Supreme Court allows constitutional recourse despite failure to exhaust administrative review under specific law.

[*1333] 1971 October 23

(TRIANTAFYLLIDES, P.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution Petrolina Ltd.,

Applicant,

and

The Municipal Committee of Famagusta,

Respondent.

(Case No. 120/70).

Petrol Filling Stations (Regulation) Law 1968 (94/68) - Failure to resort to the remedy provided by s. 10(1)(a) of the Law does not prevent the making of a recourse under Article 146 of the Constitution.

Constitutional Law - Article 146 of the Constitution - Jurisdiction of Supreme Court thereunder in administrative Law matters is exclusive - Possibility to apply for a review of an administrative act by way of hierarchical remedies before a higher administrative organ does not prevent the making of a recourse under the said article.

Observation: I feel bound to observe that it is highly desirable that, as far as possible, the process of the examination of the validity of administrative acts and decisions should be pursued by way of hierarchical remedies before higher administrative organs and that only after all such

remedies have been exhausted a recourse under Article 146 should lie; I think that it is, therefore, necessary to frame

provisions of the kind of section 10 of Law 94/68 or of section 6 of Law 16/64 in such a manner as not merely to enable the making of an

application or an appeal to higher authority but to render such a course a prerequisite for the making of a recourse under Article 146 - as a necessary step for the completion of the relevant administrative process - as it has been done, for example, by means of section 21 (1) the Taxes (Quantifying and Recovery) Law, 1963 (53/63).

L. Clerides with R. Gavrielides, for the Applicant.

M. Papas, for the Respondent.

DECISION ON PRELIMINARY LEGAL ISSUE

The following decision was delivered by:-

TRIANTAFYLLIDES. P.: In this recourse the applicant complains against the refusal of the respondent [*1334] Municipal Committee, as the Licensing Authority under the Petrol Filling Stations (Regulation) Law, 1968 (94/68), to permit the applicant to erect a petrol filling station in Famagusta. Such refusal was communicated to the applicant by letter dated the 5th March, 1970.

At the commencement of these proceedings arguments were heard on a preliminary issue of law which had been raised by the Opposition, viz. that this recourse could not have been made because the applicant did not apply to the Council of Ministers, under section

10 of the Law, for a review of the refusal of the respondent.

It is, inter alia, provided by the said section 10 (see sub-section 1(a)) that any person whose legitimate interest is affected by the refusal of the Licensing Authority to grant a licence may (δύναται), within ten days, apply to the Council of Ministers for a review of the matter.

It had to be examined, therefore, whether or not the admitted failure of the applicant so to apply to the Council of Ministers precludes, the filing of this recourse.

There is no doubt that the application for review provided for by means of section 10 is a remedy, before a hierarchically superior organ, afforded within the limits of the realm of the administration; especially as under Article 54 of the Constitution the Council of Ministers is vested, inter alia, with "the general direction and control [*1335] of the government of the Republic" as well as with the "supervision of all public services".

There is nothing in Article 146 of the Constitution, under which the present recourse has been made to this Court, or in any other legislative enactment, which prevents the making of recourse without resorting first to a remedy such as the one under section 10(1)(a) of Law 94/68.

The position in this respect is closely similar to that under section 6 of the Motor Transport (Regulation) Law (16/64); see the case of The Cyprus Transport Co. Ltd. and The Republic. (1966) 6 J.S.C. 853. Iη that case

reference was made to the earlier case of Pelides and The Republic, 3 R.S.C.C.13, where, in the judgment, the following are stated

(at p. 17):-

"The Court takes this opportunity of stressing that though Article 146 grants it exclusive jurisdiction in administrative law matters there is nothing in such Article to prevent procedures for administrative review of executive or administrative acts or decisions from being provided for in a Law Such review may be either –

(a) By way of confirmation or completion of the act or decision in question, in which [*1336] case no recourse is possible to this Court until such confirmation or completion has taken place (e.g. under section 17 of CAP. 96); or

(b) by way of a review by higher authority or by specially set up organs or bodies of an administrative nature, in which case a provision for such a review will not be a bar to a recourse before this Court but once the procedure for such a review has been set in motion by a person concerned no recourse is possible to this Court until the review has been completed".

Because of the manner in which section 10 is framed I have reached the view that the review by the Council of Ministers, as provided therein, is not a step by way of confirmation or completion of the relevant administrative action, but only a review by higher administrative authority; therefore, the possibility to apply for such a review does not prevent the making of a recourse to this Court, under Article 146 of the Constitution, in a case in which there has not first been made a relevant application to the Council of Ministers.

It is useful to refer in this connection to the decisions of the Greek Council of State (Συμβούλιον Επικρατείας) [*1337] in Gases 24/1932 and 97/1937 whereby there was adopted, in closely similar situations, the same approach as the one adopted in the present instance. It is interesting to note, also, that in England - where in the absence of the judicial remedy of a recourse for annulment, such as the one under Article 146, resort is had to the remedy of an action for a declaration - it was held in the case of Cooper v. Wilson, (1937) 2 Κ. B. 309, that an ex-sergeant of the police force, who claimed that he had not been validly dismissed from the force, was not limited to the right of appeal to the Secretary of State given by the Police Appeals Act, 1927, and that the fact that there existed the said remedy which he could take did not prohibit his access to the Court by way of an action for a declaration; and the Cooper case was quite recently applied in the case of the London Borough of Ealing v. Race Relations Board, (1971) 1 All E.R. 424

In the light of all the foregoing I am of the view that the preliminary objection in question of the respondent cannot be sustained.

Before concluding I feel bound to observe that it is highly desirable that, as far as possible, the process of the examination of the validity of administrative acts and decisions should be pursued by way of hierarchical remedies before higher administrative organs and that only after all such remedies have been exhausted [*1338] a recourse under Article 146 should lie; I think that it is, therefore, necessary to frame provisions of the kind of section 10 of Law 94/68 or of section 6 of Law 16/64- in such a manner as not merely to enable the making of an application or an appeal to higher authority but to render such a course a prerequisite for the making of a recourse under Article 146 - as a necessary step for the completion of the relevant administrative, process - as it has been done, for example, by means of section 21(1) the Taxes (Quantifying and Recovery) Law, 1963 (53/63).

Order accordingly.