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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1984) 3 CLR 974
1984 July 3
[MALACHTOS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
TAKIS MICHAEL,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTER OF COMMUNICATIONS AND WORKS,
Respondent.
(Case No. 59/81).
Administrative Law—Misconception of fact—Presumption that an administrative decision is reached after a correct ascertainment of the facts—Rebutted if applicant succeeds in establishing that there exists at least a probability that a misconception has led to the taking of the decision complained of—Applicant failed to establish any misconception of fact.
Constitutional Law—Discrimination—Article 28 of the Constitution—Burden of establishing discriminatory treatment is upon the applicant—Who failed to do so or to establish that there was contravention of the Rules of natural justice.
The applicant, who comes from Pera Chorion Nisou, applied to the Licensing Authority for a rural taxi licence for his vehicle under registration No. HZ333 to be stationed at his village.
In his relevant report the Nicosia District Transport Controller stated that the vehicle HZ333 was registered as a public service vehicle stationed at Vavatsinia village and that the applicant was a motor car dealer in Nicosia and he was never in possession of a rural taxi road service licence. Furthermore, the motorists unions were objecting for the granting of such a licence.
The Licensing Authority, after hearing the applicant and the interested persons and after taking into consideration all the facts put before it, dismissed the application on the ground that the transport needs of Pera Chorion Nissou, were adequately served.
The respondent Minister dismissed applicant's hierarchical recourse against the above decision of the Licensing Authority and hence this recourse.
Counsel for the applicant mainly contended:
1. That the act and/or decision of the respondent was taken under a misconception of facts in that he wrongly decided that the transport needs of Pera Chorion Nissou were adequately served.
2. That the act and/or decision of the respondent is not duly reasoned and/or not sufficiently reasoned.
3. That the sub judice decision was taken for the purpose of favouring other persons in discrimination of the applicant contrary to Article 28 of the Constitution and the Rules of Natural Justice.
Held, (1) that there exists a presumption that an administrative decision is reached after a correct ascertainment of the relevant facts; that such presumption, however, can be rebutted if a litigant succeeds in establishing that there exists at least, a probability that a misconception has led to the taking of the decision complained of; that no documentary or oral evidence was adduced on the part of the applicant to establish the allegation that there exists any misconception of fact on the part of the respondent; and that, therefore, contention (1) must fail.
(2) That the reasoning appears in the decision itself and is that the needs of the village of Pera Chorion Nissou are served sufficiently by the licensed vehicles of the village and the surrounding area, and is not the objection of the motorists organizations; and that, therefore, contention (2) must fail.
(3) That no evidence was adduced by the applicant that he was indeed subjected to discriminatory treatment or that other licences were at the time granted to other persons, as he alleges; that, further, there is nothing to suggest that the Minister in reaching the sub judice decision acted in contravention of the Rules of Natural Justice or with the intention of favouring others; and that, therefore, contention (3) must, also, fail.
Application dismissed.
Cases referred to:
Republic v. Ekkeshis (1975) 3 C.L.R. 548 at pp. 555-556.
Recourse.
Recourse against the refusal of the respondent to grant a rural taxi licence to applicant in respect of his vehicle No. H.Z. 333.
S. Karapatakis, for the applicant.
CI. Theodoulou (Mrs.), Counsel of the Republic, for the respondent.
Cur. adv. vult.
MALACHTOS J. read the following judgment. In this recourse the applicant claims a declaration of the Court that the act and/or decision of the respondent authority dated 3rd December, 1980, by which his application for a rural taxi licence in respect of his vehicle under Registration No. HZ 333 was rejected, is null and void and of no legal effect whatsoever.
The relevant facts of the case are as follows:
The applicant, who comes from Pera Chorion Nissou, applied to the Licensing Authority for a rural taxi licence for his vehicle under Registration No. HZ 333 to be stationed at his village.
In his relevant report the Nicosia District Transport Controller stated that the vehicle HZ 333 was registered as a public service vehicle stationed at Vavatsinia village and that the applicant is a motor car dealer in Nicosia and he was never in possession of a rural taxi road service licence. Furthermore, the motorists unions were objecting for the granting of such a licence.
The Licensing Authority, after hearing the applicant and the interested persons and after taking into consideration all the facts put before it, dismissed the application of the applicant on the ground that the transport needs of Pera Chorion Nissou, were adequately served.
Against this decision of the Licensing Authority the applicant filed on 3.7.80 a hierarchical recourse to the Minister of Communications and Works, who, after considering the case, issued on 27.11.80, the following decision:
"Having in mind the law in force and all the real facts, which have been put before me, I have come to the conclusion that the Licensing Authority rightly decided that the needs of the village of Pera Chorion Nisou were adequately served by the licensed vehicles of the village and the surrounding area and for this reason did not grant the licence applied for. Consequently, the above recourse is dismissed".
As a result, the applicant on the 10th February, 1981, filed the present recourse.
As it appears from the written address of counsel for applicant, the application is based on the following three grounds:
1. That the act and/or decision of the respondent was taken under a misconception of facts in that he wrongly decided that the transport needs of Pera Chorion Nissou were adequately served. He, himself, did not carry out an inquiry but he relied on the findings of the Licensing Authority which, at the same time, issued another decision in which it verified the existence of transport needs and issued new taxi licences for the same area, to other persons.
According to the principles of Administrative Law, there exists a presumption that an administrative decision is reached after a correct ascertainment of the relevant facts. Such presumption, however, can be rebutted if a litigant succeeds in establishing that there exists at least, a probability that a misconception has led to the taking of the decision complained of. (See inter alia, Stassinopoulos on the Law of Administrative Acts - 1951 page 304).
Ample authority can also be found in the case of The Republic y. Ekkeshis (1975) 3 C.L.R. 548 at page 555 to 556 where it is stated that:
"No doubt, discretionary powers must be exercised without a misconception about a material fact. If that happens, the decision reached is contrary to law, in the sense that the law was applied on a wrong factual basis. On the other hand, there exists a presumption that an administrative decision is reached after a correct ascertainment of relevant facts, though such presumption can be rebutted if a litigant succeeds in establishing, that there exists at least a probability that a misconception has led to the taking of the decision complained of. The burden of establishing that an administrative decision was reached on the basis of a misconception about a material fact, lies on the person challenging the validity of such decision on this ground. Furthermore, a decision may be annulled if an administrative court is satisfied that it is very probable that such decision was reached as a result of a factural misconception. In such a case, the annulment is not ordered because factual misconception has been estalished, but in order to rid the administrative decision concerned of the suspicion that it was based on a factual misconception."
In the present case no documentary or oral evidence was adduced on the part of the applicant to establish the allegation that there exists any misconception of fact on the part of the respondent. Therefore, this ground fails.
2. That the act and/or decision of the respondent is not duly reasoned and/or not sufficiently reasoned.
On this point counsel for applicant alleged that the fact that the motorists organizations were objecting is not a reason or, rather, a sufficient reason for the issue of the decision complained of.
I must say that I find no merit in this contention of counsel for applicant. The reasoning appears in the decision itself and is that the needs of the village of Pera Chorion Nissou are served sufficiently by the licensed vehicles of the village and the surrounding area, and is not the objection of the motorists organizations.
3. That the sub judice decision was taken for the purpose of favouring other persons in discrimination of the applicant contrary to Article 28 of the Constitution and the Rules of Natural Justice.
As regards this ground, again no evidence was adduced by the applicant that he was indeed subjected to discriminatory treatment or that other licences were at the time granted to other persons, as he alleges. Nor is there anything to suggest that the Minister in reaching the sub judice decision acted in contravention of the Rules of Natural Justice or with the intention of favouring others.
In the result, this recourse fails and is dismissed but, under the circumstances, I make no order as to costs.
Recourse dismissed with no order as to costs.