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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1974) 3 CLR 295
1974 May 30
[MALACHTOS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
THE COOPERATIVE STORE FAMAGUSTA LTD.,
(MERGED WITH THE COOPERATIVE DRAPERY FAMAGUSTA LTD.),
Applicants,
and
THE REPUBLIC OF CYPRUS, THROUGH
THE PERMITS AUTHORITY AND OTHERS,
Respondents.
(Case No 143/73).
Motor Transport-Bus stop-Removal-Within the discretion of the Licensing Authority established under section 4 of the Motor Transport (Regulation) Law, 1964-Said discretion provided by Regulation 17 of the Motor Transport Regulations, 1964, made under section 15 of the said Law-Licensing Authority's discretion to refuse in the present case applicants' application for removal of bus stop properly exercised after obtaining views of the Police, the Municipality of Famagusta and the District Transport Officer-Due regard having, been paid to all relevant considerations without taking into account irrelevant factors-Not shown to the Court's satisfaction that the said Authority has acted in abuse or excess of powers-See further immediately herebelow.
Natural Justice-Audi alteram partem rule-Said Licensing Authority (supra) considering applicant's application for removal of bus stop under said Regulation 17-Not bound to hear applicants since no such obligation is imposed on it by any law or regulation.
Discretionary powers-Principles upon which the Court will interfere with the exercise of discretionary powers by the administration-See further supra under Motor Transport.
Bus stop-Removal-Discretion etc.-See supra, passim.
The Court dismissed this recourse directed against the refusal of the respondent Licensing Authority to remove a bus stop from the pavement just outside the drapery shop of the applicants at 75, Evagoras Avenue The Court held that the said refusal was duly reasoned and properly taken after a thorough enquiry into, and due assessment of the relevant facts and circumstances; and that there has been no infringement of the rules of natural justice and no abuse or excess of the discretionary powers vested by statute in the respondent Authority.
The facts of the case are very briefly as follows: The applicants are the owners of a building situate at 75 Evagoras Avenue, Famagusta where they have established and are running a drapery shop. Just outside their said shop and on the public pavement there is a bus stop allegedly causing much embarrassment and injury to their business. By letter dated June 12, 1972, the applicants applied to the respondent Licensing Authority for' the removal of the said bus stop, stating in detail the reasons in support of their request (see the reasons in full post in the judgment) Upon receiving the said application the respondent Authority sought the views on the matter of the Police, the Municipality of Famagusta and the District Transport Officer; it did not think fit however to hear any further the applicants. Eventually the Authority after considering the matter decided to reject the said application "as it thinks that the moving of the said bus stop will not be for the public interest and because this bus stop has been in existence in the said area, before the erection of your shops" (see the respondents' letter dated February 27, 1973, exhibit 1, set out in full post in the judgment).
It is against this decision of the Licensing Authority that the applicants filed the present recourse under Article 146 of the constitution. Counsel for the applicants argued that:
(a) The sub Judice decision is not duly reasoned in that no full reasons are given therein to explain why such decision is in the public interest;
(b) the respondents based their said decision on wrong criteria and/or failed to consider properly all relevant factors;
(c) the applicants were deprived of their right to be heard by the respondents and, consequently, there has been in the instant case a breach of the rules of natural justice.
The learned Judge of the Supreme Court dismissing the recourse:-
Held, (1) (a). The respondent Licensing Authority has been established under section 4 of the Motor Transport (Regulation) Law, 1964, and by virtue of the Motor Transport Regulations, 1964, made under section 15 of the said Law, is the appropriate organ and is entrusted with powers for the better carrying out of the provisions of the According to Regulation 17 the Licensing Authority has the power to fix and remove a bus stop at its discretion.
(b) In exercising this discretionary power in the present case, as it appears from the history of the case, exhibit 2, the Authority obtained the views of the Police and the Municipality of Famagusta as well as the opinion of the District Transport Officer and decided to reject the application of the applicants as the removal of the bus stop in question would not be for the public interest and because the said bus stop was in existence before the erection of the shops of the applicants.
(2) (a) I find that this decision of the respondent Authority is a duly reasoned one and the factors that were taken into account as to why it is to the public interest, appear clearly in exhibit 2 (supra) as well as in the report of the District Transport Officer, exhibit 6.
(b) Once I found that on the above ground alone the sub Judice is to be considered as Validly taken, the situation does not arise for one to examine the validity of the other ground on which the said decision was based i.e. the existence of the bus stop in question before the erection of the shops of the applicants. See in, this respect Pikis v The Republic (1967) 3 C.L.R. 562, at. 574 and The Republic v Lefcos Georghiades(1972) 3 C.L.R. 594, at p 689.
(3) I am satisfied that the respondent Licensing Authority in exercising its discretion in the way it did in this case, has done so after paying due regard to all relevant considerations without taking into account irrelevant factors; and it has not been shown to my satisfaction that it has acted in abuse or excess of powers in reaching the decision complained of (See Salih Saruhan and The Republic, 2 R.S.C.C.133, at p 136).
(4) (Regarding the alleged breach of the rules of natural justice):
(a) Counsel for the applicants argued that the respondent Authority acted in breach of the rules of natural justice as it did not give the opportunity to the applicants to be heard.
(b) In considering, a case of this nature the Licensing Authority is regulating its own procedure and is not bound to hear the applicants since there is no obligation imposed on it by law or regulation. So, no infringement of the rules of natural justice has been committed by the respondent Authority (See in this respect Georghios HjiLouca v The Republic (1969) 3 C.L.R. 570, at pp. 574-575, per Triantafyllides J. as he then was Constantinou Republic (1972) 3 C.L.R. 116, at pp. 125-126).
Recourse dismissed.
No order as to costs.
Cases referred to:
Costas Pikis v The Republic (1967)3 C.L.R. 562, at p. 574;
The Republic v. Lefcos Georghiades (1972) 3 C.L.R. 594, at p. 689;
Salih Shukri Saruhan and The Repubic, 2 R.S.C.C. 133, at p. 136;
Georghios HjiLouca v. The Republic (1969) 3 C.L.R. 570, at pp. 574-575;
Constantinou v. The Republic (1972) 3 C.L.R. 116, at pp. 125-126.
Recourse.
Recourse against the refusal of the respondent Licensing Authority to remove a bus stop, situated just outside the drapery shop of the applicants, to another place.
A. Pouyouros, for the applicants.
V. Aristodemou, Counsel of the Republic, for the respondents.
Cur adv. vult.
The following judgment was delivered by:-
MALACHTOS J. The applicants in this recourse arc the owners of a building situated at 75, Evagoras Avenue in Famagusta where they have established and are running a drapery shop. Just outside their said shop and on the public pavement there is a bus stop. By letter dated 12.6.72, exhibit 3, the applicants applied to the Licensing Authority (respondent for the removal of the said bus stop. The reasons for applying for such removal, as stated by the applicants in their said letter, are the following:
"(a) It is daily observed during the whole ay time a large concentration of people and as a. result the attendance of our clients is rendered difficult, nuisance is also caused and the pavement is always dirty.
(b)The gas and dust caused by the buses fill, our shop and cause serious damage to our goods, especially to cloths by dust subsiding on them so that they become dirty and those of white colour become black.
(c) Great damage is caused to our tents which are continuously torn up and our shop windows are always untidy and worn out.
(d) It is impossible for our clients to park their cars and 'be facilitated in their shopping".
In their said letter the applicants suggested the removal of the bus stop in question to another point of the same avenue or in a side road where there is empty space Having received no reply the applicants on 17.7.72 addressed another letter to respondent No 1 claiming the removal of the said bus stop and reiterating at the same time the aforementioned reasons for such removal.
As it appears from the history of the case, exhibit 2, the matter was referred to the Chief Transport Officer who sought the views of the Police and the Municipality of Famagusta the matter The views of the Police were expressed in a letter dated 22.7.72, exhibit 4, addressed to the District Transport Officer of Famagusta in which it is stated that there is no objection to remove the said bus stop provided an alternative suitable place is found on the same avenue for the best service of the public.
By letter dated 16.8.72, exhibit 5, the Famagusta Municipality wrote to the District Transport Officer informing him that they had no objection to the settlement of the matter by moving the bus stop in question to the, offices of the Buses Union of Famagusta to which most of the buses stopping at the bus stop in question belong The District Transport Officer of Famagusta examined the case on the spot and in his report exhibit 6, did not recommend such removal.
On the 22nd February, 1972 the Licensing Authority, examined the application of the applicants and decided to reject it Their said decision appears in their letter addressed to the applicants dated 27.2.73, exhibit 1, which reads as follows:
"I wish to refer to. your application dated 17.7.72 by which you claim that the bus stop in front of the shops of your company be moved to another place, as it has been observed, large concentration of people and as a result the attendance of your clients is rendered difficult, and to inform you that the Licensing Authority decided to reject it as it thinks that the moving of the said bus stop will not be for the public interest and because this bus stop has been in existence in the said area before the erection of your shops".
As a result the applicants on 20.4.73 filed the present recourse, claiming:
1. A declaration of the Court that the act and/or decision of the Licensing Authority dated 22.2.73, by which the application of the applicants for the removal of the bus stop in front of the shops of the applicant company to another place was dismissed, is null and void and of no legal effect whatsoever.
2. A declaration of the Court that the said act and/or decision was issued contrary to the rules of natural justice and, therefore, is null and void.
The grounds of law on which the application is based as stated therein, are the following:
(a) The act and/or decision complained of is based on wrong criteria;
(b) the respondents failed to consider properly all relevant factors and they wrongly rejected the application of the applicants for the removal of the bus stop, which is situated in front of their shops, to another place;
(c) the applicants Were deprived of their right to be heard by the respondents, and, consequently there was a breach of the rules of natural justice.
Learned counsel for applicants argued that the decision of the respondent Authority is not duly reasoned in as much as no full reasons are given therein to explain why such decision is to the public interest. It must be noted here that this point was raised only at the hearing of the recourse and does not appear in the body of the application as a ground of law on which the application is based He further argued, that the respondent Authority in reaching the said decision took into account wrong criteria. They took into account the fact that the bus stop in question was there before the erection of the shops of the applicants and this influenced their minds considerably in reaching the said decision. Therefore, they exercised their discretion wrongly.
Finally, he argued, that the respondents acted in breach of the rules of natural justice as they did not give the opportunity to the applicants to be heard.
The respondent Licensing Authority has been established under section 4 of the Motor Transport (Regulation) Law, 1964, and by virtue of the Motor Transport Regulations, 1964 made under section 15 of the Law, is the appropriate organ and is entrusted with the power for the better carrying out of the provisions of the law into effect. According to Regulation 17 the Licensing Authority has the power to fix and remove a bus stop at its discretion. In exercising this discretionary power in the present case, as it appears from the history of the case, exhibit 2, the Licensing Authority obtained the views of the Police and the Municipality of Famagusta as well as the opinion of the District Transport Officer who examined the case on the spot and decided to reject the application of the applicants as the removal of the bus stop in question would not be for the public interest and because the said bus stop was in existence before the erection of the shops of the applicants.
I find that this decision of the respondent Authority is a duly reasoned one and the factors that were taken into account as to why it is to the public interest, appear clearly in exhibit 2 as well as in the report of the District Transport Officer, exhibit 6 Once I found that on the above ground alone the sub judice decision is to be considered as validly taken, the situation does not arise for me to examine the validity of the ground on which the said decision was based i.e. the existence of the bus stop in question before the erection of the shops of the applicants. See in this respect Costas G. Pikis v The Republic (1967) 3 C.L.R. 562 at page 574 and The Republic v Lefcos Georghiades (1972) 3 C.L.R. 594, at p. 689.
In Salih Shukri Saruhan and The Republic 2 R.S.C.C. 133 at page 136 it is stated that when the authority or organ concerned "has exercised its discretion in reaching a decision, after paying due regard to all relevant considerations and without taking into account irrelevant factors, this Court will not interfere with the exercise of such discretion unless it can be shown to the satisfaction of the Court that such exercise has been made in disregard of any provisions of the Constitution of any law or has been made in excess or in abuse of powers vested in" the authority or organ concerned.
I am satisfied that the Licensing Authority in deciding to exercise its discretion in the way it did in this case, has done so after paying due regard to all relevant considerations without taking into account irrelevant factors and it has not been shown to my satisfaction that it has acted in abuse or in excess of powers in taking the decision complained of.
The last point that falls for consideration is the argument of learned counsel for applicants that the respondents acted in breach of the rules of natural justice as they did not give the opportunity to the applicants to be heard.
In considering a case of this nature the Licensing Authority is regulating its own procedure and is not bound to hear the applicants since there is no obligation imposed on it by any law or regulation. So, no infringement of the rules of natural justice has been committed by the respondent Authority.
In the case of Georghios Hji Louca v The Republic (1969) 3 C.L.R. 570 at pp. 574-575 Triantafyllides, J., as he then was, had this to say:
"In my opinion in a case of this nature, and in the absence of any legislative provision for the purpose, there was no need to invite the applicant to be present at the proceedings before the respondent (see Conclusions from the Jurisprudence of the Greek Council of. State, 1929-1959 p 112; also, the decision of the Greek Council of State 1262/46 reported in Zacharopoulos Digest of the Decisions of the Greek Council of State, 1935-1952, p.3 13, paragraph 136) likewise, it was not necessary to afford him an opportunity to question the two witnesses who were heard by the respondent This was not an instance of a disciplinary or other proceeding of such a nature as would render it necessary to give the applicant the opportunity to contradict averments against him and to question witnesses (useful reference in this, connection may be made, also, to Odent on Contentieux Administratif, volume IV (1965-1966) p 1,165 et seq.)".
This case was cited with approval in the case of Constantinou v The Republic (1972) 3 C.L.R 116 at pp 125-126.
For the reasons stated above, this recourse fails.
In all the circumstances of the case I do not propose to make any order as to costs.
Application dismissed.
No order as to costs.