clr/1989/1989_3A_467.pdf

(1983)3 C LR 426followed 10 15 20 InthiscasetheCourtannulledadecision whereby theinterestedparty was granted with a license for a rural taxi for Sycopetra village Following that decision theinterested party submitted anew application for such a license in respect of same car The licensing authonty didnot reconsider theannulleddecision, but considered thenew application and granted the license The applicant in this recourse filed a hierarchical recourse against thatdecision,but when thelatterwas dismissed, hefiled the present recourse Havingreachedtheconclusionthatinthepresent casethe respondent authonty didnotactunderamisconceptionof fact andthatthesub judice decision was reachedafter dueinquiry andthatit was reasonably opento 467 Andreou v.Republic &Another

(1989)therespondentauthority,theCourtdismissedtherecourse. Recourse dismissed. No order asto costs. 5 Casereferredto: Tsouloftasv.Republic(I9S3)3C.LR.

1. Recourse. 10 Recourse against the decision of the Review Licensing Authority dismissingapplicantshierarchical recourseagainstthe decision of the Licensing Authority to grant to the interested party arural taxi licence to bestationed at Sykopetra. 15 Chr. Pourgourides, for the Applicant. M. Tsiappa (Mrs), Counsel of the Republic B, for the Respondents. 20 A. Panayiotou, for the Interested party. Cur. adv.vult. 25 KOURRIS. J. read the following judgment. By the present, recourse, applicant seeks a declaration of the Court that the decision ofthePermitsReview LicensingAuthority,respondent 2, dated 22.11.1986, and communicated to applicant and interested party by letter dated 4.12.1986, by which the said 30 respondent had dismissed applicant's hierarchical recourse lodgedagainst adecision oftheLicensingAuthority,grantingto the interested party a rural taxi license to be stationed in the villageofSykopetrainrelation tohisvehicleunderRegistration No. NH 175,isnull andvoid andof no effect whatsoever. 35 The facts of this recourse shortly are as follows:- The Minister of Communications and Works and the Licensing Authority granted to A. Papadopoullos a rural taxi licence in relation to his vehicle under Registration No. NH 175 to be 40 stationed in the village of Sykopetra and the applicant as interested party filed a recourse before the Supreme Court 468 3 C.L.R. Andrcou v. Republic &Another Kourris, J. under No. 237/82 challenging the said decision. The Supreme Court, having heard the recourse, delivered its Judgment on 4.4.1985 annulling the saiddecision. 5 After deliveryoftheJudgment intheabove-mentionedcase, A. Papadopoullos applied afresh to the Licensing Authority by letter dated 6.5.1985,seeking thegrant of a rural taxi licencein relation to his vehicle NH 175 to be stationed at Sykopetra village. The Limassol District Transport Inspector made a 10 report dated 14.6.1985 on the said application. The Licensing Authority convened on25.6.1985 anddecided in the light of the Court's said Judgment, to cancel Papadopoullos' relevant rural taxi licence and invited 15 Papadopoullos and the applicant to make representations in relation to Papadopoullos' application for the grant of a rural taxi licence. The Licensing Authority's decision to cancel Papadopoullos' licence was communicated to him and to applicant by letters dated 6.7.1985 and invited Papadopoullos 20 andapplicantbyletter dated6.7.1985.toattendameetingofthe Licensing Authority which was to take place on 16.7.1985 for the purpose of examination by the Licensing Authority of Papadopoullos' application. Both applicant and Papadopoullos made their representations on 16.7.1985 and the Licensing 25 Authority after examination on 13.8.1985 of all relevant facts and material, decidedtogrant the licence applied for. The decision of the Licensing Authority was communicated to Papadopoullos and applicant by letters dated 20.8.1985,and 30 applicant, feeling dissatisfied with the said decision, lodged a hierarchical recourse dated 29.8.1985 to the Permits Review Licensing Authority. The Permits Review Licensing Authority heard the recourse and representations from the applicant and Papadopoullos at their meeting of 28.6.1986, and after taking 35 into account all relevant facts and circumstances, they decided attheirmeetingof22.11.1986,todismissapplicant'shierarchical recourse. (Appendix IStothe opposition). The decision of the Permits Review Licensing Authority dated 22.11.1986, (Appendix 19to the Opposition), was taken under The Motor 40 Transport Regulation Laws 1982 and 19S4 (Laws 9/82 and 84/S4) and was communicated to applicant and Papadopoullos byletterdated4.12.
2. 469 Kourris, J. Andreou v. Republic &Another

(1989)The applicant, feeling aggrieved by the decision of the Permits Review Licensing Authority, filed thepresent recourse complaining that the respondent Authority failed to carry out a proper inquiry,madenoproper appreciation ofthefacts placed before it, and that Sykopetra andProfitis Elias was one village 5 and not two separate villages. Before proceeding any further, I would like to tackle the point raised by counsel for the applicant stating that there has been a revocation by the Permits Review Licensing Authority 10 andexpounding on the said issue. Ido not agree that therehas been a revocation by the Licensing Authority. In the present case, after the Judgment of the Supreme Court annulling the decision to grant a rural taxi licence to Papadopoullos, the interested party in the present proceedings, the respondent 15 authority acting in compliance with the Judgment of the Supreme Court, notified Papadopoullos of the decision of the Supreme Court cancelling at the same time his licence. (See Appendix 6tothe Opposition).The respondent Authority took the sub judice decision as a result of a new application by the 20 interested party dated 6.5.1985; they did not re-examine their decision which was annulled bythe Supreme Court. The sub judice decision was issued in exercise of statutory powers with which the Respondent is vested by s.4A of the 25 Motor Transport Regulation Laws 1982 and 1984 (Laws 9/82 and S4/84).The wording of s4A

(3)issimilar to the wordingof the abolished s.4

(2)of Law 9/82 and s.6

(2)of the abolished MotorTransport Regulation Laws 1964to 1975.The Minister's powers under s.6

(2)were analysed inthe caseof A. Tsouloftas 30 v. TheRepublic of Cyprus{\9H3) 3CL.R. 426inwhich itwas inter aliastated at p.437that: "Ahierarchical recourse isnot ajudicialproceedinginany sense. It is not intended to review the correctness of the 35 hierarchical subordinate organ's decision by reference to the soundness of the reasoning propounded in respect thereof, but to establish a second tier in the decision-taking process, designed to eliminate mistakes as well as abuse of authority bysubordinates... Both organs in the hierarchy are charged with the same 470 40 3 C.L.R. Andreou v. Republic & Another Kourris, J. dutytopromote theobjects of theLawbytheapplicationof itsprovisions inparticular cases." And atp. 432: 5 "The test by which we must judge the validity of the decision of the Minister isthe same with that applicable to the Licensing Authority. Itisthis: 10 Whether it was reasonably opentotheMinister,inview of theprovisions of theLaw,andthematerialbeforehim, to decideashedid." Sections 5

(3)and 5

(6)(b) vest the Licensing Authority in 15 general terms with discretionary power to grant road use licences whereas s.9 deals specifically with the Licensing Authority's discretion tograntrural taxi licences. Sub-section

(3)of s.9 stipulates asfollows:20 '

(3)Η αρχήαδειώνεν τηασκήσει της διακριτικής αυτής εξουσίας δέονόπωςλαμβάνειυπ'όψινταακόλουθα: 25 30 35 (α) (ι) τηνέκτασινκαθ'ηντυχόναιανάγκαιτηςοικίας .... αγροτικής κοινότητος, εξυπηρετούνται επαρκώς(ιι) τον βαθμόν εις τονοποίονείναιπιθανόν ότι ο αιτητής θαδύναται ναπαρέχειταςαιτουμένας μετα­ φορικόςυπηρεσίας(ιιι) τηνέκτασινκαθ' ηνη σκοπούμενηοδική χρήσιςείναιαναγκαίαή ευκταίαεντωδημοσίωσυμφέροντι(ιν) ταςανάγκας τηςπεριοχήςεντω συνόλω της αναφορικώςπροςτηνμεταφοράνεπιβατών.' 40 TranslatedintoEnglish the saidsection reads asfollows: "

(3)Intheexercise of its discretionary powers the Licensing 471 Kourris. J. Andreou v.Republic &Another

(1989)Authority must take intoaccount the following: (

1. a)(
2. i)the extent to which the needs if any of the relevant 5 rural community are being satisfactorily served* (
3. ii)the extent to whichit islikely that the applicant will be in a position to supply the transport services 10 applied for (iii) the extent to which the road use being sought is necessary or inthe public interest· 15 (
4. iv)the needs of the area in its entirety in relation to the transportation of passengers." The reasoning for the respondent's decision as expressed in the decision itself, was that the respondent, having taken into 20 accountthelegislation inforceandallthefactsofthecaseplaced before them,andhavingconsidered allthematerial containedin the relevant files, together with everything that hadbeen stated by applicant and interested party, had decided to dismiss the hierarchical recourse for the better service of the transport 25 needs of Sykopetra Village. According to the Limassol District Transport Inspector's report which was made on the application of the interested party on 14.6.1985, (Appendix 4 to the opposition), the 30 interested party was a driver by profession in the village of Sykopetra and running asmallgrocery shopthere with hiswife. According to the Inspector's report there wasno otherlicensed rural taxi in Sykopetra which numbered about 220 inhabitants, the village's regular transport needs being served by licensed 35 rural buses and its emergencies being served since 1982 by interested party's taxi under Registration No. NH 175 whose licence had been cancelled in the light of the above-mentioned Judgment of theSupreme Court. Accordingtothereport,there was no 'phone in Profitis Elias which was the nearest 40 community with a licensed rural taxi which was owned by the applicant. 472 3 C.L.R. Andreou v. Republic &Another Kourris, J. The Sykopetra Village Authority which had in the past, in point of fact, in 1982,objected to interested party's application at the time for the grant of a rural taxi licence for serving Sykopetra Village, (Appendix 11to the opposition), now, by 5 letter dated 11.7.1985, (Appendix 10 to the opposition), strongly pleadedthegrant ofaruraltaxilicencefor theirvillage, stressing the need thereof through accounts of instances of emergency which had arisen in the past and in which the presence of interested party's licensed taxi in the village had 10 been shown tobe indispensable. Itwasalsostated inthevillage authority's letter that due to the fact that Profitis Elias community in which applicant's rural taxi wasstationed was at a distance of three miles from Sykopetra. without any communal orprivate'phone,andthatonlyanon-asphalted road 15 connected the two communities, the applicant's taxi could not serve satisfactorily or at all the emergency needs of Sykopetra. bearing also in mind that applicant herself was on many occasions away Irom Profitis Elias. 20 The Department of Inland Transport's conclusion on the basis of the above-mentioned facts, were set out in a minute addressedtothechairman oftheLicensingAuthority (Appendix 12to the opposition) by which they advocated the grant of the licencetotheinterested party. The LicensingAuthority decided 25 at their meeting of 13.8.1985 (Appendix 13to the opposition) after taking into account the department's said suggestion, as required by s. 15sub-s. 14of the Motor Transport Regulation Laws, and after having listened to representations by applicant and interested party at their meeting of 16.7.1985,to grant to 30 the interested party the licence applied for (appendix 9 to the opposition). Interested party'sallegations atthesaidmeetingof 16.7.1985, to the effect that applicant's licensed rural taxi of Profitis Elias could not satisfactorily serve the transport needs olSykopetra,werecompatiblewiththecontents oftheletterby 35 the Sykopetra Village Authorities and the contents of the Limassol District Transport Inspector's report. Respondent No. 2, Permits Review Licensing Authority, after hearing the hierarchical recourse and listening to both the 40 applicant andinterestedpartyattheirmeetingof28.6.1988,had decidedafter takingintoaccount allrelevant material andfacts, including the material and fact referred to hereinabove, to 473 Kourris,J. Andreou v.Republic &Another

(1989)dismiss applicant's hierarchical recourse. I propose now to examine whether there are two separate villages under the name of Sykopetra and Profitis Elias respectively. 5 It appears that there is one village only, namely Sykopetra. with 220inhabitants and Profitis Elias isa quarter of Sykopetra but at a distance of about 3miles away from it,connected with a rural track road. There is no evidence as to the number of 10 inhabitantsofthiscommunity,butbearinginmindthatthemain village itself, i.e. Sykopetra, isinhabitated by 220 persons,then Profitis EliaswhichisaquarterofSykopetrashouldbeinhabited by less persons than Sykopetra. The crux of the matter is not whether Profitis Elias andSykopetra isone village,but whether 15 this rural community consisting of Sykopetra andProfitis Elias were in need of another rural taxi for the better service of the village's transport needs. I am satisfied, in view of the above, that the respondent 20 authority made a due and proper inquiry and did not act under amisconception offacts orfailedtomakeaproper appreciation of the facts placed before it. It was open to the respondent No. 2 authority to reach the 25 sub judice on the basis of the material placed before them and the-provisions of the Motor Transport Regulation Laws. The finding made by respondent authority No.2andreflected in the sub judice decision that Sykopetra village wasinneed of arural taxi for the better service of the village's transport needs, is 30 warranted bythematerial which wasbefore the respondent No. 2 authority at the time of their decision. For all the above reasons,therecourse isdismissed, but with no order for costs. Recourse dismissed. No orderas tocosts. 474 35