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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1974) 3 CLR 338
1974 June 28
[MALACHTOS, J]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
CHARALAMBOS SARANTI,
Applicant
and
THE REPUBLIC OF CYPRUS, THROUGH
THE SENIOR MINES OFFICER,
Respondent.
(Case No. 370/72).
Mines and Quarries (Regulation) Law, Cap. 270-Prospecting permit-Granted under section 13 of the Law-Can only be cancelled under the provisions of section 18 of the Law.
Administrative Law-Administrative Acts-Revocation of-Principles of Administrative Law governing revocation of administrative acts-Applicable only when there is no law regulating such revocation-Prospecting permit granted under section 13 of the Mines and Quarries (Regulation) Law, Cap. 270-Can only be cancelled under the provisions of section 18 of the Law.
The applicant, who was the holder of a prospecting permit that had been issued to him under the provisions of section 13 of the Mines arid Quarries (Regulation) Law, Cap.270, was informed by the respondent that the prospecting permit was cancelled on the ground that the area covered by the permit was "considered of touristic importance and mine works would cause irreparable damage to the physical environment".
Counsel for the applicant argued that the respondent had no power to apply the general principles of administrative law, relating to revocation of administrative acts, which are applicable only when there is no law regulating such revocation; and in this case, counsel went on, there is special provision in section 18 of the Mines and Quarries (Regulation) Law (supra) which reads as follows:
"The Governor (now the Council of Ministers) may cancel any prospecting permit if, in his opinion, its holder fails to comply with or observe any of the provisions of this Law or any Regulations made thereunder or any term or condition of such permit".
Held, (1) The principles of administrative Law governing revocation of administrative acts are only applicable in the absence of legislative provisions expressly governing and regulating the question of revocation in each particular case. (See Conclusions of Case Law of the Greek Council of State 1929-1959 pp. 198-199).
(2) The respondent authority could not revoke their previous decision, which was a lawful one, by cancelling the prospecting permit of the applicant which was issued to him under s. 13 of the Law and in compliance with all the requirements thereof. Such permit could only be cancelled under the provisions of section 18 of the Law.
(3) Therefore the decision of the respondent by which the said prospecting permit was cancelled, is declared null and void and of no legal effect whatsoever.
Sub judice decision declared
null and void.
Recourse.
Recourse against the decision of the respondent by virtue of which prospecting permit No.2460 granted to applicant was cancelled.
A. Pandelides, for the applicant.
N. Charalambous, Counsel of the Republic, for the respondent.
Cur. adv. vult.
The following judgment was delivered by:
MALACHTOS, J.: The applicant in this recourse applies for a declaration of the Court that the decision of the respondent contained in the letter dated 29.8.72 addressed to the applicant by which the prospecting permit under No. 2460 granted to him on 10.1.72, was cancelled, is null and void and of no legal effect.
The applicant also claims a. declaration of the Court that the said decision of the respondent was taken in excess of power.
The facts relevant to the issues in this recourse are the following:
On 23 8 71 the applicant applied under the Mines and Quarries (Regulation) Law, Cap 270, for a prospecting permit covering an area situate between the Pera Pedhi main state forest and the village of Moniatis in the Limassol District. On 10.1.72 a prospecting permit in the prescribed form Class "A" under No. 2460 signed by the Senior Mines Officer, was granted to the applicant by virtue of section 13 of the law. The said permit to which the relevant plan is attached, has been produced and marked as exhibit 1in the proceedings.
By letter dated 5th February, 1972, exhibit 4 addressed to the Director-General of the Ministry of Commerce and Industry the Director-General of the Cyprus Tourism. Organization asked for the cancellation of the said permit of the applicant so that the destruction of the natural environment of an area which is of touristic importance should be avoided.
By letter dated 3rd March, 1972, exhibit 3, the Senior Mines Officer, to whom the objection of the Cyprus Tourism Organization was referred, informed the applicant that dues to new facts the prospecting permit granted to him might be cancelled and he was advised not to proceed with the prospecting works in the said area, thus incurring further expenses.
It is not in dispute that as from the time of the granting of the said permit to him, up to the time he received the letter, exhibit 3, or at any time thereafter, the applicant carried out any prospecting works in the area in question.
By letter dated 29.8.72 the Senior Mines Officer informed the applicant that his prospecting permit was cancelled. The said letter reads as follows:
"Prospecting Permit under No. 2460
The above prospecting permit which was granted to you on the 10th January, 1972, is hereby cancelled.
You have already been notified by my March, 1972, that, this prospecting permit might be cancelled and you were advised not to proceed and incur prospecting expenses.
The reasons of cancellation of the prospecting permit are that this area is considered of touristic importance and mine works would cause irreparable damage to the physical environment.
The sum of £24.-, which you paid for rent for the first year will be refunded to you through the Accountant-General".
The application is based on the following grounds of law-
1. The respondent had no power to cancel the prospecting permit for other reasons than those referred to in section 18 of the Mines and Quarries (Regulation) Law, Cap. 270; and
2. The respondent had no power to cancel and/or revoke the said prospecting permit, wider the general principles of administrative law.
It has been argued on behalf of the applicant that the respondent authority had no power to apply in the case in hand the general principles of administrative law since there is special provision in section 18 of the Mines and Quarries (Regulation) Law, Cap. 270. This section reads as follows:
"The Governor (now the Council of Ministers) may cancel any prospecting permit if, in his opinion, its holder fails to comply with or observe any of the provisions of this Law or any Regulations made thereunder or any term or condition of such permit".
The reason for cancellation of the prospecting permit of, the applicant is not specifically mentioned in the said section.
The general principles of administrative law in case of revocation of administrative acts, are applicable, counsel for applicant argued, only when there is no law regulating such revocation.
It is well accepted that in the field of administrative law our Courts look for guidance in the continental legal systems and, in particular, to the principles of administrative law prevailing in Greece. As a general rule an administrative act in Greece is revocable, as such act does not possess the strength of res judicata. (See Kyracopoullos on Greek Administrative Law, 4th edition, volume 2 page 407). The above principles apply to both lawful and unlawful administrative acts. However, in cases of lawful administrative acts where there is legal provision regulating the subject of their revocation, the position is different.
In Conclusions of Case Law of the Greek Council of State 1929-1959 at page 198 to 199 we read....
"Εν τη ημετέρα νομοθεσία δεν υφίστανται γενικού περιεχομένου διατάξεις, προβλέπουσαι περί ανακλήσεως των διοικητικών πράξεων. Το κενόν τούτο πληρούται διά των εν τη νομολογία του Συμβουλίου της Επικρατείας διαμορφωθείσών γενικών αρχών, αίτινες όμως εφαρμόζονται μόνον εν ελλείψει νομοθετικής διατάξεως ρητώς προβλεπούσης και ρυθμιζούσης το θέμα της ανακλήσεως εν εκάστη ειδική περιπτώσει: 543/39, 189/49, 1529-1532/52. Όπου υφίστανται τοιαύται διατάξεις τυγχάνουσιν αύται και μόναι εφαρμοστέαι: 1289/47, 103/52, 1998/56, ως λ.χ η του αρ. 80 του Αγροτικού Κώδικος, ήτις ρυθμίζει τα της αναθεωρήσεως, των αποφάσεων των Επιτροπών Απαλλοτριώσεων: 544-548/44, 1226/53, 1877/56 του Α.Ν 1731/1939, ένθα ορίζονται αι περιπτώσεις, καθ' ας συγχωρείται η ανάκλισις των πράξεων, δι' ων κηρύσσεται αναγκαστική απαλλοτρίωσις: 1655/54 κ.λ.π"
Applying the above principles to the facts and circumstances of the present case I am of the view that the respondent authority could not revoke their previous decision, which was a lawful one, by cancelling the prospecting permit of the applicant. The applicant became the holder of a prospecting permit issued under section 13 of the law and in compliance with all the requirements thereof. Such permit could only be cancelled under the provisions of section 18 of the law. Therefore, the decision of the respondent contained in the letter dated 29 8 72 (exhibit 2) by which the prospecting permit under No. 2460 granted to the applicant on 10.1.72 was cancelled, is declared null and void and of no legal effect whatsoever.
Respondent to pay £20.-towards the costs of the applicant.
Sub judice decision declared null
and void. Order for costs as
above.
This is an English translation of the Greek text appearing at p. 342, ante.
"In our legislation there are no general provisions governing revocation of administrative acts. This vacuum is filled up by the general principles enunciated by the case law of the Council of State, which are only applicable in the absence of legislative provisions expressly governing and regulating the question of revocation in each particular case: 543/39, 1189/49, 1529-1532/52. Where such provisions exist, only these provisions are applicable: 1289/47, 103/52, 1998/56, e.g. the provisions of section 80 of the Rural Code, which regulate the revocation of the decisions of the Acquisition Committees: 544-548/44, 1226/53, 1877/56, of A.N. 1731/1939, which specify the instances in which revocation of the acts is excused, and whereby a compulsory acquisition is declared: 1655/54 etc."