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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 526
1985 March 2
[MALACHTOS, J.]
IN THE MATTER OF ARTICLE 146
OF THE CONSTITUTION
AVRAAM M. KARTAPANIS,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTRY OF COMMUNICATIONS AND WORKS,
Respondents.
(Case No. 32/83).
Administrative Law-Absence of sufficient inquiry because material facts were disregarded-All material facts in the relevant file which was - before the respondents-Burden is on applicant to establish that respondents failed to consider material facts.
Motor Transport-Road use licence-Rural taxi licence- Rejection of applicant's application for and grant of such licence to interested part y-Section 17 of the Motor Transport (Regulation) Law, 1964 (Law 16/64) not relevant.
Constitutional Law-Equality-Principle of equality-Article 28.1 of the Constitution.
Administrative Law-Administrative acts decisions-Reasoning-Not necessary to exist in the body of the decision if this is not expressly required by Law-It may be supplemented from the material of the file.
The applicant in this recourse sought a declaration of the Court that the decision of the respondents to reject his application for a rural taxi licence to serve the village of Ayii Trimithias and to accept the application of the interested party was null and void and of no legal effect whatsoever.
Counsel for the applicant contended:
(a) That the respondents carried out an insufficient inquiry as material factors were not taken into consideration; and they acted under a misconception of fact, the probability of a misconception vitiating an administrative decision.
(b) That the respondents acted contrary to section 17 of the Motor Transport (Regulation) Law, 1964 (Law 16/64).
(c) That, applicant was subjected to unequal treatment, contrary to Article 28.1 of the Constitution, because the respondents wrongly took into account the fact that the interested party was working in the village whereas the applicant was employed in Nicosia and, thus, the distinction made had no reasonable objective or justification.
(d) That the sub judice decision was not duly reasoned.
Held, (1) that there was no evidence that the respondents disregarded material facts; that all relevant facts were in the relevant file before the Minister when taking the decision complained of and the burden was on the applicant to prove that though the respondent had the file before him he failed to consider material facts contained therein (see Mallouros v. E.A.C (1974) 3 C.L.R. 220).
(2) That section 17 of Law 16/64 has no relevancy to the case under consideration.
(3) That equality before the Law in paragraph I of Article 28 of the Constitution, does, not convey the notion of exact arithmetical equality but it safeguards only against arbitrary differentiations and does not exclude reasonable distinctions which have to be made in. view of the intrinsic nature of things; and that the mere fact that the applicant was at the time employed as a driver by the Cooperative Central Bank and, consequently, could not be available, at any time in the village, placed him at a different situation than the interested party.
(4). That it is not necessary for reasoning to exist in the body of a decision, if this is not expressly required by Law but may be supplemented from the material of the file that the sub judice decision is duly reasoned and that the reasoning can be supplemented from the material in the file.
Recourse dismissed.
Cases referred to:
Mallouros v. E.A.C. (1974) 3 CL.R. 220;
Linou-Flassou-Petra Co. Ltd. v. Republic (1976). 3 C.L.R. 25 at p. 29;
Shamassian v. Republic (1973) 3 C.L.R. 341;
Savva v. Republic (1980) 3 C.L.R. V675;
Mikrommatis v. Republic, 2 R.S.C.C. 125;
Republic v. Arakian (1972) 3 C.L.R. 294 at p. 299.
Recourse.
Recourse against the decision of the respondent to reject applicant's application for a rural taxi licence.
N. Clerides, for the applicant.
M. Tsiappa (Mrs.), for the respondents.
A. Panayiotou, for the interested party.
Cur. adv. vult.
MALACHTOS J. read the following judgment. The applicant in this recourse seeks a declaration of the Court that the decision of the respondents of the 9th November, 1982, to reject his application for a rural taxi licence to serve the village of Ayii Trimithias and to accept the application of the interested party, Theodoros Koukkides instead, is null and void and of no legal effect whatsoever.
The relevant facts of the case, shortly put, are as follows:
The applicant is a refugee from the village of Kontemenos and is now residing at Ayii Trimithias. From 1952 upto the Turkish invasion in 1974 was the owner and driver of a rural bus serving the village of Asomatos and thereafter he has been working as a professional driver. On 5th July, 1980, he applied under the Motor Transport (Regulation Law 1964-1975, for a licence of a rural taxi to be based at the village of Ayii Trimithias. The interested party had applied for the same licence on 7th February, 1980. On the 14th July, 1981, the Licensing Authority examined all applications for rural taxi licences for the village of Ayii Trimithias. At this meeting the applicant, who was present, stated, inter alia, that he was at the time employed as a driver by the Cooperative Central Bank but that he would resign his job if he were granted the rural taxi licence provided he found it financially profitable; otherwise, he would retain, his job with the Bank and his son, in the village, would drive the taxi.
All applications were rejected by the Licensing Authority at this meeting that of the applicant was rejected because since he already had another job in Nicosia, he would not be able to be present at the village for serving its needs; moreover, this village was already adequately served by the existing means of transport. The application of the interested party was also rejected as the needs of the village were adequately served.
Against this decision of the Licensing Authority the interested party filed a hierarchical recourse before the Minister of Communications, and Works on 3rd August, 1981.
On the 13th August, 1981, the applicant's advocate wrote to the Licensing Authority for a re-examination of his client's case. The case was re-examined but was again dismissed on the 2nd February, 1982, for the same reasons., The decision was communicated to the applicant on 5th February, 1982, who filed a hierarchical recourse before the Minister of Communications and Works on 27th February, 1982.
On the 6th November, 1982, the Minister dismissed the recourse of the applicant before him, but decided to grant to the interested party the licence applied for. The relevant decision of the Minister was communicated to the applicant on 9th November, 1982, against which he filed the present recourse.
The recourse is based on the following grounds of Law:
(1) The act and/or decision of the respondents was taken in contravention of Law 16/64.
(2) The act and/or decision of the respondents was taken without thorough and/or due inquiry and examination of the special circumstances of the case and the fact that the applicant was a professional bus-driver for a long time.
(3) The sub judice decision was taken under circumstances constituting excess or abuse, of power and/or discrimination against the applicant, and
(4) The sub judice decision is not duly reasoned.
Counsel for applicant argued that the respondents carried out an insufficient inquiry as material factors were not taken into consideration. They failed, he argued, to consider, the applicant's very long experience, as a rural bus driver, that the applicant was a refugee, his general and family circumstances and his intention to resign from his present employment in Nicosia, the referred to the case of Mallouros v. E.A.C. (1974), 3 C.L.R. 220 to support his argument that the probability, of a misconception vitiates an administrative decision.
He next argued that the respondents acted contrary to section 17 of the Motor Transport (Regulation) Law, of 1964, Law 16/64 in that by granting the licence in question to the interested party they failed to specify the particular vehicle to which the licence referred and gave the licence personally to the interested party. He relied to support his argument on the case of Linou-Flasou-Petra Company Ltd. v. The, Republic (1976) 3 C.L.R. 25 where it is stated, at p. 29: "that section 17 is applicable only in respect of a specified particular vehicle and, therefore, it was not lawfully open to the Minister to order that a licence should be issued to the interested party in respect of one out of his two vehicles, without specifying which that vehicle was going to be."
His third argument is that the applicant was subjected to unequal treatment contrary to Article 28.1 of the Constitution. He submitted that though reasonable distinctions are allowed without offending the principle of equality, in the present case the respondents wrongly took into account the fact that the interested party was working in the village whereas the applicant was employed in Nicosia, thus, the distinction made had no reasonable objective or justification. He relied of the case of Shamassian v. The Republic (1973) 3 C.L.R. 341 and Savva v. The Republic (1980) 3 C.L.R. 675.
Finally, he argued, that the sub judice decision is not duly reasoned, since there is nothing in the said decision to indicate the grounds on which it was based. Such reasoning, he argued, must be stated in the decision itself and it is not sufficient if it is contained in the official records related thereto.
The first argument of the applicant must fail as there is no evidence that the respondents disregarded material facts as alleged. All relevant facts were in the relevant file before the Minister when taking the decision complained of. The burden was on the applicant to prove that though the respondent had the file before him failed to consider material facts contained therein; this, however, he failed to do. As it was stated in the case of Mallouros v. E.A.C. (supra) at p. 224:
"It has been argued that the respondents were under a misconception of fact, in that they did examine or did not take into consideration that the properties were ripe for development into building sites. In this respect, I was referred to the case of Hji Michael v. The Republic (1972) 3 C.L.R. 246 at p. 252, where it is stated-According to the principles of administrative Law there exists a presumption that an administrative decision is reached after at ascertainment of relevant facts; but 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 (see, inter alia, Stassinopoulos on The Law of Administrative. Acts, p. 304 et seq.)' "
As regards the argument that the respondent authority acted contrary to section 17 of Law 16/64, I have to reject this also. Section 17 reads as follows:-
"17. Notwithstanding anything contained in this Law a public service vehicle licensed as such on the date of the coming into operation of this Law shall be licensed under the provisions of this. Law if it is so constructed or adapted for use as to comply with the relevant provisions of this Law."
It is clear from the wording of this section that it does not have any relevancy to the case under consideration.
I also find that in the present case no question of unequal treatment of the applicant arises.
The application of the principle of equality has been considered in the case of Mikrommatis v. The Republic, 2 R.S.C.C. 125 where it was stated that equality before the Law in paragraph 1 of Article 28 of the Constitution, does not convey the notion of exact arithmetical equality but it safeguards only against arbitrary differentiations and does not exclude reasonable distinctions which have to be made in view of the intrisic nature of things.
In the case of the Republic v. Nishan Arakian and Others (1972) 3 C.L.R. 294, the authorities on this principle were reviewed by the Full Bench of this Court. At page 299 of the Report we read:
"In Case 127 3/65 it was stated that the principle- of equality entails the equal or similar treatment of all those who are found to be in the same situation.
In Case 1247/67 it was held that the principle of equality safeguarded by Article 3 of the Greek Constitution of 1952-which corresponds to Article 28.1 of our Constitution excludes only the making of differentiations which are arbitrary and totally un justifiable and exactly the same was held in Case 1870/67.
In Case 2063/68 it was held that the principle of equality was not contravened by regulating differently matters which were different from each other.
In Case 1215/69 it was held that the principle of equality is applicable to situations which are of the same nature."
The mere fact that the applicant was at the time employed as a driver by the Cooperative Central Bank and, consequently, could not be available, at any time in the village, placed him at a different situation than the interested party.
As regards the last ground, I find that the sub judice decision is duly reasoned and that the reasoning can be supplemented from the material in the file of the case. It is not necessary for the reasoning to be contained in the sub judice decision itself as alleged by counsel for applicant. As stated in the Conclusions from Case Law of the Greek Council of State 1929-59, at p. 185, "It is not necessary for reasoning to exist in the body of a decision, if this is not expressly required by Law, but may be supplemented from the material of the file.".
I would, therefore, dismiss this ground also, as I consider the sub judice decision fully reasoned in all respects.
For all the above reasons, this recourse fails and is hereby dismissed.
There will be no order as to costs.
Recourse dismissed
with no order as to costs.