1967 Feb 11 NfcMITSAS [TRIANTAfYLLlDES, J ] IN THE MATTER OF ARTICLE 146 OF THECONSTITUTION INDUSTRIES L T D 1 NLMHSAS INDUSTRIES LTD, MUNICIPAL Applicants, CORPORATION and OF LIMASSOL A N D A N O I HRE THE MUNICIPAL CORPORATION OF LIMASSOL AND ANOTHER Respondents. {Case No 141/65) Stt eels and Buddings—Budding permit — Endorsement thereon — Street-widening scheme—4hgnment—Endorsement made by the Respondents on a budding permit granted to Applicants— Ptiipoiting to implement thereby a street-widening schemeParticularly such endorsement being to the effect that part of the Applicants propetty as defined therein, will be taken out of the Applicants' owneislup and willform part of the public street m accotdance with the said street-widening scheme—Validity oj such endorsement—The Streets and Buildings Regulation Law Cap 96 sections 9 12 and 13—Lndorsement not a mere note —But a condition sought to be put on the aforesaid building permit—And thus, forming part of the executory act ι e the said huilcbngpermit—Therefore such endorsement could be made the sub/er'-matter of a recourse under Article 146 of , the Consti utiuii—IIo\\e\er the said endorsement has to be annulled—As made without legal authority and in excess and abuse of the powers \esied in the Respondents under Cap 96 (supra)—All that the Respondentscould lawfully do in the matter was to apph under section Π of the said Law Cap 96 (supra) foi tin necessai) amendments cf the iele\ant Lands Office tegistiations to be made m completion and in implementation of the stieet-wuknmg schemeconceitied—Stieet-w denmgscheme which became final and binding in 1955—As such scheme is an admimstiatne act which became final b'joie the coming into operation on the \6th August 1960 oj the Constitution, there is no competence \estc I in tlrs Couit to decide its \altdity on a ucourse under Ailule 146 of the Constitution—Onlx if it weie 134 a legislatee act could its invalidity have led to the in\aliditv of an administrate e act based thereon, ι e in the present case the endorsement on the said budding permit complained of— In which case this Court could ha\e to examine the \alulitv oj the said street-w idcmng scheme—See 1967 Feb 11 NEMITSAS INDUSTRY LTD also, below ι MUNICIPAL Administrative and Constitutional under Article 146 undei that Article—Does not Law—Recourse of the Constitution—Competence extend to acts or decisions which became final before the coming into operation of the Constitution on the \6th August, 1960— Executory act—Only an executory act can be made the subjectmatter of a lecourse under Article 146—Restrictions and limitations of the right oj ownership—Article 23 3 of the Consti tution—The issue of fact whether a constructive imposition of such restrictions or limitations has taken place is within the iwisdiction of a end court under paragraph 11 of Article 23 of the Constitution—And not within the jurisdiction oj this Court on a recourse under Aiticle 146 of the Constitution—See also abo\e and under Sit eel-widening Schemes b>.lo' Recourse—Recourse under Article 146 of the Constitution—See abo\e under Streets and Buddings Administiatee and Constitutional Law Street-widening Schemes—Alignment—The Streets and Buddings Regulation Law Cap 96, section 12 and 13—Such scheme is an admtmstratne act and not a legislative act—Therejorc the Court has no competence to examine the validity of such scheme which became final before the coming into operation on the \bth August, I960 of the Constitution—Composite admmistratne action—A stieet-widening scheme and a budding peinut under Cap 96, (supra), do not form a composite administiatee action— So that the invalidity oj the former could necessanh lead to the invalidity oj the latter—The scheme and the permit are acts separate and independent of each other — Stieet-w idemng scheme which has become final before the \6th August, 1960 s u p r a — Such a scheme cannot when telied upon b\ the Municipal Administration after the coming into operation on the \bth August 1960 oj the Constitution be held to amount to a direct or indued compulson acepusition taking place aftei the coming into operation of the Constitution so that Article 23 4 oj the Constitution could be appied to it—See, also above under Streets and Buddings Admtnisttative and Constitutional Law Alignment—Street alignment—See above 135 CORPORATION OF LIMASSOL A N D \NOTHFR 1967 Feb 11 NiMITSAS K m STRIESL T D ι MuMCIPAl CORPORATION OF LIMASSOI A N D ANOTHFR Budding Permits—Budding permits under Cap 96 (supra)—Endorse ments thereon—Conditions—See above under Streets and Buddings, Street-widemng Schemes Abuse and excess oj powers—See abo\e under Streets andBuildings Administrative Act—Administrative act as distinct from a legislative one—See above under Streets and Buddings, Administrative and Constitutional Law, Street-widening Schemes Administrative Act—Composite administrative act or composite administiatee action—Executory act—See above under Streets and Buddings, Administrative and Constitutional Law, Streetwidemng Schemes Composite Admtmstratee Act—See under Street-widening Schemes, above Lxcess of powers—See under Streets and Buildings above Executor\ Administrate e Act—See above,underStreets andBuddings Administiatee and Constitutional Law Limitations or Restrictions —Of the right of ownership—Article 233 of the Constitution—See under Administrative and Constitutional Luv\' above Compidsoiy Acquisition—A*tide 234 of the under Street-widening Schemes, above Constitution—Sec In this case theApplicantschallenge, by claim(e)m the motion for relief, t h i w'iditv of an endorsement made by Respondents on a buildmj permit, dated the llth June, 1965, in connection with the erosion of a factory on their (Applicants') property in Limassoi, to the effect that the southern part of the said property, shaded in led on the plan attached to the permit, will be taken out of the ownership of theApplicants and will form part of a public street, in accordance with a street-widening scheme published in the Official Gazette (under Not. 322) on the 31st March, 1955 Ίhe Applicants also, by claims (b)and (c)in the motion for relief challenge the validity οΐ the aforesaidstieet-widening scheme itself The street-widening scheme in question was published in 1955—and becaine binding in that year—under the provisions of section 12 of the Streets and Buildings Regulation Law, 136 (then Cap. 165, now Cap. 96). Under sub-section
(3)of section 12it is provided that when a street-widening scheme has become binding no building permit shall be issued by the appropriate authority save in accordance with such scheme. Section 13 of the said Law provides that where a permit is granted by the appropriate authority and such permit entails a new alignment for any street, in accordance with any scheme which has become binding under section 12 of the Law {supra),any space between such alignment and the old alignment, which is left over when a permit is granted, shall become part of the street. It is further provided that when such permit is granted the District Lands Office shall, upon application by any interested party, cause the necessary amendments to the relative registrations to be effected. In granting the application as regards claim {a),and dismissing it as regards claims {b) and (c), supra, the Court: Held, 1. As regards claims {b) and {c) supra:
(1)A street-widening scheme is an administrative, and not a legislative act.(See Malliotis and The Municipality oj Nicosia,
(1965)3 C.L.R. 75 at p. 84).
(2)It is not in dispute that the scheme in question became binding viz. a final administrative act long before the 16th August, 1960, when the Constitution of the Republic came into operation. As held in Mustafa and The Republic 1 R.S.C.C. 44, at p. 47 and in Kanikltdes and The Republic 2 R.S.C.C. 49. at p. 53, the competence under Article 146 does not extend to acts or decisions which became final before the 16th August, 1960.
(3)It follows, therefore, that this Court in the present recourse has no competence to decide on the validity of the aforesaid street-widening scheme of 1955 as such. Claims (
- b)and (
- c)of theApplicants cannot, therefore succeed and are dismissed accordingly. Held, II. As regards claim (
- a)in the motion for relief, supra:
(1)(A) In dealing with the validity of the said endorsement on the building permit in question I am not entitled to examine the validity of the street-widening scheme itself—as being a factor decisive for the validity of the endorsement—because: (
- a)The said scheme is not a legislative act, but an 137 1967 Feb. II NEMITSAS INDUSTRIESLTD., v. MUNICIPAL CORPORATION OF LIMASSOL AND ANOTHER 1967 Feb. 11 NEMITSAS INDUSTRIES LTD., v. MUNICIPAL CORPORATION ~OF LJMASSOL AND. ANOTHER administrative one; only if it were a legislative act could its invalidity have led to the invalidity of an act based thereon (as in Christodoulou and The Republic 1 R.S.C.C. 1). (
- b)Nor can it be said, in this respect, that the said scheme and the building permit in question form together a "composite administrative action" so that the invalidity of part of such action—such as the scheme—could lead to the invalidity of the culmination of such action i.e. the building permit. The scheme and the permit are acts separate and independent of each other; though a scheme is a factor which, when it exists, restricts the exercise of the power to grant a building permit, it is not a step taken in the administrative process of granting such a permit. (B) The attempt made towards implementation of the 1955 street-widening scheme for the relevant area, by means of the endorsement complained of, cannot, in any sense, be said to amount to a compulsory acquisition made after the 16th August, 1960 (i.e. after the date of the coming into operation of the Constitution), so that Article 23.4 of the Constitution could be applicable to it,—because, as it is to be derived from Anastassiadou and The Municipal Commission of Nicosia, 3 R.S.C.C. I l l , at p. 116, a scheme which came into force in 1955 cannot, when relied upon by a Municipal Authority after the coining into operation of the Constitution (i.e. after the 16th August, 1960), be held to amount to direct or indirect compulsory acquisition taking place after the coming into operation of the Constitution.
(2)(A) In attacking the validity of the said endorsement, counsel for Applicants submitted that, because of a supervening in the meantime basic change in the nature of the use of their affected property, such endorsement amounts to restrictions or limitations, in the sense of Article 23.3 of the Constitution, which were constructively imposed when the building permit of the llth June, 1965 (supra), was issued; and, thus, such imposition may be made the subject-matter of this recourse. Reference in this respect has been made to the notion of constructive imposition of restrictions or limitations expounded in Ramadan and The Electricity Authority, 1 R.S.C.C. 49, at p. 57; reliance has also been placed on the Anastassiadou case (supra, at p.116) as supporting the view that the implementation of the 1955 said street-widening scheme after the 16th August, I960 (supra), may result in the constructive imposition of such restrictions or'limitations of the right of ownership. 138 (Β) But, as pointed out m the said case of Ramadan (supra at p. 58) the issue of fact whether a constructive imposition of restrictions or limitations has taken place in a matter so closely related to the determination of the amount of anv compensation payable in respect thereof, under Article 23 3 of the Constitu tion, that it is within the jurisdiction of the civil court, under paragraph II of this Article, and not within the jurisdiction of this Court on a lecourse under Article 146 of the Constitution O) (a) I am of the opinion, however, that no Law or Regulation, enables the making of an endorsement, such as the one complained of in the present case (b) The combined effect of sections 12
(3)and 13 of the Streets and Buildings Regulation Law, Cap 96 (supia) does not authorize at all an appropriate authontv—in this case the Limassoi Municipality—to make an endorsement on a building permit, as the one complained of Nor is such endorsement among the possible conditions provided for, in relation to building permits, by section 9 of the said Iaw. Cap 96 (t) All that the Respondents could lawfully do, under section 13 (supia), if they were of the view that the requirements of the said section were satisfied, was to apply for the necessary amendments of the relevant Lands Office registrations, in completion and in implementation of the street-widening scheme concerned
(4)1 have, therefore, reached the conclusion that the aforesaid endorsement has been made without legal authority, and in excess and abuse of the relevant powers of the Respondents, and it should therefore, be declared to be null and void and of no effect whatsoever.
(5)(a) In examining the validity of the endorsement, which has just been found to be in\ahd. I ha\e considered the possibility that it might have been only a mere note"—as it appeals to be prima facie—not mienJed to produce a new legal situation anectius» the Apphcmts In Aith a case it would not have been an executory a u and, thus it could not be made the subject-matter ol a recourse under Article 146 ot the Constitution, because only executory acts can be made the subject-matter of such recourse (see Kcdocussides and The Republic
(1965)3 C.L R 542) 139 1967 Feb 11 NEMITSAS INDUSTRIES LTD , ν MUNICIPAL CORPORATION OF LIMASSOL AND ANOTHER 1967 Feb. 11 NEMITSAS INDUSTRIFSLTD.: - V. 'MuNiriPAL (b) I have reached, however, the conclusion that the endorsement in question as made, in the context of the circumstances of this case was intended to be part of the executory act of the aforesaid building permit and to amount to a condition relating to the grant of such permit. It follows, therefore, that it could, properly, be made the subject-matter of the present recourse. CORPORATION OF LIMASSOL AND Order in terms. No order as to costs. ANOTHER Cases referred to: Malliotis and The Municipality of Nicosia
(1965)3 C.L.R. 75 at p. 84, applied; Mustafa and The Republic, 1 R.S.C.C. 44, at p. 47, applied; Kaniklides and The Republic, 2 R.S.C.C. 49, at p. 53, applied; Christodoulou and The Republic, I R.S.C.C. I, distinguished; Anastassiadou and The Municipal Commission of Nicosia, 3 R.S.C.C. I l l , at p. 116. applied; Ramadan and The Electricity Authority, I R.S.C.C. 49, at p. 57, considered, and at p. 58, applied; Kolocassides and The Republic,
(1965)3 C.L.R. 542, applied. Recourse. Recourse against the validity of an endorsement made by Respondents on a building permit granted to Applicants which was to the effect, inter alia, that a part of Applicants' property will be taken out of their ownership and form part of a public street in accordance with a street-widening scheme and against the validity of the said scheme itself. 6". Cacoyatmis for Applicants. J. Potamitis for the Respondents. Cur. adv. vult. The following Judgment was delivered by: TRIANTAFYLLIOLS, J. : In this Case the Applicants challenge, by claim (
- a)in the motion for relief, the validity of an endorsement made by Respondents on a building permit, 140 dated the 11th June, 1965,(see exhibit 6), and granted to Applicants in connection with the erection of a factory on their property in theChiflikoudhia (or Chiftlikoudhia) area in Limassoi (see plots 159/1 and 158 onthemap, exhibit 1). The said endorsement is to the effect, inter alia, that the southern part of their property, which is shaded inredona plan which was attached to thepermit (seeexhibit 6 (
- a)), will be taken out of the ownership of the Applicants and will form part of a public street, in accordance with a street-widening scheme published in theofficial Gazette (under Not. 322)on the 31st March, 1955,in respect of Chiflikoudhia road, which forms the southern boundary of the Applicants' said property. The Applicants challenge, also, by claims (b)and(c)inthe motion forrelief, thevalidity ofthe said scheme itself. A further claim — claim (
- d)—of the Applicants, for just and equitable compensation, has been abandoned by them, at thehearing ofthis Case, asnotbeing within the competence of this Court under Article146. The history of relevant events appears, on the basis ofthe material before the Court, to be as follows: When the street-widening scheme in question was published in 1955, under the provisions of section 12of the Streetsand Buildings Regulation Law(then Cap.165,and nowCap. 96, of the Laws of Cyprus) theaffected property of the Applicants did not belong to them, but it belonged to another owner, a certain Azat Voskeredjian, whoon the 30th July, 1960,sold it to Nemitsas Ltd.,a company which is an associate ofthe Applicants; then the said company gifted the property, in1965, to the Applicants. As it appears from the material before the Court, Nemitsas Ltd. had applied in 1964 for thebuilding permit in question; in themeantime, however, theproperty wastransferred tothe Applicants and they adopted such application and pursued the matter themselves. On the 20th May, 1965, the Managing Director ofthe Applicants addressed a letter totheRespondents (see exhibit2) alleging that the Respondents could not insist on the aforementioned southern part of Applicants' property being ceded to the public street, and requesting that the building permit applied for be issued without any condition to that effect. 141 1967 Feb. 11 NEMITSAS INDUSTRIES L T D . , v. MUNICIPAL CORPORATIOr OF LIMASSOI AND ANOTHER 1967 Feb. 11 NEMITSAS INDUSTRIES LTD., v. MUNICIPAL CORPORATION OF LIMASSOL AND ANOTHER The Chairman of the Municipal Commission of Limassoi replied by letter dated the 1st June, 1965 (see exhibit 3) rejecting the above request of the Applicants. On the 11th June, 1965, the building permit in question, with the endorsement complained of by Applicants, in relation to the southern part of the property of the Applicants which is affected by the 1965 street-widening schemefor Chiflikoudhia road, was issued. On the 12th June, 1965, the Applicants wrote to Respondents accepting the building permit, but reserving their right to challenge in Court the validity of the decision of Respondents to insist on the cession to the public street of the said part of the Applicants' property (see exhibit 4). By letter dated the 12th July, 1965, the Respondents rejected the contentions of Applicants (exhibit 5). This recourse was filed on the 5th August, 1965. It is convenient to deal first with claims (
- b)and (
- c)of the Applicants, which, as already stated, are aimed at the validity of the .1955 street-widening scheme in respect of Chiflikoudhia road; the validity of such scheme is challenged to the extent to which it affects the southern part of the property of the Applicants. A street-widening scheme is an administrative, and not a legislative, act. (See Malliotis and the Municipality of Nicosia,
(1965)3 C.L.R. 75 at p. 84). It is not in dispute in the present Case that the scheme in question became a final administrative act long before the 16th August, 1960, when the Constitution of the Republic came into operation. As held in Mustafa and the Republic (1 R.S.C.C p. 44, at p. 47) and Kcmtklidesand the Republic (2 R.S.C.C p. 49, at p. 53) the competence under Article 146 docs not extend to acts or decisions which became final before the 16th August, 1960. It follows, therefore, that this Court in the present recourse has no competence to decide on the validity of the aforesaid 1955 street-widening scheme as such. 142 Claims (
- b)and (c), of the Applicants cannot, therefore, succeed and are dismissed accordingly. We come now to claim (
- a)of the Applicants which, as stated earlier, isaimed atthevalidity of theendorsement on the building permit dated 11th June, 1965, (exhibit 6) to the extent to which it refers to the street-widening scheme for Chiflikoudhia road. I would like to make at this stage two preliminary observations: First, I am of the opinion that in dealing with the validity of such endorsement I am not entitled to examine the validity of the scheme itself—as being a factor decisive for the validity of the endorsement — because the scheme is not a legislative act, but an administrative one; only if it were a legislative act could its invalidity have led to the invalidity of an act based thereon (as in Christodoulou and The Republic, 1 R.S.C.C. p. 1). Nor can it be said, in this respect, that the said scheme and the building permit in question form together a "composite administrative action" so that the invalidity of part of such action —such as the scheme —could lead to the invalidity of the culmination of such action — i.e. the building permit. The scheme and permit are acts separate and independent of each other; though a scheme is a factor which, when it exists, restricts the exercise of the power to grant a building permit, it is not a step taken in the administrative process of granting such a permit. Secondly, the attempt made towards implementation of the 1955 street-widening scheme for Chiflikoudhia road, by means of the endorsement complained of, cannot, in any sense, be said to amout to a compulsory acquisition made after the 16th August, 1960—so that Article 23.4 could be applicable to it—because as it isto be derived from Anastassiadouand The Municipal Commissionof Nicosia (3 R.S.C.C p. I l l , at p. 116) a scheme which came into force in 1955 cannot, when relied upon by a Municipal Authority after the coming into operation of the Constitution on the 16th August, 1960,be held to amount to direct or indirect compulsory acquisition taking place after the coming into operation of the Constitution. In attacking the validity of the endorsement complained of the Applicants have submitted that, because of a supervening in the meantime basic change in the nature of the use of their affected property, it amounts to restrictions or limitations 143 1967 Feb. 11 NEMITSAS INDUSTRIES LTD., v. MUNICIPAL CORPORATION OF LIMASSOL AND ANOTHER 1967 Feb. I I NEMITSAS INDUSTRIES L T D . , v. MUNICIPAL CORPORATION OF LIMASSOL AND ANOTHER which were constructively imposed when the building permit in question was issued, and, thus, such imposition may properly be made the subject-matter of this recourse. Reference in this respect has been made to the notion of constructive imposition of restrictions or limitations expounded in Ramadan and The Electricity Authority (1 R.S.C.C. p. 49 at p. 57); reliance has also been placed on the Anastassiadtm case (supra, at p. 116) as supporting the view that the implementation of the 1955 street-widening scheme after the 16th August, 1960, may result in the constructive imposition of restrictions or limitations. As pointed out in the said case of Ramadan (supra, at p. 58) the issueof fact whether a constructive imposition of restrictions or limitations has taken place is a matter so closely related to thedetermination of the amount of anycompensation payable in respect thereof, under paragraph 3 of Article 23, that it is within the jurisdiction of a civil court, under paragraph 11 of Article 23, and not of this Court, on a recourse under Article 146. Nevertheless, during the hearing of this Case, considerable latitude was allowed to the parties in adducing their evidence, in relation to the issue of constructive imposition of restrictions or limitations on the property of the Applicants, so that the Court might have before it all factors possibly relevant to the determination of this recourse. In the end, however, it was not found necessary to decide any issue of fact, because in examining the effect and validity of the endorsement complained of, as made on the building permit (exhibit 6), I have reached the conclusion that, in any case, it does not amount to administrative action which could bring about the constructive imposition, in 1965, of restrictions or limitations on the property of Applicants, simply because it does not amount to valid administrative action at all. As at present advised, I am of the opinion that no Law, or Regulation, enables the making of an endorsement, such as the one complained of in this Case. Under sub-section
(3)of section 12 of Cap. 96 it is provided that when a street-widening scheme has come into force no permit shall be issued by an appropriate authority save in accordance with such scheme. 144 Section 13of Cap. 96 provides that where a permit is granted by an appropriate authority and such permit entails a new alignmentforanystreet,inaccordancewithanyschemewhich has become binding under section 12of the Law, any space between such alignment and the old alignment, which is left over when a permit isgranted, shall become part of the street. It is further provided that when such a permit is granted the District Lands Office shall, upon application by any interested party, cause the necessary amendments to the relative registrations to be effected. The combined effect of sub—section
(3)of section 12 and section 13 does not, in my opinion, authorize at all an appropriate authority — in this case the Limassol Municipality — to make an endorsement on a building permit, as complained of in this Case. Nor is such an endorsement among the possible conditions provided for, in relation to building permits, by means of section 9 of Cap. 96. In the present Case (unlike the case of Anastassiadou (supra) in which a building permit, as applied for, was refused because of the existence in force of a street-widening scheme)the building permit applied for by the Applicants has been granted and, therefore, it may be assumed that the said permit, as applied for, was not incompatible with the Chiflikoudhia road streetwidening scheme. Once this was so, and there was no provision of law enabling or requiring the making of the endorsement in question in the said building permit, it was not open to Respondents to endorse such permit as they did, in an effort to further the implementation of the street-widening scheme concerned, by way of a condition in the said permit, and in a manner other than as, and not provided for, by law. All that the Respondents could lawfully do, under section 13 of Cap. 96, if they were of the view that the requirements of the said section were satisfied, was to apply for the necessary amendments of the relevant Lands Office registrations, in completion of the implementation of thestreet-widening scheme concerned. I have reached, therefore, the conclusion that the aforesaid endorsement has been made without legal authority, and in excess and abuse of the relevant powers of the Respondents, and it should, therefore, be declared to be null and void and of no effect whatsoever; and it is so declared accordingly. 145 1967 Feb. U NEMITSAS INDUSTRIES L T D . , v. MUNICIPAL CORPORATION OF LIMASSOL A N D ANOTHER 1967 Feb. 11 NEMITSAS INDUSTRKS LTD., v. MUNICIPAL CORPORATION OF LIMASSOL A N D ANOTHER In examining the validity of the endorsement, which has just been found to be invalid, I have considered the possibihty that it may have been only a mere "note"—as it appears to beprimafacie—not intended to produce a new legal situation affecting the Applicants; in such a case it would not be of an executory nature, and not only it would not be capable of contributing to the constructive imposition of restrictions or limitations, but also it could not be made the subject-matter of a recourse, because only executory acts can be made the subject-matter of recourses under Article 146of the Constitution. (See Kolocassides and TheRepublic,
(1965)3 C.L.R. 542). I have reached, however, the conclusion that the endorsement in question as made, in the context of the circumstances of this Case, was intended to be part of the executory act of the buildingpermit(exhibit 6)and to amount toacondition relating to the grant of such building permit. I have,therefore, reached the conclusion that it could, properly, be made the subjectmatter of the present recourse, and be annulled in the exercise of the competence under Article 146. In the result this recourse succeeds as regards claim (a), to the extent stated in this Judgment, and it fails as regardsthe remaining claims of the Applicants. I would like to conclude by pointing out that nothing in this Judgment may be taken as indicating that the Respondents are now any lessentitled, than they would havebeen otherwise, to take such action as may be warranted under section 13 ofCap.96,inviewofthegrantingoftherelevantbuildingpermit (exhibit 6). What the nature and legal consequences of such action may be under the legislation in force, including, of course, the Constitution of the Republic, is a matter which I leave entirely open. Regarding costs I have decided, in view of the fact that the Applicants have succeeded only in part in this recourse, to make no order as to costs. Order in terms. No order as to costs. 146