clr/1977/1977_3_205.pdf

(1966)3 C.L.R. 634 distinguished. Administrative Law—Executory administrative acts—Acts of exe­ cution—Imposition of sewage fees—Demand notes calling ap­ plicants to pay such fees—Acts of execution. 15 20 25 The applicants in these recourses challenged the validity of the decision of the respondents to impose or collect sewage fees from ithem for the years 1973 and 1974. The sewage rates were imposed by the Sewage Board of Nicosia, respondent 2, in exercise of their powers under section 30

(1)(b) of the Sewage Systems Law, 1971 and regulations 32 and 33 of the Sewage Systems Regulations,

1. The rates for the year 1973 were imposed toy a Notification published in the Official Gazette of the 20th July, 1973 and the rates for 1974 were imposed by a Notification published in the Official Gazette of the 11th April,
2. In these Notifications the rates, the places and the time of payment were specified. The rates were 205· SPYROS' COLOCASS1DES ESTATE LTD. AND ANOTHER ν REPUBLIC (MINISTER OF FINANCE AND ANOTHER) 1977 Aug. ΙΟ SPYROS COLOCASSIDES ESTATE LTD. AND ANOTHER v. REPUBLIC (MINISTER OF FINANCE AND ANOTHER) fixed by reference to the assessed value of the properties as shown in the title deeds. The Notifications made reference to maps deposited in the Office of the Sewage Board, established under the SewageSystems Law, 1971, which showed thepro­ perties which could be served by the sewage works constructed during each phase. <j The applicants did not pay within the time specified in the said Notifications and on the 7th 'May, 1975 a demand note was sent to each of them by the Inland Revenue Collection Office calling upon them to pay within fifteen days. Hence J Q these recourses which were filed on the 26th June,
3. The respondents raised the preliminary objection that the recourses were out of time as they have not been filed within 75 days from the date of imposition of the annual sewage rates as provided in Article 146.3* of the Constitution; and, jg also, that the collection of the annualsewage rates was an act of execution and not an executory administrative act. Conse­ quently no recourse could be filed against the decision to col­ lect such rates. Counsel for the applicants contended that the said publication was not a sufficient publication either for the purpose of Article 146 of the Constitution or for the purpose of the SewageSystems Law of
4. 20 Counsel submitted in this connection that the publication was vague in one material part i.e. it did not specify under 25 which phase any particular taxpayer came and so on reading it one did not understand what the exact amount imposed on him was unless and until he inspected the plans; but as there was no indication either in the law or in the notices that the inspection of theplans would reveal under which phase a tax- 30 payer came, and as a result the applicants first became aware that they had been taxed after they received the standard de­ mand notes and they filed their recourses within the period of 75 days thereafter time did not begin to run until the re­ ceipt of the demand notes and, therefore, the recourses were 35 not out of time. Counsel for the respondents submitted that the relevant Notification contained all necessary ingredients and that the present cases were distinguishable from thecase of Pissas (No. • Quoted at pp. 209-210post. 206 1977 Aug. 10 1) v. Electricity Authority of Cyprus

(1966)3 C.L.R. 634 and that consequently time began to run from the publication of 'the notices imposing the tax and as the recourses were filed long after the expiration of 75 days after such publications the recourses were outof time. * Held,

(1)(on the question whetherthe recourses were outof time) that it is not correct that the said publications did not reveal their contents clearly or that the applicants could not have known that their properties were included in the area served by the system or that they could not, with reasonable diligence, find out the phase to which their properties be­ longed and, therefore, the rates applicable; that in this respect the present cases are distinguishable from the Pissas case (supra); that, therefore, the time of 75 days prescribed by Article 146.3 of the Constitution began to run from the date of the publication of the relative notices imposing the rates; and that, accordingly, both recourses are clearly out of time and cannotbe entertained by the Court.

(2)(On the question whether the demand notes are acts of executionor executory administrative acts) that demand notes are acts of execution; that having regard to the wording of the motion for relief in each recourse the relief sought is not based or directed at such demand notes but at the Notifications de­ termining and imposing the rates; and that, therefore, the crucial issue for the determination of these proceedings is not the nature of the demand notes -but the question of time limit. Application dismissed. Cases referred to: Pissas (No. 1) v. Electricity Authority of Cyprus

(1966)3 C.L.R. 634 at p. 638; HjiPanayi v. Municipality of Nicosia(Ί973) 3 C.L.R. 329; HjiCostas v. TheRepublic

(1974)3C.L.R.

1. Recourses. Recourse against the decision of the respondents to impose and collect sewage dues for the years 1973 and
2. • A. Triantafyllides, for the applicants. CI. A ntoniades, Counsel of the Republic, for respon­ dent No.
3. ^ 207 SPYROS COLOCASSIDES ESTATE LTD. AND ANOTHER v. REPUBLIC (MINISTER OF FINANCE AND ANOTHER) 1977 Aug. 10 SPYROS COLOCASSIDES ESTATE LTD. AND ANOTHER v. REPUBLIC (MINISTER OF FINANCE AND ANOTHER) Κ. Michaelides,for respondentNo.
4. Cur. adv.vult. Thefollowing decisionwas delivered by:L. LOIZOU, J.: The applicants in these two recourses, which were heard together as they involve identical issues, 5 seek a declaration that the decision of the respondents to impose or collect sewage fees from them for the years 1973 and 1974 is null and voidand of no effect whatso­ ever. The sum involved in the first recourse (No. 87/75) is 10 £601.075 andinthesecond (No. 88/75) £694.The.grounds of law upon which both applications are based are the following: " 1 . Respondents are not entitled to impose or collect sewage fees as the sewage scheme has been 15 abandoned and/or frustrated.
5. Duetotheabandonmentand/or frustration of the sewage scheme the very basis of the imposition and collection of the sewage fee has disappeared.
6. The decision of the respondents complained 20 of is contrary to Articles 24 and 28 of the Consti­ tution.
7. In any case applicants allege that theamount imposed on them is exhorbitant, arbitrary and un­ justified". By their opposition the respondents in both recourses, inter alia, raise thepreliminary objection that therecour­ ses are out of time as they have not been filed within 75 days from thedateof the imposition of theannualsewage rates as provided in Article 146.3 of theConstitution and 30 also that the collection of the annual sewage rates is an act of execution and not an executory administrative act and consequently no recourse lies against the decision to collect such rates. When the recourses came up for hearing all counsel 35 appearing for the parties applied to the Court that these objections be-heard as a-preliminary issue. 208 25 The relevant facts for the purposes of these issues are briefly as follows:
8. Aug. 10 The sewage rates the subject of these recourses, were imposed by the Sewage Board of Nicosia, respondent 2, in exercise of their powers under s. 30

(1)(b) of the Sewage Systems Law, 1971 (No. 1/71) as amended byLaw 24/72 and regulations 32 and 33 of the Sewage Systems Regulations 1973 which were made by the respondent Board under s.49of thelaw. SPYROS COLOCASSIDES ESTATE LTD. AND ANOTHER v. REPUBLIC (MINISTER OF FINANCE AND ANOTHER) The rates for the year 1973 were deterrnined and imposed bythe Board byNotification 164published inSupplement No. 3 to the Gazette of the 20th July, 1973.By the said Notification it was also provided that such rates should be paid to the Inland Revenue Collection Office not later than the 30th September, 1973.The date of payment was "for technical reasons" subsequently extended to the 30th November, 1973 by Notification 246 published in Supplement No. 3 to the Gazette of the 12th October,

1. For the year 1974 the rates were determined and imposed by the Board byNotification 124published inSupplement No. 3 to the Gazette of the 11th April, 1974,by which it was likewise provided that such rates should be paid to the Inland Revenue Collection Office not later than the 30th September,
2. In view of the then prevailing conditions theBoard, by Notification 260 published in Supplement No. 3 to the Gazette of the 27th September, 1974, extended the time for payment of the one half of each annual rate to the 30th November,
3. The applicants did not pay within the time specified in the notices and on the 7th May, 1975 a demand note which is a standard form similar to exhibit 1was sent to each of them by the Inland Revenue Collection Office callinguponthemtopaywithinfifteen days. Both recourses werefiled on the 26th June,
4. Article 146.3 of the Constitution which governs the time limit within which a recourse must be filed reads as follows: "146.3 Such a recourse shallbemadewithin seventy209 1977Aug. 10 SPYROS COLOCASSIDES ESTATE LTD. AND ANOTHER v. REPUBLIC (MINISTER OF FINANCE AND ANOTHER) 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 thepersonmaking therecourse". It is clear from the wording of this paragraph and it was so held inPissas (No. 1) v. The Electricity Authority of Cyprus

(1966)3 C.L.R. p. 634, a case cited by both sides on theissueof whether therecourses areoutof time, that in case of publication of the decision or act timebegins to run, for the purposes of the said paragraph, from the date of publication, irrespective of when the act or decision in question came to the knowledge of the person concerned. As to the nature of the publication for the purposes of Article 146.3 Mr. Justice Triantafyllides, as he then was, had thistosayatp.638: "Publication for the purpose of setting in motion the time within which a recourse may be filed has to be suchpublication aswould stateinfull andclearlythe contents of the act or decision concerned. This principle has been adopted in Greece (see Conclusions from the Jurisprudence of the Greek Council of State, 1929-1959 p. 251) and is, in my opinion, equally applicable in Cyprus because the relevant Greek and Cyprus provisions are, in this respect, in parimateria, and such principle is a widely accepted principle of Administrative Law in relation to computing the time within which a recourse, such as the present one, may be made, after publication". These two recourses were filed long after the expiration of 75 days from the publication of the noticesimposing the rates but it was submitted by learned counsel for the applicants that such publication was not sufficient publication either for the purposes of Article 146 of the Constitution or for the purposes of The Sewage Systems Law of 1971.In his submission the publication in question was not sufficient publication for the purposes of Article 146.3 inthat it wasvaguein onematerialpart i.e. it did not specify under which phase any particular taxpayer came and so on reading it one did not understand what the exact amount imposed on him was unless and 210 untilheinspected theplans;but astherewasnoindication either in the law or in the notices that the inspection of the plans would reveal under which phase a taxpayer came, and as a result the applicants first became aware 5 that they had been taxed after they received the standard demand notes and they filed their recourses within the period of 75 days thereafter, time did not begin to run until the receipt of the demand notes and, therefore, the recourseswerenotoutoftime. 10 Learned counselfor therespondents, ontheother hand, submitted that the relevant notifications contained allnecessary ingredients and that the present cases were distinguishable from the Pissas case (supra)and that consequently time began to run from the publication of the 15 notices imposing the tax and as the recourses were filed long after the expiration of 75 days after such publications the recourses were out of time and could not be entertained by the Court. It is, therefore, pertinent to examine the nature and 20 contents of therelevantpublications. By Order made under section 3 of the SewageSystems Law 1971 in consultation with the Municipal Committee of Nicosia, and published under Notification 39 in Supplement No. 3 to the Gazette of the 22nd January, 1971, 25 the Council of Ministers defined the area coming within theprovisions of the SewageSystemsLaw and established theMunicipal Committee of Nicosia for thetimebeing as the Sewage Board of the area. Such area comprises the whole area which lies within the municipal limits ofNico30 sia and certain parts of Strovolos and Eylendjia. In the Order reference is made to maps where the said areas are clearly defined. As stated earlier on, the rates were imposed by Notification 164published in Supplement No. 3 to the Gazette 35 of the20thJuly, 1973inrespect of theyear 1973andNotification 124 published in Supplement No. 3 to the Gazette of the 11th April, 1974 in respect of theyear 1974. In theseNotifications the rates, the place and the timeof payment are specified. With regard to the rates in particu40 lar they arefixed by reference to the assessed value of the properties asshownin thetitledeedsbut therates of char211 1977· Aug. 10 SPYROS COLOCASSIDES ESTATE LTD. AND ANOTHER v. REPUBLIC (MINISTER OF FTNANCE AND ANOTHER) 1977 Aug. 10 SPYROS COLOCASSIDES ESTATE LTD. AND ANOTHER v. REPUBLIC (MINISTER OF FINANCE AND ANOTHER) ges are not uniform; they are higher for the properties situated within thearea covered by thefirst phase.TheNotifications, however, make reference to maps deposited in the office of the Board which show the properties which can be served by the sewage works constructed during 5 eachof thetwophases. It is not, therefore, in my view, correct to say that the said publications did not reveal their contents clearly or that the applicants could not have known that their properties were included in the area served by the system or 10 that they could not, with reasonable diligence, find out the phase to which their properties belonged and, therefore, the rates applicable. And in this respect the present cases are clearly distinguishable from the Pissas case referred to earlier on. Seealso HjiPanayi v. The Municipa- 15 lityof Nicosia

(1973)3C.L.R. 329 andHjiCostasv.The Republic

(1974)3 C.L.R.

1. Having come to this conclusion I must hold that the time of 75 days prescribed by Article 146.3 of the Constitution began to run from the date of the publication of 20 the relative notices imposing the rates and that, therefore, both recourses are clearly out of time and cannot be entertained bytheCourt. With regard to the question whether the demand notes are actsof execution or executory administrative actsI am 25 clearly of opinion that they are the former. But I am inclined to the view, having regard to the wording of the motion for relief in each recourse that the relief sought is not based or directed at such demand notes but at thenotifications determining and imposing the rates and that, 30 therefore, the crucial issue for the determination of these proceedings is not the nature of the demand notesbut the question of timelimit. In the result these recourses fail and must be dismissed ashavingbeen filed out of time. 35 t With regard to costs I think that each applicant should pay £20.- towardsthecostsof respondent
2. Applications dismissed. Order for costsas above. 212