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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1976) 3 CLR 385
1976 December 3
[TRIANTAFYLLIDES, P., STAVRINIDES, L. LOIZOU,
HADJIANASTASSIOU, MALACHTOS, JJ.]
SOLEA CAR COMPANY LIMITED AND ANOTHER (No. 2),
Appellants,
and
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTER OF COMMUNICATIONS AND WORKS,
Respondent.
(Revisional Jurisdiction Appeal No. 169).
Motor Transport (Regulation) Law, 1964 (Law 16 of 1964)-Appeal to the Minister Section 6 of the Law as re-enacted by Law 81 of 1972-Formalities under regulation 24 of the Motor Transport Regulations, 1964-Not complied with-Minister's decision annulled as having been reached in relation to an invalidly filed appeal.
Formalities Appeal to Minister under s. 6 of the Motor Transport (Regulation) Law, 1964-No compliance with formalities prescribed by regulation 24 of the Motor Transport Regulations, 1964.
The Licensing Authority turned down the application of the interested party for a road servicelicence and the latter appealed to the respondent Minister. This appeal was lodged by means of an ordinary letter, dated July 18, 1973 which was addressed to the Minister, and thirteen days later the Minister made a note to the effect that it should be treated as a recourse, in other words as an appeal under section 6 of the Motor Transport (Regulation) Law, 1964 (Law 16/64) as re-enacted by Law 81/72.
Regulation 24 of the Motor Transport Regulations, 1964 provides that an appeal such as the above should be made within twenty days, in the prescribed form, and that the right of appeal is exercised by means of lodging with the Ministry of Communications and Works, within the above period, the said form.
The Minister allowed the said appeal and decided that a road service licence should be granted to the interested party. The decision of the Minister was challenged by means of a recourse,under Article 146.1 of the Constitution which was dismissed (see p. 44 in this Part ante).
Upon appeal against the dismissal of the recourse:
Held, that an essential prerequisite for the valid filing of an appeal was the use, for this prupose, of the appropriate form, which is prescribed by regulation 24; that as there has not been compliance at all with the essential formalities provided by this regulation, the Minister's decision has to be annulled, as haying been reached in relation to an invalidly filed appeal; and that, accordingly, the appealed from judgment of the trial Judge has to be set aside.
Appeal allowed.
Per curiam: Before concluding this judgment we should point out that, had we found that there was before the Minister a properly made appeal, we would have, again, annulled the sub judice decision of the Minister, because it seems to us that, in the present case, the proviso to subsection (2) of section 6 of the relevant Law has been misunderstood and misapplied by the Minister, inasmuch as when he "assigned" to three officers of his Ministry the task of hearing what he considered to be an appeal made by the interested party, he, in effect, went so far as to delegate to them completely his powers under such section 6, which was a thing that he was not lawfully entitled to do under the provisions of that section; or, to say the least, he shared with them such powers in a manner which exceeded the limits of the proper application of the proviso to subsection (2) of section 6.
Appeal.
Appeal against the judgment of a Judge of the Supreme Court of Cyprus (A. Loizou, J) given on the 28th February, 1976 (Case No. 388/74) whereby applicants' recourse against the decision of the respondent to give instructions to the Licensing Authority to grant a road service licence to the interested party in respect of the route Kakopetria-Galata-Evrychou-Nicosia was dismissed.
L. Papaphilipou, for the appellants.
R. Gavrielides, Counsel of the Republic, for the respondent.
A. Magos, for the interested party.
Cur.adv. vult.
The judgment of the Court was delivered by:
TRIANTAFYLLIDES, P. The appellants have appealed againstthe dismissal, by a Judge of thisCourt, of a recourse made by them under Article 146 of the constitution; by means of such recourse they had challenged the validity of a decision of the respondent Minister of Communications and Works, dated November 14, 1974, by which he decided that a road service licence should be granted to the interested party, I. Marangos, in respect of the Kakopetria-Galata-Evrychou-Nicosia route.
The decision of the Minister was reached when he determined an appeal, by way of hierarchical recourse, made to him by the interested party against a decision of the Licensing Authority by means of which anapplication of his for a licence for the aforesaid route was turned down.
We are in agreement with the learned trial Judge in so far as is concerned the validity of the relevant administrative action leading up to the decision of the Licensing Authority; in this respect, we cannot accept the submission of counsel for the appellants that by a letter written by the interested party on April, 10, 1973, after he had applied for a road service licence, he limited the scope of such application to the route from Kakopetria up to Evrychou only and abandoned his application in respect of the route from Evrychou to Nicosia; in our opinion the true effect of that letter is that it clarified that the interested party was not going to stop at Evrychou in order to accept passengers from there for Nicosia, but would only stop at Evrychou in order to enable pupils coming from Kakopetria and Galata to alight there.
On the other hand, we agree with counsel for the appellants that the decision of the respondent Minister is invalid because there was no properly made appeal before him, inasmuch as there had not been compliance with necessary material formalities: Such appeal was lodged by means of an ordinary letter, dated July 18, 1973, which was addressed to the Minister, and thirteen days later the then Minister of Communications and Works made a note on that letter to the effect that it should be treated as a recourse ("προσφυγή"), in other words as an appeal under section 6 of the Motor Transport (Regulation) Law, 1964 (Law 16/64), as re-enacted by the Motor Transport (Regulation) (Amendment) (NO. 2) Law, 1972 (Law 81/72).
We are of the opinion that an essential prerequisite for thevalid filing of such an appeal was the use, for this purpose, of the appropriate form, which is prescribed by the relevant Regulations, that is the Motor Transport Regulations of 1964 (see the official Gazette of November 19, 1964, Third Supplement, Not. 505); we have reached this conclusion because of the very clear and express wording of regulation 24, which provides, in relation to the formalities for such an appeal, that it should be made within twenty days, in the prescribed form, and that the right of appeal is exercised ("η έφεσις ασκείται") by means of lodging with the Ministry of Communications and Works, within the above period, the said form and by furnishing copy thereof to the Licensing Authority, within the same period.
As there has not been compliance at all, in this case, with the aforementioned essential formalities, the Minister's decision has to be annulled, as having been reached in relation to an invalidly filed appeal, and, consequently, the appealed from judgment of the trial Judge, by means of which the recourse of the appellants against the said decision of the Minister was dismissed, has to be set aside accordingly.
Before concluding this judgment we should point out that, had we found that there was before the Minister a properly made appeal, we world have, again, annulled the sub judice decision of the Minister, because it seems to us that, in the present case, the proviso to subsection (2) of section 6 of the relevant Law has been misunderstood and misapplied by the Minister, inasmuch as when he "assigned" to three officers of his Ministry the task of hearing what he considered to be an appeal made by the interested party, he, in effect, went so far as to delegate to them completely his powers under such section 6, which was a thing that he was not lawfully entitled to do under the provisions of that section, or, to say the least, he shared with them such powers in a manner which exceeded the limits of the proper application of the proviso to subsection (2) of section 6.
We have, indeed, given anxious consideration to this aspect of the case, because we do feel that it is necessary, when applying the provisions of section 6, to adhere fully both to the letter and the spirit of such section, with the result that the ultimate responsibility for reaching a decision under such section should, at all times, remain with the Minister, and with the Minister only.
In the result this appeal is allowed; but, in view of the factthat the issues which were raised both before the trial Judge and before us are, to a certain extent, of a rather novel nature, we shall adopt, as regards costs, the same course as the trial Judge, and we shall, consequently, not make any order as to the costs either of the trial or of thisappeal.
Appeal allowed. No order as tocosts.