgment. By this recourse the applicant seeks a declaration that the decision of the Licensing Authority da'ed 20th August, 1985, and com­ municated f o Mie apn'icant by > ' letter dated 31st August, 1985, by which they canceled the road service licence in 30 respect of his bus DS 408, is null and void and of n o effect whatsoever The applicant is the owner of motor-bus No. DS 408 718 25 3 C.L.R. Kypreopoulos v. Licensing Authority Kourris J. and was doing the route Amathus—Limassol since
2. As a result of the enactment of Motor Transport (Regulation) Law, 1964, Law No. 16/
3. a road service licence was issued for the said bus for the route Ayios Tychon 5 to Limassol. On 10th August. 1977, the applicant applied to the Licensing Authority for a 'icencc for the route from Amathus to Limassol Municipal Market and vice versa in respect of his bus No. DS
4. The Licensing Authority dismissed the application of the applicant on the 10 ground that the rouie is sufficiently served, whereupon on the 2nd October, 1977, the applicant filed a hierarchical recourse to the Minister of Communications and Works against the decision of the Licensing Authority. 15 20 25 30 35 The recourse of the applicant to the Minister was heard on the 30th January, 1978, and the Minister issued his decision on the 6th March, 1978, allowing the recourse of the applicant and directing the Licensing Authority to issue a licence to him, in respect of bus No. DS 408, for the route Amathus area—Municipal Market of Limassol on the ground thai the needs of the area would be better served. Following the issue of the road service licence to the applicant, Efstathios Kyr'acou & Sons Ltd. and Takis Michael filed a recourse in the Supreme Court against the decision of the Minister of the 6th March, 1978 (Recourse No. 252/78), seeking the annulment of the road service licence given to the applicant, who became an interested party. After reviewing the decision the Court ordered its annulment by a judgment delivered on the 14th June,
5. (See Efstathios Kyriacou & Sons Ltd. and Another v. The Republic of Cyprus

(1985)3 C.L.R. 979). As a result of the said judgment the Licensing Authority addressed a letter to the applicant dated 31st August, 1985 (Appendix B). In view of the contents of this letter the applicant filed the present recourse. It should be noted that he also appealed against the judgment of the Court in the recourse No. 252/78 which is Revisional Appeal No. 509. 719 Kourris J. Kypreopoulos v. Licensing Authority

(1986)it should be mentioned, also, that on the 21st March, 1985, the Licensing Authority decided to readjust the hours of running of the buses in the area of Limassol town and for this purpose they readjusted the hours of running of the bus of the applicant and they communicated their decision to him by letter dated 21st May, 1985 (see Appendix A). 5 The grounds on which the applicant is seeking relief are the following: (

1. a)The decision was not reasoned, 10 (
2. b)There was lack of due inquiry. (
3. c)Abuse of authority, and (
4. d)The decision of the respondent is contrary to the basic provisions of Law No. 9/82 and 84/84 and consequently is flagrantly illegal. 15 During the hearing applicant abandoned ground (d). Before dealing with the case any further I propose to set out the contents of the said letter, which are indeed very confusing, so far as material for the purposes ol this recourse: 20 «Αναφέρομαι στην απόφαση του Ανωτάτου Δικα­ στηρίου πάνω πτην πιο πάνω προσφυγή και σας πλη­ ροφορώ πως η Αρχή Αδειών στη συνεδρία της με ημερομηνία 20.8.85 αποφάσισε να ακυρώσει την ά­ δεια οδικής χρήσης λεωφορείου σας με αρ. εγγρα- 25 φής DS 408». Translated reads as follows: "I refer to the judgment of the Supreme Court in the said recourse and I inform you that the Licensing Authority at its meeting of 20/8/1985 decided to cancel the road service licence of your bus under registration No. DS 408". Th's letter was addressed to the applicant after the members of the licensing Authority convened on 20th 720 30 3 C.L.R. Kypreopoulos v. Licensing Authority Kourris J. August. 1985 (Exhibit A) and the relevant record reads as follows: 5 «Η Αρχή Αδειών, αφού έλαβε υπόψη τα στοιχεία του φακέλλου. ακυρώνει την άδεια οδικής χρήσεωςτου αστικού λεωφορείου υε αρ. DS 408 το οποίο θα πα­ ραμείνει δημοσίας χρήσεως». Translated reads as follows: 10 IS 20 25 "The Licensing Authority, having taken into con­ sideration the contents of the file, cancels the road service licence of the urban bus under registration No. DS 408 which will continue to be a public service vehicle." The main complaint of the applicant is that the Licensing Authority on the 21st August. 1985, convened and took a decision in the light of the judgment of the Court in Case No. 252/78 which was delivered seven years after its filing. Counsel for the applicant said that in doing so the respondent Authority did not take into consideration the passengers' traffic and the needs for bus services in the area at the time inasmuch as from 21st March, 1985. the respon­ dent Authority readjusted the hours of running of the buses in the area of Limassol town including the hours of running of the bus of the applicant. Counsel submitted that in view of these circumstances the decision of the respondent suffers from lack of due reasoning and lack of inquiry and, there­ fore. it cannot stand. Counsel for the respondents admitted that the respondent Authority did not carry out an inquiry but he alleged that they had no duty to do so because the decision taken was in 30 order to comply with the judgment of the Court and in doing so it was not necessary for them to make a fresh inquiry into the circumstances pertaining at the material time; and indeed they did not re-examine the case. He contended that by the said letter they intended to revoke 35 (ανακαλέσουν) the rond service licence in compliance with •the annulling judgment of the Court as it was their duty to do so. I do not agree with counsel for the respondent Autho721 Kourris J. Kypreopoulos v. Licensing Authority

(1986)rity that the contents of the letter conveyed to the appli­ cant their intention to revoke (ανακαλέσουν) the road service licence of ills bus. There is no ambiguity in the words used; and they speak of cancelling the road use licence of the bus after examination of the relevant file. 5 Again it cannot be said, as alleged, by the applicant that the respondent Authority had taken a decision which is justiciable. An administrative decision gives rise to a recourse if the position of a person is adversely affected. u; This is so :f the act or decision complained of is executory. In the case of Vorkns and Others v. The Republic

(1984)3 C.L.R. 757 ai n. 763 the Court said: "Only administraiive acts of an executory character are justic:ab!e under Article 146.1 of the Constitution. As often repeated, execuiory acts are those that are 15 in themselves productive of legal consequences." In the present case the respondent Authority could not cancel a licence which already has been cancelled by the Court; for all intents and purposes it was a dead licence; and the 'et'.er says that having examined the file they 20 decided to cancel the licence. One cannot attribute a different meaning to the word "cancel." The decision and the contents c-f the letter have no bearing on the rights of the applicant under the law. By their decision they pur­ ported to cancel the road service licence and this is an 25 abortive and non-sensical decision and it is not an exe­ cutory one and as such it is not amenable to judicial review under Article 146.1 of the Constitution and for this reason the recourse is dismissed. If it were to be held that the said decision is executory 30 then it cannot stand because it lacks due inquiry and due reasoning. Furthermore by purporting to cancel the road service licence of the applicant the Licensing Authority acted in abuse and/or excess of their powers and again their deci­ sion would not stand. For all the above reasons the recourse but with no order for costs. is dismissed Recourse dismissed. No order as to costs. *5