(1987)1987 February 25 [SAWIDES J ) IN T H E M A T T E R O F ARTICLE 146 O F T H E C O N S T I T U T I O N 1 A N D R E A S ARISTIDES 2 COSTAS CHARALAMBOUS 3 PYGMALION CHARALAMBOUS. 4 CHARALAMBOS LEONIDA Applicants, ν T H E R E P U B L I C OF CYPRUS T H R O U G H T H E MINISTER OF C O M M U N I C A T I O N S A N D W O R K S Respondent (Case No 195/85.196/85) Motor transport—The Motor Transport Regulation law 9/82 section 4—The nature and extent of the powers of the Minister of Communications and Worksin dealing with ahierarchical recoursefrom a decision of the Licensing Authonty—Discretion of theLicensing Authonty exercise of—Section 15
(3)of the said Law—Sub judice decision not supported by the matenal placed 5 before theAuthority and the respondent Minister—Annulled 1 he applicants arc the owners of vehicles licensed as carriers «A» The vehicles of applicants 1and 3have their fixedstation at Galataria village andthevehicles of applicants 2 and 4 at Kilinia village Both villages are mainly grape producing vil lages and the distance between them isabout half a mile 10 Interestedparty Stelios Michael submittedto the Licensing Authonty an applica tion for a carrier A licence in respectof a new goodsvehicle of upto four tons to be stationed at and serve Galataria village Interested party Chnstos Panayiotou submitted a similar application for aearner A licence in respect of his vehicle NG 995 15 On the 2 6 83 the Licensing Authonty examined the said applications and decided to grant them As a result the applicants who had objected to the said applications, filed hierarchical recourses to the respondent Minister, who having heardsuch recoursesinthe presenceofall concerned,decidedtodismissthem and affirmedthesaiddecision of theLicensingAuthonty As aresulttheapplicants filed 2 0 the above recourses It should be noted that the said applications of the interested parties were supported by the Galataria village authonty on the ground that the 88 3 C.L.R. ArUtides and Others v. Republic needs of thevillage could be better served by small vehicles The authonty,also, contended intheirletterdated 1 10 82 thatapplicant 3 wa fer the last two years incapacitated by physical debility and his carrier was not serving the village The District Transport Controller of Paphos stated in his first 5 report on thecase dated 18 183 thatthe vehicle of applicant3 was outof circula tion throughout 1982 due to his temporary physical disability from which how ever, he had inthe meantime recovered He further stated that mhis opinion the existing licensed earnersAadequately servedGalatariavillagethroughouttheyear withtheexception of the grape season as from the 15th of September till the10th 10 of November Held, annullingthe sub judtcedecision
(1)Thewording of s 4* of Law 9/82 was identical tosection 6 of the MotorTransport Regulation Laws 1964 1975, which was analysed in Tsoulloftasand Othersν TheRepublic
(1983)3 C LR 426nndm EfstathiosKynacouandSons Ltd andOthersν TheRepublic(\970) 3C LR 106 15 ^ __
(2)Thequestion inthepresent case iswhether the Licensing Authonty exercised itsdiscretion properly bearing inmindthe mattersenumeratedby sub section3of section 15 of Law 9/82 Beanng in mind that the disability of applicant 3 did not exist at the time the decision of the Licensing Authonty was taken and that as it emanatesfrom theobjections of theapplicantsandissupportedby thereportofthe DistnctTransport Controllerof Paphos theneeds of Galatana and thesurrounding villagesareserved by numerouslorries licensed as carriersA theconclusion isthat the sub judice decision is not supported by the material placed before the respondent Thespecial needs dunngthegrape season couldbe faced by thegrant of special licences inrespect of the relevant limited penod, but notby permanent licences over the whole year, which were in excess of existing needs and to the prejudice of supemumerous licensed cames Ainthe area Subjudice decisionannulled No orderas to costs Casesreferredto 30 Tsoulloftasand Othersν TheRepublic
(1983)3 C LR 426. Efstathios Kynacou andSons Ltd andOthersv TheRepubhc{1970)3C L R 106 Recourses. Recourses against the decision of the respondents affirming 35 the decision of the Licensing Authonty to grant to the interested parties licences tooperate theirvehicles as earnersAinthevillage 'RepealedbyLaw84/84 89 Aristides and Others v. Republic
(1987)of Galataria and dismissing applicants' hierarchical recourses. S. Karapatakis, for theapplicants. M. Tsiappa(Mrs.), for the respondent. Cur.adv. vu!t. SAWIDES J. read the following judgment. The applicants in 5 these two recourses which were heard together as presenting common questions of law and fact and as directed against the same administrative decision, challenge the decision of the respondent communicated to them by letter dated 12.12.1984 whereby he affirmed the decision of the Licensing Authority to 10 grant tothe interested parties licences for operating their vehicles as carriers Ainthe tillage of Galatariaanddismissed thehierarchi cal recourses of the applicants. The applicants are the owners of vehicles licensed as carriers «A». Applicant 1 is the owner of vehicle PE 280, with fixed station 15 Galataria village. Applicant 2 is the owner of vehicle MZ 982 with fixed station Kilinia village,applicant 3 is the owner of vehicle JY 147 with fixed station Galataria,and applicant No.4is the owner of vehicle JU80 with fixed station Kiliniavillage. Galataria village has a population of about 200 and Kilinia 20 about 100 inhabitants. Both villages are mainly grape-producing villages. They are close to each other and the distance between them isabout half amile.All thesaid vehicles of theapplicants are licensed tocarry goods both from Kilinia and Galatariavillagesto any destination in Cyprus. Interested party Stelios Michael, a farmer and vine grower of Galatariavillage,isthe owner of vehicle NE979 which,before the sub judice decision, was licensed ascarrierclass B. Also,interested party Christofis Panayiotou,afarmer andvine grower ofGalataria village, is the owner of vehicle NJ 995 licensed before the sub 30 judice decision as carrier class Βfor the needs of hisoccupation. Interested party Stelios Michaelsubmitted anapplication onthe 18th March, 1982, for the grant to him of a carrier A licence in respect of a new goods vehicle, of upto four tons, tobe stationed at and serve Galatariavillage.Asimilar application was submitted 35 by Christofis Panayiotou on the 22nd December, 1982 for a car rierA licence in respect of hisvehicle NG
- 90 " 3CUB. Aristidee and Others v. Republic S a w i d e · J. By letterdated 1 10 82 theGalatanavillageauthontyandmem bers of thecommunity,supported thegrant of thelicenceapplied ' for by interested party Stelios Michael,contending thatthe needs of thevillagecouldbe satisfied betterby asmall licensed earnerA 5 Also, by letters dated 22 12 82 and 31 1 83 the Galatariavillage authonties, the secretary of the Galatana Co-operative and members of the community, supported the application of interested party Christofis Panayiotou for the same reasons advanced by theminsupportof theapplicationof SteliosMichael 10 When applicants cametoknow about theapplication of Stelios Michael,they wrote aletterdated5 4 1982 tothechairmanofthe Licensing Authonty voicing their objection to the application on the following grounds (a)The village of Galatana and the sunounding villages were 15 sufficiently served by the existing earners of class A (b)The interestedparty hadalready been operating illegally his earner of class Β as earnerA and interfered with the work of the applicants (c)Thattheobject of theinterested party insubmitting hisappli20 cation was tolegalisehis illegality of using his earnerΒas earnerA for which he had been repeatedly reportedby the applicants By a further letter dated 17th January, 1983, the applicants objected to the application of interested party Chnstofis Panayiotou contendingthatGalatanavillage is sufficiently served 25 by theexisting licensed earners Aof Galatanavillageand the sur rounding area and thatsuch earners were facing problems due to the lack of sufficient work From what emanates from the files of the case, the applicants had repeatedly on previous occasions complained to the Li30 censing Authonty against theinterested parties for contraventions of theirlicences by using theircarriers Βas earnersA Intheletterof the Galatanavillage authontyof the 1st October, 1982 it was contended that the owner of a licensed earner A stationed at Galatana,namely, Ρ Charalambous, was for the last 35 two years incapacitated by physical disability and his earner was notservingthevillage Similarallegations arecontainedinthe two letters dated 22nd December, 1982 and 31st January, 1983 91 S a w i d e s J. Aristides and Othersv. Republic On the2nd December, 1982 the LicensingAuthontyinstructed the District Transport Controller ot Paphos to investigate into the needs of the area in respect of earners A The Distnct Transport Controller submitted his report on the 18th January, 1983 He mentioned inhisreport thatvehicle underRegistration NoJY 147 licensed as carrier A and stationed at Galatana village, had not been circulating throughout the year 1982due toitsowner's temporary physical disability from which however, he had in the meantime recovered He further mentioned thatinaddition tothis carrier and another one over five tonsstationed at PanoArodhes, 10 there were ten other licensed carriers Ain the sunounding area and in particular sixat Statos village, at a distance of three miles from Galataria three at thevillage of Kiliniaat a distance of half a mile from Galataria and one at Pendaha village at a distance of one mile from Galataria village In his opinion, the said earners 15 adequately served Galataria village throughout the year with the exception of the grape season as from the 15thSeptember tillthe 10th November By a subsequent report dated the 4th February, 1983, in the course of investigations concerning the applications of the 20 interested parties, the DistnctTransport Controllermentioned that Galatana village had 200 inhabitants, that the village isan agncultural one producing mainly grapes, and some almonds, olives, fruit and cereal and thattherewasoneearnerAatthevillage,three at Kilinia village and one at Pendaha village Also that interested 25 party Christofis Panayiotou neverhad anydnvinglicence nor had he ever dnven a car He finally mentioned that the Transport Union of carriers in the area raised objections to the granting of any new licences on the ground that the existing licensed earners were sufficient to meet the needs of Galatana village ^ The Licensing Authonty at its meeting of the 2nd June. 1983 examined the applications of both interested parties and decided to grant the licences applied for on the ground that the vehicles would serve the needs of Galatana and the surrounding villages 35 for small cargoes The said decision was communicated to the interested parties and theapplicantsbylettersdated 10thJune, 1983 Asaresult, the applicants lodged hierarchical recourses to the Minister of CommunicationsandWorks,who,undertheprovisionsofthelawthen in force, was the appropnate organ to deal with hierarchical ™ 92 3 C.L.R. Aristides and Others v. Republic S a w l d e s J. recourses from decisions of the Licensing Authority Such hierarchicalrecourseswereheardbytherespondent Ministerinthepresence of the applicants, their advocate and the interested parties and his decision was reached on the 5th December. 1984 Byhis 5 decision which was communicated to the applicants and the interested parties by letter dated the 12th December
- the Minister found that the Licensing Authonty rightly granted the licencesinquestion for thebetterservice ofthe needs of Galataria village 10 Asa result, the applicants filed the present recourses, No 195/ 85, challenging the grant of a licence tointerested party Christofis Panayiotou and No 196/85.challenging the grant of a licence to interested party Stelios Michael Counsel fortheapplicants argued that the Licensing Authonty, 15 the decision of which was affirmed by the respondent Minister acted in excess of itspower and exercised itsdiscretion wronglu as, in the light of the material before it the cntena which thelaw contemplates were not satisfied According to the report of the DistnctTransport Contioller of Paphos, counsel added, the needs 20 of the area were sufficiently served bythe existing earners Furthermore. that in the present case the Licensing Authonty acted under a misconception of fact in that it considered that the needs of the area were not sufficiently seived by relying on the opinion expressed by theVillageCommission and notonthe report ofthe 25 District Transport Controller of Paphos who carried out a proper inquiryinthe matter, incompliancewith instructionsgiven tohim Hefurther contended thatthe LicensingAuthority tailedtocarrya due inquiry m the matter and that the decision of the Minister affirming that ofthe LicensingAuthority hastobe annulled onthe 30 same grounds Counsel for the respondent submitted that the sub judice decision wasissued inthe exercise of the statutory powerswith which the Ministerisvested under the Lawand that inthe circumstances ofthepresentcaseitwasreasonably open totheMinistertodecide 35 as he did Indefending thedecision of the LicensingAuthonty she submitted that theauthorityacted onthebasisoftheprovisionsof the law and the cntena set out therein and reached its decision after aproper inquiryintothematter, bearinginmind thetypeand capacity of the vehicles which, in the present case, were small 93 S a w i d · · J. AristidesandOthersv. Republic vehicles and could serve the needs for transportation of small cargoes better. Thesubjudicedecision oftheMinisterwastakeninthe exercise of the statutory powers vested in him by section 4 of the Motor Transport Regulation Law,
- (9/82) (which section since the 16thNovember, 1984hasbeen repealed andsubstituted byanew section replacing the Ministerby the Review Licensing Authority and widening the powers ofsuch Authority). 5 The wording ofsection 4of Law9/82 wasidenticaltosection 6 of the MotorTransport Regulation Laws 1964-1975.The powers 10 of the Minister under section 6
(2)of Law 16/64 were analysed in the caseof Tsoulloftasand Othersv.TheRepublic
(1983)3C.L.R. 426 inwhich at p.431, itisstated that«A hierarchical recourse is not a judicial proceeding in any sense.Itisnotintended toreviewthecorrectnessofthehierar- 15 chically subordinate organ's decision by reference to the soundness of the reasoning propounded in support thereof but, to establish a second tierinthe decision -takingprocess, designed toeliminatemistakesaswellasabuseofauthorityby subordinates. Hence itisatleastasfeasible forthesuperior in 20 hierarchy to take any decision that the subordinate body .could reasonably take inthe first instance. Both organs inthe hierarchy are charged with the same duty - to promote the objects of thelawbytheapplication ofitsprovision inparticu- larcase.» InEfstathios Kynacou &Sons Ltd. and others v. The Republic
(1970)3 C.L.R. 106 atp.l 16,itisstated:«The powers of the Minister in deciding on an appeal of this nature are very wide, indeed; it isclear from the wording of section 6
(1)that he can exercise his own discretion in the 30 place of the discretion ofthe Licensing Authority.» The question which arises in cases of this nature is whether it was reasonably open to the Minister as a hierarchically superior organ toreach thesubjudice decision inthelightofthe surrounding circumstances and the provisions of the lawand alsowhether 35 the decision of the Licensing Authority which he affirmed was a correct one inthe circumstances of the case. Thepower oftheLicensingAuthoritytograntaroad uselicence 94 3 C.L.R. ArfsrJdes andOthers v.Republic S a w i d e s J, isgiven by section 5 of Law 9/82. Under sub-section
(3)of such section the Licensing Authority is vested with a discretionary power togrant road use licencessubject tosuch conditions asthe authority would deem necessary inthe case. 5 Sub-section
(3)ofsection 15ofthelawprovidesthatintheexerciseofitsdiscretionarypowerforthegrantofacarrierAlicencethe Licensing Authority should examine the following: (a)The needs of the area for the transportation ofthe particular type of cargo together with the extent and nature of such needs. 10 (b) The extent to which the area's needs are being served by existing carriersAin the area. (c)Thedegreetowhichitispossiblethattheapplicantwillbein a position tosupply inthearea safe, continuous and regulartransportation services. 15 (d)Thetypeand capacityofthevehicleinrelation towhich the application hasbeen lodged. In the present case the question which has to be examined is whether the Licensing Authority exercised itsdiscretion properly inthecase,bearinginmindthemattersenumerated insub-section 20
(3)of section
- The Licensing Authority as it appears from its minutes,had before itthe report of the DistrictTransport ControllerofPaphos,theletterof thechairman of thevillagecommission ofGalatana andtheobjections oftheapplicants.Intheletterofthe chairman ofthevillagecommission ofGalataria itisstatedthatthe 25 village had one lorry, owned by Pygmalion Charalambous, who couidnot drive itthe last twoor three years due to the incapacity of itsowner and which as a result was not circulating.Thealleged incapacityofPygmalion Charalambousduetoan accident, infact did not exist at the time when the decision of the LicensingAuthoritywastaken,because,accordingtothereportof the District Transport Controller of the 18th January, 1983, the saidperson had bysuch time recovered from histemporaryphysical disability due to which he was not operating his lorry in the year
- 35 From what emanates from the objections ofthe applicants and issupported by the report of the District Transport Controller of Paphos, the needs of Galataria and the surrounding villages are 95 Saw i d e · J Aristides a n d Others v.Republic
(1987)served by numerous lorries, licensed as earnersA.stationed both in Galataria and other villages situated within a radius of half to three miles The only period during which, according to the DistnctTransport Controller'sreport, additional serviceisrequired,is the grape season, that is theperiod between the 15thSeptember 5 and the 10th November ofeach year Bearinginmindtheabovefactsandon thebasisofallthematerial before me Ihave come to the conclusion that the sub judice decision isnotsupported bythe material which wasplaced before the respondent It is abundantly clear that the needs of the area 10 were more than sufficiently served for the whole year, with the exception of a period of about two months during the grape season Such needs couldbefaced bythegrantofspecial licences inrespect ofsuch limitedperiodsbutnotpermanent licencesover the whole year which weie in excess of the existing needs and to 15 the prejudice ofsuper-numerous licensed carriersAin the area For the above reasons I find that the discretion both of the LicensingAuthorityand therespondent Ministerwasnot properly exercised having regard to the circumstances of the case In the result both recourses succeed and the sub judice deci- 20 sions are hereby set aside with no order for costs Subjudice decisions annulled No oider astocosts 96