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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 589
1989 May 20
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
[MALACHTOS, J.]
GEORGHIOS CHRYSANTHOU,
Applicant,
v.
THE REPUBLIC OF CYPRUS THROUGH THE MINISTER OF
COMMUNICATION AND WORKS AND ANOTHER (NO.2),
Respondent.
(Case No.117/77)
Constitutional Law - Right to exercise a trade, profession or calling - Constitution, Art. 25 - The Road Motor Transport (Regulation) Law, 1964, section A (1) - The restrictions imposed by section 8(2) fall within the provisions of Art. 25.2 of the constitution - Therefore, such provisions are not unconstitutional.
Motor transport - The Motor Transport (Regulation) Law, 1964, as amended by Law 81/72, section 6- A hierarchical recourse may be tiled by any person, which is not satisfied by a decision of the Licensing Authority - Such a person is not only the person who applied for a road service license.
This recourse impugns the validity of the decision of Minister of Works and Communications whereby he revoked applicant's road service license for bus registration number X752, upon hearing the hierarchical recourse by the interested party. The issues raised for determination and the principles applied by the Court, in dismissing the recourse, appeared sufficiently in the hereinabove Headnotes.
Recourse dismissed. No order as to
costs.
Cases referred to:
Savva v. Republic (1983) 3 C.L.R. 230,
Police Hondrou and Another, 3 R.S.C.C. 82.
Recourse.
Recourse against the decision of the Minister of Communications and Works of the 26.2.77 revoking his decision of the 29.6.76 by which the applicant was granted a road Service licence in respect of his bus Reg. No. X752.
A. Pantelides. for the Applicant.
Cl. Theodoulou (Mrs). Senior Counsel of the Republic, for the Respondent.
L. Papaphilippou, for the Interested party.
Cur. adv. vult.
MALACHTOS, J. read the following judgment. By the present recourse the applicant seeks a declaration of the court that the decision of the respondent Minister of 26.2.77 revoking his decision of 29.6.76 by which the applicant was granted a road service licence in respect of his bus Registration No. X752, is null and void and of no legal effect whatsoever.
The facts of the case are as follows:
On 8.2.72 the respondent Authority approved an application by the applicant for a road service licence for his bus Registration No X752 for the route Agios Georghios, Linou - Flasou, Katydata, Skouriotissa, Kalon Chorion, Ayios Nicolaos, Petra, to Nicosia town.
On 14.3.72 the respondent Authority restricted the said licence to only three villages i.e. Agios Georghios Soleas, Ayios Nicolaos and Kalon Chorion to Nicosia, via Evrichou, with the right to collect passengers only from the said three villages. It also approved the substitution of the bus Registration No. X752 with bus Registration No, DM 918.
The case was re-examined several times in the light of objections and new inquiries by the respondent Authority and on 20.1.73 decided to reaffirm its decision of 14.2.72. As a result, the applicant filed on 14.2.73 Recourse No. 42/73 which, however, was withdrawn on 3.7.76 as a licence was granted to the applicant on 29.6.76 for the route Ayios Georghios Soleas to Nicosia, with the right to carry passengers from Linou, Flasou, Katydata, Skouriotissa, Kalon Chorion, Ayios Nicolaos and Petra.
The Linou-Flasou Transport Company, as an interested party filed on 21.7.76 a hierarchical recourse to the Minister who on the 26.2.77 revoked the decision of 29.6.76. The applicant, as a result, filed the present recourse.
It was contended on behalf of the applicant that sections 6, 7 and 8 of the Motor Transport (Regulation) Law 1964 (Law 16 of 1964) are unconstitutional and/or were applied in an unconstitutional manner and also that the sub judice decision is in restraint of trade and is thus contrary to Article 25 of the Constitution which guarantees the right to every person to carry on any occupation, trade or business.
The right of every person to practice any profession or carry on any occupation or business as safeguarded by Article 25.1 of the Constitution, is under Article 25.2 subject "to such formalities, conditions or restrictions as are prescribed by law and relate exclusively to the qualifications usually required for the exercise of any profession or are necessary only for the interests of the security of the Republic or the Constitutional Order or the public safety or the public order, or the public health, or the public morals, or for the protection of the rights and liberties guaranteed by this Constitution to any person or in the public interest".
The Licensing Authority was established under the Motor Transport (Regulation) Law 1964, which was in force at the time (repealed by section 26(1) of Law 9/1982) and under section 8(1) of the said Law may, at its discretion, grant a road service licence or impose such conditions as may deem fit in the circumstances.
Under sub section (2) of section 8 of that Law, the Licensing Authority shall have regard to the following matters:
(a) the suitability of the route on which a service may be provided under the licence;
(b) the extent, if any, to which the needs of the proposed routes or any of them are adequately served;
(c) the extent to which the proposed service is necessary or desirable in the public interest;
(d) the needs of the area as a whole in relation to traffic (including the provision of adequate, suitable and efficient services, the elimination of unnecessary services and the provision of unremunerative services) and the co-ordination of all forms of passenger transport,
and shall take into consideration any representations which may be made by persons who, on the date of the coming into operation of this Part of this Law, were already providing in good faith and for a reasonably long time transport facilities along or near to the route in question or any part thereof.
From the decision of the Licensing Authority a hierarchical recourse lies to the Minister of Communications and Works.
I consider that the aforesaid sections of the Law do not offend the provisions of Article 25 of the Constitution and that any restrictions or conditions imposed thereby on licences granted, as in the present case, are within those allowed by Article 25.2.
In the case of Neofytos Savva v. The Republic (1983) 3 C.L.R. 230 at page 237, the following is stated:
"In the present case the Article on which learned counsel mainly relied is Article 25. But it is quite clear, in my view, that the restrictions provided for in the relevant legislation in force, i.e. the Road Transport Regulations Laws 1964-1977, clearly fall within the provisions of para. 2 of this Article being necessary for the public safety and in the public interest and consequently, the decision challenged by the recourse cannot be said to offend against such provisions even though there may not have been a bus service on exactly the said routes on which the applicant proposed to operate his own buses, especially as the suitability and the extent to which the proposed routes were necessary or desirable in the public interest and the extent the proposed routes were served by the existing licensed buses were matters which should be taken into consideration by the respondent in the exercise of his discretion".
See also in this respect Police v. Hondrou and Another, 3 R.S.C.C. 82.
In the case in hand the restrictions imposed by the respondent authority, did not amount to a restraint of trade as alleged by counsel for applicant but are imposed by law in the public interest. This argument, therefore, of counsel for applicant fails.
It was also argued that an appeal under section 6 of Law No.16 of 1964 can only be made by an applicant whose application for a licence has been turned down by the Licensing Authority and therefore, it was contended, an interested party has no right of appeal to the Minister.
It was further submitted that once an applicant files a recourse against the refusal of the Licensing Authority to grant him a licence, and such a recourse is either determined or settled in his favour, any interested party appearing before the court is not entitled to appeal to the Minister after the applicant is granted such licence.
Section 6 of the Law as amended by section 3 of Law 81/72, provides that any one person who is not satisfied by a decision of the Licensing Authority may appeal to the Minister.
The wording of the Law leaves no doubt that it applies to and includes any person not satisfied and an interested party is such a person and is thus covered by the section. Furthermore, nothing in the section precludes such interested party, in circumstances as the present, from appealing to the Minister against the decision of the Licensing Authority.
Finally, I find that the decision of the Minister was properly taken within the limits of the discretionary powers given to him by law.
In view of the above, this recourse fails and is hereby dismissed with no order as to costs.
Recourse dismissed. No order as
to costs.