(1987)1987October 12 (LORISJ] INTHE MATTER OFARTICLE 146 OFTHE CONSTITUTION MARIA Κ IOANNOU, Applicant, ν 1 THEMINISTRYOF INTERIOR, 2 THE DISTRICTADMINISTRATIONOF NICOSIA, 3 THE DISTRICT COUNCIL, Respondents (Case No 553/86) Intoxicatingliquors— Licencetosell— TheIntoxicatingLiquor·, Law, Cap 144, section 5
(2)— Section 5
(2)(a) relates to mattersaffecting the applicant — Section 5
(2)(
- b)to matters affecting the premises — Itis confined to the suitability and fitness of premises — Probabilityof nuisance or oftraffic congeston cannot be taken intoconsideration —Absence of permit to use 5 premises asapub (The Streets andBuildings RegulationLaw, Cap 96,as amended) and fact that requirements, entailingstructuralalterations, for secunng suchpermit werenotearned out,sufficientinthe circumstances to support refusaloftheapplication —Proviso(
- i)tosection 5
(2)(
- b)Reasoning ofanadministrativeact—Validityofthe actmay beupheldonthebasis 1 0 ofalawfulreasoningevenifsuchreasoningisdifferentfromthatgiven bythe AdministrationandevenifthereasoninggivenbytheAdministrationislegally defective The Distnct Council, ιe theappropriate organ under Cap 144, tumed down applicant's application for a licence for saleof intoxicating liquors by retail upon certain premises in Ayn Omoloyites Quarter in Nicosia, onthe following grounds, namely 15 (a)Thepremises arenotsuitable andfitinallrespects, because nuisance wi'l becreated inthe vicinity (
- b)The I'mited space for parking will cause congestion of traffic and in consequence nu'sance (c)Thepermitfortheapproved useofthebuilding,accordingtotheStreets and Buildings Regulaticn LAW,wasissuedforahouse,whilstthebuildingwill 1548 20 3C.L.R. loannou v.M'stryofInterior be utilized by the applicant as a pub without having applied to the MunicipalityofNicosia forthechangeofthepermitfortheuseofthebuilding and 5 10 15
- id)m the vicmiry then'are other licensed premises sufficient forthe needs of the vicin'ty» It mus* be notedthai in ordertosecure tne necessary permit forthe use of thebuildingtnquestionas.puo structuralalterationswere neededwithaview to cuttingoff internal communication of thekitchen with the comdor leading tothe toilet extra washing andunne basins hadtobe installedandthekitchen had to be provided with hot watei and ventila'ion apparatuses had to be installed therein Held dismissingtherecourse (llThemattermissueisgovernedbysection 5
(2)* of Cap 144 In virtue thereof the matter·,that have to be taken into consideration in granting or refusing an application are mattersaffecting the applicant (section5
(2)(a)l mattersaffectingthe premises (section 5
(2)(b))and the needsand convenience ofthe public in the neighbourhood(proviso (ι) to section 5
(2)(b)) (2jThe DistnctCouncil treated the applicant assatisfying the provisions of S 5
(2)(a) 20 25
(3)Section 5'2)(
- b)of Cap 144 requites the Distnct Council to be satisfied before granting acertificatethat the «premises or place» are -suitable andfit in ailrespects» forthesalethereinof&uchliquors The wordsofthestatuteare plain and unequivocal The sectionisconfinedtothe suitability and fitnessof the premises in which the sale of intoxicating liquors wi'l take place it has nothing to do with the neighbourhood and the probable nuisance to inhabitants of multi storey buildings in the vicinity as the Police report maintains, or the probable congestion ol trafficin the area It follows thatreasons(a)and(
- b)giveninsupportofthesubjudicedecision are clearly wrong 30 35
(4)In view of the requirements for obtaining the permit to change the us*? of the premises tnquestion and the factthatsuch requirements had notbeen met, the conclusion is that it was reasonably open to the District Council to refusegrantingtotheapplicantalicenceforthesaleofintoxicatingliquorsby retailasthe premisesinquestionwere notsuitableand fitinall respectsforthe purpose
(5)From thematenal . j fore theCourt itemanates thatreason (d) refemng to proviso (ι) ofs 5
(2)(b)of the said law was reasonably open to the Distnct Council * Quoted in so far as relevant at ρ 1552 1549
(1987)loannou v. M'stryof Interior
(6)The case law shows that the Court may uphold the validity of an administrative decision on the basis of a lawful reasoning therefor, even though such reasoning is different from the reasoning given by the administration for reaching such decision andeven if the reasoning given by theadministration is legallydefective 3
(6)Inthelightof theabovethevalidityof thesub judiceactisupheld onthe basis of reasons (c)and(d) Recoursedismissed No orderas tocosts 1U Casesreferredto Spyrouv TheRepublic(\973)3 C LR 478, Papadopoullosv TheRepublic{1968) 3 C LR 662, Anthoupolisv TheRepublic
(1980)3C L R 296, Constanbnou ν Republic
(1985)3 C LR 1142 Recourse. 15 Recourse against the refusal of the respondents to grant applicant a licence for thesale of intoxicating liquors by retail. A. Papacharalambous,for theapplicants. D.PapadopouIIou (Mrs.), for therespondent. Cur adv. vult LORISJ. read thefollowing judgment.Thepresent recourse is directed against the decision of the respondents dated 4 7 86, communicated totheapplicanton 10.7.86, whereby arequest on behalf of the applicant for granting to her licence for the sale of intoxicating liquors by retail,was refused. 20 ^° The applicant on 26.3 86 being desirous of obtaining a licence for thesale of intoxicating liquors by retail, uponpremises rented by her at Katsonis Street 9, Ayii Omologites, Nicosia, applied to NicosiaDistrictOffice with aviewtoobtaining such alicence. The appropriate organ envisaged by the relevant Legislation, 30 (Cap. 144 as amended), notably the«District Council», examined the aforesaid application and turned down the request of the applicant;thesaid refusal of the Councilandthereasoningthereof isset outina letterdated 4.7.86, addressed by theDistrict Officer Nicosia to counsel acting on behalf of the applicant and reads as 35 follows. 1550 3 C.L.R. loannou v. M'stry of Interior LoriaJ. «Κύριοι, Αναφέρομαι στην επιστολή σας ημερομηνίας 15 Μαίου 1986 με την οποία ζητάτε να εγκριθεί η αίτηση για άδεια πωλήσεως οινοπνευματωδών ποτών της πελάτιδάς σας 5 Μαρίας Κ. Ιωάννου, στο υποστατικό της, π ο υ βρίσκεται στην οδό Κατσώνη9, Άγ. Ομολογητές καισαςπληροφορώ ότι κατόπιναποφάσεωςτου Επαρχιακού Συμβουλίου ηεν λόγω αίτηση δεν μπορεί να εγκριθεί για τους πιο κάτω λόγους: 10 (α) Το υποστατικό δεν είναι κατάλληλο α π ό όλες τις απόψεις (IN ALL RESPECTS) γιατί θα δημιουργηθεί οχληρία στηνπεριοχή. (β) Ο περιορισμένος χώρος στάθμευσης θαπροκαλεί συμφόρηση τηςτροχαίας και κατ'επέκταση οχληρία 15 (γ) Ηάδειαχρήσεως της οικοδομής, σύμφωνα με το Νόμο περί Οδών και Οικοδομών εκδόθηκε για κατοικία, ενώ θαχρησιμοποιηθεί α π ότην αιτητρια σαν μπυραρία χωρίς ναέχει α π ο τ α θ π στο Δήμο Λευκωσίας για αλλαγήτης άδειας χρήσεως οικοδομής,και 20
(6)στην περιοχή υπάρχουν άλλα κέντρα τα οποία ικανοποιούν τις ανάγκεςτης περιοχής.» (English Translation •Sirs, Iam referring to your letter dated 15 May. 1986. by means of 25 which you areaskingtheapproval of theapplication of your client namely ManaΚ loannou for thesaleof intoxicating liquors inher premises situated at Katsonis Street No 9, Ayn Omologites and 1 do inform you thatpursuant tothedecision of theDistnctCouncil. thesaidapplication cannotbe approved for thefollowing reasons 30 (
- a)The premises are not suitable and fit in all respects. because nuisance will be created inthe vicinity (
- b)The limited space for parking will cause congestion of traffic and incons*-]uence nuisance 35 (
- c)The permit for the approved use of the building. according to the Streets and Buildings Regulation Law, was issued for a house, whilst the building will be utilized by the applicant asapub,without havingapplied tothe Municipality 1551 loannouv.M'stryof Interior LorisJ.
(1987)of Nicosia for the change of the permit for the use of the building, and (d)inthevicinitythereareotherlicensedpremises sufficient for the needsof thevicinity.») Before proceeding to examine the complaints of the applicant 5 in connection with the sub-judice decision and the reasoning thereof, Iconsiderituseful torefertotherelevantprovisionsofthe law, which is, as already stated above, The Sale of Intoxicating LiquorsLawCap. 144asamended.Theprovisionsrelatingtothe functions oftheDistrictCouncils,aresetoutinsection5
(2)ofCap. 10 144, which in so far as they are relevant to the present case {includingthe first Provisothereof) read asfollows: «5
(2)Before grantinga certificate the DistrictCouncil must besatisfied that(
- a)the person applying for such certificate is of good 15 character and a fit person to hold a licence for the sale of intoxicating liquorsbyretail;and (
- b)the premises or place where such person proposes to sell intoxicating liquors by retail are suitable and fit in all respects forthe saletherein of such liquors: 20 Provided thatnosuch certificate shallbe granted(i)when, in the opinion of the District Council, there exist already in the village or quarter of a town orvillage inwhich the person applying therefor proposes to sell intoxicating liquors by retail, premises or places licensed for the sale of 25 such liquors sufficient for the needs and convenience of the public; (
- ii)(iii) » From the above stated provisions of the Law itisclear that the 30 mattersthat have tobetaken intoaccount byaDistrictCouncilin granting or refusing an application for a licence for the sale of intoxicating liquorsbyretail,are matters affecting: (a)The applicant (s.5
(2)(a)). (b)The premises (s.5
(2)(b)). 35 1552 3 C.L.R. loannou v.M'stry ofInterior LorisJ . (c) The needs and convenience of the public in the neighbourhood (proviso
(1)tos 5
(2)(b)) Itisapparent from the material beior<.me and in particular the relevant administrative tiles which havp neen produced (Ex 1and 5 Ex 2)thatthe wntten application addressed to the Distnct Officer Nicosia by the applicant, was duly examined by the appropnate administrative organ, notably the Distnct Council which was convened for thepurpose on 21 6 86 (vide blues 97, 98, 99, 101 ofExh 2) 10 Considerable time pnor to the holding of such a meeting an inquiry was conducted in respect of the matters affecting the applicant,thepremises andtheneedsoftheneighbourhood Thus a letterwas addressed tothePolice on 7 4 86 for theirviews{blue 31 inEx 2),obviously inrespect of thecharacterof theapplicant, 15 the views of the Municipality were sought in respect of the premises (blue 77A in Ex 2) and a further inquiry was conducted in connection with the needs of the public in the neighbourhood envisaged by proviso (ι)to s 5{2)(b) of the Law (relevant in this latter connection is the report of the Assistant District Inspector 20 dated 22 5 86 - vide blues 83,84 and 85 inExh 2) The Police reportdated 11 4 86 (blues 36-37 inEx 2)does not mention anything about thecharacterof theapplicantandthereis no other matenal before me, which goes to the character of the applicant with the exception of a letter dated 2 7 86 which was 25 communicatedtotheDistnctAdministration on 4 7 86 (blues 108 and 109 in Ex 2) which could not have been taken into consideration by theDistrictCouncilas the lattergave its decision as early as 21 6 86 {blues 106 & 107 mEx 2) Obviously the District Council having no adverse matenal in 30 respect of the character of the applicant considered that she did satisfy the requirements of s 5{2)(a)and confined its examination to the remaining two matters notably the premises and the needs of thepublic in the neighbourhood Now as regards ihe premises Section 5
(2)(b) of Cap 144 35 requires the Distnct Council to be satisfied before granting a certificate that the «premises or place» are «suitable and fit in all respects» tor the sale therein of such liquors The words of the statuteare plain and unequivocal andtheycannotbe heldto have any other meaning except that the premises themselves are 1553 LorisJ. loannou v.M'stryofInterior
(1987)suitableandfitinallrespects(from thestructural,sanitary,pointsof view and the like) but in any event not in relation to the neighbourhood inwhichtheyare situated. Section5{2)(b)ofthelawisconfined tothesuitabilityand fitness of the premises in which thesale of intoxicating liquors willtake 5 place; it has nothing to do with the neighbourhood and the probable nuisance to inhabitants of multi-storey buildings in the vicinityasthePolicereportmaintains,ortheprobable congestion oftraffic in the area. After all we must not loose sight of the fact that Cap. 144 was 10 enacted as early as November 1943 and inspite of subsequent amendments after Independence, the whole section 5 stands unaltered on thestatute book aspromulgated about44yearsago, whentherewerenomulti-storeybuildingsinCyprusandthe traffic wassoscarce that itwasnoteven regulated bytraffic lights. 15 Now, what was the material before the respondent Council in connection with the suitability and fitness of the premises of the applicant? Itisclear from the administrative file (vide minute 8in blue 77A of Exh. 2 dated 13.5.86signed bythe Secretary of the MunicipalCouncil)thattheapplicantdidnotsecureapermitfrom 20 the Municipality for the new proposed user of the premises, obviouslyasenvisaged byLaw2/78,as amended. Inthisconnection itmustbe bome inmind thatthepremisesin question consisted of a house;thishouse wastobe utilised bythe ipplicantasapub;therefore itrequired apermitforthe«approved 25 ise»ofthebuildingasapub,pursuanttotheStreetsand Buildings Regulation Law, Cap. 96, as amended. What was needed for ecuring such a permit isset out in blue 88 of Ex. 2. Suffice itto nention few of the requisites here: Structural alterations were eeded with a view to cutting off internal communication of the 30 itchen with the corridor leading to the toilet; extra washing and rine basins had to be installed; the kitchen had to be provided vrith hot water and ventilation apparatuses had to be installed ierein. AlltheseandotherrequisitessetoutinEx.2,hadtobecomplied 35 vith, before the Municipality could grant a permit for the ipproved use of the premises in question, by the applicant, as a jub. And up to the day the District Council gave the sub-judice 1554 3 C.L.R. loannou v.M'stry of Interior Loris J. decision none of these requisites were met and no permit was secured from the Municipality to that effect. Therefore it was reasonably open (o the District Couno. to refuse granting to the applicant a licence for the sale of intoxicating liquors by retail as 5 thepremisesinquestion were notsuitableandfitinallrespectsfor thepurpose.AndtheDistrictCouncilhadtobesosatisfied, before granting a certificate that the premises were suitable and fit inall respects. Turningnow tothe needsand convenience of thepublic inthe 10 neighbourhood envisaged by Proviso (i)to s. 5{2){b)of the Law: from the material before me, which was also before the respondent Council, and in particular from the detailed reportof theAssistantDistrictInspectorwhichappearsinblues83-85ofEx. 2, it is clear that in the quarter in question, there were sufficient 15 premises licensed for the sale of intoxicating liquors by retail, for the needs and convenience of the public, so that the decision of the respondent council to turn down the request of the applicant underthishead, wasreasonably open toit. There remains now to consider the main complaint of the 20 applicant: the reasoning of the sub-judice decision. The reasoning issetout inthe letter of 4.7.86 addressed by the District Office Nicosia to counsel for applicant and is being reproduced verbatim at the beginning of this judgment. Paragraphs (a)(b) and (c) give the reasoning in respect of the 25 refusal of the DistrictCouncil togrant a licenceunder s.5
(2){b)of the Lawwhilstparagraph (d)referstoProviso(i)ofs.5
(2)(b)ofthe Law. Itmustbestatedattheoutset,thatthereasoninginparas(a)and (b)iswrongforthereasonsIhaveexplained aboveand Ineed not 30 repeat again. Withregardtopara(c)Imustsaythatthereasonisratherlaconic butitcanbesupplemented from thematerialinthe administrative files; Ihavedealtatlength above, withthismaterialand Ihold the viewthat itcan fully support judicialscrutiny;and Irepeat thatin 35 the circumstances it was reasonably open to the respondent Council torefuse a licence unders.5
(2)(b). Nowinconnection withpara (d)ofthereasoningImustsaythat thewordingthereof isperfectly clearand conveysthereasonwhy theapplication wasturned down underthis head. 1555 LorisJ. loannou v.M'stryof Interior
(1987)Before concludingIfeel dutyboundtodealasbnefly as possible with reasoning, which is legally defective Inthecase of Spyrouv TheRepublic
(1973)3 CLR 478atp 484 thelearned Presidentof thisCourtstated the following «It is, however, open to an administrative judge- and Iam 5 dealing with these cases in such a capacity -to uphold the validity of an administrative decision on the basis of a lawful reasoning therefore even though such reasoning is different from the reasoning given by the administration for reaching such decision and even if the reasoning given by the 10 administration islegallydefective (see,interalia,thedecisions of the Greek Council of State in Cases 48/1968, 132/1969, 2134/1969 and 2238/1970)» To the same effect are also the case of Papadopoullos ν The Republic
(1968)3 C LR 662 at ρ 674 and Anthoupohs ν The 15 /?epub/ic
(1980)3CLR 296atpp 302-303 Recentlyinthecase of Constantmou ν Republic
(1985)3 C L R 1142 the same pnnciple was reiteratedatρ 1148 as follows «But wrong legal reasoning does not necessanly lead to annulment, ifthedecision canhave otherlegal support (See 20 Kynakopoulos on Greek Administrative Law, Vol Β,ρ 387, and Decisions 666/36, 1606/50 and 1850/50 of the Greek Council of State) As Ihave already stated above theapplication of theapplicant was turneddown both on mattersrefemng
(1)tothepremises
(2)25 the needs of the public intheneighbourhood As regards thefirst head thereasoning inparas (
- a)and(b)of the letter of 4 7 86 is legally defective whilst the reasoning inpara(
- c)underthesamehead,canhavefull legal supportasabove stated As regards the reasoning under the 2nd head as I have 30 explained above it is a legal reasoning conveying clearly the reason why the application was turned down, and cannotin any way be faulted In the result this recourse fails and is hereby dismissed There willbe no orderas tocosts Recourse dismissed No orderas to costs 1556 35