the provisions of that Article-What is a confirmatory act-And in what circumstances and on what conditions an apparently confirmatory act is in reality a new executor decision which can be challenged by a recourse on its own-New inquiry, change of legislation etc. etc. Administrative Law-Compulsory acquisition-Effected prior to the coming-into operation of the Constitution-Return of the property so acquired for non-attainment of the purpose of acquisition-Section 13 of the Land Acquisition Law, Cap. 226-Refusal of the respondent Director to recommend such return-No omission by the Director to deal with applicants' request-Nor a case of any omission on his part of a continuing nature-In fact the Director's said refusal of the 2nd October, 1963, is merely a confirmatory act of a previous original one dated the 25th November, 1960, and, consequently cannot become subject of a recourse
both such provisions. By an Order of the 16th April, 1937, the then Colonial Government of the Island acquired compulsorily land of the applicants, in the vicinity of Nicosia. The public
taking for which the land was acquired was stated to be "the future building requirements of Government, the subsequent lay out of such land and the erection thereon of Government buildings for use as offices and otherwise". By the said Order the Director of Land Registration and Surveys-now Director of Lands and Surveys-was entrusted with "the supervision and effectuation of the said
taking". It is not disputed that since then the above property has not been actually utilised by Government for building purposes. On the 13th October, 1960, the applicants addressed a letter to the Lands and Surveys Department referring to the compulsory acquisition of their property, as above, and alleging that the purpose of such acquisition was the building of the English School, Nicosia; they claimed that their property should be returned to them,
section 13 of the Land Acquisition Law, Cap. 226, on the ground that it had not been used for the purpose of the English School and had remained an uncultivated and not built upon field. On the 25th November, 1960, a reply was given to the applicants, stating that it was not correct that the property in question had been acquired for the purposes of the English School and quoting the relevant public
taking as described in the said Order of the 16th April, 1937, (supra). It was added that there was no indication whatsoever that the said
taking of public utility for which the property had been acquired had been abandoned or that the whole or part of the property was no longer required for such
taking. In conclusion it was stated that in the circumstances no recommendation could be made for the return of the property to the applicants. On the 19th September, 1963, three years later counsel for applicants wrote again to the Lands and Surveys Department in practically identical terms as the aforesaid previous request of the 13th October, 1960; and on the 2nd October, 1963, the Director of the Lands and Surveys replied in exactly the same terms as his previous said reply of the 25th November, 1960. He again concluded by saying that he could not recommend the return of the property to the applicants. Article 146.1 of the Constitution provides: "The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in. such organ or authority or person". Article 146.3 provides: "Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse". Article 23.5 of the Constitution provides: "Any immovable property or any right over or interest in any such property compulsorily acquired shall only be used for the purpose for which it has been acquired. If within three years of the acquisition such purpose has not been attained, the acquiring authority shall, immediately after the expiration of the said period of three years, offer the property at the price it has been acquired to the person from whom it has been acquired. Such person shall be entitled within three months of the receipt of such offer to signify his acceptance or non-acceptance of the offer, and if he signifies acceptance, such property shall be returned to him immediately after his returning such price within a further period of three months from such acceptance". In dismissing the recourse, the learned justice:- Held,
such legislation-(vide Decisions of the Greek Council of State Nos. 724/1930, 80/1931, 964/1935 and 858/1938). But in the present case not only the respondent Director does not appear to have based himself in writing his said second reply of the 2nd October, 1963, on any different provisions than when writing his said first reply of the 25th November, 1960, but, in fact, the provisions of the aforementioned Law No. 15/62, enacted in the meantime, could not have made any difference at all as far as his stand in this Case is concerned. The reason for the refusal of the respondent Director to recommend the return of the property was not related at all to any difference between the provisions in force in November 1960 and the provisions in force in October, 1963, and it held good equally good
both such provisions; it was the fact that, in his view, the purpose of the acquisition of the property was not, as alleged by the applicants, the building of the English School at all and, so, no question arose of the purpose of the acquisition having been abandoned. (c) Concerning Article 23, paragraph 5, of the Constitution, it came into effect together with the Constitution (i.e. on the 16th August, 1960), but if it is at all applicable to an acquisition effected before then, it would only be so applicable in case the non-attainment of the purpose of the acquisition has taken place after the 16th August, 1960 (vide in this respect also Kaniklides and the Republic, 2 R.S.C.C. 49). But in this case the event relied upon by the applicants as constituting evidence of non-attainment clearly relates to the period before the aforesaid date.
Application dismissed. No order as to costs. Per curiam: Whether or not the applicants are entitled to the return of the property in question,
any of the constitutional or statutory provisions properly applicable to it, could not and has not been determined by means of this recourse. Applicants are free to pursue the matter further by appropriate steps, this judgment not being a res judicata in any sense in this respect. Cases referred to: Pikis and The Republic,
. Should, thus, exhibit 4 he found to be an act merely confirmatory of exhibit 2 then this recourse would be bound to fail because-not being possible to base it on exhibit 4-it would be out of time,
Counsel appearing in this Case addressed the Court on this matter. Counsel for Applicant submitted that exhibit 4 is not a confirmatory act or decision but one which could be challenged on its own; counsel for Respondent took the opposite view and submitted that the recourse is out of time. In support of his argument counsel for Applicant has alleged also that, in this Case, apart from any specific act or decision, there exists also a continuing omission to return to Applicants their compulsorily acquired property. In order to decide the sub judice issue it is necessary to examine shortly the history of events in this Case: By Order published in Supplement No. 3 to the official Gazette, on the 16th April, 1937, (Not. 76) the then Colonial Government of the Island acquired compulsorily land of the Applicants, in the vicinity of Nicosia. The public
taking for which the land was acquired was stated to be "the future building requirements of Government, the subsequent lay out of such land and the erection thereon of Government buildings for use as offices and otherwise". By the said Order the Director of Land Registration and Surveys-now Director of Lands and Surveys-was entrusted with "the supervision and effectuation of the said
taking". It is not disputed that since then the above property has not been actually utilized by Government for building purposes. On the 13th October 1960, the Applicants addressed a letter to the Lands and Surveys Department (exhibit 1) referring to the compulsory acquisition of their property, as above, and alleging that the purpose of such acquisition was the building of the English School, Nicosia; they claimed that their property should be returned to them,
section 13 of the Land Acquisition Law, Cap. 226, on the ground that it had not been used for the purposes of the English School and had remained an uncultivated and not built upon field. On the 25th November, 1960, a reply was given to Applicants (exhibit 2,) stating that it was not correct that the property in question had been acquired for the purposes of the English School and quoting the relevant public
taking as described in the Order published on the 16th April, 1937, as aforesaid. It was added that there was no indication whatsoever that the
taking of public utility for which the property had been acquired had been abandoned or that the whole or part of the property was no longer required for such
taking in conclusion it was stated that in the circumstances no recommendation could be made for the return of the property to the Applicants. On the 19th September, 1963-three years later-counsel for Applicants wrote again to the Lands and Surveys Department (exhibit 3), in practically identical terms as the aforesaid previous communication of the 13th October, 1960 (exhibit 1), and on the 2nd October, 1963, the Director of the Lands and Surveys Department replied (exhibit 4,) in exactly the same terms as his previous reply of the 25th November, 1960, (exhibit 2). He again concluded by saying that he could not recommend the return of the property to Applicants. It is convenient at this stage to deal first with the question of whether or not there exists any omission on the part of the Respondent Director of Lands and Surveys. In my opinion, in 1960, when he was first called upon to deal with the matter, he appears to have examined it and given a reasoned reply (exhibit 2). In 1963 he confirmed such reply by writing a letter in identical terms (exhibit 4). Therefore, there can be no question of an omission on his part to deal with the request of Applicants. In this respect this Case differs from that of Pikis and The Republic
-taking involved in the compulsory acquisition of Applicants 'property, the Director informed Applicants that he could not recommend, for the reasons given, the return of their property; it was up to Applicants, if they so chose, to apply to the Council of Ministers accordingly, a thing which they have not done yet but which they may still do, if they so wish It is, perhaps, hardly necessary to stress that I am not pro-flouncing at all in this recourse whether or not any omission does exist,
the relevant provisions, on the part of the Council of Ministers. This is not a matter to be determined by this judgment. We come next to the question of whether or not the letter of the Director (exhibit 4) is an executor, act which can be challenged on its own or whether it is confirmatory of the previous act of the Director of the 25th November, 1960, (exhibit 2) in which case it cannot be made the subject of a recourse; and this recourse cannot proceed as challenging ,in effect, the said act of the 25th November, 1960, because it would then be out of time as against such earlier act,
Confirmatory acts or decisions are dealt with, inter alia, in the "Conclusions from the Jurisprudence of the Greek Council of State 1929-1959", p. 240 and by Stasinopoulos in "The Law of Administrative Disputes", 4th edition, p. 175.it is clear that a confirmatory act is not executory therefore, it cannot be the subject of administrative recourse in Greece. That a non executory act cannot be the subject of a similar administrative recourse in Cyprus,
such legislation-(vide Decisions 724/1930, 80/1931, 964/1935 and 858/1938 of the Greek Council of State). In the present Case not only the Respondent Director does not appear to have based himself, in writing exhibit 4, on any different provisions than when writing exhibit 2, but also, in fact, the provisions of Law 15/62, which was enacted in the meantime, could not have made any difference at all as far as his stand in this Case is concerned: Applicant had alleged that the purpose of the acquisition had been abandoned through the non-user of the property for the purposes of the English School; such non-user was an event which had shaped itself even before their first letter of the 13th October, 1960, (exhibit 1); the reason for the refusal of the Respondent Director to recommend the return of the property was not related at all to any difference between the provisions in force in November 1960, and the provisions in force in October, 1963, and it held equally good
both such provisions; it was the fact that, in his view, the purpose of the acquisition of the property was not the building of the English School at all and no question arose, in the circumstances, of the purpose of the acquisition having been abandoned, or the whole or any part of the property not being required any longer for the true purpose of the :acquisition as published at the time in the official Gazette; whether Cap. 226 or Law 15/62 were to be relied upon his decision would be exactly the same. Concerning Article 23
The recourse has, in the circumstances, to be dismissed. Whether or not the Applicants are entitled to the return of the property in question,
any of the constitutional or statutory provisions properly applicable to it, could not and has not been determined by means of this recourse. Applicants are free to pursue the matter further by appropriate steps, this judgment not being a res judicata, in any sense, in this respect. Regarding costs, as the recourse has not failed on the substance thereof, I have decided not to make an order of costs against the Applicants. Application dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
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