3 C.L.B. 1987November26 [PiKIS.J] INTHEMATTER OFARTICLE 146 O FTHE CONSTITUTION SPYROS PROTOYEROS, Applicant, ν 1 2 THE REPUBLICOFCYPRUS, THROUGH THEMINISTRY OFCOMMERCE ANDINDUSTRY, THEMINES DEPARTMENT, Respondents (Case No 518/86} 5 Reasoning of an administrative act — Failure or omission to communicate the reasonsof adecision— Not fatalto its validity— Decision itselfmaycontain the reasonsinsupport thereof— Thegap may be bndged by the materialin the file, if such matenal indicate unambiguously and mcontrovertibly the reasonsfor thedecision Aquarry licencehadbeen granted totheapplicanton2ndApnl, 1985, with a viewto establishing andoperating aquarry for theextraction of sandy soil for apenodof six months 10 Clause 4 of the terms attached to the licence prohibited th*. use of the matenalextracted by theapplicantfor building purposes orany refinementof matmatenal Thelicencewas renewed for a further penod of six months Prior to such renewal the applicant breached the aforesaid condition in clause 4 15 On 4th February, 1986, the Mines Department invited the applicant to renew his Bank guarantee as aconditionfor therenewal of hispermit,a fact suggestingthattheauthoritieswere contemplatingthefurther renewal ofthe licence Nonetheless by the sub judJce decision applicant's application for the further renewal of thelicence was rejected Following such refection the 2025 Protoyero· v. Republic
(1987)applicant was required by the second sub judice decision to restore the ground toitsconditionpnortothesinking of thequarry Held,annullingthesub judicedecision
(1)Thesecondsubjudice decision isnotan executory act,itmerely affects theimplementationof the executory actnottorenew thelicence 5 2)Failuretocommunicatethereasons foradecision isnotfatal Inthiscase examinationof thematenalplacedbefore theCourtthrowinglightonthe sub judice decision has notrevealed anyspecific reasons for the decision taken Thatagain need notbefatal tothedecisionprovided thegap isbndged bythe matenal inthefilesuggestingthosereasons However,thematenalmust,as 1 0 explained in Vassiliou ν Republic
(1982)3 C L R 220, indicate unambiguously andmcontrovertibjy the reasonsof theAdministration forthe decision 3)Counselfortherespondentsubmittedthatthedecisionwas warrantedby two facts, namelythebreachesofclause4andapplicant'sapplicationfor the 1 5 deletion of clause 4 4)However,earlierbreachesofclause4hadbeen excused by therenewal that followed them Applicant's application for the deletion of clause 4 is a matter separate from thatof the renewal 5) It follows that the inquiry relevant to the application for renewal was 2 0 inadequate, whereas thereasons for thedecision remain as obscure asthey were mthecommunicationof thedecisionitself Subjudice decisionannulled No orderas tocosts ^5 Casesreferredto Vasstliouν TheRepublic
(1982)3 CLR 220 CytechnoUd ν TheRepublic
(1979)3 C L R 519 Recourse. Recourse against the refusal of the respondents to renew a quarry licence granted to applicant under the provisions of the 30 MinesandQuarries (Regulation)Law, Cap.
- M.Georghiou, for theapplicant. St.loannides(Mrs.), fortherespondent. Cur. adv. vult 2026 3 C.L.R. Protoyero· v. Republic PIKIS J. read the following judgment. At issue in these proceedings isthe validity of the decision of the respondents of 12thJune, 1986,dismissinganapplication madebythe applicant totheseproceedings,torenewaquarrylicencegrantedunderthe 5 provisionsoftheMinesandQuarries(Regulation) Law,Cap.
- Aquarry licence had been granted to the applicant on 2ndApril, 1985, with a view to establishing and operating a quarry for the extraction ofsandysoil.Thelicencewasforaperiodofsixmonths, while the exercise of the right for the extraction and the 10 exploitation of minerals conferred thereby was subject to terms and conditions attached to the permit. Tht licence was renewed forafurther periodofsixmonths,afactbroughttothenoticeofthe applicant by letter of the respondents of the 21st October,
- The licence expired on 17th March, 1986; before its expiration 15 applicant had petitioned for itsrenewal for a further period ofsix months. The rejection of his request for renewal is the subjectmatterof the present proceedings. Clause 4ofthetermsattached tothe licence prohibited the use of the material extractedbytheapplicant forbuildingpurposesor 20 any refinement of that material.The quarryrightwasconfined to theextractionofsandysoilforuseofthematerialinan unchanged condition forpurposes otherthanbuildingones.Itisadmitted that intheprocessofexploitationofthequarry,theapplicant breached the conditions imposed by Clause 4, a fact duly brought to his 25 attention coupled withawarningtoobserve infuture thetermsof the licence, evidently designed to remind of the power vested in theauthoritiesbytheprovisionsofs.41 ofthe law(CAP.270)to determine the licence. Applicant heeded the warning and, as far as we may gather 30 confined the use of the material extracted therefrom, in conformity with the provisions of Clause
- Furthermore, the breaches occurred, as may be ascertained from the material before us,before therenewal ofthequarrylicencedecided upon on 18th September,
- We can presume, in view of the 35 renewal, that the authorities were satisfied with the undertakings of the applicant to observe in future the provisions of Clause
- Also the authorities made representations to the applicant affecting the safety of the mining operations and the mode of extraction ofthematerialwhichagain,ascan be discerned, were 40 dulyheeded bythe applicant. 2027 Pikl· J. 1 Protoyero· v. RepabUc
(1987)On 4th February, 1986, the Mines Department invited the applicant to renew his Bank guarantee as a condition for the renewal of his permit; a fact suggesting that the authorities were contemplating therenewal ofthelicence.Inresponse theretothe applicant renewed the Bank guarantee coincidentally with his 5 application for an extension of the quarry licence (dated 8th February, 1986). Notwithstanding the above, the application for renewal was dismissed, a fact communicated to the applicant by letter dated 12June,
- The information given inthe letteris confined to mentioning the fact that hisapplication was rejected. 10 Shortly afterwards, on 17th June, 1986, the applicant was required to restore the ground bylevellingittoitscondition prior tothesinkingofthequarry.Thisistheseconddecision challenged bytherecourse,anactinseparablefromthedecisionof 12thJune, 1986, not executory in itself. The rights and obligations of the 15 applicant with regard to the quarry licence were determined and defined by the decision communicated on 12th June, 1986.The decision notified on 17th June, 1986, wasincidental thereto and merely affected the implementation of the executory act communicated on 12th June,
- Therefore, our task is 20 confined to a review ofthe latter decision inacknowledgment of thefactthatthejurisdictionoftheSupremeCourtunderArt.146.1 isconfined to executory actsof theAdministration, that is,actsin themselvescreative ofrightsinlaw. As earlier noticed, the communication to the applicant of the 25 rejection of hisapplication forrenewalmerelystatedthedecision, not the reasons that prompted it. The failure or omission to communicate the reasons of a decision isnot of itself fatal to its validity. The decision itself may contain the reasons in support thereof. Inthiscaseexamination of the materialplaced before the 30 Court throwing light on the sub judice decision has not revealed anyspecific reasonsforthedecisiontaken.Thatagainneed notbe fatal to the decision provided thegapisbridged bythe materialin the file suggesting those reasons. However, the material must, as explained in Vassiliouv.Republic* indicate unambiguously and 35 incontrovertiblythereasonsoftheAdministrationforthedecision. If the discernment of the reasons of the Administration for the decision is a matter of speculation, the gap in the reasoning remains unbridged and the matter must be referred back to the Administration for a proper discharge of their functions. In the 40 above case stress was laidon the breadth of the discretion of the miningauthoritiestowithholda miningpermitinexerciseof their •11973)3CLR.
- 2028 3 C.L.R. Protoyero· v. Republic Piki· J. dutiesasthecustodiansofthemineralwealthofthecountry;tobe used in a manner conducive to the interest of the public as a whole.Inthatcasethematerialinthefiledisclosed unambiguously thereasonsoftheAdministration fortherefusal oftheapplication 5 for a quarry permit making possible judicial review of administrative action in the comprehensive manner required by theprovisionsofArt. 146.1ofthe Constitution. The decision in Cytechno Ltd. v.Republic*establishes thatthe discretion to withhold renewal of a permit given under the 10 provisionsofCap.270,widethough itis,isnotabsoluteand must be founded on a true appreciation of the facts of the case. including the purpose for which the permit had originally been granted andanychangeofcircumstancesrelevant thereto,aswell as facts pertaining to the position of the• applicant and the 15 reasonableness of hisexpectation for renewal. Counsel for the Republic submitted that the decision of the authoritieswaswarranted bytwofacts: firstly, a report thaton4th April, 1986, the applicant committed further breaches of the provisions of Clause
- The applicant was reported to the Police 20 forthesebreachesandaprosecution wasmounted againsthimfor contravention of the law (Cap. 270). As we were informed the prosecution was dismissed and the applicant acquitted of the charge.Secondly, the applicant had applied for a deletion of the limitative terms of Clause 4, an application that was dismissed. 25 This was aseparate matter from the renewal that could have had no bearing on the fate of the application for extension of the quarry permit. On the other hand, earlier breaches of Clause 4 could not be relied upon as a reason for refusal of renewal for as earlier explained they had been excused by the renewal of the 30 permit when itfirst expired. Iam inevitablydriventotheconclusionthattheinquiryrelevant to the application for renewal was inadequate, whereas the reasons for the decision remain as obscure as they were in the communication ofthedecisionofthe 12thJune, 1986.Thereisno 35 alternative but toset aside the decision for lack of due reasoning and forinadequate inquiryintothefactsrelevanttotheapplication forrenewal of thequarry permit. The decision is set aside and declared to be wholly void pursuant totheprovisionsofArt. 146.4(b)of theConstitution. No 40 order astocosts. Sub judice decisionannulled. No orderasto costs. •
(1979)3C.LR.S19(F.B). 2029