3C.L.R. 19S9 \lav20 INTHE MATTER OF ARTICLE 14601 THE CONSTITUTION [MALACHTOS.J ] GEORCHIOS CHRYSANTHOL. Applicant. THE REPUBLIC 01 CYPRUSTHROUGH THE MINISTERΟΓ COMMUNICATION AND WORKS AND ANOTHER (NO 2). Respondent (CaseSo 117/77) 5 10 15 20 Constitutional Law— Right to exercise a trade, profession or calling — Constitution. Art 25 — TheRoadMotor Transport(Regulation) Law. 1964.section A(l) — Therestrictions imposed bysection 8
(2)hill within the provisions ol Art 252 ol the Constitution — Therefore, such provisions arcnot unconstitutional Motor transport — The Motor Transport (Regulation) taw.
- as amendedby LawS1/
- section 6— A hierarchicalrecoursemaybetiled by any person, whichis not satislied by a decision ol theLicensing Authonty — Such aperson isnot onlytheperson whoappliedlor a road service license This recourse impugns the validity of the decision ot Minister ot Works and Communications whereby he revoked applicant's road service license foi bus registration number X752 upon hearing the hierarchical recourse by the interested party The issues raised lor determination andtheprinciples appliedby theCourt, in dismissing the recourse,appearedsufficiently inthehereinabove Headnotes Recourse dismissed. No order as to costs 589 Chrysanthou v.Republic &,\nother(No.2) (1989.) Obey referredto: Savva v.Republic
(1983)3 C.LR.
- Police v. HondrouandAnother.3R.S.C.C.
- 5 Recourse. Recourse against the decision of the Minister of Communications and Works of the 26.2.77 revoking his io decision of the 29.6.76 by which the applicant was granted a road Service licence in respect of hisbusReg.No.X
- A.Pantelides.for the Applicant. 15 CI.Tlieodoulou (Mrs). Senior Counsel of the Republic, for the Respondent. L Papiiphilippou. for the Interested party. 20 Cur.adv.vult. MALACHTOS, J. read the following judgment. By the present recourse the applicant seeks a declaration of the court that thedecision ofthe respondent Ministerof26.2.77revoking 25 hisdecisionof29.6.76bywhichtheapplicant wasgrantedaroad service licence in respect of his bus Registration No. X752, is null and void and of no legal effect whatsoever. The facts of the case are asfollows: 30 On 8.2.72therespondent Authority approved an application by the applicant for a road service licence for his bus Registration No. X752 for the route Agios Georghios, LinouFlasou,Katydata, Skouriotissa, Kalon Chorion,AyiosNicolaos. 35 Petra, toNicosia town. On 14.3.72 the respondent Authority restricted the said licenceto only three villages i.e.Agios Georghios Soleas,Ayios Nicolaos and Kalon Chorion to Nicosia, via Evrichou, with the 40 right to collect passengers only from the said three villages. It also approved thesubstitution ofthebusRegistration No.X752 590 3 C.L.R. Chrysanthou v. Republic &Another (No.2) Malachtos, J. with busRegistration No,DM9IS. The case was re-examined several times in the light of" objections and new inquiries by the respondent Authority and 5 on20.1.73decidedtoreaffirm itsdecision of 14.2.72.Asaresult, the applicant filed on 14.2.73 Recourse No. 42/73 which. however, was withdrawn on 3.7.76 as a licence was granted to theapplicant on29.6.76fortherouteAyiosGeorghiosSoleasto Nicosia, with the right to carry passengers from Linou. Flasou. 10 Katydata, Skouriotissa. Kalon Chorion. Ayios Nicolaos and Petra The Linou-Flasou Transport Company, as an interested party filed on 21.7.76 a hierarchical recourse to the Minister 15 who on the 26.2.77 revoked the decision of 29.6.
- The applicant, as aresult, filed the present recourse. It wascontended on behalf ofthe applicant that sections 6,7 and 8 of the Motor Transport (Regulation) Law 1964 (Law 16 20 of 1964) are unconstitutional" and/or were applied in an unconstitutional manner andalsothat the subjudice decision is in restraint of trade and is thus contrary to Article 25 of the Constitution whichguaranteestherighttoevery person tocarry on any occupation, trade orbusiness. 25 Therightofevery person topractice anyprofession or carry on any occupation or business assafeguarded byArticle25.1of the Constitution, is under Article 25.2 subject "to such formalities, conditions or restrictions as are prescribed by law 30 and relate exclusively to the qualifications usually required for the exercise of any profession or are necessary only for the interests of the security of the Republic or the Constitutional Order or the public safety or the public order, or the public health, or the public morals, or for the protection of therights 35 andlibertiesguaranteed bythisConstitution toanyperson orin the public interest". The Licensing Authority was established under the Motor Transport (Regulation) Law 1964,whichwasinforce atthetime 40 (repealedbysection26
(1)of Law9/1982)andundersection 8
(1)of the said Law may, at its discretion,"grant a road service licence or impose such conditions as may deem fit in the 591 Malachtos, J. Chrysanthou v. Republic &Another (No.2)
(1989)circumstances. Under sub section
(2)ofsection Softhat Law,the Licensing Authority shall have regard to the follow^ matters: 5 (
- a)the suitability of the route on which a service may be provided under the licence; (
- b)theextent, ifany.to whichtheneedsoftheproposed routes or any of them are adequately served; 10 (
- c)the extent to which the proposed service is necessary or desirable in the public interest; (
- d)the needs of the area as a whole in relation to traffic 15 (including the provision of adequate, suitable and efficient services, the elimination of unnecessary services and the provision of unremunerative services) and the coordination of all forms ofpassenger transport, 20 andshalltake intoconsideration anyrepresentations whichmay be made by persons who, on the date of the coming into operation of this Part of this Law, were already providing in good faith and for a reasonably long time transport facilities along or near to the route inquestion or any part thereof. 25 From the decision of the Licensing Authority a hierarchical recourse lies to the Minister of Communications and Works. Iconsiderthat theaforesaid sectionsoftheLawdonot offend 30 the provisions of Article 25 of the Constitution and that any restrictions or conditions imposed thereby on licences granted, as in the present case,are within those allowedby Article25.2. In the case of ISeofytos Savva v. The Republic
(1983)3 35 C.L.R. 230at page 237;the following isstated: "In the present case the Article on which learned counsel mainly relied isArticle
- But itisquite clear, inmyview,that the restrictions provided for inthe relevant legislation in force, 40 i.e.the RoadTransport Regulations Laws 1964-1977,clearlyfall within the provisions of para.2 of this Article being necessary 592 3 C.L.R. Chrysanthou v. Republic &Another (No.2) Malachtos. J. for thepublicsafety andinthe publicinterest and consequently. the decision challenged bytherecourse cannot besaidto offend against such provisions even though there may not have been a bus service on exactly the said routes on which the applicant 5 proposed to operate his own buses,especially asthe suitability and theextent to which the proposed routes werenecessary or desirable in the public interest and the extent the proposed routes were served bythe existing licensed buses were matters which should be taken into consideration by the respondent in 10 theexercise of his discretion". See also in this respect Police v.Hondrou andAnother. 3 R.S.C.C.S
- 15 In the case in hand the restrictions imposed by the respondent authority, did not amount to a restraint of trade as alleged by counsel for applicant but are imposed by law in the public interest. This argument, therefore, of counsel for applicant fails. 20 It was also argued that an appeal under section 6 of LawNo.16 of 1964 can only be made by an applicant whose application for alicencehasbeen turned downbythe Licensing Authority and therefore, it was contended, an interested pany 25 hasnorightof appeal to the Minister. It was further submitted that once an applicant files a recourse against the refusal of the Licensing Authority to grant himalicence,andsuch arecourse iseitherdetermined orsettled 30 in his favour, any interested pany appearing before the coun is not entitled to appeal to the Minister after the applicant is granted such licence. Section 6of the Law asamended bysection 3of Law81/72, 35 provides that any one person who isnot satisfied by a decision of the LicensingAuthority may appeal to the Minister. ThewordingoftheLawleavesnodoubtthat itappliestoand includes any person not satisfied and an interested party issuch 40 a person and is thus covered by the section. Funhermore. nothing in the section precludes such interested pany, in circumstances as the present, from appealing to the Minister 593 Malachtos. J. Chrysanthou v. Republic &Another (No.2) (X989) against the decision of the Licensing Authority. Finally, Ifind that the decision of the Minister was properly taken within the limitsof thediscretionary powersgiven tohim bylaw. 5 In view of the above, this recourse fails and is hereby dismissed with no order astocosts. Recourse dismissed. No order as !0 tocosts. 594