Court dismissed appeal where Minister correctly applied s.17 law over s.8 despite applicant's new licence application.

[*1589] 1973 December 10

(MALACHTOS, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Company Linou-Flasou-Petra Ltd. ,

Applicant,

and

The Republic of Cyprus, through

1. The Minister of Communications & Works,

2. The Chairman of the Permits Authority,

Respondents.

(Case No. 34/73).

Motor Transport - Road Service Licence - Public Service Vehicle - Pound by Minister to be serving route in dispute, on date of the coming into operation of the Motor Transport (Regulation) Law, 1964, on appeal to him under s.6 of the Law - Therefore provisions of s. 17 of the Law and not those of s.8 rightly applied by Minister

- Fact that vehicle-owner was applying for a new licence for route in question without mentioning that he was serving such route before the coming into operation of the said Law does not mean that he gave up the right to which he was entitled under s. 17 of the Law.

Motor Transport - Minister of Communications and Works - Considering hierarchical recourse against decision of Licensing Authority - Under s.6 of the Motor Transport (Regulation) Law, 1964 - Stands hierarchically superior to Licensing Authority - And is entitled to make such an order as he may think fit - Including an order calling upon Licensing Authority to grant road service licence.

Motor Transport - Public Service Vehicle - Road Service Licence

- Appeal to Minister against decision of Licensing Authority refusing road service licence - Section 6 of the Motor Transport (Regulation) Law, 1964 - Minister deciding appeal by considering material in relevant files and by taking into consideration the opinions of the Attorney- General of the Republic and the Road Motor Transport Board - Entirely open, to him on the material before him, to arrive at the conclusion he did. [*1590]

Administrative Law - Recourse under Article 146 of the Constitution - Exercise of discretion by the Administration - Principles on which Court can interfere.

I. Typographos with S. Karapadakis, for the Applicant.

N. Charalambous, Counsel of the Republic, for the Respondents.

JUDGMENT

The following judgment was delivered by:-

MALACHTOS, J. : The applicant in this [*1591] recourse is a company formed and incorporated in Cyprus with limited liability and is the owner of nine buses licensed as public service vehicles under the provisions of the Motor Transport (Regulation) Law, 1964, (16/64). Three of those buses have their starting point at Flasou and one of them at Kadidata with Nicosia as their destination via Petra village and back again.

The interested party resides at Petra and is the owner of two public service vehicles under Registration Nos. TY 238 and T3738. After the coming into operation of the Motor Transport (Regulation) Law, 1964 (16/64) the interested party obtained a road service licence for the route Petra- Evrikhou in respect of the vehicle No. TY238 which expired on 15 /9/68. The last circulation licence in respect of this vehicle expired on 31/3/70, and has not been renewed ever since. As regards vehicle T 3738 a road service licence was obtained for the route Petra-Xeros which expired on 15/9/66. The last circulation licence in respect of this vehicle was issued on 31/12/65. The applicant since 1966 made several applications for a road service licence for the Petra-Nicosia route but were all rejected by the Licensing Authority.

According to the statement of facts (exhibit l) due to a number of complaints to the effect that the vehicles of the applicant company were not providing adequate and sufficient services in the area, applications were invited by the Licensing Authority for putting into circulation on the said route at least one more vehicle. Among those who [*1592] applied were the applicant company and the interested party.

On 12/10/70 a check was made to ascertain the number of passengers in the area. The result of this check was that the number of passengers exceeded by an average of 60 the number of seats in the vehicles of the applicant. The check covered the villages of Linou, Flasou, Kadidata, Ay. Georghios, Skouriotissa, Kalo Khorio and Petra. It was found out that the needs of Petra were not adequately and sufficiently served.

The applications of all applicants were considered by the Licensing Authority on 28/11/70 and it was decided to grant a licence to the applicant company in substitution of the public service vehicle under Registration No. D931 belonging to a certain Finlandos, who had in the meantime joined the applicant company, and rejected the other applications, including that of the interested party. Against this

decision of the Licensing Authority the interested party appealed to the Minister of Communications and Works on 17/12/70.

It must be noted here that one of the grounds on which the interested party relied was that before the coming into operation of law l6/64 he was serving the route Petra- Nicosia. The appeal of the interested party was referred to the Road Motor Transport Board for consideration and advice to the Minister under section 6 of l aw l6/64. The Board at its meeting of 15/11/71 decided and advised the Minister to grant a licence to the appellant interested party relying on the verification of the Chairman and Members [*1593] of the Village Commission, as well as the Inspector and the Members of the Improvement Board of Petra, that the appellant was serving the Petra-Nicosia route before and at the time of the coming into operation of Law 16/64. The Minister of Communications and Works put the facts of the case before the Attorney-General and asked for his advice.

On the 14th November, 1972 the Attorney-General of the Republic gave the following opinion supporting the decision of the Board. "I have studied carefully the documents sent to me in respect of the present case. I am of the view that the opinion of the Road Motor Transport Board is legally founded".

"The fact that the applicant was continuously applying to the Licensing Authority for a grant to him of road service licences on routes he was serving on the date of the coming into operation of Law 16/64 neutralises any allegation we might have, against the granting to him of the licences applied for, that he gave up his rights under section 17 of the Law".

By letter dated 2/12/72 (red 19 of exhibit 3), the Director-General of the Ministry of Communications and Works requested the Transport Control Officer to enquire further into the case of the interested party and find out whether he was serving with his said two public service vehicles the route Petra-Nicosia at any time before the coming into operation of Law 16/64. [*1594]

A new enquiry then followed as regards the circulation of the public service vehicles of the interested party on the route Petra-Nicosia and statements from various persons were obtained on 4/12/72. Some of these statements support the allegation of the interested party that before the coming into operation of law 16/64 he was serving the Petra-Nicosia route with his two public service vehicles under Registration No, 3738 and Y 238, and some of them they don' t.

On 25/1/73 the Director-General of the Ministry of Communications and Works communicated to the interested party the decision of the Minister which reads as follows:

"The Minister of Communications and Works taking into consideration all the facts put before him as well as the opinions of the Road Motor Transport Board and the Attorney-General of the Republic, arrived at the following conclusions:

(a) The appellant has been a professional driver long before the coming into operation of law 16/64 serving with at least one of his public service vehicles under Registration TY 238 and T3738 the route Petra-Nicosia;

(b) After the coming into operation of the said law he applied repeatedly to the licensing Authority for a road service licence on the Petra-- Nicosia route for his said public service vehicles [*1595] and consequently, according to the opinion of the Attorney-General, the provision of section 17 of law 16 of 1964, by which a public service vehicle licensed as such on the date of the coming into operation of this law, shall be licensed under the provisions of this Law, if it is so constructed or adapted for use as to comply with the relevant provisions of this law, may be applied.

(2) In view of the above the Minister of Communications and Works allows partly the appeal of Mr. Nicos Modinos of Petra and calls upon the Licensing Authority to grant to the appellant a road service licence on the route Petra-Nicosia to one of his two public service vehicles under Registration No. TY 238 or T3738".

As is a result the applicant company filed the present recourse and claims the following relief -

A. A declaration of the Court that the decision and/or act of the respondent No.l dated 20/1/73 by which he decided:-

(a) that Nicos Modinos of Petra (hereinafter referred to as the Interested Party) has been a professional driver long before the coming into operation of Law 16/64 serving by at least one of his public service vehicles under Registration Nos.TY238 and T3738 the route Petra-Nicosia; [*1596]

(b) that the provisions of section 17 of Law 16/64 are applicable in the case of the interested party for granting to him a road service licence on the route Petra-Nicosia;

(c) to allow partly the appeal of the interested party and call upon the Licensing Authority to grant to him a road service licence on the Petra-Nicosia route to one of his two public service vehicles under Registrations TY 238 or T3738,

is null and void and of no legal effect whatsoever.

B. The costs.

When the case came on for hearing before the Court learned counsel for applicant argued his case on the following three grounds of law:

1. That the Minister acted under a misconception of fact;

2. That he wrongly applied section 17 of Law 16/64; and

3. In any case he was not entitled to call on the Licensing Authority to grant a licence to the interested party.

Learned counsel for applicant argued that the facts appearing in paragraph (a) of the decision of the Minister i.e. that the interested party was serving the Petra-Nicosia route with at least one of his two public service vehicles before the coming into operation of law 16/64, are not correct.

The Road Motor Transport Board, to which the case of the interested party was referred to for advice, placed [*1597] before the Minister in advising him false facts, which facts created a misconception to the Minister at the time he was taking his decision. Neither before nor on the date of the coming into operation of Law 16/64 the interested party was serving the Petra-Nicosia route.

On the 2nd ground of law, that the Minister wrongly applied section 17 of the law, counsel for applicant argued that since the application of the appellant was not for a renewal of a licence but for a new licence altogether, the application ought to he examined under

section 8 of the law, and not under section 17. He also argued that it is clear from the file of Bus No. TY238 (exhibit 2) that in all previous

applications the interested party never applied for a renewal of his licence hut he was always applying for a new one.

Finally, he argued that even if the above two grounds of law are decided against him, he submitted that the Minister was not entitled to call upon the Licensing Authority to grant a licence to the interested party.

It is clear in this case that the Minister in considering the appeal of the interested party had before him all the necessary documents and information contained in two files (exhibits 2 and 3) as well as the statements of various persons inhabitants of Petra village, obtained on 4/12/72. It appears that the Minister was convinced from those statements that the interested party was serving [*1598] the Petra-Nicosia route on the date of the coming into operation of Law 16/64.

It is a well established principle of administrative law that on a recourse under Article 146 of the Constitution the Court is not empowered to substitute its own discretion for that of the

administration (Charalambos Pissas(No. 2.) v. The Electricity Authority of Cyprus (1966) 3 C.L.R. 784). An administrative Court

can only interfere if there exists an improper use of the discretionary power or a misconception concerning the factual situation or the non taking into account of material factors (Costas Vafiades The Republic of Cyprus (1964) C.L.R. 454).

In the present case the Minister from the material before him made a thorough examination of the case and exercised his administrative discretion in favour of the interested party. It was entirely open on the material placed before him to arrive at the conclusion he did. So the allegation of counsel for applicant that he acted under a misconception of fact does not stand. The Minister having found as above he proceeded in accordance with the opinion of the Attorney-General and applied, very rightly in my view, the provisions of section 17 of the law. The fact that the interested party was applying before for a new licence on the Petra-Nicosia route without making any reference to the fact that he was serving this route before the coming into operation of Law 16/64, does not mean that he gave up the right to which he was entitled under section 17 of the law. [*1599]

As to the last point raised by learned counsel for applicant that the Minister in allowing in part the appeal of the interested party was not entitled to call on the Licensing Authority to grant a licence to him, I find no merit. The Minister in considering an hierarchical recourse under section 6 of Law 16/64, as amended by section 3 of Law 81/1972, stands hierarchically superior to the Licensing Authority and so in deciding on such recourse is entitled to make such an order as he may think fit in the particular circumstances of each case.

For the reasons stated above this recourse fails.

In the circumstances there will be no order as to costs.

Application dismissed.

No order as to costs.