(1988)1988October22 [PAPADOPOULOS,J.] INTHEMATTEROFARTICLE146OFTHECONSTITUTION K.M.C.MOTORSLIMITED, Applicants, v. THEREPUBLICOFCYPRUS,THROUGH 1.THEMINISTRYOFCOMMUNICATIONSANDWORKS, 2.THEDEPARTMENTOFCIVILAVIATION, 3.THETENDERBOARD, Respondents. (CaseNo. 256/83). Timewithin whichtofilearecourse—Knowledgeofthepartyaffectedbythe decision—Whendoessuchknowledgesetinmotionthemachinery. Thefactsofthiscaseappearsufficiently intheJudgmentoftheCourt Recoursedismissed. Noorderastocosts. Casesreferredto: Moron v.TheRepublic,1 R.S.C.C.10; Ploussiou v.CentralBank
(1982)3C.L.R.230. Recourse. Recourse against the decision of the respondents toaward the tender for the supply of two semi-trailer airfield passenger buses to the interested party instead of tothe applicant. 1946 10 c 3C.L.R. otdup.'K.M.C. Motors v. Republic . 'PhrValiantis,fortheapplicants:~.,Γί·_ - ..ι· r.. π . :· " ' '•- .ν , · ' -3.il ·. ; " n : ' * • ">•'• ' '< >' .- . • • . . · » ' - . '•• • r ν· '·*! 'M>*Cleri(fou—Tsiappd(}Arsj>^ Ε. Liatsou (Mrs.) for Chr. TriantafyHides, for the interested ,f ~ '."*.party.*· ·*"" --•'' ' ·-»'ν.'Ιν.' ν * ·" ^***$siik ι ; : > • i< , ; I··, t . ' . ; , fi: . ,] ! ' - ._". l . " ' ' • . ' * ' ' '»'· (1| •!''• * »v. o 1 of) ;•l.'i* Γ J · C'-Λν -*w ii ''•*' fi 'Cuf!radvirvUlt? PAPADOPOULOS J. read the following judgrhent!vBy(the* presentrecoursetheapplicantsseek adeclarationof theCourtthat the decision of.the respondents^ award artender-for the supply of two semi-frailer airfield passenger buses to*the*interested party: instead of to the applicants, is null'arid void of noeffect what soever. Therelevant facts are inbrief thefollowing: Γ'**''**'· ° Tenders were invited for the supply totherespondentsof two' semi-trailer airfield passenger buses. Afte?examination arid scru tiny by.the appropriate'body, the'tenders^were^ubrnitted to the' TenderBoard with theirsuggestions.Eventuallythe supply of the two airfield buses was'given'to theinterested party.1The decision was taken on the 15/12/82 by respondent'3andwas communicatedtotheDepartmentof Civil·Aviation ohthe21/12/82: TheTen der Board, respondent 3, by a letter dated 2/2/83, informed the applicants thatthey had been unsuccessful in their tender.How ever,' before thatletter-was written andinparticular,on the 27/1/ 83,theapplicants,theinterested'party andanothercompany, MeCoMetalConstructionLtd.;signed adocument with regard tothe manufacture of partof these·airfield buses. • On the 16/6/1983, this recourse was filed whereby'the appli cants seek theremedy already stated earlier. Itis theallegation of' theapplicants thatthedecision of theTender Board was·takennT contravention of theLaw, ultravires, in abuse of power, andthat they were acting under a misconception as tothefacts. They had putdown a numberof reasons to support theirapplication, which atthis stage Ibelieve Ineed notmentionbut Iintendtodo so after .examining thepreliminary pointof therespondents if need be. 1947 PapadopoulosJ. K.M.C.Motors v. Republic
(1988)Itis thesubmission of learnedcounselfor therespondentsthat the recourse was filed after the lapse of 75 days from thedate when thedecisioncomplainedof was takenandconsequently,the recourseisoutoftime. Itis theallegation of theapplicants thattheactualdecision of 5 theTenderBoard was nof inDecember 1982,as alleged by the respondents, but in fact it was taken on the 18th of April 1983, andthey base theirallegation onalettersentby the interestedpar tytoCivil Aviation. Themostcrucial pointIhave todecideatthisstageis whether 10 thedecision for thetenderwas takenonthe15/12/82 orafter the 18thofApril 1983.1 havereadwith greatinteresttheletterof the interested party and indeed Ihave gone through thefileto see what was exchanged between theparties.Ihave cometothecon clusionthatthedecision for thetenderwas finally andconclusive- 15 ly takenonthe 15thofDecember 1982.Fromallcorrespondence, exchange of letters,eitherbetween theinterested parties and the respondents, or the applicants and the respondents, or among them,or among all of them,onecaneasily,in myopinion,de ductthatboththeinterestedparties andtheapplicantswere trying ^n tomakesomemodifications tothetendersothateachoneofthem would take somekind of benefit buttheseevents ortheseletters which Ihave studied with care,donot,inmyopinion,cancelthe original decision of therespondentsandreviveitfor anewdeci sion. So,Itake is as a fact thatthedecision complained of was taken onthe15thof December 1982 andnotatthe endof April or in thebeginning ofMay 1983,asitisalleged by theapplicants. In the light of my above finding, therecourse is out of time andcannotsucceed. Ϊneedonlyciteapassagefromthejudgment of the Supreme Court in thecase of Moranv. TheRepublic, 1 R.S.C.C. 10atpage13,which reads: "TheCourtisof theopinionthattheperiod of timeprovid ed for inthesaid paragraph 3ismandatory andhas tobegiven effect toin thepublic interest inall cases. Suchviewisinac1948 '™ 3 CX.R. ' K.M.C',Motors v.' Republic Papadbpoulosj . '.' *cbrdance with-theinterpretation'ofanalogous'pfovisibns given ^by administrative tribunals'ina numberof Europeancountries '· and is'also theview of 'authoritativewritirig ori'this subject. 1ift t r-'-t i »b · t • • 4 ; o - of this case. ΙΟ 15 ^ As in the^presentcase theactscomplainedof were not pub lished, in order to find as from when the period of'seventyfive days began torun,it is necessary to ascertain when such actscametothe'knowledge of the Applicant... In theopinionof theCourt'knowledge' means knowledge of thedecision, actoromission giving rise to the right of re course under Article 146 of the Constitution and not know ledge of evidential mattersnecessary tosubstantiate before this Court anallegation of unconstitutionality,illegality or an ex cess or abuse of power". And also apassage from thecase of Ploussiouv.CentralBank
(1982)3 C.L.R. 230, which states: 20 25 30 "Article 146.3 of theConstitutionpostulates knowledge of thedecision as a necessary prerequisite for setting inmotion the machinery for judicial review of the decision. The ag grieved party must challenge a decision within 75 days, the constitutionalperiodof limitation... ...Thereasoning behind thedecision need notcometothe knowledge of theparty affected thereby for the75-day period to begin torun.This was settled by aseries of decision given soon after theintroduction of administrative law as a separate branch of our legal system. (SeeJohn Moran v.TheRepublic, 1 RSCC 10; The Holy See ofKitium v.Minicipal Council of Limassol, 1 R.S.C.C. 15)... Article 146.3 does notenvisage knowledge from anyparti cular source. All itrequires is knowledge of thedecision,cer19^9 PapadopoulosJ. K.M.C.Motorsv.Republic
(1988)tain enough toenable aparty affected thereby topursue his rights.Aparty,anexistinglegitimateinterestofwhomisprejudiced bythedecision,isdeemedtobeinsuchaposition as soon as he gains adequateknowledge of the decision itself. Adequateisthatkindofknowledgethatcompriseseverymate- 5 rialaspectofthedecision." In thelightof the above,therecoursefails withoutanyorder astocosts. Recoursedismissed. . Noorderasto costs. 10 1950 »