(1979)1979 December 5 [MALACHTOS, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION GEDEON PROCOPIOU AND OTHERS, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE ATTORNEY-GENERAL OF THE REPUBLIC, Respondent. (Cases Nos. 237/79, 238/79 and248/79). Provisional order—Rule 13 o/ the Supreme Constitutional Court Rules, 1962—Discretion of the Court—Principles applicableWhether recourse likely to succeed on the merits—Flagrant illegality and irreparabledamage—Application for provisional order suspending building works on landsubject-matter ofcompul- 5 sory acquisition—Merits of recourse having no decisive effect— No irreparable damage because alleged damage ispecuniary and isgenerally recoverable—Project inquestion, which issupposed to provideresidence for displacedpersons,has to proceedwithall speed in the public interest—Non-payment of compensation for 10 compulsory acquisitionnot a reason for granting a provisional order—Applications refused. Bymeans ofan order ofacquisition the respondents acquired an area of land of an extent of about 105donums, belonging to the applicants, for the purpose oferecting 350houses,the neces- 15 sary roads, and a number of shops for the needs of displaced persons due to the Turkish invasion. After the publication of the order of acquisition therespondents entered into possession ofthe said properties, by means of an order of requisition, and started preparatory works. The applicants challenged the 20 validity of theorder ofacquisition bymeans of recourses, under Article 146of the Constitution, whichwere followed by applications for a provisional order restraining the respondents from cutting off any trees and/or from starting or continuing any 686 3 C.L.R. Procopiou & Others v. Republic building works on their properties till the final determination of the recourses. On the applicationsfor a provisional order: 5 10 .15 20 25 30 35 Held,
(1)that in order to succeed in an application for a provisional order under rule 13 of the Supreme Constitutional Court Rules, 1962an applicant must show to the Court that his application is likely to prevail on the merits and that the non making of the order will cause him irreparable damage; that flagrant illegality of an administrative act militates strongly to the making of a provisional order even though irreparable damage has not been proved.
(2)That it can neither be said that there exists flagrant illegality of the administrative act complained of nor that the claim of the applicants is so obviously unfounded as to lead the Court to the conclusion that it is not proper in any case to grant the provisional order applied for; and that, therefore, the merits of the case, cannot have a decisive effect on the outcome of these applications.
(3)That it is clear from the affidavits in support of these applications and the evidence before the Court that the injury alleged by the applicants is only pecuniary loss which is generally recoverable and is not irreparable; and that, accordingly, the applications for a provisional order must fail. Held,further,
(1)that the project in question which is supposed · to provide a residence for displaced persons has to proceed with allspeed inthe public interest; and that the submission of counsel for the applicants that the question of public interest cannot be examined at this stage of the proceedings but only after the hearing of the recourses on the merits must fail.
(2)On the submission of Counselfor the applicants that since no compensation has been paid for the property acquired the provisional order should be granted: That there is no merit in the above submission because this Court is not concerned in the present proceedings with the proprietary rights in the said immovable property or with the vesting thereof in the name of the respondent authority; and because the respondents did not enter into possession of the property by virtue of the order of acquisition but they entered 687 ProcopioQ &Others τ.Republic
(1979)lawfully byvirtueofan orderofrequisition,madeunder sections 4
(1)and6
(1)of the Requisition of Property Law, 1962 (Law 21/62)and thereason why nocompensationhas been paid either under Law 21/62 or under the Compulsory Acquisition of Property Law, 1962(Law15/62)is that such compensation has 5 neither been agreed nor has it been determined bythe Courtas provided in thesaid Laws. Applications refused. Cases referred to: C.T.C. Consultants Ltd. v. The CyprusTourism Organization 10
(1976)3 C.L.R. 390; Aspriv. TheRepublic, 4 R.S.C.C.57; Georghiades (No. 1)v. The Republic
(1965)3 C.L.R. 392; Leonida v. The Republic
(1965)3 C.L.R.553; Iordanou (No. 1) v. The Republic
(1966)3 C.L.R. 308; 15 Cyprus Industrial andMining Co. Ltd. (No.2) v. The Republic
(1966)3 C.L.R. 474; Artemiou (No. 2) v. TheRepublic
(1966)3 C.L.R.562; Iordanou (No. 2) v. TheRepublic
(1966)3 C.L.R.696; Iordanou (No. 3)v. TheRepublic
(1966)3 C.L.R. 705; 20 Vassiliades v. TheRepublic
(1966)3 C.L.R. 708; Markantonis v. The Republic
(1966)3 C.L.R.714; Kouppas v. TheRepublic
(1966)3 C.L.R.765; Calazi v. The Minister of Education
(1967)3C.L.R. 577; HadfiKyriakou andOthers(No.1) v. TheCouncil of Ministers 25 and Another
(1968)3 C.L.R. 1; Sepos v. The PresidentialElectionReturning Officer
(1968)3 C.L.R. 82; Georghiou (No. 1) v. TheRepublic
(1968)3 C.L.R. 401; Constantinidou v. The Republic
(1968)3 CX.R. 651; 30 Goulelis v. TheRepublic
(1969)3 C.L.R.583; Pavlou and Another v. TheRepublic
(1971)3CX.R.120; Georghiades v. TheRepublic
(1971)3C.L.R. 309; Papcdopoullou andOthers v. TheRepublic
(1971)3C.L.R. 317; Sofocleous v. The Republic
(1971)3 C.L.R. 345; 35 Miltiadous and Others v. TheRepublic
(1972)3C.L.R. 341; Cleanthous (No.2)v. TheRepublic
(1972)3 C.L.R.376; 688 3 C.L.R. Procoplou &Others v. Republic Lanitis Bros. Limited v. The Central Bank of Cyprus
(1974)3 C.L.R. 160; . Papadopoullos v. The Republic
(1975)3 C.L.R. 89; 5 The Bar Association of Nicosia and Others v. The Republic (1*975) 3 C.L.R. 24; Miltiadous and Others v. The Republic
(1972)3 C.L.R, 341. Applications for provisional orders. Applications for provisional orders restraining the respondent from cutting off any trees and/or from starting or continuing 10 any building works on the properties of applicants, before the determination of their recourse, whereby they challenged the decision of the respondent to acquire compulsorily their properties. B. Vassiliadeswith E. Evripidou for the applicants. 15 M. Kyprianou, Senior Counsel of the Republic with C. Mavrandonis, for the respondent. ·" Cur. adv. vult. MALACHTOS J. read the following judgment. The applicants in the present recourses claim a declaration of the Court that 20 the Notice of Acquisition under No. 495, which was published in the Official Gazette of the Republic dated 15/9/78, as well as the Order of Acquisition under No. 401, which was published in the Official Gazette of the Republic dated 27/4/79, as regards their respective immovable property situated at Kato 25 -Polemidhia in the Limassol District comprising plots 420, 417/1 and 416, respectively; of S/P LlV/49 are, as regards the aforesaid properties of the applicants, null and void. The grounds oflaw on which the recourses are based as stated therein, are— 30 35 (a) that the said Notice and/or Order of Acquisition are contrary to the letter and spirit of Article 23 of the Constitution sincethe said acquisition isnot absolutely necessary and is not for the public benefit, it does not serve any purpose and/or logical purpose, it is illegal and not properly studied, it is injurious to public interestandwasmade in excess of power and/or it does not provide for the payment of compensation, and (b) the said Notice and/or Order of Acquisition and/or 689 Malachtos J. Procopiou &Others v. Republic
(1979)project are contrary to Article 28 of the Constitution astheyamount todiscrimination againsttheapplicants. By the said Order of Acquisition the respondents acquired land of an extent of about 105 donums for the purpose of erecting 350 houses, the necessary roads, a number of shops, 5 etc. for the needs of displaced persons due to the Turkish invasion. The plots of the applicants affected by this Order are comprisingagricultural land ofabout 19donums inextent. On thefirsttwoplotsthereexistsomecaroband olivetrees,whereas 10 inthefieldinApplicationNo.248/79therearenotreesgrowing. After the publication of the Order of Acquisition the respondents invited tenders from building contractors for the erection of blocks offlatsonthe properties affected by the said Order. Upontheexpirationofthetimefixedfor thesubmission 15 of the tenders on 28/7/79, theconstruction ofthe said buildings was awarded by the Committee of Ministers appointed for this purpose to building contractors on 18/9/79 and the signing of the relevant contracts took placeon 29/10/
- The preparatory works had already started in the meantime as by virtue of a 20 requisition order the respondents entered into possession of the said properties. On the27thOctober, 1979,identical applicationsbysummons werefiled in thethree recoursesfor a provisional Order restraining the respondents through their agents, and seivants, to cut 25 off any trees and/or to start or continue any building works on the properties of the applicants till the final determination by this Court of the three recourses. In view of their nature the three applications were heard together. Although the three applications, in my view, were wrongly 30 based on section 32 of the Courts of Justice Law, 1960, (Law 14/60) and on section 4 of the Civil Procedure Law, Cap. 6, and not on rule 13of the Rules of the Supreme Constitutional Court 1962,for thejustice ofthecaseI shallproceedto consider them asiftheywerebased onthesaid rule
- 35 In the case of C.T.C.Consultants Ltd. v. TheCyprus Tourism Organization
(1976)3 C.L.R. 390at pages393to394it isstated that— " The making of a provisional order under rule 13,above, 690 3 C.L.R. 5 10 15 20 25 30 Procopiou & Others v.Republic Malachtos J. involves the exercise of judicial discretion on the basis of the circumstances of the particular case and in the light of the principles which should guide an administrative Court when dealing with such an application; such principles have been expounded, and applied, in interalia,the followwing cases: Aspriv. The Republic, 4 R.S.C.C. 57, Georghiades (No. 1) v. The Republic,
(1965)3 C.L.R. 392, Leonida v. The Republic,
(1965)3 C.L.R. 553, Iordanou (No. 1) v. The Republic,
(1966)3 C.L.R. 308, Cyprus Industrialand Mining Co. Ltd. (No. 2) v. The Republic,
(1966)3 C.L.R. 474, Artemiou (No. 2) v. The Republic,
(1966)3 C.L.R. 562, Iordanou (No. 2) v. The Republic,
(1966)3 C.L.R. 696, Iordanou (No. 3) v. The Republic,
(1966)3 C.L.R. 705, Vassiliadesv. The Republic,
(1966)3 C.L.R. 708, Markantonis v. The Republic,
(1966)3 C.L.R. 714, Kouppas v. The Republic,
(1966)3 C.L.R. 765, Galazi v. The Minister of Education,
(1967)3 C.L.R. 577, HadjiKyriakou and others (No. 1) v. The Council of Ministers and another,
(1968)3 C.L.R. 1, Sepos v. The PresidentialElection Returning Officer,
(1968)3 C.L.R. 82, Georghiou (No. 1) v. The Republic,
(1968)3 C.L.R. 401, Constantinidouv. The Republic,
(1968)3 C.L.R. 651, Goulelis v. The Republic,
(1969)3 C.L.R. 583, Pavlou and another v. The Republic,
(1971)3 C.L.R. 120, Georghiadesv. The Republic,
(1971)3 C.L.R. 309, Papadopoullouand others v. The Republic,
(1971)3 C.L.R. 317, Sofocleous v. The Republic,
(1971)3 C.L.R. 345, Miltiadous and othersv. The Republic,
(1972)3 C.L.R. 341, Cleanthous(No. 2) v. The Republic,
(1972)3 C.L.R. 376, Lanitis Bros. Limited v. The Central Bank of Cyprus,
(1974)3C.L.R. 160, Papadopoullos v. TheRepublic,
(1975)3 C.L.R. 89, The Bar Association of Nicosia and others v. The Republic,
(1975)3 CX.R. 24." In the case of Miltiadous and Others v. The Republic,
(1972)35 3 C.L.R. 341,at page 352, we read: 40 " It is clear from the above that an applicant in order to succeed in an application for a provisional order under rule 13 of the Supreme Constitutional Court Rules, 1962, must show to the Court that hisapplication islikely to prevail on the merits and that the non making of the order wi]I cause 691 Malachtos J. Procopiou & Others τ. Republic
(1979)him irreparable damage. It goes without saying that flagrant illegality of an administrative actmilitates strongly tothemakingofaprovisional ordereventhoughirreparable damage has not been proved. As it appears from Louis L. Jaffee on 'Judicial Control of Administrative Actions' theabove principles areacceptedinAmericanJurisprudence moreclearly. InChapter18undertheheading of 'Tempo rary Judicial Stays of Administrative Action Pending Judicial Review' of thisbook, atpage 689,it is statedthat: 5 ' Despite the silence or variant wording of applicable 10 statutes permitting stays 'upon good cause shown' or upon a 'finding' of irreparable 'damage', the power remains a discretionary and equitable oneto be exercised according to traditional standards. The District of Columbia Circuit, with an extensive expe- 15 rience in motionsfor stays, has attempted to castthem into a formula in Virginia Petroleum Jobbers Assn. v. FPC (259 F. 2d. 921 (D.C.Cir. 1958)),which has since been widely referred to in the lower federal Courts. The applicant must show 1) that he is very 20 likely to prevail on the merits; 2) that if he should prevail on the merits hewill suffer irreparable injury if the stay is not granted; 3) that the other parties will not suffer harm; and 4) that the public interest will not be harmed." 25 From the material placed before mein thepresent case itcan neither be said that there exists flagrant illegality of the administrative act complained of, a factor militating strongly to the making of the Order nor that theclaim of the applicants is so obviously unfounded as to lead the Court to the conclusion 30 that it is not proper in any case to grant theprovisional Order applied for. The merits of the case, therefore, cannot have a decisive effect on the outcome of the present applications. Coming now to the question of irreparable injury, it is clear from the affidavits in support of the applications and the other 35 evidence before me that the injury alleged by the applicants is only pecuniary loss which is, generally, recoverable. In the "Recourse for Annulmentbefore the Council of State" by Tsatsos 3rd Ed. page 428, paragraph 255 we read: " Pecuniary loss is generally recoverable. In some cases, 40 692 3 CL.R. 5 10 Procopku &Othersτ. Republic MalachtosJ. however, pecuniary loss is considered as irreparable if it is going to endanger a commercial business or.the ability of providing the means of support of the applicant. Further more,incases where theextentof thedamage inconjunction with the conditions under which the injured party is living, does not cover the above case, the pecuniary loss may amount to irreparable injury if the person who is liable to pay is insolvent, or the damage that will result from the execution of theadministrative act, cannotbe ascertained." In thepresent case, however, this situation does not arise. It has been submitted by Counsel for applicants that the question of the public interest cannot be examined at this stage of theproceedings but only after thehearing of the recourses on the merits. Although it is not necessary for the purpose of 15 these proceedings to pronounce on the question as to whether the project in question and thecontinuation of theworks already started is in thepublic interest, since I have already decided that the damage which the applicants may suffer is not irreparable, yet I must say, that I entirely disagree with this submission of 20 counsel. To hold otherwise will be contrary to the Case Law of this Court developed from the case of Aspri and Kleanthis Georghiades (No. 1)to the case of the C.T.C. Consultants Ltd., (supra). 25 I, therefore, hold theviewthat theproject in question which is supposed to provide a residence for displaced persons has to proceed with all speed in the public interest. The last point raised by counsel for applicants is that since no compensation has been paid for the property acquired, for this reason alonetheprovisional Order applied for should be granted. 30 I must say that I find no merit in this submission of counsel, as we are not concerned in the present proceedings with the proprietary rights in the said immovable property or with the vesting thereof in the name of the respondent authority. The respondents did not enter into possession of the property by 35 virtue of the Order of Acquisition but they entered lawfully by virtue of an Order of Requisition made under section 4
(1)of the Requisition of Property Law, 1962 (Law 21/62) and the provisions of section 6
(1)of the said Law, which read as follows: "4
(1)Where any property is required to be requisitioned 693 Malachtos J. Procopiou & Others v. Republic
(1979)for a purpose ofpublicbenefit, therequisitioning authority may, subject to the provisions of the Constitution and of this Law,by an Order (inthis Lawreferred toas an "order of requisition") published in the official Gazette of the Republic, declare that such property is so required and order its requisition, stating clearly the purpose for which it is so required and the reasons for such requisition and date as from which the requisition shall take effect. 5 6
(1)Where an order of requisition of any property is made under section 4, possession of such property may be 10 taken by the requisitioning authority on the date specified in such order asthedateonwhich therequisition shall take effect or at any time thereafter and may be retained until theduration of such order is terminated as provided inthis Law." Thecompensation payablein respect of therequisition ofany immovable property under the provisions of the said law, its determinationandthemodeofpayment,areprovidedbysections 8 to 13 inclusive. The reason why no compensation has been paid either under 20 the said Law or under the Compulsory Acquisition of Property Law 1962,(Law 15/62), is because that such compensation has neither been agreed nor it has been determined by the Court as provided in the said Laws. For all the above reasons I have reached the conclusion that 25 the provisional orders applied for should be refused and, therefore, the present applications are dismissed. On the question of costs I make no Order. Applicationsfor provisional orders refused. No orderas to costs. 30 694 15