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1968 May 20 [HADJIANASTASSIOU, J.] IN T H EMATTER OF ARTICLE 146 O F T H E CONSTITUTION LOUIS ARAOUZOS AND OTHERS, Applicants, and T H E REPUBLIC O F CYPRUS, T H R O U G H T H E D I S T R I C T OFFICE

Article 23—Which can only be achieved under the provisions and with the safeguards set out inparagraph 4 of the same

Article—Inter alia, on payment in cash and in advance of a just and equitable compensation. Building permits—Refusal—Annulled—See above. Local authorities—Streets and Buildings—See above. Discretionary Powers—Exercise—Discretion vested by law in an administrative organ cannot be assumed or regulated by any hierarchically superior organ, in the absence of express provision to that effect—See above. Hierarchy—Administrative hierarchy—Powers of a hierarchically superior organ with regard to discretionary powers entrusted by law to its subordinate organ—See above. Hierarchical control—See above. Property—Right of—Deprivation of—The enforcement in the present case of regulation 6

(2)of the Streets and Buildings Regulations (as amended, supra), which is so drastic in effect, amounts to a deprivation of the right of property under paragraph

Article 23

—Which cannot be achieved otherwise than in accordancewith theprovisions and with the safeguards set out in paragraph 4 of the same Article—See, also, above. Deprivation of the right of property—Article 23.2 and 4 of the Constitution—See above. By this recourse the Applicants, who are the co-owners of a building site at Ayios Tychonas village, challenge the validity of the decision dated the 29th August, 1967, taken by the District Officer of Limassol, acting in the matter as the appropriate Authority under the Streets and Buildings Regulation Law, Cap. 96, and whereby he turned down their application for a permit to build on their aforesaid site. The reasons for the refusal of the Respondent to grant the building permit were that the Applicants' site has a width of only 40 feet, whereas under regulation 288 6

(3)of the Streets and Buildings Regulations, as recently amended on the n t h February, 1965, no building could be erected in the circumstances of this case at a distance less than 50 feet from the boundary of the road on which the site in question abuts. It should be noted on the other hand, that under regulation 64 of the aforesaid Re­ gulations a discretion is given to the Appropriate Autho­ rity to "dispense" "with all or any of the requirements of these regulations or apply them with such modifications, not being more onerous as to such authority may seem fit having regard to the particular circumstances of any case or the general conditions obtaining in the area". As it appeared from the files produced at the hearing of the case, the decision of theRespondent District Officer of Limassol not to grant the building permit applied for was taken on the instructions of a higher authority i.e. in the way of a general directive given to him in writing by the Minister to the effect that he (the District Officer) should not relax the distance of 50 feet provided by regu­ lation 6
(3)(supra), thus negativing the exercise of the Respondent's discretion under regulation 64 (supra). All material statutory provisions, as well as all material regulations and other provisions are quoted post in the Judgment of the Court. In annulling the decision complained of, the Court:Held,
(1). As I understand the principle of Admini­ strative Law, with regard to the exercise of discretionary powers, is that an authority to which such powers have been entrusted by law cannot delegate the exercise thereof to another unless on the true construction of the relevant law it is clear that responsibility remains with the delega­ ting authority acting through a subordinate in exercising the discretion. Nor may a discretion be surrendered whether the surrender takes the form of contracting in advance to exercise it in a particular way or of prejudging the way ίη which it shall be exercised. Nor can a statutory discretion be taken away by orders from a superior. Yiannakis Georghiades and The Republic (District Officer of Li­ massol)
(1966)3C.L.R. 153 at p. 171 per Triantafyllides J., applied; Vide also A. Malais and The Republic,
(1966)3 C.L.R. 444 at p. 459; Sharp v. Wakefield and Others [1891] 289 1968 May 20 Louis ARAOUZOS ANDOTHERS v. REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) 1968 May 20 LOUIS ARAOUZOS AND OTHERS V. REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) A.C. 173, at pp. 179 and 181, per Lord Halsbury L.C., considered.
(2)In the case in hand I have no difficulty at all to accept the submission of counsel for the Applicants; be­ cause there is no doubt in my mind that the District Of­ ficer has failed to exercise his discretion; and applied in­ stead a general directive given to him in writing by his Minister to the effect that he should not relax the distance of 50 feet (supra), thus negativing his discretion. Cf. Simms Motor Units, Ltd. v. Minister of Labour and Natio­ nal Service [1946] 2 All E.R. 201.
(3)In the particular circumstances of this case, and having regard to the fact that the width of the property of the Applicants is about 40 feet only, the decision of the District Officer to refuse to grant them a building permit amounts in my view, to a deprivation of the right of pro­ perty within the ambit of para.

Article 23of the Con­ stitution; and it can only be achieved under para. 4 of the same Article. The District Officer by enforcing the ope­ ration of regulation 6

(3)as amended (supra), which is so drastic in effect, he virtually deprives the owner of his land and without the payment in cash and in advance of a just and equitable compensation. (See Holy See of Kitiutn and The Municipal Council of Limassol, 1R.S.C.C.15). Sub judice decision annulled, with costs of £τ$ in favour of the Applicants. Cases referred to: Sharp v. Wakefield and Others [1891] A.C. 173, at pp. 179, 181 per Lord Halsbury L.C.; Simms Moto* Units,Ltd. v. Minister of Labour and National Service [1946] 2 All E.R. 201; Yiannakis Georghiades and TheRepublic (District Officer of Limassol),
(1966)3 C.L.R. 153 at p. 171; A. Malais and The Republic
(1966)3 C.L.R. 444 at p. 459; Holy See of Kitiitm and TheMunicipal Council of Limassol, 1 R.S.C.C. 15. 290 1968 May 20 Recourse. Recourse against the validity of a decision oftheRespon dent refusing the grant of a building permit to Applicants. Louis ARAOUZOS ANDOTHERS V. G. Cacoyiannis,for the Applicants. K. Talarides,Counsel of the Republic, for the Respon dent. Cur.adv.vult. The following Judgment was delivered by:HADJIANASTASSIOU, J.: In this recourse, under Article146 of the Constitution, the Applicants who aie the co-owners in equal undivided shares ofa building site situated at"Lakkos tou Stokkou" locality of Ayios Tychonas village, challenge the validity of the decision made on the 29th August, 1967,bythe Respondent. The facts in brief are as follows: On June 30,1966,theApplicants applied to theRespondent for a building permit, to erect a building, on their plot No. 73 sheet-plan 54/45, of an extent of one evlek and 900 sq. ft., under registration No. 8131 dated 28th June, 1966,in accordance with the plans prepared by the third Applicant, who isa qualified architect. This plot which was purchased by theApplicants for building purposes has a frontage of about 120feet and lies between the main Nicosia/Limassol road and the sea; its depth is 40 feet; it is situated about four miles east of Limassol town, and its value has greatly increased owing to building development in that area. On July 29, 1966, the District Officer of Limassol town, replied that their application was under consideration. As there was a long delay theApplicants wrote again to the Respondent on December 10, 1966,and the District Officer replied informing them that their application was still receiving consideration. On February 21, 1967,the Applicants' advocates wrote to the District Officer, and in their letter made it clear that in case of a refusal to grant them permit, their clients would consider therefusal as unconstitutional and illegal and would have noalternative butto seek a relief intheSupreme Court, and to demand damages. 291 REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) 1968 May 20 Louis ARAOUZOS AND OTHERS v. REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) On April 4, 1967, the Applicants* advocates wrote again and on April 13, 1967, the District Officer replied that their clients' application was still receiving due consideration. On May 11, 1967, the Applicants' advocates wrote again a letter and on May 24, 1967, the District Officer replied that the case was receiving consideration by the Government, and that he would communicate with them as soon as he would receive their reply. It appears that the District Officer, had received the direct­ ive of the Government, and on August 29, 1967, addressed a letter to the Applicants in which he says:«Έχω τήν τιμήν ν* αναφερθώείς τήν αΐτησίν acts της 30% Ιουνίου, 1966, δι' ής αίτεϊσθε τήν Ικδοσιν αδείας οϊκοδομής δι* ανέγερση οίκίας επί τοΟ κτήματό$ σας ΰπ* αριθμόν τεμαχίου 73 του Φύλλου/Σχεδίου54/45 τοϋ χωρίου 'Ayiou Τύχωνα,κα!νασαςπληροφορήσωδτι δέν είναι δυνατή ή ϋκδοσις τής αίτουμένης αδείαςκαθ1δτι τό Ιν λόγω κτήμα σας εφάπτεταιτης όδοΰ Λεμεσοϋ-Λευκωσίας ήτις έκηρύχθη ώς υπεραστική οδός δυνάμει της Διοικητικής Πράξεως 122/66, ό Κανονισμός δέ 6
(3)του Περί 'Οδών και Οίκοδομών Νόμου ώς οΰτος έτροποποιήθη διάτης ΔιοικητικήςΠράξεως74/65προνοεί άνέγερσιν των κτιρίων είς άπόστασιν 50 ποδών έκ τοΰ συνόρου υπεραστικών οδών. Είς τήν περίπτωσίν σας τό πλάτος τοϋ κτήματος σας δέν είναι άρκετόν διά νά τηρηθούν αί πρόνοιαι τοϋ ώς άνω Κανονισμού». The Applicants feeling aggrieved because of the decision of the District Officer not to grant them a building permit, brought the present recourse in the Supreme Court on October 25, 1967, claiming the following relief: "A declaration that the decision of the Respondent refusing the permit applied for by the Applicants for the erection of a building on their plot No. 73 sheet-plan 54/45 at Ayios Tychonas village, communicated to the Applicants by his letter to them dated 29th August, 1967, is null and void and of no effect whatsoever". On February 3, 1968, theRespondent filed their Opposition claiming that the decision of the District Officer was lawful and was made after considering all material before him; and in view of the fact that theApplicants have failed to consider the effect of regulation 6
(3)of the Streets and Buildings Re292 gulations, as well as the decision of the Council of Ministers declaring the road as "main thoroughfare". 1968 May 20 Louis ARAOUZOS It would be observed from the concluding words of the letter of the District Officer to the Applicants, that his decision to turn down the application for a building permit was due to the fact that the width of the plot was not sufficient in order to bring it within the provisions of regulation 6
(3)as amended by the Streets and Buildings (Amendment) Regulations 1965. The main question, therefore, which arises in view of the particular circumstances of the case of the Applicants, is whether the District Officer has in fact exercised his discretionary powers entrusted to him by the relevant law; and how far can the Courts control the exercise of discretionary power of the administration especially in the field when the private rights of the individual appear to be in conflict with the public interest. Be that as it may, since most powers given to the administration are discretionary, that is to say, exercisable at the discretion of the authority the Court cannot be asked to substitute its own discretion with that of the authority, for the simple reason that this would defeat the intention of the law which has entrusted the discretion to a particular organ of the administration. With this in mind, and in order to solve the problem with which Iam nowconfronted, Iwould like to express the appreciation of the court to counsel for the Respondent, because had it not been for his help in making the whole of thefileof this case available, I confess that I would have felt some difficulty in deciding this case as, it would have made control by the Court of the improper exercise of powers very difficult or meaningless. I think, it is nowconvenient, to deal with the relevant legislation. There is no doubt that the Streets and Buildings Regulation Law, Cap.96,remains even to-day, the substantial law for purposes of planning; and upon such adequate planning the future well-being of the citizens of this land would depend and would accomplish social ends for the community as a whole. It is,therefore, understandable that the planning of to-day must provide long range plans for the community as a whole, but without however ignoring the economic aspect of planning; and in order to create a better physical 293 AND OTHERS v. REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) 1968 May20 Louis ARAOUZOS ANDOTHERS v. REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) environment not to jeopardize land interests of some of the citizens only. The relevant provisions of section 19
(1)are as follows: "19
(1)The Governor-in-Council may make Regulations to bepublished in the Gazette for all or any of the following purposes, that isto say— (
  1. a)the manner in which application for permits may be made and the terms under which such permits may be issued and for enabling appropriate authorities to prescribe forms for the purpose; (
  2. b)the attachment of special conditions to any permit; (
  3. c)providing for the means of supervision and control over streets or buildings for which permits have been granted either generally or in respect of streets or buildings in a particular area; (
  4. d)the minimum dimensions and shape of building plots in respect of which permits may be issued, the proportionate area of any building plot which may be built on and the distance of any building from the boundaries of the building plot; (
  5. k)any matters necessary for, or incidental to, securing the observance of the Regulations made under the provisions of this Law; (
  6. i)generally for the better carrying out of the provisions of this Law. It is to be observed that this section, has conferred all such power on the Governor-in-Council, in order to make regulations generally for the better carrying out of the provisions of this law. Since Independence Day, however, the provisions of this law have to be read subject to the provisions of the Constitution and Article 188 thereof:Paragraph 3(
  7. b)provides: "In any such law which continues in force under paragraph 1 of this Article unless the context otherwise requires294 I I I I 1968 May 20 Ίο) (
  8. b)any reference to the Governor or the Goveinorin-Council shall, in relation to such period, be construed as a reference to the President and the Vice-President of the Republic separately or con­ jointly, according to the express provisions in this Constitution and to the Council of Ministers in matters relating to exercise of execu­ tive power;". So it is evident, that the new authority, is now the Council of Ministers and, is empowered to make regulations for the better carrying out of the provisions of the aforesaid law. Under the provisions of Article 54 of the Constitution the Council of Ministers is the competent organ to exercise exe­ cutive power in all matters, including the general direction and control of the Government of the Republic, and the direction of general policy, and for the coordination and supervision of all public services. Regulations 6
(1)of the Streets and Buildings Regulations regulates the heights, coverage of buildings and use of land. Regulation 6
(3)piovides as follows: "No part of the main building or alteration or addition to any existing building and no open verandah higher than four feet from the ground level shall be less than ten feet from any boundary of the plot on which it stands, except that in the case of industrial buildings the appropriate authority may secure such lesser or greater distance as it may in each case consider necessary or appropriate 1 '. In pursuance of the powers vested in them the Council of Ministers, made an order declaring part of Nicosia/Limassol road as "main thoroughfare" published in theOfficial Gazette of the Republic No. 482 dated 10th March, 1966, Not. 122 in Supplement No. 3. The aforesaid order, is purported to have been made by the Council of Ministers, by the amendment to regulation 6
(3), by paragraph 3 of the Streets and Buildings (Amend­ ment) Regulations, 1965, published in Not. 74, Supplement No. 3 to the Official Gazette No. 387 dated llth February, 295 Louis ARAOUZOS AND OTHERS V. REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) 1968 May 20 1965. The amending provisions of paragraph 3, read as follows: ND OTHERS «3. v. REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) Ή παράγραφο*
(3)τοΰ Κανονισμού 6 των βασικών Κανονισμών τροποποιείται ώδεδιάτης διαγραφής λέξεων αίτινεςέπονταιτηςέντη τετάρτηγραμμήκειμένηςλέξεως "οταταΓ ('stands') καΐ της αντικαταστάσεως αυτώνδιά των ακολούθων : ή όλιγώτερον των πεντήκονταποδών άπό τών ορίων όδοΟ καθοριζομένης παρά τοΟ Υπουργικού Συμβου­ λίου ώς 'Υπεραστικής Όδοΰ διά γνωστοποιήσεως αύτοΟ δημοσιευομένης έν τη" έπισήμω έφημερίδι τής Δημοκρατίας ή άπό τών ορίων τμήματος τοιαύτης όδοΰ καθοριζομένηςέν TTJ γνωστοποιήσει ». Then comes Regulation 64, which raises the point of dis­ cretion for decision. It provides as follows: "Notwithstanding anything in these regulations con­ tained, whether the appropriate authority is the Com­ missioner of the District or a Board of which the Com­ missioner is the Chairman,such authority may dispense with all or any of the requirements of these regulations or apply them with such modifications, not being more onerous, as to such authority may seem fit having regard to the particular circumstances of any case or the ge­ neral conditions obtaining in the area". It would be observed that under this regulation the grant­ ing of a building permit to the Applicants is left to be done according to the discretion of the District Officer on whom the power of doing it is conferred, and his discretion must be exercised honestly and in the spirit of the law, otherwise the act done would not fall within that law. Counsel for the Applicants has contended
(1)that the amending regulations are contrary to the piovisions of the law and are in excess of the powers of the Council of Ministers and ultra vires, in that section 19 of the Streets and Buildings Regulation Law, Cap. 96, does not include a power to make regulations specifying the distance of a building proposed to be erected, from any boundaries, other than the boundaries of the plot on which the building is proposed to be erected.
(2)The declaration of the said road into a "main tho296 roughfare", and the said amending regulations of 1965, are so drastic and far reaching, as to amount to a deprivation of the Applicants' right to possess and enjoy their said plot and as such is contrary to Article 23 of the Constitution, and in particular to paragraphs 1 and 2 thereof; and that the Respondent ought to have accompanied his decision not to grant the said permit applied for by the Applicants with an offer to pay promptly just compensation. His failure to do so nullifies his said decision.
(3)The decision of the Respondent was taken in excess and/or abuse of his powers because he failed to exercise his discretion under regulation 64 of the Streets and Buildings Regulations; furthermore counsel submitted that it becomes evident after perusing the file produced in evidence, that the decision not to grant the Applicants the building permit, was taken by a higher authority. Counsel for the Respondent, on the other hand, submitted that it is not for the Court to decide whether the decision of the Council of Ministers was expedient; and that the Court retained the right of controlling the legality of such actions only. He furthei contended, that the District Officer in making his decision to turn down the application of the Applicants, it was not forced on him by the directive of the Council of Ministers, but he properly exercised his discretion taking into consideration all the material before him. 1 propose dealing first, with the question whether or not, the District Officer in making his decision not to grant to the Applicants the building permit, he has failed to exercise his discretion, under the provisions of regulation 64, of the Streets and Buildings Regulations. I think, it cannot be doubted upon the language and the whole purport of regulation 64, that outside the municipal areas, the proper authority is the District Officer, vested with absolute discretion entrusted to him, whether he will dispense with all or'any of the requirements of these regulations having regard to the particular circumstances of each case. It appears from the evidence before the Court, that the District Officer of Limassol, before making a decision in the present case, has consulted a lot of other departments of the Government; and has also received an advice from the Office of the Attorney-General. Finally on the 30th June, 1967, 297 1968 May 20 Louis ARAOUZOS AND OTHERS v. REPUBLIC fDlSTRICT OFFICER LIMASSOL ETC.) 1968 May 20 Louis ARAOUZOS AND OTHERS v. REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) the Director-General of the Ministry of the Interior, under whose domain the District Officer comes, presented a sub­ mission to the Council of Ministers seeking their views with regard to the application of the Applicants, as well as for another 10 or 15 pieces of land abutting on the Limassol/ Nicosia "main thoroughfare" road. See submission No. 581/67 (exhibit I1A). On July 7, 1967, the Council of Ministers at their meeting reached a decision No. 6831, exhibit 11, of a general policy, with regard to the powers of the District Officers under the provisions of regulation 64, of the Streets and Buildings Re­ gulation Law. It reads: «Τό Συμβουλίου άπεφάσισεν δπως els περιπτώσεις αΐτήσεωυ δι* έκδοσιν αδείας οίκοδομής κτιρίων απεχό­ ντων όλιγώτερον τών 50 ποδών ά π ό τών ορίων όδοΰ καθορισθείσης ΰπό τοϋ Υπουργικού Συμβουλίου ώς υπεραστικής όδοΰ δυνάμει της παραγράφου
(3)τοΰ Κανονισμού 6 των περί Ρυθμίσεως Ό δ ώ ν καΐ ΟΙκοδομών Κανονισμών, ό οίκεϊος "Επαρχος, ώς αρμοδία αρχή, μή προβαίνη κατ' αρχήν, δυνάμει τοϋ Κανονισμού 64 τών έν λ ό γ ω Κανονισμών, ε(ς τήν χαλάρωσιν της προνοίας όσον άφορα τήν άπόστασιν τών 50 ποδών. 'Εάν υπάρ­ χουν περιπτώσεις διά τάς οποίας κατά τήν κρίσιν τοΰ Έ π α ρ χ ο υ δέον να παραχωρώνται χαλαρώσεις, αύται δέον δπως άναφέρωνται είς τον Υπουργών 'Εσωτερικών δΓ υποβολήν εϊς τό Ύπουργικόν Συμβούλιον όμοΰ μετά τών είσηγήσεών του». On the same date the Council of Ministers, after consider­ ing the application of the Applicants have reached a decision N o . 683, exhibit 11A, which reads: « 'Απεφασίσθη δπως συσταθή είς τόν "Επαρχον Λεμεσοϋ, ώς άρμοδίαν αρχήν, δπως μή παραχώρηση χαλάρωσιν της αποστάσεως τών 50 ποδών έν σχέσει μέ τήν έν λ ό γ ω αΐτησιν». It would be observed, and I lay stress on this, that whilst the first decision of the Council of Ministers was dealing with a general policy, in the case of the Applicants, the Council of Ministers had decided to direct the District Officer of Limassol, as the competent authority, not to relax the pro­ visions of the amending regulation with regard to the distance of 50 feet. 298 Following the decision of the Council of Ministers, the Director-General of the Ministry of Interior, addressed a letter dated 15th July, 1967, under the provisions of para.

Article 58

, to the District Officer of Limassol, informing him of the decision of the Council of Ministers reached on the 7th July,

  1. See Blue
  2. As a result of this letter, the District Officer, wrote to the Applicants rejecting their application for a building permit. Dealing with the question of "discretionary powers" I consider it constructive to quote the words of Lord Hals­ bury, L.C. in Sharp v. Wakefield andOthers [1891] A.C.
  3. Lord Halsbury L.C, delivering his speech in the House of Lords, had this to say at p. 179: "An extensive power is confided to the Justices in their capacity as Justices to be exercised judicially; and 'dis­ cretion' means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's case 5 Rep. 100, Α.; according to law and not humour. It is to be, not arbitrary, vague and fancible, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself; Wilson v. Rastall, 4 T.R. at p.
  4. Later on he says at p. 180: "So a discretion which empowers justices to grant licence to inn-keepers as in theexercise of their discretion they deemed proper would not be exercised by coming to a general resolution to refuse a licence to everybody who would not consent to take out an excise licence for the sale of spirits: Reg. v. Sylvester 31 L.J.M.C. 93". As I understand the principle of Administrative Law, with regard to the exercise of discretionary powers, is that an authority to which the exercise of discretion has been en­ trusted by law cannotdelegate that exercise to another unless upon the construction of the relevant law it is clear that responsibility remains with the delegating authority acting through a subordinate in exercising the discretion. Nor may a discretion be surrendeied, whether the surrender takes the form of contracting in advance to exercise it in a 299 1968 May 20 LOUIS ARAOUZOS AND OTHERS V. REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) 1968 May 20 Louis ARAOUZOS AND OTHERS V. REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) particular way or of prejudging the way in which it shall be exercised. Nor can a discretion be taken away by orders from a superior. Mr. Justice Triantafyllides, dealing with the discretion of the District Officer of Limassol, under section 67 of the Municipal Corporations Law, Cap. 240, in YiannakisGeorghiades and TheRepublic(District Officer of Limassol),

(1966)3C.L.R. 153,and after quoting with approval a passage from Kyriakopoulos on Greek Administrative Law, 4th edition vol. II, had this to say at p.171. "Where a discretionary power is vested by legislation in an administrative organ the exercise of such discretion cannot be assumed by or regulated —except with regard to legality—byany hierarchically superior organ, unless there exists express provision to that effect". Videalso A. Malais and The Republic,
(1966)3 C.L.R. 444 at p.
  1. As Ihave said earlier, the District Officer, has full discretion under regulation 64, of the Streets and Buildings Regulations in licensing matters, but in my view, it was his duty to consider the application of the Applicants, and apply his mind in the case presented to him irrespective of whatever general policy the Council of Ministers have decided upon. 1must further add,that eachApplicant must begivenwithin the four corners of regulation 64, the opportunity of urging thac the general policy should not be applied in the particular circumstances of his case. In the present circumstances of the case in hand I have no difficulty at all to accept the submission of counsel for the Applicants; because there is no doubt in my mind, that the District Officer has failed to exercise his discretion; and applied instead a general directive given to him in writing by his Minister to the effect that he should not relax the distance of 50feet in the case of theApplicants, thus negativing the exercise of his discretion. Cf. Simms Motor Units, Ltd. v. Minister of Labourand National Service, [1946] 2 All E.R.
  2. That this is so, and that the directive of the Minister of the Interior was thought by the District Officer as binding on him, it is made amply clear by the frank admission of the District Officer, that he has surrendered his discretion, in a 300 letter written to the Attorney-General dated 10th November, 1967 (blue 44). It reads: "The decision for refusing to grant the permit was made after the instructions from the Government in accordance with the letter dated 15th July No. 195/61/

the Ministry of the Interior". For the reasons I have advanced, and in the light of the particular facts of this case, I have reached the conclusion that the District Officer of Limassol has not exercised his discretion entrusted to him by the law, and in my view, he has acted contrary to law and in abuse of his powers. The sub judice decision, therefore, should be annulled, and declared voidand of no effect whatsoever. In the light of this Judgment, I take it, that the Respondent will reconsider the application of the Applicants for a building permit. With regard to the second contention of counsel for the Applicants, I would like to make this observation: It appears to me,that when theApplicants applied to the District Officer for a building permit under section 3 of Cap. 96,were aware that this requirement wasconnected with the right of property safeguarded by para. 1of Article 23,which includes the right to possess and enjoy property. Para. 2of Article 23provides that no deprivation or restriction or limitation of any such right would be made except as provided for in this Article. In the particular circumstances of the case in hand, and having regard to the fact that the width of the property of the Applicants isabout 40 feet only, the decision of the District Officer to refuse to grant them a building permit, amounts in my view, to a deprivation of the right of property within the ambit of para.

Article 23; and it can only be achieved under para.

4 of the same Article. The District Officer by enforcing the operation of para. 3 of the Amending Regulations of 1965, which is so drastic in effect, he virtually deprives the owner of his land and without the payment in cash and in advance of a just and equitable compensation. See Holy See of Kitium and The Municipal Council of Limassol, 1 R.S.C.C. 15. I would like to leave the question open whether para. 3 of the Streets and Buildings (Amendment) Regulations, 1965, 301 1968 May 20 LOUIS ARAOUZOS AND OTHERS V. REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) May 20 are contrary to the provisions of the law and are in excesso<the powers of the Council of Ministers and ultravires. Louis ARAOUZOS AND OTHERS v. REPUBLIC (DISTRICT OFFICER LIMASSOL ETC.) With regard to costs, 1have decided to award an amount of £15.- only in favour of the Applicants. Sub judice decision annulled. Orderfor costs as aforesaid. 302

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