(1987)1987February25 [SAWIDES,J ] INTHE MATTEROFARTICLE 146OF THE CONSTITUTION JOINTINTERCAR AGENCY LTD . Applicant, ν THE REPUBLICOF CYPRUS, THROUGH THE REVIEWLICENSINGAUTHORITYAND/OR THE MINISTEROF COMMUNICATIONSANDWORKS, Respondents (CaseNo781/85) Motor Transport—The Motor TransportRegulation Law 9/82 asamended by Law 84/84—Sections 4A and 5
(9)—Cars hired without a dnver—Fmdmg that requirements of section 5
(9)not satisfied—In the circumstancessub judice decision reasonably open tothe respondent Authonty Constitutional Law—Equality—Constitution, Article 28—There canbeno equality in illegality The applicant challengedby means ofa hierarchical recourse the decision of the Licensing Authonty, whereby applicant'sapplicationfor 10licencesfor cars hired without a dnver had been dismissed Applicant's representative stated before the Review Lcensing Authonty that applicant company eversince its establishment was dealing with the purchase andsale of cars 5 10 The hierarchical recourse was dismissed on the ground that applicant did notsatisfy the requirements ofsection5
(9)*oftheLaw As aresultthepresent recourse was filed In hisaddresscounsel fortheapplicant argued,inter alia thatinvanousca- 15 seslicences were grantedtopersons who did not have the transport business astheiroccupation,an indication,asheputit,thattheLicensingAuthonty did not stnctly follow the cntena laid down by the law, but applied other cntena Held, dismissing therecourse
(1)In the light ofthe matenal beforeit,itwas 2 0 reasonably open to therespondentAuthonty toreachtheconclusionthatthe applicantdid not satisfy the requirement ofsection5
(9)that itwas carryingor intendedto carry on the business of transportas its mam occupation
(2)What emanates from the submission relating to vanous other cases in which a licence had been granted tsthat the Licensing Authonty did not act ^ 5 * Quotedatρ 209post 206 3 C.L.R. Joint IntercarAgency v. Republic incompliancewiththelaw. Itis.however, well settledthatthereisnoequality in illegality. Recourse dismissed. £70 costsinfavourof respondents. 5 Casesreferredto: Proestou v. TheRepublic
(1981)3 C.L.R.314; Karayianniv.EducationalService Committee
(1979)3C.L.R.371; Falas u. TheRepublic
(1983)3 C.L.R.523; Decisions 1118/54 and 1121/54 of the GreekCouncilof State. 10 Recourse. Recourse against the dismissal of applicant's recourse against the decision of the Licensing Authority refusing togrant applicant 10 licences for cars hired without a driver (Zcars)/ N.Neocleous, for the applicant. 15 S.Matsas,for therespondents. Cur.adv.vult. SAWIDES J. read the following judgment. The applicant is a company of limited liability and carries on the business of a car dealer. On the 18th December, 1982 the applicant company 20 submitted anapplicationtotheLicensing Authority for thegrantof 10 licences for cars hired without a driver (Z cars). Inthe particulars set out in itsapplication,itismentionedthatit was already the owner of one Ζcar under Registration ZLC951. The Licensing Authority having taken intoconsideration·allthe 25 facts and circumstances relating to the application before it, decided, on the 9th January, 1985, to refuse the grant of the licences applied for. Theapplicanton24.1.1985filedahierarchicalrecourse against the decision of the Licensing Authority. The respondent Review 30 Licensing Authority met on the 17th April, 1985 and heard the representative cf the applicant, namely, Mr. Yiannakis Arghyrides, on the company's hierarchical recourse. In giving evidence before therespondentauthoritytherepresentative of the applicantsaid thattheonlyshareholdersof theapplicantcompany 207 S a w i d e s J. VointIntercarAgency v. Republic
(1987)were he and hiswife, thatthecompany was dealing with cars and maintained an office for the sale of second-hand cars. The business started in 1976 and it was converted to a company in 1979 and that its business ever since its establishment was the purchase and sale of cars. Healso mentioned thatat the material 5 timewhen the recourse was being heard thecompany owned two Ζcars which had been bought by the applicant. On thebasis of all the material before itand theevidence given on behalf of the applicant, the respondent decided to dismiss the applicant's recourse on the ground that the applicant did not 10 satisfy the prerequisites of s.5
(9)of the Law and informed the applicant accordingly by letter dated the 1st July,
- As a result, the applicant filed the present recourse challenging the sub judice decision. Thelegal grounds on which therecourse isbased arebriefly that 15 the sub judice decision was taken in abuse and/or excess of power, itisnotduly reasoned,theneeds of theapplicantwere not taken into consideration, the respondent acted under a misconception of law and factandthatthesubjudice decision was based on extraneous motives contrary to the principles of good 20 administration and the service of transport. By his written address counsel for the applicantargued thatthe respondent in this case satisfied the requirements of the law and that the Licensing Authority by refusing the said licences actedin contravention of the law. Hefurther contendedthattheLicensing 25 Authority granted licences to a number of person, a list of whom he gave, who, according to his allegation, did not have the transport business as theirmainoccupationwhich isanindication that the Licensing Authority did not strictly follow the criteria provided by the law but applied other criteria. 30 Counsel for the respondent by his written address contended thatonthebasisof the materialbeforethe LicensingAuthority and the respondent, the evidence given on behalf of the applicant in the course of the hierarchical recourse and the powers vested upon the LicensingAuthority and the respondentby the law, the 35 sub judicedecision was reasonablyopen tothem. The ReviewLicensingAuthoritywas setup undertheprovisions of the MotorTransportRegulation(Amendment) Law, 1984 (Law 208 3 C.L.R. Joint Intercar Agency v. Republic Savvides
- 84/ 84),section 4 of which repealed the previous section 4 of the MotorTransport Regulation Law, 1982 (Law 9/82) theprincipal law, whereby a hierarchical recourse could be made to the Minister of Communications and Works and substituted the 5 Minister with the Review Licensing Authonty, the powers of which, as a reviewingbody, were defined under section 4A
(1)of Law 84/84 Under sub-section
(4)of section 4A the Licensing Authonty after heanng a hierarchical recourse, can take any of the following decisions 10 15 (a)To-affirm thechallenged decision, (b)toannulthechallenged decision, (c)toamend thechallenged decision, (d)toproceed itself andissuea new decision substitutingthe challenged one, (e)torefer back thecase totheLicensing Authority directing ittotake certainactioninthematter Sub-section
(9)of section 5 of Law 9/82, provides as follows 20 25 30
(9)Ουδεμία άδεια οδικής χρήσεως θ α χορηγήται αναφορικώς ττρος οιονδήποτε όχημα δημοσίας χρήσεως προς εκτέλεσιν οιασδήποτε οδικής χρήσεως 6Γ ην απαιτείται τοιούτον όχημα δυνάμει των διατάξεων του παρόντος Νόμου, εκτός εαν ο ιδιοκτήτης τούτου πειση την αρχήν αδειών ό τ ι μετέρχεται ή προτίθεται όπως μετελθη τ η ν μεταψορικήν επιχείρησιν ως κΰριονα υ τ ο ύ επάγγελμα. («No road use licence will be granted in respect of any public use vehicle for performing any roaduse for which such vehicle is required in accordance with the provisions of this law, unless the owner of such vehicle satisfies the licensing authonty that he cames or intends to carry on the transport business as hismainoccupation») The representative of the applicant in giving evidence before the Review Licensing Authonty, stated that the applicant company was operatingan office for thesaleof second-handcars 35 since 1979 when it was established and took over the similar business of itsrepresentative whichhewas carrying onsince 1976 The two licences for Ζcars which it had at the matenal time had beenpurchasedby thecompanyfrom twootherownersofΖcars 209 Sawides J. JointIntercarAgencyv.Republic
(1987)Inthelightofallthematerialbeforemeandbearinginmindthe provisionsof sub-section
(9)ofsection5ofthe Law,I find thatit wasreasonably open totherespondent toreach itsdecisionthat theapplicant didnotsatisfy itthathewascarryingorintendedto carryonthebusinessoftransportashismainoccupation. 5 Before concluding Ishall deal briefly with the contention of counsel for applicant that similar licences were given to other persons or companies whose main occupation was not thatof transportorhiringcars. The facts of the relevant cases are not before me. What 10 emanatesfrom hisaddressisthatinallthesaidcasestheLicensing Authority did not act in compliance with the law and adopted othercriteriawhichwerenotinlinewiththeprovisionsoftheLaw. Itisawellestablishedprincipleofadmininstrativelawthatthere cannotbeacomplaintfordiscriminatorytreatmentinanunlawful 15 actsincethere isnoequalityinthisrespect, (seethe Conclusions from the Case Law of the Greek Council of State (1929-1959) pp.158. 182).Relevant inthisrespectarethecasesoftheGreek Council of State 1118, 1121/54. Also the cases of Proestou v. Republic
(1981)3C.L.R.314atp.320;Karayianniv.Educational20 ServiceCommittee
(1979)3 C.L.R.371 at p.378, where other authoritiesonthepointarealsomentionedandFalasv. Republic
(1983)3C.L.R.523atp.534. Inthe light of my findings as above, this recourse fails and is herebydismissedwith£70.-costsinfavouroftherespondent. 25 Recoursedismissedwith £70.-costsinfavourofrespondent. 210