Court dismissed applicant's challenge to parking licence refusal, ruling burden of proof lies with applicant and reasonable distinctions are permitted.

[*846] 1972 July 26

(MALACHTOS, J.)

REJVTISIONAL JURISDICTION

In the matter of Article 146 of the Constitution Georghios Avgousti,

Applicant,

and

The Permits Authority,

Respondents.

(Case No. 352/71).

Administrative Law - Abuse or excess of powers - Burden of establishing - It lies on the applicant - Motor transport

- Public service vehicle - Parking place and starting point licence - Decision refusing such licence, as applied for, challenged by recourse as having been taken in excess or abuse of powers - Applicant has not discharged his burden of establishing abuse or excess of powers - On the contrary respondent authority in deciding in the way it did made a thorough examination of the case and took into account all material factors - Entirely open to do so under the circumstances.

Equal before the law - In Article

28.1 of the Constitution - Does not convey the notion of exact arithmetical equality - It safeguards only against arbitrary differentiations and does not exclude reasonable distinctions.

Discrimination - Article 28.2 of the Constitution - Does not exclude reasonable distinctions - And it can only arise as between persons who are in substantially equal or at least in equivalent situations - Applicant and Interested Parties, in the instant case, not in equivalent situations - Because the Interested Parties had already a parking place and starting point licence, issued to them under Reg. 17 of the Motor Transport Regulations 1964, before the Applicant had applied for such a licence.

Administrative Law - Recourse for annulment - Article 146 of the Constitution - Court not empowered to substitute its own discretion for that of the administration - It 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.

Motor Transport - Parking place and starting point licence - See under "Administrative Law" - "Discrimination".

Abuse or excess of powers - See under "Administrative Law".

E. Efstathiou, for the Applicant.

V. Aristodemou, Counsel of the Republic, for the Respondents.

M. Christofides, for the Interested Party.

JUDGMENT

The following judgment was delivered by:-

MALACHIOS, J. : The applicant in this recourse [*847] is the owner of three buses licensed as public service vehicles under the provisions of the Motor Transport (Regulation) Law, 1964 to carry passengers from Paphos to Nicosia via Limassol and vice versa. As a parking place and starting point at Paphos for the said vehicles, the applicant was using one of the approved parking places, namely, that of Ellados Avenue. In view of the fact that by the end of 1970 traffic lights were installed at the cross-road formed by Ellados Avenue and its side roads, the applicant was obliged to leave Ellados Avenue and move to another approved parking place known as that of "Pervola" of Ktima.

By letter dated 18th December, 1970, exhibit 6, the applicant applied to the Respondent Authority for amendment of his relative licence so that the starting point and parking place of his vehicles be changed from that of Ellados Avenue to that of "Pervola" of Ktima.

On the 23rd January, 1971, the interested parties, namely, the C.T.C. Ltd. and E. Kyriacou & Sons Ltd., owners of public service vehicles, having "Pervola" of Ktima as parking place and starting point and who also keep their offices there, reported the applicant to the Respondent Authority for using the said parking place contrary to his relative licence, thus creating trouble with their employees and confusion to the normal circulation and work of their vehicles.

The case was then referred to the District Transport Officer for Limassol-Paphos who, after enquiring into the matter on. the spot, filed, on the 5th February, 1972, [*848] his report where he suggested, that the new parking place and starting point of the vehicles of the applicant at Paphos he that of the D.L.O Square instead of "Pervola", since "Pervola" had already been the starting point of the vehicles of the interested parties.

By letter dated 19th February, 1972, exhibit 10, the applicant informed the Respondent Authority that he could not accept the suggestion of the said Transport Officer and he insisted that the new parking place for his vehicles be that of "Pervola" as he had already leased from the Holy See of Paphos a shed there, which he used both as office and parking place.

On the 6th May, 1971, the Mayor of Paphos addressed the following letter, exhibit 4, to the Chairman of the Licensing Authority:

"Sir,

Georghios Avgousti of Tremithousa (Paphos) owner of trans-urban buses DQ.773. EW.36o & AJ. 558.

The said owner of trans-urban buses originally had a licence to park his vehicles at the crossroad of Evagoras Pallikarides, Eleftherios Yenizelou, Athinas and Ellados.

After the installation of traffic lights in the said area (cross-road) such licence was rightly cancelled. Since then, he has leased suitable shed from the Holy See of Paphos opposite the parking place of rural buses at 'Pervola'. [*849]

As he, himself, informed me you refused to issue to him the relative licence to park his buses in the said shed. I would like to inform you that the said owner of buses is conducting daily the route straight from Paphos to Nicosia for the transportation of passengers and goods and he serves greatly the market of our town.

Please examine the said case and, if possible, issue to him the licence applied for since the applicant indicates suitable shed as parking place and since for the same area you have already issued licences for parking of transurban buses to others".

On the 19th June, 1971, the Respondent Authority conducted an enquiry into this case where the applicant and the representatives of the interested parties were present. All the relative facts and allegations by and on behalf of the applicant and the interested parties were placed before the Respondent Authority who, after considering them, decided that the buses of the applicant should have had as a starting point the parking place next to the D.L.O. Paphos. The said decision and the reasons thereof appear on page 6 of the statement of facts of the case, exhibit 3, and was communicated to the applicant by letter dated the 25th June, 1971, exhibit 5. The material part of the said letter roads as follows:

"Sir,

Circulation of your_ trans-urban motor vehicles under Reg,EW. 360,AJ.358, and of the reserve DQ. 773. [*850]

I would like to refer to the above subject and to inform you. that the Licensing Authority at its meeting of the 19th June, 1971, considered the above subject and decided that your above motor vehicles have as a starting point the parking place next to the D.L.O. Paphos and not the 'Pervola' where there is congestion of traffic".

Against this decision the applicant filed the present recourse.

The legal points on which the application is based as set out therein, are the following:

A. The decision complained of in view of the facts as stated in the application was taken in abuse of power as the respondents did not exercise properly and legally their discretionary powers in relation to the taking of the said decision;

B. The respondents acted in such a way so that to amount to unequal treatment to the detriment of the applicant by allowing his rivals, that is, the companies C.T.C. Ltd. and Efstathios Kyriacou & Sons Ltd., to use as a parking place the "Pervola" of Ktima where the centre of the passenger movement towards Limassol and Nicosia exists and where the applicant afforded his own parking place, whereas they refused this to the applicant; and

C. The decision complained of was based and/or is due to misconception of facts and/or on wrong criteria. [*851]

It has been argued, on behalf of the applicant that the respondent authority in arriving at its decision, did not take into account either the suggestion of the Mayor of Paphos or the fact that in substance only one of the three vehicles of the applicant would be s tationed at "Pervola" and in a private parking place, since, at the same time, the other one would be in Nicosia - the third one being a "reserve" would be parked elsewhere.

In view of the above, counsel for the applicant submitted, the decision of the respondent authority was wrong and was taken in abuse of power. In other words, the Respondent Authority did not exercise properly its discretionary powers. No congestion of traffic would be caused by one vehicle which would be stationary in a private parking place.

It is a well established principle of administrative law that on a recourse under Article l46 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 Vafeades v. The Republic of Cyprus

(1964) C.L.R. 454) . The burden of establishing abuse or excess of powers lay in the applicant. (Themos Koukkoullis and others v. The Republic of Cyprus. 3 R.S.C.C. 134; and A. Malais and others v. The Republic of Cyprus (1966) 3 C.L.R. 444) . [*852]

In the present case I cannot find on the material before me that this burden has been discharged by the applicant. On the contrary, as it appears from the statement of facts of the case, exhibit 3, the Respondent Authority made a thorough examination of the case and after taking all material factors into account decided in the way it did. It was under the circumstances entirely open to it to do so.

Counsel for applicant further argued that since the Licensing Authority issued similar licences to the Interested Parties, he could see no reason why to refuse to the applicant the licence applied for. Such refusal, he submitted, is contrary to Article 28 of the Constitution since the applicant has a right to equal treatment.

The principles on equality and their application have been dealt with in a number of cases that came before this Court. In the case of Arghyris Mikrommatis v. The Republic of Cyprus,

2 R.S.C.C. 125, at page 131, it is stated that:

"In the opinion of the Court the term 'equal before the law' in paragraph 1 of Article 28 does not convey the notion of exact arithmetical equality but it safeguards only against arbitrary differentiations and does not exclude reasonable distinctions which have to be made in view of the intrinsic nature of things. Likewise, the term discrimination’ in paragraph 2 of Article 28 does not exclude reasonable distinctions as aforesaid". [*853]

In the case of Georghios Xenophontos v. The Police (1972) 3 J.S.C. 263 at p. 267 it is stated that: "It has, however, been repeatedly stressed that discrimination, can only arise as between persons who are/substantially equal or at least in equivalent situations".

In the present case it cannot be said that the applicant and the Interested Parties were in equivalent situations. The Interested Parties had already a licence issued to them before the applicant had applied for such a licence. The Licensing Authority, acting under Regulation 17 of the 1961 Regulations, fixed as a parking place and starting point for the buses of the Interested Parties the said "Pervola". The Interested Parties had already a vested right before the filing of the application of the applicant.

I cannot, therefore, say that the principle of equality has been infringed in the present case by the Respondent Authority. For the reasons stated above, this recourse fails.

In the circumstances of this case I make no. order as to costs.

Application dismissed;

no order as to costs.