Constitutional recourse dismissed as out of time because it targeted the Director's prior decision, not the Minister's confirmatory letter.

[*1099] 1971 July 30

(L. LOIZOU, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the

Constitution.

HadjiKyriacos & Sons Ltd.,

Applicants,

and

The Republic of Cyprus, through

The Minister of Agriculture and

Natural Resources,

Respondent.

(Case No.136/69).

Constitutional Law - Time - Article

146(3) of the Constitution - Recourse against refusal to allow use of water

meters of a particular type - Water Supply (Special Measures) Law, 1964 and

Water Supply (Special Measures) Regulations 1966 - Reply of the Minister to a

complaint by the applicant against the omission of the Director of Water

Development specifying type of water meter to be used in controlled areas not

an "act" or "decision" in the sense of Article 146 of the

Constitution - But merely containing information as to the facts which led up

to the said decision of the Director of Water Development Department -

Recourse, held to be directed against the Director’s said decision, and

therefore out of time - Moreover Respondent Minister had no competence to deal

with sub-judice matter and in any case, his "decision" taken without

any new inquiry but by adopting the Director decision, is merely confirmatory

of the former decision and cannot be the subject of a recourse.

Time -

Article 146(3) of the Constitution - See under "Constitution Law".

A. Hadjiloannou, for the Applicants.

K. Talarides, Senior Counsel of the Republic, for the Respondent.

JUDGMENT

The

following judgment was delivered by:-

L. LOIZOU, J.: By this recourse the applicants seek

[*1100] a declaration that the decision of the Minister of Agriculture

contained in his letter dated 26th February, 1969, addressed to the applicants

by which he refuses to allow the use of water meters of a particular type in

areas declared to be controlled areas under the provisions of the water Supply

(Special Measures.) Law, 1964, and/or the decision of the Director of the

Department of Water Development which the Minister mentions in his said letter

and which he adopts is null and void and of no effect as being contrary to law

and/or in abuse of powers or based upon a misconception of facts.

Applicants base their case (a) on

article 25 of the Constitution in order to show that the decision challenged by

the recourse and/or the decision of the Director of the Department of Water

Development(hereinafter the Director) on which it is based is unlawful and/or

unconstitutional and (b) on section 5(1) of Lae 33 of 1964, in order to show

that the decision challenged and/or that of the Director was taken in abuse of

powers and/or under a misconception of facts.

By the opposition it is, inter alia,

alleged that the Respondent Minister had no competence to specify the type of

water meter to be used; that his letter dated 22nd September, 1969, does not

amount to any act or decision within the meaning of article 146 of the

Constitution; and that the recourse is in effect directed against the decision

of the Director and is, therefore, out of time as having been made more than 75

days of the date when [*1101] such decision was published.

In the course of the hearing the

parties have agreed and have applied to the Court that the preliminary issue of

the limitation of time be determined in the first instance. I consider this

course the more convenient and I, therefore, propose to deal with this issue

first.

The facts which are relevant to this

issue are briefly as follows:

The Director, in exercise of his

powers under the Water Supply (Special Measures) Regulations 1966, specified

the type of water meters to be used in controlled areas. This decision of the

Director has been published in the Gazette of the 31st August, 1967, under Not.

No.1237 and in the local press. The Applicants were not then importing water

meters of any kind. Sometime in October, 1968, the Applicants started importing

water meters of a kind which, admittedly, are not of the type specified by the

Director and could not, therefore, be used in controlled areas.

The Applicants, it would appear, saw

the Minister of Agriculture some time at the beginning of January, 1969, and

complained to him that the decision of the Director regarding the type of water

meters to be used in controlled areas put their firm, as. well as other

importers of water meters, in a disadvantageous position and further that they

believed and were prepared to prove that the water meters imported by them were

the most suitable. In answer to a letter by the Applicants (letter dated 18th

January, 1969, attached [*1102] to the application) confirming the points raised at their interview

with the Minister the latter wrote to them the letter of the 26th February,

1968 (exhibit 1). I consider it useful and pertinent to set out this letter in full:

*"Επιθυμώ όπως αναφερθώ εις υμετέραν

επιστολήν ημερομηνίας 18ης Ιανουαρίου 1969, επί του θέματος του τύπου των υπό

του Τμήματος Αναπτύξεως Υδάτων εγκριθέντων υδρομετρητών και εις απάντησιν

πληροφορήσω υμάς ως ακολούθως:-

(α) Ο καθορισμός του τύπου του

υδρομετρητού υπό του Διευθυντού του Τμήματος Αναπτύξεως Υδάτων αποτελεί

υποχρέωσιν αυτού απορρέουσαν εκ των προνοιών του περί υδατοπρομηθείας (ειδικά

μέτρα) Νόμου. Ο τύπος ως και άλλαι τεχνικαί προδιαγραφαί του

υδρομετρητού έχουν καθορισθή προ πολλού, πλήρης δε

περιγραφή τούτων δίδεται εις την υπ' αριθμόν 1237 Γνωστοποίησιν την

δημοσιευθείσαν εις την επίσημον Εφημερίδα της Δημοκρατίας της 31ης Αυγούστου,

1967.

(β) Σχετικές προς τον καθορισμόν

του τύπου του υδρομετρητού ελήφθησαν σοβαρώς υπ' όψιν μεταξύ άλλων αι εν Κύπρω

υπάρχουσαι συνθήκαι, η φύσις των υδροφόρων στρωμάτων και η εξ αυτών κατά την

άντλησιν εξαγωγή άμμου η οποία και προκαλεί προβλήματα φθοράς των κινητών

εξαρτημάτων, η ακριβής

_________________________

* An English translation of this text is to be

found at pp. 1105-8 post.

καταγραφή, η εύκολος και

ομοιόμορφος [*1103] ανάγνωσις της ενδείξεως, η απόδοσις και η εκ της ροής μέσω

του υδρομετρητού προκαλούμενη τριβή, ως επίσης και η εύκολος και ευθυνή

συντήρησις.

(γ) Επί τη βάσει τωv εις την προμνησθείσαν Γνωστοποίησιν περιεχομένων προδιαγραφών

εζητήθησαν προσφοραί, τελικώς δε η Κυβέρνησις παρέλαβε παρά του τελευταίου

προσφοροδότου ποσότητα υδρομετρητών τους οποίους και διαθέτει εις τους

ενδιαφερομένους oίτινες εν τούτοις δεν εμποδίζονται από

του vα προμηθευθούν υδρομετρητάς του καθορισθέντος τύπου

εξ άλλων πηγών υπό τον όρον ότι οι τοιούτοι

υδρομετρηταί θα

ικανοποιούν τας προδιαγραφές και τους τεχνικούς όρους τους αναφερομένους εις την προμνησθείσαν Γνωστοποίησιν και θα τύχουν

της εγκρίσεως του / Διευθυντού

του Τμήματος Αναπτύξεως Υδάτων.

(δ) Παρ' όλον ότι ουδέποτε

υπεβάλατε δείγμα των υφ' υμών εισαγομένων υδρομετρητών εν τούτοις εξ αυτών

τούτων των δηλώσεών σας προς τον Διευθυντήν του Τμήματος Αναπτύξεως Υδάτων κατέστη πρόδηλον ότι οι ειρημένοι

υδρομετρηταί δεν ικανοποιούν τας δημοσιευθείσας προδιαγραφές και συνεπώς ο

προμνησθείς Διευθυντής δεν δύναται να εγκρίνη την εγκατάστασιν των δια τους

σκοπούς του περί Υδατοπρομηθείας (Ειδικά Μέτρα) Νόμου. Εάν εν τούτοις διαθέτετε

άλλους υδρομετρητάς, διαφορετικού τύπου [*1104] των προαναφερθέντων, οίτινες ικανοποιούν τους τεχνικούς ορούς

και προδιαγραφάς τότε ο Διευθυντής του Τμήματος Αναπτύξεως Υδάτων ευχαρίστως θ'

αναλάβη να υποβάλη τούτους εις σχετικόν έλεγχον και εις

περίπτωσιν ικανοποιήσεως του να παραχωρήση την έγκρισίν του προς διάθεσιν αυτών μεταξύ των

ενδιαφερομένων καλλιεργητών."

Learned

counsel for the Applicants has stated in the course of his address that the

decision against which the recourse is directed is contained in para. (d) of

the above letter and is in fact the Minister’s refusal to examine Applicant’s

complaint on the pretext that he follows the decision of the Director which was

published in the Gazette of the 31st August, 1967.

With all

respect to learned counsel’s argument, it does not seem to me that the letter exhibit

1 amounts to any "act" or "decision" in the sense Of

Article 146. It merely contains information as to the facts which led up to the

decision of the Director and the criteria which he took into consideration in

deciding on the type of water meter to be used in controlled areas, and advises

the Applicants that if they have any water meters of a type which satisfies the

required specifications then the Director would gladly check them and, if

satisfied that they are suitable, approve them for use.

It should, I think, be pointed out

that, as intimated [*1105] in the Minister’s letter, the Minister himself has

no competence under the Law to decide as to the type of water meter to be used

in controlled areas and quite obviously the recourse is directed at the

decision of the Director which was published in the Gazette and the local press

over 18 months before the recourse was filed and some thirteen months before

they started importing their own water meters.

But, quite

independently of the above, even assuming that the letter exhibit 1 or

any paragraph thereof could be said to amount to a decision within the meaning

of Article 146 and even if the Minister had competence to make a decision in

the matter, such decision, admittedly taken without any new inquiry but by

merely adopting the Director’s decision, is merely confirmatory of the former

decision and cannot be the subject of a recourse.

Having reached this conclusion I must

hold that the recourse is out of time and must, therefore, fail.

In all the circumstances I have

decided to make no order as to costs.*

Recourse dismissed. No order as to costs.

* This is an English translation of the

Greek text, appearing at pp.1102-4 ante, as prepared by the Registry.

"I wish to refer to your letter dated the

18th January, 1969, on the subject of the type of the [*1106] water meters

approved by the Department of Water Development and in reply to inform you as

follows: -

(a) The specifying of

the type of water meter by the Director of Water Development Department

constitutes an obligation of the Director emanating from the provisions of the

Water Supply (Special Measures) Law. The type as well as other specifications

concerning the water meter have been specified a long time ago, and a full

description thereof appears in Notification No. 1237 of the Official Gazette of

the Republic of the 31st August, 1967.

(b) In specifying the

type of water meter there were, inter alia, seriously taken into consideration

the prevailing conditions in Cyprus, the nature of the water-bearing strata

including the extraction of sand therefrom during pumping, which also tends to

ruin the moving accessories, the accurate recording, the easy and uniform meter

reading, the output and the friction created by the flow through the water

meter as well as the convenient and cheap maintenance. [*1107]

(c) Tenders were invited on the basis of the

specifications set out in the aforesaid Notification, and finally the

Government obtained from the lowest tenderer a quantity of water meters which

are offered to the persons concerned who are, nevertheless, not prevented from

being supplied with water meters of the type specified from other sources on

condition that such water meters will be in accordance with the specifications

referred to in the afore- said Notification and will be approved by the

Director of the Department of Water Development.

(d) Though you have never submitted a sample of

the water meters imported by you, from your statements to the Director of the

Department of Water Development themselves, however, it became apparent that

the said water meters are not in accordance with the published specifications

and consequently the said Director is unable to approve their installation for

the purposes of the Water Supply (Special Measures) Law. If, however, you have

any other water meters, of a type different than the ones referred to, which

are in accordance with the [*1108] Specifications then the Director of the

Department of Water Development will gladly undertake to check them and in case

he is satisfied to give his approval for their disposal to any cultivators

interested. "