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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1986) 3 CLR 590
1986 March 24
[A. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
STELIOS PAVLOU,
Applicant.
v.
1. THE CYPRUS TOURISM ORGANIZATION,
2. THE MINISTER OF COMMERCE AND INDUSTRY,
Respondents.
(Case No. 407/84).
Administrative Law—General principles—Discretion—Defective exercise of—Proper administration—Reasoning of an administrative act—Approval by respondent 2 of a decision by respondent 1 to classify applicant's establishment as a Tourist Centre under The Tourist Places of Entertainment Law 91179—Material before respondent I not placed before respondent 2—Sub judice decision annulled.
The Tourist Places of Entertainment Law 91/79, ss. 2, 4 and 5—Definition of Tourist Centre (s. 2) —Criteria to be considered in naming an establishment as a Tourist Centre.
The applicant is (he owner of the "Nyhtopoulia" restaurant at Strovolos. In March 1,984 respondents 1 considered the question of classification of applicant's restaurant as a tourist centre and eventually they decided so to classify it. As a result respondent 1 sought the approval of the Minister of Commerce and Industry. The Minister approved the decision under s. 2 (d) ,of Law 91/79.
Hence the present It should be noted that, as it transpired during the hearing of the recourse, material, which had been placed before respondents I. was not submitted to the Minister.
Held, annulling the sub judice decision: (1) The decision of respondent 2 was reached in a manner incompatible with proper administration because he did no have before him material that was essential for the exercise of his discretion.
(2) There was also defective exercise of discretion through lack of sufficient inquiry by accepting the conclusions of respondent 1, without reasonably sufficient inquiry into and knowledge of all material facts.
The very definition of Tourist Centre to be found in section 2 of Law 91 /79 shows that the kind of services offered or its location, concentration of movement of clients, travelers sight-seers, tourists or people spending time at summer resorts are the criteria which should be taken into consideration in naming an establishment a tourist centre. All the said criteria have to be concluded from material, which had not been submitted to respondent 2, whose approval would render the decision an executory one.
(3) The sub judice decision lacks also due reasoning.
Sub judice decision annulled.
No order as to costs.
Cases referred to:
Cullen v. The Republic (1974) 3 C.L.R. 101;
Frangides and Another v. The Republic (1968) 3 C.L.R. 90.
Recourse.
Recourse against the decision of the respondents whereby applicant's restaurant known as "Nyhtopoulia" was classified as a tourist restaurant.
A. S. Angelides, for the applicant.
St. loannidou (Mrs.),for the respondents.
Cur. adv. vult.
A. LOIZOU J. read the following judgment. By the present recourse the applicant seeks:-
(1) A declaration of the Court that the decision of respondent 1, by which it classified the centre of the applicant known as "Nyhtopoulia" as a tourist restaurant as from 1st June 1984, is null and void and with no legal effect. (2) A declaration of the Court by which he was asked to pay until 15th June 1984, fees for the issue of a license for his centre as a tourist one and to make until 30th June 1984 changes or additions to his centre and comply with the provisions of the Law about tourist centers, is null and void and with no legal effect. (3) A declaration of the Court that the decision of respondent 2, to approve the above decision or decisions of respondent 1, is null and void and with no legal effect.
The facts of the case are these. The applicant is the owner of the "Nyhtopoulia" restaurant situate at 35 Chryseleousa Street, Strovolos. On his application dated 2nd September 1980, (Appendix 1), attached to the opposition the said restaurant was classified as a tourist restaurant as from 1st January 1981 after respondent 2 approved on the 7th October, 1980, (Appendix II) the decisions of the Committee for Tourist Centres dated 20th November 1980. (Appendix III), and the Board of respondent 1, dated 16th December, 1980. The said decision was communicated to the applicant on the 17th December 1980, (Appendix IV). On the 5th January 1981 the applicant filed a hierarchical recourse to respondent 2 asking the exemption of his centre from the provisions of the Tourist Places of Entertainment Law 1979 (Law No. 91 of 1979, hereinafter to be referred to as "the law"). The recourse was accepted and respondent 2 by letter dated 24th March. 1981, (Appendix V) informed the advocate of the applicant of his decision.
In March 1984 the question of the classification of the restaurant of the applicant as tourist centre was considered along with the classification of a number of other similar . Eventually it was so decided by respondent 1, after having considered the memorandum of its Director General, dated 17th March, 1984, under the provisions of sections 2 and 5 of the Law. The said decision was approved by respondent 2, under the provisions of section 2(d) of the Law (Appendix VIII).
In paragraph 4, subparagraphs (a), (b), (c). (d) and (c) of the opposition there were made the following allegations:-
"4. As from March 1984, however, it was ascertained by respondent 1 that:
(a) There was a differentiation in the manner of operation of the Centre. There were increased the services it offered. To-day, the centre offers a greater variety of food, whereas before it offered mainly soups, now the field of its work and the movement of clients increased, hence the engagement by the applicant of three persons as staff in addition to the members of his family, so that it would function as a centre, whereas before it was operated by himself and his wife. The centre has secured a licence to sell alcoholic drinks and it has all the necessary conveniences required for the smooth function of a tourist centre.
(b) There was a change in the hours of operation of the centre so that now it operates not only in the early hours of the morning and late night, but also as from 19:00 hours.
(c) The centre satisfies all the structural prerequisites provided by the legislation for classification as a tourist centre. It does not lack behind other existing tourist centres in any field.
(d) At intervals there appear in the press advertisements of the said centre for the purpose of attracting clients by the offer of special dishes.
(e) Frequently there are organised at the centre parties with the possibility of serving up to 1.50 persons."
As it was not clear what was .placed before the two respondents and in particular respondent 2, in seeking this approval under section 2(d) of the Law, I directed the reopening of the hearing of the case and invited counsel for the respondents to produce any relevant documents or other evidence and I also afforded the opportunity to both counsel to advance argument on this issue.
Three bundles of documents were then produced the relevant ones are, firstly exhibit "Y": it consists of a letter dated 7th April 1984, addressed lo respondent 2 by the Director General of respondent. I by which they were sending for his information the minutes of the Board of respondent 1 of the 24th March, 1984, paragraph 17 thereof being a reproduction of: Appendix VII to which reference has already been made. Secondly exhibit "Y.1." which consists of a letter addressed to respondent 2, headed "Classification of Tourist Centres" and which it reads:
"It is submitted for your approval a list of centres (TABLE) for their classification in the category of "tourist in accordance with section 2(d) of the Tourist Places of Entertainment Law, 91 of 1979."
At the bottom of it there appears hand written the word "approved", the signature and the date 19th April, 1984. Appended; thereto there was copy of a letter dated the 4th April 1984 addressed to respondent 2. Next to the word addressee there appears again in the same handwriting the word "approved", the same signature and the same date it reads:
"In accordance .with section 2(d) of the Tourist Places of Entertainment Law No. 91 of 1979 Tourist Centres are considered, except those specially specified centres which C.T.O. will after approval: by the Minister, name on account of the kind of the services offered or on account of location, concentration, or movement of clients, travelers, sightseers, tourists or people spending .time at summer resorts.
2. The centres on the attached table were approved by the Board of the Organization at its meeting of the 24th March, 1984, and are submitted for your approval under the Law."
It was also attached thereto a list of such places giving in one column their name, in another their location and in the third their category, such as bar. tavern, cafeteria, restaurant.
It was stated by counsel for respondents that what was placed before the Minister, (respondent 2), in inviting his approval under the Law were the documents just described under exhibit Y. 1.
It is apparent from the above that respondent 2 did not have before him all relevant material that was essential for the exercise by him of his administrative discretion for the purpose of approving or not the decision of respondent 1. In this way his decision was reached in a manner incompatible with proper administration and being consequently defective it should be annulled (Cullen v. The Republic (1974) 3 C.L.R. 101). There was also defective exercise of discretion through lack of sufficient inquiry by accepting the conclusions of respondent 1, without reasonably sufficient inquiry into and knowledge, of all material facts (Frangides and Another v. The Republic (1968) 3 C.L.R. 90).
The very definition of-Tourist Centre to be found in Section 2, paragraph (d) of the Law shows that the kind of services offered or its location, concentration of movement of clients, travellers, sight-seers, tourist or other people spending time at summer resorts are the criteria which should be taken into consideration in naming an establishment, a tourist centre. All the aforesaid criteria have to be concluded from material which though it might have been placed before respondent 1, yet same does not appear to have been submitted to the Minister in inviting h:s approval which when given would render the decision an executory one.
The sub judice decision could also be annulled on the ground of lack of due reasoning as its reasoning could not be found in or supplemented from the file of respondent 2.
For all the above reasons the sub judice decision is annulled but in the circumstances there will be no order as to costs.
Sub judice decision annulled.
No order as to costs.