clr/1988/1988_3_297.pdf

(1988)Held,dismissing therecourse:

(1)Theprovisionsofsection4ofLaw 47/82,alawintendedtoregulatetheregistrationofnonlicensedtouristestablishments,aremandatory.Noprovisoexistsundersection4toempower therespondentinexceptionalcircumstancestoignoreorrelaxthetimelimit fixed bythatsection. 5

(2)Thecontrolofpremiseserectedforthepurposeofbeingusedbythe publicingeneralashotelortouristestablishmentsisnotadeprivationofthe right ofownerstoutilizetheirproperties.

(3)Reasonabledifferentiations donotamounttodiscriminatorytreatment. 10 Recoursedismissed. Costsagainstapplicants. Recourse. Recourse against the refusal of the respondent to register property belonging to applicants as non-licensed establishments in accordance with the provisions of the Registration of NonLicensed Establishments Law, 1982(LawNo.47/82). A. Eftychiouy for the applicants. A. Dikigoropoulos, for the respondent. Cur. adv. vult. 20 SAVVIDES J. read the following judgment. By the present recourse the applicants challenge the decision of the respondent communicated to them under cover of a letter dated 20.3.87 addressed to their counsel, refusing the registration of property belonging to the applicants as non-licensed establishments in accordance with theprovisions ofsection 4ofLaw47/

1. 25 The applicants are owners of non-licensed establishments in the sense of section 4 of the Registration of Non-Licensed Establishments Law, 1982 (Law No. 47/82) at Poli (Chrysochous) Paphos. On 13.10.86 the applicants applied for ™ the registration of the said premises as non-licensed 298 3 C.L.R. 5 10 15 20 25 Sergides & Another v.C.T.O. SavvidesJ. establishmentsinaccordancewiththeprovisionsoftheLaw. On 5.3.1987 the Board of the respondent considered the above application andhavingtakenintoconsideration thereportofthe General Managerof theOrganization andtheoralopinionofits legaladviser,decidedtoreject theapplication,onthegroundthat it had been filed out of time. The above decision was communicated totheapplicants,throughtheircounsel,byletter dated20.3.1987,thecontentsofwhichreadasfollows:"Irefer toyourletterdated 13.10.86bywhichyousubmittedapplicationsonbehalfofyourclientsMichalakisSergides andVassoSawidou for theregistration oftheir non-licensed establishmentsatPoli(Chrysochous)onthebasisofLaw47/
2. .

(2)TheAdministrativeBoardoftheOrganisationexamined theapplicationsofyourclientsanddecidednottoacceptsame forthefollowingreasons: (a)Accordingtotheprovisionsofsection4of Law47/82 theowneror authorised agentof anyexisting orunderconstruction non-licensed establishments should, within six monthsfrom thedateofthecomingintooperationoftheLaw, submittotheOrganisationanapplicationfortheregistrationof suchestablishments. (b)The aforesaid Law (47/82)came intoforce on the8th October, 1982and,therefore, therelevantapplicationsforregistration of non-licensed establishments should have been submitteduntilthe8thofApril,1983. (c)Itemanatesfromtheabove,thattheapplicationsofyour clients for registration of their non-licensed establishments weresubmittedoutoftime." 30 Asaresult,theapplicantschallenged thesubjudicedecision. Thegroundsof lawadvanced insupportof therecourse,arethe following:299 Savvides J. Sergides & Another v. C.T.O.

(1988)Thesubjudicedecisioninwronginthat: (

1. a)It was taken in violation and/or wrong application and interpretation of the law for the Registration of Non-Licensed Establishments, 1982 - 1985 (Laws 47/82 and 79/85) and in particularsections4and2oftheabovelawsrespectively. 5 (
2. b)It violates Article 28.1 of the Constitution as a discrimination iscreatedagainsttheapplicantsincomparisonwith other persons who submitted similar applications which were approved. (c)ItviolatesArticle23oftheConstitution,astheapplicants 10 arerestrictedtouseand/ordisposeimmovablepropertybelonging to them, without theprerequisitesof sub-paragraph 3of Article 23oftheConstitution being satisfied. (d)Itwastakeninabuseand/orexcessofpower. (e)Itwasnotdulyreasoned. (
3. f)Itwastakenunderamisconception offactandlaw. (
4. g)It was taken by an incompetent organ not properly constituted. In expounding on the above grounds of law, counsel for applicants submitted that the limit fixed by the law is only «0 directory and not mandatory orimperative,astheobject of the legislation wasnot to deprive persons whohad already erected premisesorhadpremisesunderconstruction,oftherighttohave themregisteredasnon-licensedestablishments,bynotcomplying with amere formality concerning time limit. Theprovision for timelimit,counsel argued,isarbitrary,bearinginmindtheshort period allowed for submitting an application and thus a discrimination is created in violation of Article 28 of the Constitution against the applicants vis a vis other owners of sinrlarnon-licensedestablishmentswhichexistedorwereunder 30 300 3 C.L.R. 5 1 0 1c 2 * 30 Sergides & Another v. C.T.O. Savvides J. construction before the coming into operation of the law and which had been registered as such. Furthermore, he submitted thattheapplicantsaredeprived of theirrighttouse and/or dispose of their property, contrary to the provisions of Article 23 of the Constitution.Counsel further argued thatthereasoning of the sub judice decision is insufficient and thedecision was reached after consultationsbetween themembers of the respondentwho failed to carry out a due inquiry and examine the applications of the applicants on their substance and proceeded todismiss sameon the basis of time limit without considering their merits. He concluded by submitting thatthesubjudice decision was taken by an organ which was not properly constituted and it was not therefore competenttodecide thecase. Counsel for the respondent submitted that the said decision was.properly taken inaccordancewith theprovisions of the law. The respondent,counsel submitted, could not have overlooked the express provision of the law as thetime limit for submitting an application, as otherwise, it would have acted ultra vires the law. The provision of section 4, counsel submitted, is clearly mandatory and no right is given to the respondent to make any relaxation inthisrespect.Heconcluded his address by submitting thatthesubjudice decision does notinany way violate Article 23 of the Constitution, in that section 4 of Law 47/82 does not impose any restrictions orlimitationsonapplicants'property but, on thecontrary,it affords theopportunity toowners of property to have such property developed in accordance with the provisions of thelaw. Furthermoreitdoes notamounttounequal treatment contrary to Article 28 of the Constitution, as the provisions contained therein do not exclude reasonable differentiations which have to be made in view of the intrinsic natureof things. The whole question turns upon the construction of the provisions of section 4 of Law 47/82which provides as follows:4. "Ο ιδιοκτήτηςή ο εξουσιοδοτημένος αντιπρόσωπος παντός υφισταμένου ήυπόανέγερσινμήαδειούχου κατα301 Savvides J. Sergides & Another v. C.T.O.

(1988)λύματος οφείλει όπως,εντός έξ μηνώναπό της ενάρξεως ισχύος τουπαρόντος Νόμου,υποβαληπροςτονΟργανισμόναίτησιν εγγραφήςτουτοιούτουκαταλύματος." ("Theowner ortheauthorised agentof anyexistingor un­ derconstructionnon-licensedestablishments must,within six monthsfromthedateof thecomingintooperationof thisLaw, submittotheOrganisation anapplicationfor theregistrationof suchestablishment"). 5 Theobject of thelaw, asclearly stated in theheading andits context, is to provide for the registration of non-licensed 10 establishments providing sleeping accommodation for the purposeof exercisingcontrolover such premises. Section9of Law 47/82 provides that the provisions of thelaw apply only tonon-licensedtouristestablishments which werein operation or were under construction immediately before the 15 comingintooperationof thelaw. Having heardtheargumentsadvanced andbearing inmindall thematerialbefore me,I aminclinedtoacceptthesubmission of counselfor therespondentthatthe provisions of section4of Law 47/82,alaw intendedtoregulate theregistration of non-licensed 20 tourist establishments, are mandatory. Noprovisoexistsunder section4toempowertherespondentinexceptionalcircumstances toignoreorrelax thetimelimitfixed by that sectionandtherefore itrightlydismissedtheapplications.Theallegation of counsel for the applicants that the respondent was notat thematerial time 25 properly constitutedhasnotbeensubstantiated. Finally,theargumentof counselfor theapplicantsthatthesub judicedecision is notduly reasonedcannotbemaintained. There is sufficient reasoning in the letter addressed to counsel for applicants embodying the sub judice decision in which full 30 reasons aregiven for therefusal of therespondenttoregister the saidestablishments andwhichisclearly based onthe fact that the applicationsweresubmittedoutof time.Suchreasoningis further 302 3 C.L.R. 5 0 Sergides & Another v. C.T.O. Savvides J. supplemented by the material contained in the minutes of the meeting at which the subjudice decision was taken, copy of which has been produced. I find also that the contention of counselforapplicantsthatthereisviolationofeitherArticles23 or 28 of the Constitution as unsubstantiated. The control of premiseserected for thepurpose of beingused bythepublicin general ashotel ortourist establishmentsis notadeprivation of therightofownerstoutilizetheirproperties.AstoArticle28,it has been repeatedly held by this Court that reasonable differentiations donotamounttodiscriminatorytreatment. In theresult thisrecourse fails andis hereby dismissed with costsinfavouroftherespondent. Recoursedismissedwithcosts infavourofrespondent. 303