PATSALOS ν. REPUBLIC
(1986)3 CLR 2619 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1986)3 CLR 2619 1983 November 12 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION SAVVAS A. PATSALOS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR, Respondent. (Case No: 273/77). Time within which to file a recourse-Requisition of abandoned Turkish Cypriot properties (Orders 671/75, 820/75 and 899/76)-Property exempted from scheme of distribution, pursuant to order 820/75, which was later, renewed by order 899/76-Revocation of exemption in 1977- In the circumstances, time began to run as from the revocation, when order 899/76 became operative as regards the property in question, and not as from the publication of order 899/76. Executory act-Act of execution -Requisition of abandoned Turkish Cypriot properties--Revocation of exemption of property from the scheme of distribution of such properties to displaced persons-The revocation is not an act of execution of the relevant order of requisition-The revocation is of an executory act or decision in the sense of Article 146 of the Constitution-Management of abandoned Turkish Cypriot properties under requisition-Revocation of exemption of property from the scheme of distribution of such properties to displaced persons-It is within the domain of public law as it was taken in furtherance of a purpose of public nature. The applicant, who was in possession of immovable property at Aglandjia belonging to a Turkish Cypriot, requested the exclusion of the said property from the scheme of distribution of requisitioned properties to displaced persons, on the ground that such property had been leased to him by a Turkish Cypriot residing in England. His request was granted, but about a year later the applicant was asked to deliver possession of the property to the Nicosia District Committee for the Protection and Management of Turkish Cypriot properties. This decision was based on requisition orders 671/75, 820/75 and 899/76 Hence the present recourse. Counsel for the respondents raised the following preliminary objections, that is that the recourse is out of time as it was filed after the expiration of 75 days from the publication of requisition order 899/76, that the sub judice act is an "act of execution" of the said order and that it is an "act of management of property". Held, dismissing the preliminary objections:
(1)Before publication of order 899/76, the applicant was informed that his request for exclusion of the property from the scheme of distribution had been granted pursuant to the then in force order 820/75, which was renewed by order 899/76. It follows that order 899/76 did not become operative as regards the property in question as from its publication. The computation of the period of 75 days cannot be made as from publication of the said order, but as from the revocation of the exemption, because it is only as from that date that order 899/76 became operative in relation to the property in question.
(2)The sub judice decision is not an act of execution, but a decision to revoke the exemption and, as such, it is of an executory nature.
(3)The sub judice decision pertains to the management of property for the furtherance of a purpose of a public nature and as such it comes within the domain of public law, Order accordingly. Cases referred to: Milliotisv.The Republic
(1968)3 C.L.R. 477; Chrysanthouv.The Republic
(1968)3 C.L.R.
- Recourse. Recourse against the decision of the respondent whereby applicant was required to deliver to the Committee for the Protection and Management of Turkish Cypriot Properties possession of immovable property at Aglandjia belonging to a Turkish Cypriot. A. Hadjiloannou, for the applicant. A. Papasavvas, Senior Counsel of the Republic, for the respondent. Cur.adv. vult. TRIANTAFYLLIDES P. read the following decision. By the present recourse the applicant seeks the annulment of the decision of the Nicosia District Committee for the Protection and Management of Turkish Cypriot Properties by virtue of which he was asked to deliver to such Committee possession of immovable property at Aglandjia belonging to a Turkish Cypriot. The said decision was communicated to the applicant by a letter dated 16th September 1977 and was based on requisition orders (671/1975, 820/1975 and 899/1976) by means of which there had been requisitioned, for the purpose of meeting the needs of persons displaced by the Turkish invasion of Cyprus, movable and immovable properties abandoned, and not being personal used, by Turkish Cypriots who had moved to the under Turkish military occupation area of Cyprus. As it appears from documents which have been produced before this Court the applicant requested, on the 1.2th June 1976, the exclusion of the property in question from the scheme of distribution of requisitioned properties to displaced persons, because, according to his allegation, such property had been leased to him by a Turkish Cypriot who resides in England. On the 28th August 1976 the District Officer of Nicosia, as Chairman of the aforementioned District Committee, informed counsel for the applicant that the request of his client had been granted. Subsequently, however, the said Committee decided to hand over this property, too, to displaced persons and the applicant was accordingly required, on the 16th September, 1977, to deliver possession of the property to the Committee. Counsel for the respondent has raised the preliminary objections, first, that the present recourse is out of time because the applicant failed to challenge, within the prescribed by Article 146.3 of the Constitution period of seventy-five days, the last of the relevant requisition orders (899/1976) which had been published in the Official Gazette on the 5th November 1976, and, secondly, that by means of his recourse the applicant challenges an "act of execution" or an "act of management of property" and, therefore, not an executory administrative decision which could be made the subject-matter of this recourse under Article 146 of the Constitution. As regards the first of the above objections it has to be observed that before the publication of requisition order 899/1976 the applicant had been informed by a letter dated 28th August 1976 that there had been granted his request for the exemption of the property possessed by him from the scheme for distribution of abandoned Turkish Cypriot properties to displaced persons, pursuant to the then in force requisition order 820/1975, which was renewed by requisition order 899/
- Thus, the computation of the period of seventy-five days prescribed by Article 146.3 of the Constitution cannot be made in the present case as from the date of the publication of order 899/ 1976 which, in view of the exemption granted as aforesaid to applicant, did not become operative as regards the property possessed by the applicant on its publication, and such period has to be treated as running as from the later date on which the said exemption was revoked, that is as from the 16th September 1977, because it is only as from that date that order 899/76 became operative in relation to the property in question; and by reference to such date this recourse has been filed within the time prescribed by Article 146.
- Regarding the second objection of counsel for the respondent I cannot accept that the sub judice decision is merely an act of execution of the aforementioned requisition orders, since it is, in essence, a decision to revoke the exemption granted to the applicant and it is, thus, of an executory nature and can, therefore, be challenged by the present recourse. Also, I cannot sustain the objection that the said decision is an act of management by the Government of property in the realm of private law, because it is a decision pertaining to the management of property for the furtherance of a purpose of a public nature and as such it comes within the domain of public law and can be made the subject-matter of this recourse under Article 146 of the Constitution (see, inter alia, in this respect, Milliotisv. The Republic,
(1968)3 C.L.R. 477, 479, 480, Chrysanthouv.The Republic,
(1968)3 C.L.R. 519, 525, the Manual of Administrative Law of Spiliotopoullos(Σπηλιωτοπούλου '' Εγχειρίδιον Διοικητικού Δικαίου'') 2nd ed.
(1982), p. 384, para.425, and Conclusions from the Case-Law of the Council of State in Greece (Πορίσματα Νομολογίας του Συμβουλίου της Επικρατείας) 1929-1959 pp. 232,233. In the light of all the foregoing the preliminary objections raised by counsel for the respondent cannot be sustained and this case will be heard on its merits. Order accordingly. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο