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(1981)1981 October.12 [A. Loizor, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION IRENE CHR. LIVERI, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE COUNCIL OF MINISTERS, Respondent. (CasesNos. 130/79, 433/79). Timewithin which tofie a recourse—Article 146.3of the Constitution —Provisions of should be strictly interpreted—And in caseof doubttobeappliedinfavourofthecitizen—Requisitionofproperty —Descriptionof property in requisition order, as publishedin theOfficial Gazette,sufficient toidentifysuchproperty inrelation 5 to lands office recordsonly—Name of ownernot stated in the publication—Applicant raisingissue of requisition, before publicationof order,but respondents failing to reply to her atleast asa matterofgoodadministration andinconformity with Article 29 of the Constitution—Doubt, in the particularcircumstances 10 of this case, whether publication in question a sufficient onefor thepurposes of the saidArticle 146.3·—Recourse notoutof time. Requisition of property—Totalperiodfor whichproperty may be requisitionea—Article 23.8(c) of the Constitution andsection 4
(3)of the Requisitionof Property Law, 1962 (Law 21/1962 15 as amended by Law 50/1966)—Whether possiblefor property to be requisitionedfor a periodexceeding the oneprovided by the Constitutionand the saidLaw. Administrative Law—Misconception of the correct legal position— Leads to annulment of the relevant administrative act. 20 Compulsory acquisitior and requisition of property—Observations with regard to the need of revisionof the relevant legislation with regard to procedurefor payment of compensation—And 398 3 CX.R. Lived γ. Republic observations with regardto the need of expeditious conclusion of references for determination of compensation. 5 10 15 20 25 30 35 By means of an order of acquisition made in June 1973 the Municipal Committee of Nicosia acquired compulsorily a piece of land ("the property") belonging to the applicant for the purpose of widening Chilonos Streetin Nicosia. This property was in July 1973 requisitioned for a period of one year; and there followed renewals of thefirst requisition order for periods of one year and the last requisition order was due to expire onJuly 26,
  1. On the 19th July, 1978 Counsel for theappli­ cant informed the said Municipal Committee of the fact that the period of requisition for which they could requisition the property legally was due to expire on the 26th July, 1978 and warned them that the applicant intendedto restore her property toits original condition. No reply was ever given to applicant or to her counsel. On the 15th March, 1979, counsel for the applicant was informed that her property was requisitioned for a period of one year starting from October 6,
  2. As against this requisition order applicantfiledrecourse No.130/79 onthe 19thMarch,
  3. InOctober, 1979 applicant's property was requisitioned for a further period of oneyear and as against this requisition order she filed recourse No. 433/
  4. The subjudice requisition orders were made through publica­ tions in the Official Gazette wherein applicant's property was identified by means of a description sufficient to identify such property in relation to lands office records only. The name of the applicant was not stated in the said publication and no intimation had ever been made to her that a further order of requisition was going to be made in respect of her property. Counselfor theapplicantmainly contendedthatunderArticle 23.8(c) of the Constitution the requisition could not exceed the period of three years; and that even assuming that Law 50/1966,which increased theperiod set outin theabove Article from three years to five years, was constitutionally enacted, the" act and/or decision complained of purports to requisition the property of the applicantfor a period in excessoffiveyears. Counsel for the respondent Council of Ministers contended 399 LIrert τ. Republic
(1981)that the subjudice requisition orders were made on the advice* of the Attorney-General of the Republic which was based on thejudgment of the Supreme Courtin thecase of Hadji Michael and Others v. Republic
(1973)3 C.L.R. 176. On the other hand Counsel for the said Municipal Committee in his opposition raised the issue that the recourse wae not filed within the period of seventy-five days provided for in Article 146.3 of the Constitution. 5 Held,
(1)that provisions such asArticle 146.3of theConstitu­ tion should be strictly interpreted and applied and, in case of 10 doubt,should be applied infavour οϊ, and notagainst thecitizen especially in the case of a citizen such as the applicant who complains against a decision which nobody took the trouble of bringing formally to her notice (see, inter alia, Neophytou v. Republic, 1964 C.L.R. 280); that since the applicant had 15 neither definite reason toexpect norany intimationthata further order of requisition was going to be made in respect of her property, particularly in view of the existence of the letter of her counsel to which nobody took the trouble to give a reply; that since the Municipal Committee had a duty in view of the 20 previous history of the matter and the serious allegations of illegality and unconstitutionality that were raised therein, at least as a matter of good administration and in conformity with Article 29 of the Constitution, to reply to the said letter; that, moreover, since the publication in this case did not state 25 the name of the applicant, in the particular circumstances of this case there is at least some doubt and uncertainty whether the publication in question amounts to such clear and full publication of thefact as tobedeemedtobesufficient publication for the purposes of Article 146.3; that resolving this doubt in 30 favour of the citizen this Court finds that time did not begin to run under Article 146.3 until the I5th March, 1979, when the applicant came actually to know for the first time of the requisition of her property; accordingly this recourse is not out of time(seePissas (No. 1) v. ElectricityAuthority of Cyprus 35
(1966)3 C.L.R. 634). Theadvice is quotedat pp.410-11postand was to the effect that the Hadji Michael case established that even if a requisition order,following its various extensions, has been in force for a period of five years, a new independent requisition order for a period not exceeding three years can be made if upon re-examination of the grounds which made possession of the said property necessary, the new possession of the property was imperative on the basis of the new and at the time existing circumstances. 400 3 C.L.R. 5 10 15 20 25 30 Liver! v. Republic
(2)That in the HadjiMichaelcase it has not been expressly held that a new requisition order can be made in respect of a property for which there had been made requisition orders for total periods exceeding five years; and that the maximum that can be said is that this question was left open; that, therefore, the respondents, in making the subjudicerequisition order were acting under a misconception that they were entitled in law to make the subjudicerequisition order; that no doubt in the present case the subjudicerequisition orders were not selfsufficient and independent acts made on account of newrequirements after the expiration of the prescribed period, but were a continuation of the old ones and were necessitated for the purpose of affording, if that wasin Law possible, legal covering for the continuation of the occupation of the land of the applicant; that therespondents werethusactingunder a vitalmisconception of the relevant legal position which is bound to lead this Court to the conclusion that the administrative action taken by the respondents on the very basis of such misconception has to be annulled (see Paschalis v. Republic
(1966)3 C.L.R. 593, at p. 608; see also Kolocosv. Republic
(1965)3 C.L.R. p. 558, where a decision reached under a misconception of the correct legal position was annulled). Subjudice decision annulled. Observations: It is necessary to be pointed out that in order to avoid in the future situations as the one created in this case, and in view of its outcome the Law has to be revised in the light of the experiences of other countries, which have the same constitutional provisions governing the question of acquisition and requisition of property. Until then, however, stepsmustbetaken for theexpeditious conclusion—and the litigants can constructively help to that direction—of references that come up before the Courts for the determination of the compensation payable in respect of the acquired land. 35 Cases referred to: HjiMichaeland Others v. Republic
(1972)3 C.L.R. 246; Pissas (No. 1)v. Electricity Authorityof Cyprus
(1966)3 C.L.R. 634; Moran v. Republic, 1 R.S.C.C. 10; 401 Liveri τ. Republic
(1981)Markoullides v. Republic, 4 R.S.C.C. 7; Neophytou v. Republic, 1964 C.L.R. 280; Afourtouvanis & SonsLtd. v. Republic
(1966)3 C.L.R. 108; Georghiades andAnother v. Republic
(1966)3 C.L.R. 827; HadjiCostas v. Republic
(1974)3 C.L.R. 1; Paschali v. Republic
(1966)3 C.L.R. 593 at p. 608; tfo/ocoy v. Republic
(1965)3 C.L.R. 558; Philippos Demetriou & Stvw v. Republic
(1968)3 C.L.R. 444; Christodoulides v. Republic
(1968)3 C.L.R. 57. 5 Recourses. 10 Recourses against the decision of the respondents to requisi­ tion part of the immovable property of applicant situate at Ayios Andreas Quarter, Nicosia. A. Dikigoropoullos, for the applicant. M. Kyprianou, Senior Counsel of the Republic, for the 15 respondent. K. Michaelides, for the Municipal Committee as interested party. Cur. adv.vult. A. Loizou J. read the following judgment. These two re- 20 courses have, by direction of the Court made with the consent of the parties, been heard together as they present common questions of law and fact. The applicant is theregisteredowner of the immovableproper­ ty under Registration Nos. D. 206 and922,plots 215 of Block 25 " D " and 26 of Block 26, at Ayios Andreas Quarter, Nicosia. By means of a Notice of Acquisition published under Noti­ fication No. 284 in the Third Supplement of the official Gazette of the 26th April, 1973, the Municipal Committee of Nicosia, as the Acquiring Authority, gave notice of its intention to 30 compulsorily acquire part of the aforesaid immovable property of the applicant to an extent of about 7,750 sq. ft. and by an Order of Acquisition undersection 6of the Compulsory Acqui­ sition of Property Law 1962 (Law No. 15 of 1962), published under Notification No. 475 in the TTiird Supplement to the 35 official Gazetteof the 29th June, 1973, the Acquiring Authority confirmed its intentionto proceed with the compulsory acquisi­ tion of the aforesaid immovable property of the applicants. 402 3 C.L.R. Liven v. Republic A. Loizou J. By an Order of Requisition published under Notification No. 537in the Third Supplement to the official Gazette of the 27th July, 1937,the compulsorily acquired part of the property of the applicant was requisitioned for a period of one year. 5 Therefollowedrenewalsoftheaforesaidrequisitionasfollows: (
  1. a)By means of an Order of Requisition published under Notification No. 410 in the official Gazette of the 25th June, 1974, for a period of one year. 10 (
  2. b)Bymeans of an Order of Requisition published under Notification No. 506 in the official Gazette of the 27th June 1975, for a period of one year. (
  3. c)By means of an Order of Requisition published under Notification No. 547 in the official Gazette of the 8th July 1976, for a period of one year. 15 (
  4. d)Bymeans of an Order of Requisition published under Notification No. 601 in the official Gazette of the 8th July 1977, for a period of one year. Thus by the last renewal of the original Requisition Order, the period of requisition of applicant's said property was 20 extended to a total offiveyears ending on the 26th July, 1978. Byletter dated the 19th July 1978,(exhibitI), counsel of the applicant informed the Municipal Committee of Nicosia of thefact that theperiodofrequisition for whichtheyor anybody acting on their behalf could requisition the property legally, 25 that is 5years, (if Law No. 50/66 was to be accepted as constitutionally enacted) was due to expire on the 26th July, 1978, and warned them that the applicant intended, as the owner of the property under requisition, to restore it to its original condition. No reply was ever given"to the applicant or to 30 her counsel. Theapphcant onthe 14thMarch, 1979,addressed the Minister of Interior complaining of the continued illegal occupation ofpart ofher property bytheMunicipal Committee of Nicosia and on the 15th March, 1979, an advocate acting on behalf of the Municipal Committee rang up the counsel 35 of the applicant to inform him that the part of the property ofthe applicant under compulsory acquisition was again requisitioned by means of a Requisition Order published under Notification No. 1069 in the official Gazette of the Republic 403 Λ. Loizou J. Liveri v. Republic
(1981)No. 1475 of the 6th October, 1978 (hereinafter referred to as "the subjudice Requisition Order"). As against thelast Requisition Order,applicantfiledRecourse No. 130/79 on March 19, 1979, by means of which he prayed for the following relief: "A declaration that theact and/or decision of the Respon­ dents purporting to requisition the immovable property of the Applicant, Plots 23 (part) of Block 26 and Plot 215 (part) of Block D Ayios Andreas Quarter in Nicosia to an extent of Ca 7,550 sq. ft, under Notification No. 10 1069 published in the official Gazette No. 1475 of the 6/10/1978 and communicated to Apphcant orally and indirectly on the 15/3/1979 is null and void and of no effect whatsoever as having been made or taken without authority contrary to the provisions of the law and of the 15 Constitution and in abuse of their powers if any". The recourse was based on the following grounds of law: *Ί. (
  1. a)Under Article 23.8.(c), the requisition of any immo­ vable property cannotexceed theperiod of three years. (
  2. b)Article 179 of the Constitution provides that the Con- 20 stitution shall be the supreme law of the Republic and that no law or decision of the House of Represen­ tatives or of any organ, authority or person in the Republic exercising executive power or any admini­ strative function, shall in any way be repugnant to, 25 or inconsistent with, any of the provisions of the Constitution. (
  3. c)Article 23.8(
  4. c)is not one of the basic articles of the Constitution and can be amended by a law passed by a majority vote comprising at least two thirds 30 of the total number of representatives (
  5. d)No law amending Article 23.8(
  6. c)of the Constitution was ever enacted. (
  7. e)Law No. 50 of 1966 whereby the number of three years set out in the aforesaid Article 23.8(
  8. c)of the 35 Constitution and in Section 4
(3)of Law No. 21 of 1962 were replaced by thewords 'five years', is uncon404 5 3 CX.R. Lived τ. Republic A. Lolzou J. stitutional in that such enactment was net preceded by anamendmentof Article 23.8(c)of the Constitution. 5 10
  1. Without prejudice to the aforesaid and even assuming Law No. 50 of 1966 was constitutionally enacted, the act and/ordecision complained of purports to requisition the immovable property of the applicant referred to in the Notice of Acquisition for a period in excess of five years.
  2. Inthecircumstances, the act and/or decision complained of was made and/or taken without any legal authority and in violation of the law and/or of the Constitution and is, therefore, null and void and of no effect what­ soever". Counsel for therespondent Council of Ministers inbis ορρο­ ί5 sition stated that the sub judice Requisition order was made on the advice of the Attorney-General of the Republic which was based on the judgment of the Supreme Court in the case of Hadji Michael & Othersv. Republic
(1973)3 C.L.R.
  1. Council for the applicant in his reply to the above opposition 20 stated that the "respondents were labouring under a miscon­ ceptionoflaw, inthattheopinionfrom theOffice ofthe Attorney -General is based on a misreading of a decision of the Supreme Court which does not support the requisition of property after the expiration of three and/or five years". 25 Counsel for the Municipal Committee of Nicosia,which has been joined in the proceedings as an interested party, in his opposition raised the ground that the recourse was notfiled within time, i.e. within 75 days from 6.10.
  2. It was also urged that as the applicant had not accepted a valuation for 30 compensation from the L.R.O., Reference No. 22/75 wasfiled at theDistrict Courtof Nicosia for assessment of thecompensa­ tion payable to the applicant which is still pending; and that the subjudice Requisition Order was rendered necessary due to thefact that theparties have not as yet agreed on the amount 35 of the compensation to be paid to the applicant. Theissuesfor determinationinthis recourse are two, namely: (a)whether therecourse isoutof time,(b)whether thesubjudice Requisition Order is valid. 405 A. Loizou J. Liveri v. Republic
(1981)Counsel's objection with regard to time is based on Article 146.3 of the Constitution which reads as follows: "3. Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when 5 it came to the knowledge of the person making the reoouise". In the case of Pissas(No. 1) v. The Electricity Authority of Cyprus
(1966)3 C.L.R., p. 634, in the Notice of Acquisition thepropertyoftheapplicantwasidentified bymeansofadescrip- 10 tioninrelationtolandoffice records;butthenameoftheowner of such property—applicant's name—was not mentioned at all in the Notice of Acquisition. Moreover the applicant in that casehad reallynoreasonto expectthat a NoticeofAcquisition wasgoingtobepublished intheofficial Gazetteinrelation \5 to part of his property. Triantafyllides, J., as he then was, held at p. 639: "In the particular circumstances of this Case, I cannot accept that the publication, out of the blue, of the relevant Order of acquisition, without statingthereineitherdirectly 2; or, at least, by reference to the Notice of acquisition— the name of the Applicant, of the owner of the properly acquired, amounts to such clear and full publication of the fact that itwasApplicant'slandwhichwasbeingcompulsorily acquired, as to be deemed to be sufficient publication 25 for the purposes of Article 146.3. Thus, in my view, time did not begin to run under Article 146.3 until the 12th November, 1965, when Applicant came actually to know of the compulsory acquisition in question, for the first time, in the circumstances stated earlier in this Decisioa. 3Q It follows, thus, that this recourse is not out of time. Inreachingtheaboveconclusion,Imustmakeitclearthat 1cannot accept the viewthat oncethere hasbeen publication of an Order in theofficial Gazette, in conformity with the provisions of a particular enactment, then, necessarily, 35 that amounts also to sufficient publication for the purposes of Article 146.3; there may be such publication as would comply with allthat islaid down in a particular enactment for the purposes of the inherent validity of an Order and, yet, it may not amount to publication which gives to the 49 406 3 C.L.R. Liveri τ. Republic A. Lofzou J. person affected by the act or decision concerned a full andclearpictureof thecontentsof suchOrder,asenvisaged by a provision in the nature of Article 146.3". Theperiodof timeprovided for inArticle 146.3 of the Consti5 tutionis mandatory and has to be given effect to in the public interest (seeMoron v. Republic, 1R.S.C.C. 10 and Markoullides v. Republic, 4R.S.C.C.7). Inthecaseof Neophytouv. Republic, 1964 C.L.R. 280,it was held (vide p.290) that "provisions such as para.3ofArticle 146,whichlimittherightof accesstoCourt, 10 should be strictly interpretedand apphed and,in case of doubt, shouldbeappliedinfavour of, andnotagainst thecitizen who comes to this Court seeking redress, especially in the case of a citizen suchas theapplicantwhocomplains against a deci­ sion which nobody took the trouble of bringing it formally 15 tohisnotice,thoughhehadappliedhimself inwriting for promo­ tion to the post in question". The case of Neophytou was followed and adopted in Mourtouvanis &Sons Ltd.v. Republic
(1966)3 C.L.R. 108 and Georghiades & Another v.Republic
(1966)3 C.L.R. 827. 20 In cases of publication of the decision or act, time begins torun,for thepurposesof Article 146.3, from thedate of publi­ cation,irrespective of whentheactor decision in questioncame to the knowledge of the person concerned (see the Pissescase (supra) ). In the case of Hadjicostas v. The Republic
(1974)25 3 C.L.R. 1, which dealt with the publication of a decision to close a certain street to vehicular traffic from another street the Court, distinguishing it from thePissas case,held thatthere has been a sufficient publication of the subjudice decision in the official Gazette for the purposes of Article 146.3 because 30 the identification of the property affected by the subjudice decision was made by reference not only to a description suffi­ cienttoidentify suchpropertyinrelationtoLandsOfficerecords, but alsoby reference tothenameof thestreetaswellasthename of the applicant himself. 35 Looking at the publication in question, it is apparent that the property of the applicant, same as in the Pissascase, was identified by means of a description sufficient to identify such property in relation to Lands Office records. Therefore, such publication prima facie is not deemed to be a sufficient publi407 A. Lotzou J. Liveri v. Republic
(1981)cation for the purposes of Article 146.3 unless there are special circumstances distinguishing this case from the Pissas case. Counsel for the interested party in his address submitted that this case is distinguishable from the Pissascase in view of its special circumstances. He contended that the applicant 5 "knew and waswell awarethat the Order of Requisition which waspublished for thefirsttimeon the27th July, 1973,hasbeen yearafter yearpublished againandtheperiod ofthecompulsory acquisition was extended". Counsel further submitted that the apphcant had a duty in view of the repeated extensions to 10 lookintothe Gazette and "seewhether theorderwhichwasdue to expire on the 26th July, 1978, was published again, was renewed, was extended, in view of the fact that it was well within her own knowledge that the road was been constructed on that part". 15 As against the special circumstances invoked by counsel for theinterestedparty,wehavecertain undisputed facts namely that the previous period ofrequisition expired on the26th July, 1978; that applicant's counsel by letter dated the 19th July, 1978, informed the Municipality that the previous period of 20 requisition wasdueto expireonthe26thJuly, 1978,andwarned them that the apphcant as owner of part of the property under requisition intended to restore it to its original condition, and that noreply wasevergivento theapphcant or toher advocate. In the Pissascasethe publication in question wasnot deemed 25 to be a sufficient publication for the purposes of Article 146.3 of the Constitution in the particular circumstances of that case and such particular circumstances were mainly: (
  1. a)that the applicant had really no reason toexpectthat aNoticeofAcquisition and later an Order to Requisition weregoingto bepubli- 30 shed in the official Gazette in relation to part of his property in question, and (
  2. b)that the applicant had no intimation whatsoever that it was intended by respondent to acquire compulsorily his property. Having quoted the particular circumstances which in the 35 Pissas case rendered the relevant publication not sufficient for the purposes of Article 146.3it has to be examined whether any such circumstances exist in this case. In myviewtheapphcanthadneither definitereasontoexpect, 408 3 C.L.R. Lived v. Republic A. Loizou J. .nor any intimation that a further order of requisition wasgoing to be made in respect of her property. The position can with certainty bestated to be so,particularly in viewoftheexistence of the aforesaid letter of the applicant to which same as in the 5 Neophytou case(supra), nobodytook thetroubleto giveareply. The Municipal Committee had a duty in view of the previous history of the matter and the serious allegations of illegality and unconstitutionality that were raised therein, at least as a matter of good administration and in conformity with Article 10 29 of the Constitution, to reply to the said letter. Moreover, contrary to what happened in the HadjiCostas case(supra), the publication in this case did not state the name of the applicant. I, therefore, find that in the particular circumstances of this 15 case there is at least some doubt and uncertainty whether the publication in question amounts to such clear and full publication of thefact as to be deemed to be sufficient publication for the purposes of Article 146.3. Resolving this doubt in favour of thecitizen (seetheNeophytou, Mourtouvanis and Georghiades 20 cases(supra)),Ifindthat timedidnot begin torun under Article 146.3 until the 15th March, 1979, when the applicant came actually to know for the first time of the requisition of her property. Accordingly I hold that this recourse is not out of time. 25 Iwillhereinafter proceedtodealwiththemeritsoftherecourse together withthemeritsofrecourseNo.433/79wherebyanother order of requisition of the same property published under Notification No. 1044 in the third supplement to the Official Gazette No. 1556 dated the 28th September, 1979 covering 30 the period up to the 5th October 1980, is challenged. The provisions which touch upon the determination of this issue are: (
  3. a)Article 23
(8)(
  1. c)of the Constitution which so far as relevant provides: 35 "Any movableor immovableproperty mayberequisitioned (
  2. c)For a period not exceeding three years". (
  3. b)Section 4
(3)of the Requisition of Property Law 1962 (Law No. 21/62) which reads as follows: 409 Λ. Loizou J. Liferi v. Republic
(1981)"
(3)The duration of an order of requisition shall be for such period or periods, not exceeding three years in toto, as may be specified in such order or, if no period is specified therein, until the expiration of three years from the date on which the requisition took effect: 5 Provided that, at any time whilst an order of requi­ sition remains in force, the requisitioning authority may, by an order in this respect published in the official Gazette of the Republic— 10 (a) ιevoke the order of requisition; or (b) extend any period specified in the order of requi­ sition by such further period or periods, not exten­ ding beyond three years from the date on which therequisition first took effect, as therequisitioning authority may deem necessary1'. Section 4
(3)was amended by means of section 2 of the Requi­ sition of Property (Amendment) Law, 1966 (Law No. 50 of 1966), so that the period of three years appearing above was substituted by a five years period. 15 20 [•As already stated the sub judice requisition order was made relying on the advice of the Deputy Attorney General of the Republic, which was given in respect of another case. In so far as relevant it reads: "To έν λόγω διάταγμα έτπτάϋεως δέν δύναται νά άνανεωθή 25 έφ* όσον κατόπιν τών διαφόρων ανανεώσεων του els το πα­ ρελθόν έχει Ισχύσει δια συνολικήν περίοδον 5 ετών. Ύπό τάς περιστάσεις όμως δύνασθε νά προβήτε els τήν εκδοσιν νέου διατάγματος έπιτάϋεως διά περίοδο μή ύπερβαίνουσαν τα τρία ετη έάν κατόπιν επανεξετάσεως τών λόγων οϊτινες 30 επιβάλλουν τήν κατοχήν της έν λόγω Ιδιοκτησίας ή έκ νέου κατοχή αΰτης είναι αναγκαία βάσει τών νϋν υφισταμένων πραγματικών συνθηκών. Έν τοιαύτη περιπτώσει δύναται νά ύποστηριχθη νομικώς ότι ή έπίταΕις ώς νέα αυτοτελής καΐ ανεξάρτητος της προη- 35 γουμένης, βασιζόμενη επί των νεωτέρων αναγκών . — δέν είναι ασυμβίβαστος προς τάς περί της χρονικής Ισχύος μίας επιτάσεως διατάζεις τοϋ Νόμου 21/62 καΐ τοϋ άρθρου 410 3 C.L.R. 5 Lheri v. Republic A. Loizou J. 23 τοϋ Συντάγματος, καθότι αύται αναφέρονται είς την συνο­ λικήν ττερίοδον Ισχύος έκαστης αυτοτελούς επιτάσεως μιας Ιδιοκτησίας συμπεριλαμβανομένων τών ανανεώσεων αυτής και ούχΐ είς τήν συνολικήν περίοδοντών διαφόρωναυτοτελών έπιτάϋεων τής Ιδίας Ιδιοκτησίας. (Βλ. σχετικώς άπόφασιν τοϋ Ανωτάτου Δικαστηρίου εϊς τήν ΰπόθεσιν Χ" Μιχαήλ καΐ άλλων εναντίον της Δημοκρατίας 3 J.S.C σελ. 289 είς σελ. 294)". In English it reads: 10 15 20 25 "The said requisition order cannot be renewed since after its several renewals in the past it has been valid for a total period of five years. Under the circumstances, however, you can proceed to the issue of a new order of requisition for a period not exceeding the three years if after re-cxamination of the reasons which call for the possession of the said ownership its possession afresh is necessary on the basis of the now existing factual conditions. In such a case it may be supported in Law that the requisition is a new self-sufficient and independent of the previous one, based on the new requirements is not incompatible to the provisions of Law 21/62 and Article 23 of the Consti­ tution about the valid duration of a requisition, as these provisions refer to the total period of validity of each selfsufficient requisition of ownership including its renewals and not to the total period of the various self-sufficient requisitions of the same property. (Sec in this respect the judgment of the Supreme Court in the case of Hadji Michael and Others v. The Republic, 3 J.S.C. p. 289 at p. 294." 30 It may be mentioned here that section 4
(3)of the Requisition of Property Law 1962, originally provided that the duration of an order of requisition was to be for such period or periods not exceeding thiee years in toto as may be specified in such order, or if no period is specified therein until the expiration 35 of three years from the date on which the requisition order took effect, as already seen amended by Law No. 50 of 1966 and the period of three years was extended to five years. 40 It appears that such advice was to the effect that the case of Koumis Hadji Michael and Others v. The Republic
(1972)3 C.L.R. 246, established that even if a requisition order, follow· 411 A. Loizou J. Llveri v. Republic
(1981)ing itsvarious extensions, hasbeen in force for a period of five years, a new independent requisition order for a period not exceeding three years can be made if upon re-examination of the grounds which made possession of the said property necessary, the new possession of the property wasimperative on the 5 basis of the new and at the time existing circumstances. For an appreciation, however, of the approach to theHadji Michaelcase(supra) itsfactshave tobeexamined. Thepropertiesthere,wererequisitioned for aperiodof 12monthsbymeans of an order published on the 6th February, 1971. After the 10 expirationofthat order theywereagainrequisitionedforaperiod of one more year, by means of an order published on the 25th February 1972. As against the last requisition order that recourse was filed on the ground, interalia,that the order of requisition was against the aforesaid section 4
(3)(b) of The 15 Requisition of Property Law, 1962 (Law No. 21 of 1962), in the sensethat therecouldnotbearenewalofarequisition order after the expiration of the previous one. Counsel for the respondent in the HadjiMichael case who, it must be noted, was the officer who gave the aforementioned 20 legal advice upon which the requisition order in this recourse was made, maintained "that the subjudiceorder is not in law a renewal of the previous one, but an independent new order for requisition, and that same could be made independently of theprevious requisition order, so longas theperiod ofrequi- 25 sition concerning the same property does not exceed the maximum of three years provided by the Constitution when made for the same purpose". And the Court at page 182 held:"This ground, therefore, in my view, fails, inasmuch as the very wording of the order suggests that it was an inde- 30 pendent order made after the expiration of the previous one. If any limitation coidd be imposed to the making of such successive independent orders, same will arise in cases that the three year maximum period of requisition of property is exceeded. In such cases, it will have to be 35 decided, depending on the circumstances, whether they amount to an effort to bypass the restriction as to time provided for by the Constitution". So it is clear that in the HadjiMichael case it has not been 412 3 C.L.R. Liveri v. Republic Λ. Loizou J. expressly held thatanew requisition order can be madein respect of a property for which there had been made requisition orders for total periods exceeding five years. The maximum that can be said is that this question was left open. 5 10 15 20 25 30 35 The respondents, therefore, in making the sub judice requisi­ tion order were acting under a misconception that they were entitled in law to make the sub judice requisition order. No doubt in the present case the subjudice requisition orders were not self-sufficient and independent acts, merely because the requisition order, subject matter of recourse number 130/79 was made six months after the expiration of the previous one for a duration of twelve months expiring from the date of the publication of the order in the official Gazette, namely the 6th October 1978 and that the requisition order subject of recourse number 133/79 was made upon the expiration of the previous one for a duration of twelve monthsexpiring on the 5th October 1980, oncetheveiy purpose of all these requisitions was thesame, namely the widening of Hilonos street, for the convenience and service of the citizens and the traffic and in effect of course for the authorization in Law of the entry into the said property of the Municipal Authority and the carrying out of the planned works therein, before the vesting of the property in them upon the payment or deposit of the sum agreed or determined to be paid as compensation for the acquisition of the said property. They were thus acting undera vital misconception of the relevant legal position which is bound to lead this Court to theconclusion that the administrative action taken by the respondents on the very basis of such misconception has to be annulled. (See Paschalis v. Republic
(1966)3 C.L.R. 593, at p. 608; see also Kohcos v. Republic
(1965)3 C.L.R., p. 558, where a decision reached under a misconception of the correct legal position was annulled). As to annulment of an administrative act on the ground that it was reached under a misconception of law, see, inter alia, Philippos Demetriou & Sons v. Republic
(1968)3 C.L.R. 444 and Christodoulidesv. Republic
(1968)3 C.L.R. 57. No doubt the subjudice requisition orders were not two new independent ones made on account of new requirements after the expiration of the prescribed period, but were a continuation 40 of theold onesand.were necessitated for thepurpose of affording, 413 Λ. Lolzou J. Livori v. Republic
(1981)if that was in Law possible, legal covering for thecontinuation of theoccupation of the land of the applicant and it is on that factual situation that I have reached the aforesaid conclusion. Having reached this conclusion and in view of the fact that the subjudicerequisition orders were made after the expiration of thefiveyear period, provided by the Law, I need not decide whether the period offive years, which exceeded that of three years provided for by Article 23.8(c) of the Constitution, is unconstitutional. 5 I feel, however, that it is necessary to point out that in order 10 to avoid in the future situations as the one created in this case, and inviewof its outcomethe Law has tobe revised in the light of theexperiences of other countries, which have the samecon­ stitutional provisions governing the question of acquisition and requisition of property. Until then, however, steps must 15 be taken for the expeditious conclusion—and the litigants can constructively help to that direction—of references that come up before theCourts for thedetermination of thecompensation payable in respect of the acquired land. For all the above reasons both recourses succeed and the 20 sub judice orders challenged hereby are annulled. As to costs the respondents to pay £60.—against those of the applicant. Sub judice decisions annulled. Order for costs as above. 25 414

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.