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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Κυπριακή νομολογία στην οποία κάνει αναφορά η απόφαση αυτή:
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(1989) 3A CLR 422
1989 April 10
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION.
PARIS MOTORS AGENCY LTD,
Applicants,
v.
THE MUNICIPALITY OF LIMASSOL,
Respondent.
(Case No. 145/86)
Words and phrases - "Factory" in Reg. 106 of the Limassol Municipality Regulations - Whether a garage, in which electrical power is used, is a factory within the meaning of the word factory in the said regulation - Question determined 'in the positive.
Reasoning of an administrative act - Municipal tax for keeping a garage - Cases of this nature do not require a long reasoning.
Executory act - Confirmatory act - Imposition of tax by Municipality for keeping a garage - Objection to the Municipality itself - Confirmation of original decision - In the circumstances the decision determining the objection is of a confirmatory nature.
By means of this recourse the applicants impugned the decision, whereby the respondents required them to pay £100 tax for keeping a garage in Limassol during 1985.
The Court thought that the sub judice decision lacked executory nature. In any event, the Court proceeded and dismissed the recourse on the merits as well.
Recourse dismissed with £50 costs in
favour of the respondents.
Cases referred to:
P.M. Tseriotis v. Republic (1984) 3 C.L.R. 693,
lonides and Another v. Republic (1982) 3 C.L.R. 1136,
Skaros v. Republic (1986) 3 C.L.R. 2109.
Recourse.
Recourse against the decision of the respondent to impose on applicant £100,- tax. in order to keep a garage in Limassol.
C. Melas, for the Applicant.
G. Potamitis with Ph. Potamitis, for the Respondents.
Cur.adv. vult.
KOURRIS, J read the following judgment. By the present recourse applicants pray for a declaration that the decision of the Limassol Municipality dated 17.2.1985 whereby they imposed £100.- tax on the applicant in order to keep. a garage in Limassol, is .null and void and of no effect whatsoever.
The facts of this case shortly are as follows:-
The respondents addressed to the applicants their decision contained in a notice dated 8.11.1985, whereby they informed them that they imposed upon them a tax of £100.- for keeping a garage in Limassol.
The applicants on 4.12.1985 addressed a letter to the respondents protesting at the imposition of such a high tax upon them which they considered. as excessive and unreasonable. (Appendix B to the application).
On 17.12.1985, respondents addressed a letter to applicants whereby they rejected the request of applicants to reduce the tax. Hence the present recourse.
The respondents raised the preliminary issue that thechallenged decision is not executory but confirmatory and, consequently, the respondents failed to file their recourse within 75 days as provided by Article 146.3 of the Constitution. Counsel for the respondents said that the decision which is executory is the one taken by the respondents on 8.11.1985 and their letter of 17.12.1985 by which they rejected the objection of applicants for reducing the tax is merely confirmatory because applicant by his letter dated 4.12.1985, did not adduce any new material.
Counsel for applicant, on the other hand, stated that applicants kept at Limassol premises consisting of show rooms, offices and a garage and they did not know whether the imposition of tax by the Limassol Municipality covered the whole of the premises or part of it and they addressed a letter on 4.12.1985, to enquire about it and that as soon as they received the letter of respondents dated 17.12.1985, (Appendix A to the application) whereby they were informed that the tax referred to the garage only, they filed the present recourse.
Counsel for applicants argued that applicants did not file their recourse out of time because as soon as they were informed that the tax was referring to their garage only, they filed the present recourse.
I have examined the material before me and I think that argument of counsel for applicants cannot stand. Before the imposition of the tax applicants signed exhibit 1 dated 23.4.1985 which is a printed form which was filled in by an employee of the Limassol Municipality for the purpose of issuing a licence for 1985 for keeping a garage. This form was signed by applicants, which indicates that they knew as from 23.4.1985 that the said tax was in respect of their garage and not of their whole premises including show rooms and offices.
Thus, I agree with learned counsel for the respondents that the decision of the respondents dated 17.12.1985 is not justiciable as it is not executory but confirmatory.
Applicant, by his letter dated 4.12.1985, did not adduce any new material and respondents did not carry out, in view of any new material adduced before them by applicants, a new inquiry.(P.M. Tseriotis v. The Republic (1984) 3 C.L.R. 693 at pp. 701-702), and for this reason alone, the recourse is dismissed.
Although the recourse was dismissed on the ground that the decision is not executory but confirmatory, I propose to deal with the substance of the recourse.
The legal grounds on which the recourse is based are mainly the following: (1) that a garage does not come within the definition of "factory" so as to be taxable under the municipal laws and regulations; (2) the sub judice decision of the respondents is not duly reasoned; (3) respondents reached the sub judice decision without a proper inquiry; and (4) the respondents acted under a material misconception of fact.
Counsel for the applicants argued that a garage does not fall within the definition of a factory so as to be taxable under the municipal laws and regulations.
Before proceeding any further, I think it is pertinent at this stage to state the laws and regulations under which the Limassol Municipality imposed tax on the applicants.
Section 103(1) of the Municipal Corporations Law, 1985, (111/85), states as follows:-
"103.-(1) Ουδέν πρόσωπον διατηρεί εντός των δημοτικών ορίων οιουδήποτε δήμου οιανδήποτε οικοδομήν ή χώρον εντός των οποίων ασκείται οιαδήποτε επιχείρησις, βιομηχανία, εμπόριον, επάγγελμα ή επιτήδευμα, καθοριζόμενον διά δημοτικών κανονισμών, άνευ αδείας λαμβανομένης προηγουμένως από το συμβούλιον του τοιούτου δήμου."
Regulation 106 of the Limassol Municipality Regulations reads as follows:-
"106. Από κάθε πρόσωπο που διατηρεί οποιοδήποτε από τα ακόλουθα μέρη ή κτίρια μέσα στα δημοτικά όρια θα καταβάλλεται στο Δημοτικό Ταμία κάθε χρόνο δικαίωμα που θα καθορίζεται από το Δημοτικό Συμβούλιο ανάλογα με την κάθε περίπτωση, ως ακολούθως:.
..................
Για εργοστάσιο όπου χρησιμοποιείται ατμήρης, ηλεκτρική ή μηχανική δύναμη ή όπου χρησιμοποιείται οποιαδήποτε εκρηκτική ύλη."
It appears from the said Regulation that a factory is taxable where steam, electric, or mechanical power is used, or in which any explosive substance is used.
Although it is common ground that electric power is used for the said garage, for the purposes of lifting up and lowering an electric lifting jack, counsel for the applicants invited the Court to find that this garage does not fall within the definition of a factory, and he relied on the definition of "factory" set out in the Factories Law,. Cap. 134, s.2(1) and on certain passages with regard to the definition of a factory in Halsbury's Laws of England, 3rd edn. Vol. 17 at pp. 13 & 14.
The definition of "factory" given in the Factories Law, Cap.134, under s.2(1) is as follows:-
"Subject to the provisions of this section, the expression 'factory' means any premises in which, or within the. close or curtilage or precincts of which, persons are employed in manual labour in any process for or incidental, to any of the following purposes, namely:-
(a) the making of any article or of part of any article; or
(b) the altering, repairing, ornamenting, finishing, cleaning or washing, or the breaking up or demolition of any article; or
(c) the adapting for sale of any article, being premises in which, or within the close or curtilage or precincts of which, the work. is carried on by way of trade for the purposes of gain and to or over which the employer of the persons employed therein has the right of access or control."
Counsel for the respondents also relied on the definition of"factory" as stated in the Factories Law, Cap. 134 and he contended that the passages from Halsbury's Laws of England relied on by counsel on the other side, were referring to "special classes of premises" and not the general meaning of "factory" as given in p. 11 of Vol. 17 of Halsbury's Laws of England. He stated that expression "factory" is given in Halsbury's Laws of England as almost identical with the definition given in our Factories Law Cap. 134. He argued that electric power is used in the said garage for servicing and carrying out repairs on Citroen cars and the inevitable conclusion is that it comes within the expression of "factory" under Regulation 106 of the Limassol Municipal Regulations.
I have considered carefully the arguments of both counsel and with the assistance of the definition of "factory" under the Factories Law Cap, 134 and the definition given in Halsbury's Laws of England, Vol. 17,1 have come to the conclusion that the garage in question comes within the meaning of "factory" given under Reg. 106 and, therefore, it is taxable.
With regard to the contention that the sub judice decision is not duly reasoned, I am of the view that cases of this nature do not require a long reasoning and I think that the sub judice decision is sufficiently reasoned. (See lonides and Another v. The Republic(1982) 3 C.L.R. 1136 at 1150 and Skaros v.The Republic(1986) 3 C.L.R. 2109 at 2116).
I am also of the view that the respondents reached the sub judice decision by carrying out .a proper inquiry and I am also satisfied that they have not acted under a material misconception of fact.
For these reasons, the recourse is dismissed with £50 costs in favour of the respondents.
Recourse dismissed with £50, -
costs against applicants.