3C.L.R. 1987August26 (DEMETBIADES,J.) INTHEMATTEROFARTICLE 146OFTHE CONSTITUTION CHRISTOSCONSTANTINIDES, Applicant, v. THEREPUBLICOFCYPRUS,THROUGH THEMINISTEROFCOMMUNICATIONSANDWORKS, Respondent. (CaseNo. 232/80). 5 Motor transport— The Motor Transport-ReguiaiionLaw 16/64 — Sections 7 and8—Failure torenew alicencelor a'bus', whichexpiredinAugust 1974 —Applicationmade in1979 foralicenceinrespectofthesame busandfor thesame area —Correctlytreatedasnew application—Therefore,factthat areain question wasadequately served by the then existinglicences could have been takeninto consideration. AdministrativeLaw—Generalprinciples—Licences—Abstinence frommaking use of—Effect. 10 ConstitutionalLaw—Right toproperty—Constitution, Art.23—Exercise of right may bemade subjecttorestrictionsimposed byLaw—TheMotorTransport RegulationLaw 16/64 issuchalaw. ConstitutionalLaw —Right to exerciseaprofession — Constitution, Art.25 — Exerciseofrightmay bemade subjecttorestrictionsimposed byLaw—The Motor TransportRegulationLaw16/64 issuchalaw. 1 5 Administrative Law — Proper Administration — Whether applicant for a road servicelicenceforabusshould beinformed thatabuscompany forthearea inquestion isabout tobeformed—Questionanswered inthe negative. 20 The applicant is the owner of a bus, which until the 17.8.74 had a road servicelicencetocirculateintheurbanareaofUmassol.Theapplicant failed torenewsuch licence,which,therefore, expiredon 17.8.74. The applicant left Cyprus ashe wasdetrimentally affected bythe Turkish invasion.In1978hereturnedtoCyprus.On 15.1.79heapplied foralicence for his said bus. The Licensing Authority rejected the application on the 969 ConsteJitlnidee v. Republic
(1987)ground thatthe Umassol UrbanBuses Companycouldserveadequately the needs of the urban area of Umassol The applicant filed a hierarchical recourse to the respondent Minister The Minister dismissed the recourse, because (he urban transport area of umassol was adequately served by the then existing licensed buses 5 Hence this recourse Held, dismissingthe recourse
(1)Road service licences are issued under sections 7 and 8 oi Law 16/64 Inthecircumstances the Licensing Authority correctly treated applicant s licence as having expired and his application as an application for a new licence Itfollows thattheapplicanthadtosatisfy the 10 necessary prerequisites of section 8 and, therefore, it was withing the discretionof theLicensing Authority andtherespondentMinistertotakeinto consideration thefact thattheneeds of thearea in question were satisfied by the existing licensed buses
(2)There has been noinfringement oteitherArticle 23 orArticle 25 of the 1 5 Constitution, because the exercise of the nghts safeguarded thereunder are subject to restrictions orconditionsimposed by law and Law 16/64 issuch a law
(3)Applicant's complaint that his application was purposely delayed in order togivetimetotheUmassol UrbanBuses Companytobe institutedand 2 0 that proper administration demanded that applicant should have been informed about the institution of such company so as to enable him to participateinit,cannotbeaccepted Indeed,thecompanywas formed before applicant's application and, m any event, neither the Law nor proper administration required such information tobe given totheapplicant. 25 Recoursedismissed No orderas to costs Casesreferred to Kaminarosν Republic
(1971)3 C LR 445., Christodoulouν Republic
(1972)3 C L R 290, 30 ΚEM. (TAXI)Ltd ν Republic
(1976)3 C L R 285, Decision1711/52 of the Greek Councilof State Recourse. Recourse against the decision of the respondent whereby applicant's hierarchical recourse against the refusal of the 35 Licensing^Authonty to grant applicant a road service licence in espectof hisomnibuswas dismisseH. 970 3C.L.R. Con*tantfnldce v.Republic AS. Angelides, fortheapplicant. CI. Antoniades, Senior Counsel of the Republic, for the respondent^ Cur. adv. vult 5 DEMETRIADESJ.readthefollowingjudgment.Byhispresent recoursetheapplicantpraysfortheannulmentofthedecisionof therespondentMinisterofCommunicationsandWorks,datedthe 6th June, 1980, which was communicated to him on the 10th June, 1980,and bymeans of which hishierarchical recoursein 10 respect of a road service licence for an omnibus (hereinafter referred toas«thebus»)wasdismissed. Theapplicant isthe owner of the bus under Registration No. TAE590whichwasuntil 1974licensedtocirculate intheurban area of Limassol on specified routes for the transportation of 15 pupilstotheir schools and workers to the Phassouri Plantations andtheLoelLtd.factory. Itwasalsolicensedtouansportpeople forswimmingattheLady'sMileBeach. The last road service licence (hereinafter referred to as the «licence»)renewed forthebuswastheoneunderNo. 11455/73 20 andthiscoveredtheperiod7thNovember, 1973to 17thAugust, 1974.After theTurkish invasion, as hisworkwas detrimentally affected, theapplicantleftCyprus andtookupemploymentinthe Arabcountries.In1978theapplicantgaveuphisworkforhealth reasonsandreturnedtoCyprus. 25 On his return to Cyprus the applicant applied twice to the LicensingAuthorityforthegranttohimofalicenceforhisbuson the same conditions on which his previous licence had been issued.Bothapplicationsofhiswereturneddownforthereasons thatappearintherelevantdocumentswhicharetobefoundinthe 30 file oftheadministration whichisbeforeme. On the 15thJanuary, 1979,the applicant applied again fora licence for his bus. On the 14th April, 1979, the Licensing Authority,afterconsideringhisapplication,dismisseditbecauseit was found, on the material before it, that the Limassol Urban 35 BusesCompany couldserveadequately the needs ofthe urban transport area of Limassol. Against this decision, which was communicated totheapplicanton the7thMay, 1979,hefileda hierarchical recourse to the Minister of Communications and Works. 971 DemctriadesJ. Constantfnlde·v.Republic
(1987)On the 10th June, 1979, the applicant wasinformed that the Minister,after consideringalltherelevantmaterialplaced before him and in the light of the legislation in force, had reached the conclusion that theissuetotheapplicant ofa licence forhisbus wasnotjustified, becausetheurbantransportareaofLimassolwas 5 adequately andsatisfactorily servedbythethen existinglicensed buses. Against the decision of the Minister the applicant filed the presentrecourse. Counsel for the applicant submitted that the respondent 10 wrongly treated the application of the applicant as one for the issuetohimofanewlicencesincethebuswasinfactalicensed one;thatthe originallicenceissuedfortheapplicant'sbusnever ceased toexistand that whatthe respondent had todecidewas what the conditions for the running of the bus, and the fees 15 prescribedbytheLaw,weretobe.Hefurther arguedthatincase itwasfound that the respondent wasunder the Law entitled to treattheapplicationoftheapplicantasanewonefortheissueto himofalicencethentheLawisunconstitutionalasitcontravenes Articles 23, 25 and 28 of the Constitution and/or that the sub 20 judicedecisionwasultravirestheprovisionsoftheLaw. Road service licences are issued under the provisions of sections 7and8 ofthe MotorTransport (Regulation) Law, 1964 (Law16/1964),andthelegalpositionregardingtheissueofsuch licenceshasbeenexpoundedinanumberofcasesdecidedbythe 25 Supreme Court(seeKaminarosv.TheRepublic,
(1971)3C.L.R. 445, 448,449; Christodouhu v. TheRepublic,
(1972)3C.L.R. 290, 292,293and K.E.M. (TAXI)Ltd. v.TheRepublic,
(1976)3 C.L.R.285,291). Havingconsidered theparticular circumstancesofthepresent 30 case,namelythefailureoftheapplicanttorenewthelicenceofhis busforaconsiderablelongtimeandthatasaresult,theLicensing Authorityhad,duringthe.timethesaidlicencewasnotrenewed, tomakeotherarrangementstomeettheneedsofthepeoplethat were using the applicant's bus and, further, that such 35 arrangements could not be made conditional on whether and whentheapplicantwastoreturnandhavehislicencerenewed,I find thattheLicensingAuthorityhadrightlytreatedtheoldlicence ashavingexpiredandthattheapplicant'sapplication wasforthe granttohimofanewlicence,inwhichcasehehadtosatisfythem 40 972 3 C.L.R. Constantfnlde· v.Republic Demetrtades J. thatthe necessary prerequisites, undertheprovisionsofsection 8 of Law 16/64, were, at the time of the consideration of the application, existent. InKyriacopoulos onGreekAdministrative Law,4thed.,Vol.B, 5 p. 402, it isstated that the non usage for a long time of a certain licence renders it non operative and in footnote 36 reference is made tothe decision ofthe CouncilofState inGreece No.1711/ 52 where it was held that the abstinence from making use of a licencebringsabout itsimplied abrogation. 10 Therefore, it was within the discretion of the Licensing Authority, indeciding on hissaidapplication, and inapplying the provisionsof the relevant legislation, totakeintoaccount the fact that the road transport needs of the Limassol urban area were at the time adequately served by the existing licensed buses of the 15 Limassol Urban Buses Company which wasrrgistered as such in 1978,andsuch factwasalsolegitimatelytaken into consideration by the Minister of Communications and Works in deciding the hierarchical recourse before him. Regarding the constitutional aspect of the case Ido not agree 20 with counsel for the applicant that Articles23 and 25 have been infringed in the present case, because the exercise of the rights safeguarded by means of the said Articles of the Constitution is subject to the conditions or restrictions provided by Law, in this case Law 16/64, and hisallegation thattheapplicant isthevictim 25 of unequal treatment is, also, dismissed because it has not been substantiated. Counsel for the applicant had, also, contended that the sub judice decision was reached in excess or abuse of powers, under a misconception of the facts and the law and that it is not duly 30 reasoned. The reasoning of the sub judice decision is contained adequately in the body of the decision itself but may also be supplemented from thematerialintherelevantadministrative file. On the material placed before the respondent he was perfectly 35 justified to reach the sub judice decision and there is nothing to suggest that he has acted acted under a misconception of the facts of the case or the law, nor do Iagree that he had acted in excessorabuse of hispowers. Lastly, Iwillrefer briefly to the allegations of the applicant that 973 DemetHadeeJ. Constantinlde·v.Republic
(1987)the subjudice decision wasdelayed inpurpose inorder togive timetothe Limassol Urban BusesCompany tobeinstitutedand dismissthereafter hissaidapplicationandtohiscomplaintthathe wasnot informed bytherespondent about the institution ofthe Company so as to have the opportunity to participate himself, 5 contrarytotherulesofproperadministration. Counselfortherespondenthadstatedinhiswrittenaddressthat thesaidCompany wasregisteredonthe23rdJune, 1978,under Registration No. 11175, that isbefore the 15th January, 1979, when the relevant application oftheapplicant wassubmittedto 10 theLicensingAuthority.Iamnotconvincedthatanythingaffecting prejudiciallytherightsoftheapplicantwasdoneonpurposeinthe present casewiththeparticipation oftherespondent.Iamofthe view that the Licensing Authority and the respondent Minister werenotdutyboundtoinform theapplicantabouttheformation 15 oftheCompanyeitherundertheprovisionsoftheLaworeventhe rulesofproper administration. In viewof allthe foregoing thepresent recourse fails and itis dismissedaccordingly,butwithnoorderastoitscosts. Recoursedismissed. 20 Noorderastocosts. 974