clr/1962/1962_1_43.pdf

(1), 5 and 13 as the latter stoodprior,to the amending Law No. 47 of 1961—Deepening a well without permit was not then anoffence. The relevant sections of the Wells Law, Cap. 351, provide : ι Section 3

(1):"No well shall besunk or constructedin or upon any land unless the person proposing to sink or construct the well applies for, and obtains, a permit from the Commissioner of the district in which such welt is to be sunk or constructed: Provided that, where the applicant is not the owner of the land on which the welNs to be sunk or constructed, no permit shall be granted by the Commissioner unless the applicant obtains therefor the written permission of the owner of the land, duly certified by a certifying officer." Section 5: "For the purposes of this Law, widening, deepen­ ing or otherwise extending any existing well shall be deemed to be an operation in respect of which a permit must be ob­ tained under the provisions of this Law." Section 13: (I) "Any person who falls to comply with the provisions of section 3 or 12of this Law or with any conditions and restrictions imposed in any permit granted under section 3of this Law or who uses or possesses awell sunk or construct­ ed in contravention of section 3 of this Law shall be guilty of an offence and shall,on conviction,be liable to imprisonment not exceeding three months or to fine not exceeding twentyfive pounds or to both.

(2)Upon the conviction of a person for an offence under section 3 of this Law, the Court shall order any weli sunk or constructed without a permit, or In deviation from the con­ ditions and restrictions imposed in the permit, t o be filled in or closed at the expense of the person convicted within such 43 1962 Apr. 26 SAVVAS K. C'HRISTOMDES V. DISTRICT OFFICFR NICOSIA AND KYRENIA 1962 Apr.26 SAWAS Κ. CHRISTOFIDES v. DISTRICT OFFICER NICOSIA AND KYRENIA time asshall bespecified therein but In no case exceeding two months, unless the permit or consent Inwriting ofthe Com­ missioner ofthe district Is, Inthemeantime, granted or ob­ tained: Provided that the Commissioner may. Ingranting such per­ mit orgiving such consent, Impose such terms and conditions as to him may seem necessary ordesirable." (Note; Section 13 hasnowbeen amended by Law 47of 1961 to provide penalty for an offence against section5). On January 12, 1962,the District Court of Kyrenia convicted the appellant fordeepening his well without permit contrary to sections 3

(1), 5and 13ofthe Wells Law, Cap. 351, as the latter stood prior to its amendment by Law No.47 of 1961. The trial judge imposed a fine and directed thefilling In of the well unless apermit wasobtainedwithin two months of the date of conviction. The facts were that the appellantdeepen­ ed an oldand existing well and did not construct anew well. On appeal theconviction, penalty andtheorder for filling, In the well were set aside. Held : (I) Section 13 being apenalizing section shouldbe construed strictly andasatthetimeofthe offencesection 13 did not provide for any penalty for Infringing section 5, therefore none could be Imposed.

(2)Sub-section

(2)of section 13,does not give to the Court power to order the filling In of the deepened portion ofa well.

(3)Therefore the appeal isallowed, the conviction, penal­ ty, and the order for filling In the well setasideand the penalty will berefunded. Appeal allowed. Appeal Against Conviction. The appellantwas convicted on the 12/1/62 at the District Court of Kyrenia (Cr. Case No. 1099/61) on onecount of the offence of deepening his well contrary toss. 3

(1)5 and 13 of the Wells LawCap. 351 and wassentenced byEvangelides D.J. topayafineof £I.—and £2.900 mils costs andthe well to befilledin unless a permit be obtained within two months. A. Christofides for theappellant. A. Frangos for the respondent. 44 Thejudgment of the Court was delivered by : WILSON, P. : This is an appeal from aconviction and sentence by the District Court of Kyrenia on January 12, 1962, for deepening a well contrary to sections 3

(1), 5and 13 of the Wells Law, Cap.351. The learned trial judge imposed a fine and directed the fillingin of the well unless a permit was obtained within two months from the date of conviction. No such permit has been granted. It isour opinion that upon the basis of the Statement of Offence in the Charge, namely, on the Ist-count : "Did deepen his well", and in the Particulars of Offence : "Did deepen his well", and of the reasons for judgment, that the Court wasdealinghere with thedeepening of an old and existing well. It was not the construction of a new well which, in our opinion, would come within the provisions of section 3

(1)of the statute to which I havejust referred. It is our view that the trial proceeded and the conviction was really imposed upon the finding that the accused failed to comply with the provisions of section 5of the statute which required a permit to be obtained for widening, deepening, or otherwise', extending an"existing well. Section 3on the other hand requires a permit to begrant? ed for the sinking or construction of wells. The word "proposing" seems to relate to new wells and not to existing wells. Therefore, the penally was imposed for deepening the well. We must now consider section 13 which is a penalizing section and must be construed strictly. The offence must come fairly within its wording as at the date of the offence. On that date neither it nor any other section provided any penalty for this infringement of the act. Therefore, none may be imposed. Since the date of the offence section 13

(1)has been amended to provide penalty for an offence against section 5. 1 would point out, however, sub-section

(2)of section 13 has not given the Court power to order thefilling in of the deepened portion of a well. The appeal, therefore, must be allowed. The conviction and penalty will be set aside as well as the order made by the learned trial judge for the closing of the well. The penalty will be refuned. Appeal allowed. 45 1962 Apr. 26 SAWASK. CHROTOPIDES v. DISTRICT OFFICER NICOSIA AND KYRENIA