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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1987) 3 CLR 1793
1984 April 11
[TRIANTAFYLLIDES, P]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
VARNAVAS NICOLAOU AND SONS LTD.
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTER OF COMMERCE AND INDUSTRY,
Respondent.
(Case No. 225/79).
Executory act - Application for importation of timber - Circular addressed to all persons concerned (including applicants) that a licence would be granted provided they would agree to purchase a quantity of timber from a local company- Letter informing applicant that their application will be examined on basis of such circular- Return to applicant of their application together with a note that «applications must be accompanied by a written confirmation or contract of the Cyprus Forest Industries Ltd.». (the said local company) - The final refusal of applicants' application was communicated by means of such note - It follows that time began to run as from such communication and not, as suggested from communication of the aforesaid circular.
Legitimate Interest - Acceptance of an administrative act - Agreement between Government Officials and the Association of Timber Dealers and Building Material Importers that the Ministry concerned would decide what course to adopt as regards importation of timber after publishing a communiqué Inviting all persons concerned to submit declarations as to the quantity of timber they would wish to import- Circular communicating such a course-Neither the applicants nor the said Association can be taken as having accepted such a course.
The facts of this, case sufficiently appear from the judgment of the Court. The judgment deals with two preliminary objections, namely that the recourse is out of time and that the applicants lack legitimate interest to challenge the sub judice act.
Preliminary objections dismissed.
Cases referred to:
Goulielmos v. The Republic (1983)3 C.L.R. 883;
Spyrou v. Republic (1983)3 C.L.R. 354;
Foumia Ltd. v. The Republic (1983)3 C.L.R. 262;
Karseras v. The improvement Recourse. Board of Strovolos (1983)3 C.L.R. 144.
Recourse.
Recourse against the decision of the respondent to dismiss applicants' application for a licence to import Swedish timber.
T Papadopoulos with N. Papaefsfathiou, for the applicants.
M. Kyprianou, Senior Counsel of the Republic, for the respondent.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following decision. By means of the present recourse the applicants complain against the dismissal of their application for a licence for the importation of Swedish timber.
The said application of the applicants to the respondent Ministry was made on 13 February 1979 because timber is a controlled commodity by virtue of the Imports Regulation (Control and Regulation of Goods) (Amendment) Order, 1972 (see No. 154 in the Third Supplement, Part I, to the Official Gazette of 11 August 1972) which was issued by the Minister of Commerce and Industry under the provisions of section 3 of the Imports (Regulation) Law, 1962 (Law 49/62), as amended by section 2 of the Imports (Regulation) (Amendment) Law, 1967 (Law 7/67).
On 26 March 1979 the Ministry of Commerce and Industry sent to all persons concerned, including the applicants, a circular letter informing them that a licence would be granted to all those who had declared the quantity of timber which they planned to import in 1979 provided that they would enter into a contract with the Cyprus Forest Industries Ltd. for the purchase from such company of a quantity of timber equivalent to ten per cent of the quantity of timber which they wished to import.
On the same date the applicants sent a reminder to the respondent asking for speedy examination of their application.
By a reply dated 31 March 1979 the respondent referred to the aforesaid circular of 26 March 1979 and informed the applicants that applications would be examined on the basis of the conditions contained in such circular.
Thereafter the application of the applicants was returned to them with a Note that App1ications must be accompanied by a written confirmation or contract of the Cyprus Forest Industries Ltd.»
The applicants did not comply with the requirement referred to in the said Note and filed the present recourse.
Counsel for the respondent has raised the preliminary objections that the present recourse is out of time and that the applicants do not possess an existing legitimate interest, in the sense of Article 146.2 of the Constitution, entitling them to file this recourse.
Regarding the first objection it has been submitted by counsel for the respondent that the sub judice decision was communicated to the applicants by the circular letter of 26 March 1979 and that the letter of 31 March 1979 is only of a confirmatory nature and, therefore, cannot be challenged by a recourse under Article 146 of the Constitution.
It is well settled that only executory decisions are amenable to the jurisdiction of the Supreme Court under Article 146 of the Constitution and that confirmatory acts or decisions are not of an executory nature and, therefore, cannot be challenged by means of a recourse (see, inter alia, in this respect, Goulielmos v. The Republic, (1983) 3 C.L.R. 883, 903, Spyrou v. The Republic, (1983)3 C.L.R. 354, 358,Foumia Ltd. v. The Republic, (1983)3 C.L.R. 262,268,269 and Karseras v. The Improvements Board of Strovolos, (1983)3 C.L.R. 144, 147).
The present recourse was filed on 13 June 1979 and if it is correct that the sub judice decision was communicated by the circular letter of 26 March 1979 then this recourse would be clearly out of time as it has been filed after the expiry of the seventy-five days provided for by Article 146.3 of the Constitution.
In my view, however, the final refusal of the application of the applicants was, in effect, communicated to them by the Note which accompanied their application when it was returned to the applicants after the letter Of the respondent dated 31 March 1979 and, therefore, the present recourse has been filed within time, under Article 146.3 of the Constitution, in so far as the said refusal is concerned.
Regarding next the objection of counsel for the respondent that the applicants do not possess a legitimate interest inasmuch as they have, allegedly, accepted the condition imposed by the respondent in relation to the importation of timber, it is useful to bear in mind the following:
After meetings which were held at the Ministry of Commerce and Indus y from 7 February 1978 to 17 February 1979 it was agreed between officers of the Ministry of Commerce and Industry and representatives of the Timber Dealers and Building Materials Importers Association that there would be issued a communiqué inviting all persons concerned to submit till 26 February 1979 declarations regarding the quantity of timber they wished to import during 1979 and after these declarations the Ministry of Commerce and Industry would proceed to decide what course to adopt.
Such course was communicated by the circular letter of the respondent dated 31 March 1979 and it cannot be regarded as having been adopted with me consent of the applicants or of the aforementioned Association to which they belong.
Consequently, the applicants have not divested themselves of the legitimate interest entitling them to file the present recourse against the sub judice refusal of their application for a licence to import timber.
In the light of all the foregoing it is not possible to sustain the two preliminary objections raised by counsel for the respondent and this recourse has to proceed to be heard and determined as regards its merits.
Order accordingly.