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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1983) 3 CLR 42
1983 February 10
[A LOIZOU, J.]
IN THE MATTER OF THE ARTICLE 146 THE CONSTlTUTION
KEM (TAXI) LTD.,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE CHAIRMAN OF PERMITS AUTHORITY,
Respondent.
(Case.No. 50/80).
Motor transport—Road use licence—Existence of, does not constitute an authority to do anything else outside such licence—Road use licence for carriage of passengers on contract—Application for road use licence, in respect of same vehicles, for carriage of passengers on contract from other places within the same town—Call for the exercise of the discretionary powers of the respondent Authority under section 8(2) of the Motor Transport (Regulation) Laws—See, also, section 7(4)(e) of the Laws.
On the 30th June 1979, the applicant Company, after competition, entered into a written agreement with the Chartered-house Estates Ltd., owners of the "POSEIDONIA" hotel for the transportation of their staff which works on a twenty-four hour shift basis.
The applicant Company applied thereupon to the respondent Authority for the issue of a road use licence for three of their vehicles which have a capacity of 50 seats, 36 seats and 55 seats respectively, for the transport of the staff of the hotel "POSEIDONIA" from the various quarters of Limassol to it and vice-versa as a contract carriage, The said vehicles had a road service licence for the carriage of passengers on contract with regard to the British Sovereign Base Areas.
The application of the applicant Company was examined by the Limassol District Transport Controller who referred to the location of "POSEIDONIA" as being on the Limassol—Nicosia trunk road within the urban transport traffic area of Limassol and that it engages N135 employees on shifts and that the work would be done in accordance with the relevant contract.
The respondent Authority then invited at its offices the applicant Company and the urban Buses Company of Limassol to make their representations, as well as other interested parties. After examining their representations and all the material in the file it rejected the applications by its subject decision mainly on the ground that "the route for which the licence is sought by KEM (TAXI) for the transportation of the staff of the hotel 'POSEIDONIA' lies wholly within the urban traffic area of Limassol which is served by the Limassol Bus Company; The granting of such a licence to Company KEM (TAXI) LTD. will offend the provisions of section 8(2)(b)(c) and 7(4)(e) of the Motor Transport (Regulation) Laws" and on the ground that "the Limassol Bus Company by a statement of its representative undertakes the performance of this route by its licensed buses which it can substantially arrange for this purpose".
Upon recourse by the applicant Company:
Held, that the existence of a road service licence does not constitute an authority to do anything else outside such licence and the submission that the function of the appropriate Authority in such a case is only to regulate the terms of an existing licence under section 8(4) of the Motor Transport (Regulation) Laws cannot be upheld; that as in every other case the licensing Authority has to exercise its discretion as provided by section 8 of the Law and in particular sub-section 2 thereof; that although this Court does not subscribe to the view that there was no question of a new licence being issued but only a variation of the terms of the existing one, yet even if as a matter of administrative arrangement there would have been eventually one licence issued covering both instances; namely giving effect to the contract with the Sovereign Base Areas and to that of the "POSEIDONIA" hotel, such an extension of the original licence definitely called for the exercise of the Authority's discretionary powers and in so doing the Authority should have regard to the matters set out in section 8 sub-section 2; that this is in fact what the respondent Authority did and the reasons for its discretion are to be found in their decision.
(2) That the contention of the applicant that the respondent Authority ignored two basic factors which were within its knowledge, namely that the licence applied for was in respect A of contract carriage and that the Limassol Bus Company had no licensed vehicles for the carrying out of such a contract carriage, is not substantiated by the contents of the subject decision the basis of which has been that such a licence could not be granted as it offended paragraphs (b), (c) of sub-section 2 of section 8, whereby the extent to which the needs of the proposed routes or any of them are adequately served and the extent to which the proposed service is necessary or desirable in the public interest had to and were duly taken into consideration; that in the circumstances the exercise of the respondent's discretion was properly made having clearly taken into consideration all necessary material and there appears to have been neither a misconception of Law nor a misconception of fact, nor anything to suggest that it took into consideration any extraneous matter; that it further took into consideration the provisions of section 7(4) paragraph (e) of the Law to the effect that no passenger who usually or as a rule travels at or about the time of the route will be included among the passengers of the vehicle from any part of the route; accordingly the recourse should fail.
Application dismissed.
Recourse.
Recourse against the decision of the respondent whereby he did not approve and/or refused and/or prohibited the use of three of applicants' vehicles as contract carriage for the transportation of the staff of "Poseidonia" hotel in Limassol to and from the said hotel;
A. Panayiotou, for the Applicant.
R. Gavrielides, Senior Counsel of the Republic for the respondent.
P. Ioannides, for the interested party.
Cur.adv. vult.
A.LOIZOU J. read the following judgment. By the present recourse the applicant Company seeks a declaration that the act and/or decision of the respondent Authority, dated 8th January 1980, by which they did not approve, and/or refused and/or prohibited the use of their vehicles under Registration No. H.N. 431, A.Y. 553 and G.A.681 as contract carriage the transportation of the stall "POSEIDONIA" hotel in Limassol to and from the said hotel, is null and void and of no effect whatsoever.
On the 30th.June 1979, the applicant Company, after competition, entered into a written agreement with the Chartered house Estates Ltd., owners of the said hotel for the transportation of their staff which works on a twenty-four hour shift basis.
The applicant Company applied thereupon to the respondent Authority for me issue of a road use licence for their aforesaid vehicles which have a capacity of 50 seats, 36 seats and 55 seats respectively, for the transport of the 'staff of the hotel "POSEIDONIA" from the various quarters of Limassol to it and vice versa as a contract carriage. The said vehicles had a road service licence for the carriage of passengers on contract with regard to the British Sovereign Base Areas.
The application of the applicant Company was examined by the Limassol District Transport Controller who referred to the location of "POSEIDONIA" as being on the Limassol—Nicosia trunk road within the urban transport traffic area of Limassol and that it engages 135 employees on shifts and that the work would be done in accordance with the relevant contract, copy of which has been produced as an exhibit, attached to the written address of counsel.
The respondent Authority then invited 7 at its offices the applicant Company and the Urban Buses Company of Limassol to make their representations, as well as other interested parties. After it examined their representations and all the material in the file it rejected the applications by its subject decision ,which was communicated to the applicant Company by letter dated the 15th January 1980, Appendix "A", which reads as follows:
"I wish to refer to your applications dated 30thJune 1979 for the grant of a licence to the public, service buses under registration No. H.N. 431, A.Y.553 and G.A. 681 for the transport of the staff of the "POSEIDONIA" hotel from the various quarters of Limassol to the hotel "POSEIDONIA" and I regret to inform you that the Licensing Authority at its meeting of the 8th January 1980 considered the applications and having taken into consideration. The material in the files and the opinion of the Attorney-General of the Republic on the aforesaid subject, decided to reject the applications for the following reasons:-
(a)The three aforesaid vehicles after application by the Company KEM. (TAXI) LTD were granted road-use licence on contract dated 11th August 1976 for the carrying out of routes in accordance with contracts of the Company with the British Bases. A The said licence was renewed from year to year and on the 27th September 1979 the Company KEM (TAXI) LTD by new applications asked the renewal of the said licences after it paid the prescribed fees on the same date and having attached the relevant contract with the Bases which was due to expire on the 2nd July 1980, with a right of extension by either side(see file HN 431 page 37)
In view of the aforesaid the granting of the licences applied for is contrary to the provisions of Section 7(5) of the Motor Transport (Regulation) consolidated Law; given that the licence for the transport of the personnel of "POSEIDONIA" hotel applied for is neither for the tour of touristic groups, nor transport of groups for excursions.
(b) The route for which the licence is sought by (TAXI) for the transportation of the staff of the hotel "POSEIDONIA" lies wholly within the urban traffic area of Limassol which is served by the Limassol Bus Company. The granting of such a licence to Company KEM (TAXI) LTD will offend the provisions of Section 8(2)(b)(c) and 7(4)(e) of the aforesaid Laws.
(c)The Limassol Bus Company by a statement of its representative undertakes the performance of this route by its licensed buses which it can substantially arrange for this purpose. I As far as the fees for which the representative of KEM (TAXI) LTD allege that they are unprofitable, same can be fixed by the Licensing Authority after a study by the Inland Transport Department.
(d)The Licensing Authority arrived at its present decision exercising its discretionary power and after taking into consideration the public interest as the granting of the licence applied for would have as a result the disorganization of the already existing transport network which is intended to serve the public with reasonable controlled fares."
By virtue of section 7(1) of the Law as amended "no public service vehicle shall be used for any service on any road unless it is licensed under the provisions of this Law and subject to the conditions of such licence."
Subsection 4 of the same section regulates the licensing of public service vehicles for use as a contract carriage. This subsection 4 reads as follows:
"(4) Εν περιπτώσει αδείας οδικής χρήσεως δι' όχημα προς εκτέλεσιν μεταφορών επί συμβάσει θα ισχύωσιν αι κάτωθι διατάξεις
(α) η άδεια θα είναι εν τω νενομισμένω τύπω-
(β) η άδεια θά καθορίζη ότι αι διευθετήσεις διά την επί το αυτό συνάντησιν των επιβατών δεν θα γίνωνται υπό του κατόχου της άδειας η του ιδιοκτήτου η του οδηγού του οχήματος η ύφ' οίουδήιτοτε προσώπου λαμβάνοντος αμοιβήν διά τας διευθετήσεις ταύτας·
(γ) ουδεμία γνωστοποίησις θα δίδεται προς το κοινόν εν σχέσει προς την προτιθεμένην διαδρομήν η τας γενομένας διευθετήσεις·
(δ) άπαντες οι έπιβάται θα επιβιβάζωνται εκ της αυτής αφετηρίας η πλειόνων αφετηριών και θα μεταφέρωνται εις το αυτό τέρμα η πλείονα της διαδρομής ως ήθελεν ορισθή υπό της αρχής αδειών·
(ε) ουδείς επιβάτης όστις συνήθως η κατά κανόνα ταξιδεύει κατά η περί τον χρόνον της διαδρομής επί της διαδρομής ταύτης θα περιλαμβάνηται μεταξύ των επιβατών ή θα επιβιβάζηται του οχήματος από οιονδήποτε μέρος κατά την διαδρομήν:
Νοείται ότι η άρχή άδειών δύναται διά της χορηγουμένης αδείας να επιβάλη οιουσδήποτε άλλους όρους θα εκρινε πρέπον υπό τας περιστάσεις".
In English it reads:
("(4) In the case of a road service licence for vehicles for the carrying out of transport as a contract carriage there will, apply the following provisions :
(a)The licence shall be in the prescribed form;
(b)The licence shall specify that the arrangements for the meeting of passengers for the purpose will not be made by the holder of the licence or the owner or the driver of the vehicle or by any other person t receiving remuneration for such arrangements.
(c)No notification will be given to the public in relation to then-intended route or the arrangements made.
(d)All the passengers will board from the same starting point or more than one points and they will be carried to the same terminal or more than one terminals of the route as shall be specified by the licensing Authority.
(e)No passenger, who usually or as a rule travels at or about the time of the route on such route will be in eluded among the passengers or will board the vehicle from any other place during the route:
Provided that the licensing authority may impose by the licences granted such other conditions page if ma think proper in the circumstances")
This amendment of the Law was introduced by section 4 paragraphs (b) of amending Law 45 of 1971 which also introduced a definition of vehicle for carriage on contract which is defined as meaning a public service vehicle not carrying passengers at separate fares per passenger. It is clear that this made a radical change in this field and it is in this relation that the grounds of law relied upon on behalf of the applicant company have to be examined.
Reference may also be made to subsection f which provides that vehicles for which there exist a road service licence may, in addition; carry out carriage of passengers consisting of tourist parties and parties of passengers on an excursion to a fixed destination. It is clear therefore that the existence of a road service licence does not constitute an authority to do anything else outside such licence and the submission that the function of the appropriate Authority in such a case is only to regulate the terms of an existing licence under section 8 subsection 4 of the Law cannot be upheld. As in every other case the licensing Authority has to exercise its discretion as provided by section 8 of the Law and in particular subsection 2 thereof which sets out the criteria to which regard must be had in its exercise.
Section 8 subsection 2 reads as follows:
"In exercising such discretion the licensing Authority shall have regard to the following matters:
(a)the suitability of the route on which a service may be provided under the licence
(b)the extent, if any, to which the needs of the proposed routes or any of them are adequately served;
(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 (including the provision of adequate, suitable and efficient services, the elimination of necessary services) and the provision of unremunerative services and that co-ordination of all forms of passenger transport".
And section 8(d) reads; as follows:
"The provisions of this section shall be so applied as to give all concerned equal opportunity of gain as far as possible."
Although I do not subscribe to the view that here was no question of a new licence being issued but only a variation of the terms of the existing one, yet even if as a matter of administrative arrangement there would have been eventually one licence issued covering both instances, namely giving effect to the contract with the Sovereign Base Areas and to that with the "POSEIDONIA" hotel, such an extension of the original licence definitely called for the exercise of the Authority's discretionary powers and in so doing the Authority should have regard to the matters set out in section 8 subsection 2 herein above set out;
This is in fact what the respondent Authority did and the reasons for its discretion are to be found in paragraphs (b) and A (c) of their decision as embodied in Appendix.A.
The contention of counsel for the applicant Company that the respondent Authority ignored two basic factors which were within its knowledge, namely that the licence applied for was in respect of contract carriage and that the Limassol Bus Company had no licensed vehicles for the carrying out of such a contract carriage, is not substantiated by the contents of the subject decision the basis of which has been that such a licencecould not be granted as it offended paragraphs (b), (c) of sub section 2 of section 8, whereby the extent to which the needs of proposed routes or any of them are adequately served and the extent to which the proposed service is necessary or desirable In the public interest had to and. were duly taken into consideration. This was obviously done on the basis of the material before them and after having heard the representations made on behalf of all having an interest in the matter and after having considered the prevailing conditions with regard to the route in question;
In the circumstances the exercise of its discretion was properly made having clearly taken into consideration all necessary material and there appears to have been neither a misconception of Law nor a misconception of fact, nor anything to suggest that it took into consideration any extraneous matter. It further took into consideration the provisions of section 7(4) paragraph (e) of the Law to the effect that no passenger who usually or as a rule travels at or about the time of the route will be included among the passengers of the vehicle for many part of the route.
This is so as obviously the existing services carried out by the Limassol Bus Company could adequately serve the staff of the "POSEIDONIA" hotel and would have been against public interest to take them away from them for the mere sake of multiplying the vehicles licensed to operate on that same route at the expense of course of the existing ones and not on account of any new demands.
For all these reasons this recourse must fail and in the circumstances is hereby dismissed but in the circumstances there will be no order as to costs.
Recourse dismissed. No order as to costs.