"BOTHROTEX" LTD & OTH. ν. REPUBLIC & AN. (1989) 3A CLR 177

Motor transport -The Motor Transport Regulation Law, 1982 (Law 9/82), section 15(3) -The Permits Authority is bound to consider the matters, referred to in sub-paragraphs (a), (b), (c), (d) -Permit for Carrier A granted, notwithstanding that the type and capacity of the vehicle was never placed before the administration -In the light of section 15(d), the discretionary power was exercised in a defective manner.

Composite administrative act -Intermediate act -Invalidity of part of a composite administrative act renders all acts which follow, including the final act, null and void.

Recourse for annulment -Practice -Parties -Recourse directed against wrong party-Amendment of title ex propriomotu -Motor transport -The Motor Transport Regulation Law, 1982 (Law 9/82), section 16-Carrier B -No provision for replacement of an existing Carrier B licence -Relevant application correctly treated as an application for the grant of a licence.

Both the Licensing Authority and the Review Permits Authority granted licences A and B, which are impugned by means of theserecourses. The licences for Carriers A were granted, notwithstanding that the type and capacity of the vehicles in respect of which they were applied had never been placed before the administration. Licences B were granted, though from the material in the file it appears that the applicants formulated their applications as applications for replacement of existing Carrier B licences, particulars of which were never placed before the administration.

The principles of Law expounded by the Court appear sufficiently in the hereinabove Headnotes

Sub judice decisions relating, to Carriers A annulled. Recourses relating to Carriers -B dismissed.

No order as to costs.

Cases referred to:

Christides v. Republic (1966)3 C.L.R. 732,

Iordanou v Republic (1967) 3 C.L.R. 245,

Paphitis. v. Republic (1967) 3 C.L.R 300,

Thymopoullos v Republic. (1967) 3 C.L.R. 588,

Xapolytos. v. Republic (1967) 3 C.L.R 703,

Tryfon v. Republic (1968) 3 C.L.R. 28,

HadjiKyriakou and Others v. Republic (No.2) (1968) 3 C.L.R. 63,

Makris v. Republic (1968) 3 C.L.R. 508,

Kephala v. Republic (1969) 3 C.L.R. 127,

Christou v. Republic (1969) 3 C.L.R. 134,

Karayiannis v. republic (1969) 3 C.L.R. 341,

Yiallourides v. Republic (1969) 3 C.L.R. 379,

Goulelis v. Republic (1970) 3 C.L.R. 81,

Economou v. Republic (1970) 3 C.L.R. 420,

Andreou v. Republic (1973) 3 C.L.R. 101,

Zinieris v. Republic (No. 2) (1975) 3 C.L.R. 224,

Christodoulou v. Republic of Cyprus, through The Collector of Customs, Nicosia 1 R.S.C.C 1,

Cyprus Transport Co. Ltd. and Another v. Republic and Another (No.1) (1969)3 C.L.R. 501,

HadjiPapasymeou v. Republic (1984) 3 C.L.R. 1182,

Fesas and Others v Republic of Cyprus, through The District Officer of Nicosia (1984) 3 C.L.R. 1182.

Recourses.

Recourses against the decisions of the respondents whereby the decision of the Licensing Authority to grant to interested parties carrier "A" licences was confirmed.

A. Theofilou, for the Applicants.

M. Tsiappa (Mrs), Counsel of the Republic B, for the Respondents.

S. Karapatakis, for Interested party in Case No. 531/86.

G. Triantafyllides, for Interested party in Case No. 532/86.

Cur.adv. vult.

STYLIANIDES, J. read the following judgment. The above recourses were taken together on the application of the parties and the approval of the Court.

Recourses Nos. 529/86 and 533/86 are directed against decisions of the Respondents 2, dated 31st May, 1986,whereby they confirmed decisions of the Licensing Authority taken on 24th October, 1985, concerning the grant of carrier "A" licences. Recourses Nos. 531/86 and 532/86 are directed against decisions of Respondents 2, dated 31st May, 1986, whereby they confirmed decisions of the Licensing Authority taken on 24th October, 1985, and on 21st May, 1985, respectively concerning the grant of carrier "B" licences to the interested parties named therein.

After the decisions of the Licensing Authority the applicants being aggrieved lodged hierarchical recourses against the grant of such licences. Those recourses were dismissed by the Review Licensing Authority on 31st May, 1986.

Hence these recourses.

The interested parties in the case of carrier "A" licences did not give particulars of the vehicles in respect of which such licences were sought and the applications for licences carrier "B" were made for replacement of existing licences.

It was submitted by counsel for the applicants that the decisions of the Licensing Authority and the sub judice decisions constitute composite administrative acts and by challenging the validity of the sub judice decisions -the final act which completed the administrative act -a ground may be raised for annulment which refers to the intermediate acts of the Licensing Authority dated 21st May, 1985, and 24th October, 1985, respectively.

It is well settled that though the last decision of a composite administrative act is the only one that can be challenged, nevertheless, once the intermediate component parts are a legal prerequisite to the final act, their validity may be examined in deciding the validity of the final act, as the invalidity of a part of a composite administrative act renders all acts which follow, including the final act, null and void. (Kyriacopoulos -Greek Administrative Law, Vol. 3 p. 99, Tsatsos -Recourse for Annulment, 3rd Edition, p. 152).

A hierarchical recourse is not intended to review the correctness of the hierarchically subordinate organ's decision byreference to the soundness of the reasoning propounded in support thereof but, to establish a second tier in the decision -taking process, designed to eliminate mistakes as well as abuse of authority by subordinates. Both organs in the hierarchy are charged with the same duty -to promote the objects of the law by the application of its provision in particular cases. Generally, it is competent for the body exercising powers in a hierarchical recourse, to review the legality of the decision taken in the first instance (Tsoutsos -Administration and the Law, (1979), p. 63; Stassinopoulos -Law of Administrative Acts, (1951), p. 177 et sequence).

Section 15(3) of the Motor Transport Regulation Law, 1982 (Law No. 9/82) provides:-

"(3) Η αρχή αδειών εν τη ενασκήσει της διακριτικής αυτής εξουσίας διά την χορήγησιν αδείας μεταφορέως Ά' θα εξετάζη τα κάτωθι:-

(α) Τας ανάγκας της περιφερείας διά την μεταφοράν του σκοπούμενου είδους φορτίου ως και την έκτα-σιν και φύσιν των τοιούτων αναγκών

(β) την έκτασιν καθ' ην αι τοιαύται ανάγκαι εξυπηρετούνται υπό των εν τη περιφέρεια υφισταμένων αδειούχων μεταφορέων Ά'·

(γ) τον βαθμόν εις τον οποίον είναι πιθανόν ότι ο αιτητής θα δύναται να παρέχη εις την περιφέρειαν ασφαλείς, συνεχείς και τακτικάς μεταφορικάς υπηρεσίας·

(δ) τον τύπον και την δυναμικότητα του οχήματος αναφορικώς προς το οποίον υπεβλήθη η αίτησις."

("(3) The licensing authority in the exercise of its discretionary power for the grant of carrier 'A' licence shall examine the following:

(a) The needs of the area for the transportation of the particular type of load together with the extent and nature of such needs;

(b) The extent to which the area's needs are being served by existing carriers 'A' in the area;

(c) The degree to which it is possible that the applicant will be in a position to supply in the area safe, continuous and regular transportation services;

(d) The type and capacity of the vehicle in relation to which the application has been lodged.")

In Recourses Nos. 529/86 and 533/86 the question arises whether the Licensing Authority and the Review Licensing Authority exercised their discretion properly in the cases, bearing in mind the matters enumerated in sub-section 3 of section. 15.

It was submitted that the Licensing Authority to be enabled to exercise its above discretionary powers should be furnished by an applicant in respect of a particular vehicle at least the type and capacity thereof.

In Recourses Nos. 529/86 and 533/86 the applications were submitted in respect of a non existent vehicle.

From the wording of section 15.(3)(c)(d) it is plain that the Authority "shall", and this is not directory but mandatory, take into consideration the factors set out in the paragraphs of subsection (3). There was no material before them with regard to the requirement of paragraph (d) - type and capacity of the vehicle -in relation to which the applications had been lodged. At no stage either at the time of the intermediate or the final act, such information was placed before the Administration. The Administration therefore reached its decision in a manner without proper assessment of the factors expressly set out in the law. Neither paragraph (c) nor paragraph (d) of subsection (3) were complied with The discretion was exercised in a defective manner.

It is well settled that the decision reached without paying due regard to all essential factors, or without full acknowledge of the relevant facts, or through failure to ascertain the true position, or through acting in ignorance of all relevant and essential facts,or through failure to conduct a reasonable necessary inquiry for ascertaining correctly the relevant facts, or through failure to pay and examine due regard to all material considerations and facts results in defective exercise of the relevant discretionary powers arid is a decision contrary to the principles of administrative law and a decision contrary to law in the sense of Article 146.1 of the Constitution. (See Christides v. Republic (1966) 3 C.L.R. 732; Iordanou v. Republic (1967) 3 C.L.R. 245; Paphitis v. Republic (1967) 3 C.LR. 300; Thymopoullos v. Republic (1967) 3 C.L.R. 588; Xapolytos v. Republic (1967) 3 C.L.R. 703; Tryfon v. Republic (1968) 3 C.L.R. 28; HadjiKyriakou and Others v. Republic (No.2) (.1968) 3 C.L.R. 63; Makris v. Republic (1968) 3 C.L.R. .508; Kephala v. Republic (1969) 3 C.L.R. 127; Christou v. Republic (1969) 3 C.L.R. 134; Karayiannis v. Republic (1969) 3 C.L.R. 341; Yiallourides v. Republic (1969) 3 C.L.R. 379; Goulelis v. Republic(1970) 3 C.L.R. 81; Economou v. Republic(1970) 3 C.L.R. 420; Andreou v. Republic (1973) 3 C.L.R. 101; Zinieris (No. 2) v. Republic (1975) 3 C.L.R. 224.).

In relation to Recourses Nos. 53 1/86 and 532/86 it is plain that section 16 is the relevant statutory provision. The controlling words are "the Licensing Authority may grant licence". There is no provision for replacement of an existing carrier "B" licence. From the material placed before me by the Administration the interested parties though ostensibly applied for the "replacement" of existing carrier "B" licences, in substance and effect they applied for the grant of licences. The Administration treated these as application for grant of licences under section 16 of the Law. This ground, therefore, fails.

From the material before me it is clear that the necessary inquiry, both under the relevant Law and the principles of Administrative Law, was carried out. The needs of the applicants were duly inquired into. The capacity of the vehicles for which the licences were applied for was before the Administration. It exceeded the seven tons but correlated with the needs of the applicants and it was duly taken into consideration as set down in the proviso to section 16(1).

The sub judice decisions in Recourses Nos. 531/86 and 532/86 are duly reasoned in the sense that the reasoning issupplemented by the material in the file.

From the relief prayed in the recourses and the facts presented before the Court by all sides it is plain that the acts, the validity of which is challenged, were taken by the Review Licensing Authority. According to precedent I direct that the title of the cases be amended accordingly. (See Miltiades Christodoulou and The Republic of Cyprus, through The Collector of Customs, Nicosia 1 R.S.C.C. 1, 9; Cyprus Transport Co. Ltd. and Another (No.1) and The Republic of Cyprus, through 1. The Minister of Communications and Works, 2.The Permits Authority (1969) 3 C.L.R. 501, 502; TheofanoThomaHadjiPapasymeou v. The Republic of Cyprus, through The District Officer of Nicosia (1984) 3 C.L.R. 1182; Costas Fesas and Others v. The Republic of Cyprus, through The District Officer of Nicosia (1984) 3 C.L.R. 1182).

For the foregoing reasons the sub judice decisions in Recourses Nos. 529/86 and 5 33/86 are declared null and void under Article 146.4(b) of the Constitution and the sub judice decisions in Recourses Nos. 531/86 and 532/86 are confirmed under Article 146.4(a) of the Constitution.

In the circumstances let there be no order as to costs in all recourses.

Sub judice decision partly annulled.

No order as to costs.

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