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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 449
1989 April 12
[A. LOIZOU, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
GEORGHIOS KYPRIANOU,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF
COMMUNICATIONS AND WORKS, AND/OR THROUGH THE
REVIEW LICENCING AUTHORITY,
Respondent.
(Case No. 255/87)
Judicial control - Motor transport - The Motor Transport Regulation Law 1982-1984, section 5(3)(a)(i),(ii),(iii),(iv) - Interference by Court - Principles applicable - Court does not interfere if the decision complained of was reasonably open to the respondent authority.
By means of the present recourse the applicant impugns the decision whereby the respondent ratified the decision of the Licensing Authority, refusing the grant to the applicant a rural taxi license.
Having found that the respondent properly applied the criteria of the aforesaid section of the relevant legislation and that the decision complained of was reasonably open to the respondents, the Court dismissed the recourse.
Recourse dismissed with no order as to
costs.
Recourse.
Recourse against the decision of the respondent Review Licensing Authority whereby it ratified the decision of the
Licensing Authority refusing the grant of a rural taxi licence to applicant in respect of his vehicle under Reg. No.GT488 to be stationed at Kornos village.
E. Efstathiou, for the Applicant.
M. Tsiappa (Mrs), Counsel of the Republic B, for the Respondent.
Interested parties present.
Cur.adv. vult.
A. LOIZOU, P. read the following judgment. By the present recourse the applicant seeks a declaration of the Court that the decision of the respondent Authority dated the 7th February 1987, by it had ratified a decision of the Licencing Authority refusing the grant to the applicant of a rural taxi licence in relation to his vehicle under Reg. No. GT488 to be stationed at Kornos village, and by which the respondent Authority had dismissed the applicant hierarchical recourse against the said decision of the Licencing Authority, is null and void and of no effect whatsoever.
The respondent Authority after it took into consideration, as it says in its decision, the legislation in force and all the facts of the case placed before them and having considered all the material contained in the relevant files together with everything that was stated by the applicant and the interested parties, decided to dismiss the recourse and to ratify the decision of the Licencing Authority.
The said decision of the Licencing Authority (Appendix 7) was a refusal on their part to grant to the applicant a rural taxi licence in relation to his vehicle under Reg. No. GT488 to be stationed at Kornos village, on the ground that the transport needs of the village could be served by two existing licenced rural taxis.
The applicant, an employee of the construction firm of Ioannou and Paraskevaides, and a resident of the Refugee Housing Estate of Kornos village, where he also keeps a coffeeshop, sought from the Licencing Authority the grant of a rural taxi licence for serving the transport needs of the said Housing Estate, where his vehicle was to be stationed, as well as the needs of Kornos village itself and of neighbouring military camps(Appendices 2 and 12).
The Refugee Housing Estate is. a very small community numbering about one hundred and fifty residents and is at a distance of half to one mile from the village which was inhabited by one thousand five hundred people, and in which there were already stationed two licenced rural taxis whose owners objected to the grant of an additional licence (Appendix 2).
The Famagusta Larnaca District Inspector found that the transport needs of both the village and the Refugee Housing Estate were already satisfactorily served by the two licenced rural taxis (Appendix 2). This finding is substantiated further by facts which emerge from Appendices 14 and 15, in connection with the application of one of the now existing rural taxi owners, Mr. G. Marangos, at the time when he was seeking a licence.
In addition to the two rural taxis the transport needs of the village and the Refugee Housing Estate were being served by rural buses and by privately owned vehicles which in 1984 numbered about three hundred and fifty, claimed to have increased to seven hundred at the material time. The transport needs o1 soldiers of the three neighbouring military camps were being served also by army vehicles and by KEMEK buses free of charge; there was some problem only in cases of emergency and this only after the death of the owner of the Pyrga village rural taxi which used to be available in such emergencies.
It is the case for the applicant that the respondent Authority did not carry out a due and proper inquiry and made no proper appreciation of the facts placed before it.it was argued that the Chairman of Kornos village had given a certificate dated the 29th October 1985 (Appendix 6), that there was a need for the grant of the rural taxi licence applied for, for the better service of the transport needs of the Kornos village and the Refugee Housing Estate.
Whilst at this point it has to be said that the Chairman of
Kornos village had not suggested that the relevant transport needs of the village and Housing Estate were not or could not be satisfactorily served. He had merely stated in his said certificate that a rural taxi for serving the Refugee Housing Estate would be useful to the refugees and expressed his opinion that other owners of existing licencedtransport means would not be unfavourably affected by the grant of the licence to the applicant.
The fact that one of the interested parties, Y. Marangos, was both the owner of a coffee shop which took up some of his time and the owner of a licenced mini bus which also took up some of his time, was within the knowledge of the Licencing Authority at the time of the grant of a rural taxi licence to the said interested party and should not be considered as factors indicative of inability on his part to serve satisfactorily the relevant transport needs in connection with the examination of the applicant's application.
The sub judice decision was issued by the respondent in pursuance to a hierarchical recourse lodged by the applicant (Appendix 9), under the Motor Transport Regulations Laws 1982 to 1984 (Laws No. 9 of 1982 and 84 of 1984).
Sections 5(3) and 5(6)(b) of the Law vest the Licencing Authority in general terms with discretionary power to grant road use licences whereas section 9 deals specifically with the licencing Authority's discretion to grant rural taxi licences.
Subsection 3 of section 9 stipulates as follows:
"(3) Η αρχή αδειών εν τη ενασκήσει της διακριτικής αυτής εξουσίας δέον όπως λαμβάνη υπ' όψιν τα ακόλουθα:
(α).............................................................
(ι) την έκτασιν καθ' ην τυχόν αι ανάγκαι της οικείας αστικής τροχαίας περιοχής ή αγροτικής κοινότητας, αναλόγως της περιπτώσεως, εξυπηρετούνται επαρκώς·
(ιι) τον βαθμόν εις τον οποίον είναι πιθανόν ότι ο αι τητής θα δύναται να παρέχει τας αιτουμένας μεταφορικός υπηρεσίας·
(ιιι) την έκτασιν καθ' ην η σκοπούμενη οδική χρήσις είναι αναγκαία ή ευκταία εν τω δημοσίω συμφέροντα
(ιν) τας ανάγκας της περιοχής εν τω συνόλω της αναφορικώς προς την μεταφοράν επιβατών"
And in English it reads:-
"(3) In the exercise of its discretionary power the Licencing Authority must take into account the following:-
(a)
(i) the extent to which the needs if any of the relevant...rural community ... are being satisfactorily served
(ii) the extent to which it is likely that the applicant will be in a position to supply the transport services applied for
(iii) the extent to which the road use being sought is necessary or in the public interest.
(iv) the needs of the area in its entirety in relation to the transportation of passengers."
The Licencing Authority's refusal to grant the relevant licence on the ground that the village's transport needs could be served by the two already existing licenced rural taxis, and the rest of the transport means available in the area, and the sub judice decision of the respondent Authority to ratify this refusal, are born out by the material before them at the relevant time.
Furthermore, the probing and taking into account of the question of whether the village was in need of means of transport, such as taxis, is in accordance with the express provisions of section 3(3)(a)(i), (ii) and (iv) which impliedly allow the respondent Authority to take into account inbalancing the extent to which such transport needs, if any, are adequately served, the size of the population of the village and the type and number of the available means of transport for serving such needs.
For all the above reasons it was reasonably open to the respondent Authority, in view of the provisions of the Motor Transport Regulation Laws and the material placed before it, to have reached the sub judice decision by adopting the refusal of the LicencingAuthority to grant the relevant licence. The sub judice decision was taken after due and proper inquiry and after proper appreciation of the relevant facts, a matter within the province of the administrative organ concerned. Moreover the argument of the applicant that the Licencing Authority did not carry out a due and proper inquiry as to the number of the Military Camps in particular, that are located in the area of Kornos village and therefore that the sub judice decision should be annulled, cannot stand, as the question of the transport needs of the National Guardsmen was raised at the inquiry carried out by the respondent Authority by the then counsel for the applicant and there was sufficient material placed before the respondent Authority and by the interested party Ioannou, in his testimony which was not in any way contradicted. Consequently this ground cannot succeed either.
For all the above reasons the application is dismissed but in the circumstances there will be no order as to costs.
Recourse dismissed. No order as
to costs.