clr/1981/1981_3_497.pdf

(1981)146 of the Constitution; that likewise the execution of such judgments and the enforcement of punishments are a corollary of thejudicial process and in any event are so closelyconnected with judicial acts that do not come within the ambit of the said Article (see WhiteHillsLtd., and Others v. TheRepublic

(1970)3 C.L.R. 132 at p. 134); that, therefore, this Court does not possess competence under Article 146 of the Constitution to entertain the subject matter of this application for a provi­ sional order; accordingly the application should fail. 5 Application dismissed. 10 Cases referred to: Antoniou v. The Republic

(1975)3 C.L.R. 169; District Officer Nicosia v. Georghios HjiYiannis, 1 R.S.C.C. 79; Kyriakides v. The Republic, 1 R.S.C.C. 66; Xenophontosv. The Republic,2 R.S.C.C. 89; 15 Pitsillosv. Aristodemou

(1969)3 C.L.R. 226 at p. 230; White Hills Ltd. and Othersv. The Republic

(1970)3 C.L.R. 132 at p. 134. Application for a provisional order. Application for a provisional order suspending the execution of the order of demolition issuedby theDistrict Court of Paphos until the final determination of this recourse and/or until the filing of opposition and trial of this application. 20 L. Kythreotis, for the applicant. K. Chrysostomides, for the respondent. 25 Cur. adv. vult. A. Loizou J. read the following judgment. The applicant Company and its Managing Director were prosecuted before the District Court of Paphos on a charge of starling the erection of a building contrary to sections 3(l)(b) (f)

(3),20

(4)3A

(3)30 of the Streets and Buildings Regulation Law, Cap. 96, Laws 14/59, 67/63, 6/64, 13/74, and of the Criminal Code, Cap. 154 section 20. The particulars of the offenci were that on or about the 1st July 1981 and thereafter at Kato Paphos they unlawfully started 35 excavations for the foundations and placed columns with the intention of constructing a hotel on plot 80/3 sheet/plan 51/10, 498 3 C.L.R. Raftis Co. v. Municipality Paphos A. Loizou J. under registration number 3734, the property of the present applicant Company without prior permiL of the appropriate authority, i.e. the Municipality of Paphos. On the 29th October, 1981, both the applicant Company 5 and its Managing Director were found guilty of the offence charged and were sentenced to £70.-fineeach, thejoined payn ment of £70.- costs of prosecution and a demolition order was issued ordering them to pull down everything referred to in the charge-sheet, unless a permit was obtained within two 10 months from that date. On the 4th November 1981 an appeal was filed against the aforesaid conviction and sentence, which is still pending. The applicant Company had applied on the 6th June 1980 to the respondent Municipality, which is the appropriate authority 15 under the Streets and Buildings Regulation Law, Cap. 96 forapermittobuiltabuildingtobeknownasHotel"Melina I" B.y letter dated the 19;h May 1981,the Municipal Engineer informed the applicant Company that for a number of reasons, stated therein, nobuilding pormit would te issued. The appli20 cants claimed to have complied with the Municipal Englineor's ' observations and resubmitted "new plans and ordrawings and or calculations". By letter dated the 21st October, 1981, the respondent Municipality informed the applicant Company that in view of the letter of theDirector of the Department of Anti25 quities under numbsr 53/47/25, dated 6th October 1981,as to its objections to permit the erection of any building on the said plot, the building permit applied for would not be issued. It based, asit stated therein, its decision onthe Streetsand BuildingsRegulation Law, Cap. 96andthe Regulations andtheAnti30 quitiesLaw,Cap.31and onthejudgment oftheSupreme Court (His Honour Justice Malachtos) in the case of Antoniouv. The Republic

(1975)3 C.L.R. p. 169. As against this refusal communicated to them by, the aforesaid letter, the applicant Companyfiledthe present recourseseekinghereby:-"Adeclara35 tion that the act and/or decision of the Respondents whereby under written communication datedthe21.10.1981 Respondents rejected Applicants application for a building permit for the Erection of a Hotel knownas Melina Hotel on plot 80/3 Sheet/ Plan LI.10Kato Paphos isnull and void and of no effect what40 soever as having been made and/or taken contrary to the pro499 A. Loizou J. Raftis Co. v. Municipality Paphos

(1981)visions of the Law and/or the constitution and/or in excess and abuse of their powers if any". Together with this recourse it also filed this application for theissueof a provisional order, ordering "the suspension of the execution of the order of demolition issued by the District 5 Court of Paphos in Criminal Case 2015/81 until the trial and final determination of this recourse of the applicant and/or until the filing of opposition and trial of this interlocutory application". The application is based on rule 13 of the supreme Consti- 10 tutional Court Rules 1962 and the grounds upon which the provisional order is sought are set out in paragraph 4 of the affidavit filed in support of this application. They are the following: (a) The period of two months as in section 20 subsection 15

(3)paragraph (

1. a)of Cap. 96, provided, is unconstitutional as offending Article 12.3 of the Constitution, (
2. b)The refusal of the Municipality of Paphos to issue the relevant building permit is manifestly illegal as violating the provisions of Cap. 96. 20 (
3. c)It willcost to theapplicant Company(ifthedemolition ordered is carried out) irreparable financial damage. (
4. d)The rights of no one will be affected adversely by the issuing of the order applied for. (
5. e)The suspension of the execution of the order of demo- 25 Iitionwillnotcauseobstaclestothesmooth functioning of the administration andjustice and in no waycauses detriment to the public interest. Thefirstquestionthat arisesinthiscaseiswhetherthe subject matter of this application for provisional order comes within 30 the ambit of Article 146of the Constitution in which case only this Court has jurisdiction to adjudicate on it under the said article. Nodoubt ademolition ordermadeundersection20subsection 3 paragraph (
6. a)of Cap. 96 amounts to a punishment under 35 Article 12.3 of the Constitution. This was held to be so in a number of cases inter alia The District Officer Nicosia and 500 3 CX.R. Raftis Co. v. Municipality Paphos A. Lofzou J. GeorghiosHadjiYiannis of Akaki, 1 R.S.C.C. p. 79. This was a case where the constitutionality ofthisprovisionwas examined in a reference to the Supreme Court under Article 144 of the Constitution and not in a recourse under Article 146 thereof. 5 The revisional jurisdiction of this Court under Article 146 ofthe Constitution isconfined to decisionsand actsor omissions of any organ, authority or person exercising any executive or administrative authority and does not extend to other acts that do not come within this category. In the case of Phedias 10 Kyriakides and The Republic, 1 R.S.C.C. p..66, it was held that acts of.the police manifestly necessary to lead up to and closely interwoven with prospective criminal proceedings, did not constitute an exercise of "executive or administrative authority" within the meaning of Article 146 of the Constitution. 15 A fortiori punishments imposed by Courts in the exercise of their criminal jurisdiction and their execution do not constitute an exercise of "executive or administrative authority" within the meaning of the said Article. Also in the case of CharilaosXenophontos and The Republic 20 2 R.S.C.C. p. 89 it was held that the exercise of the authority of the Attorney General to institute criminal proceedings was not within the ambit of Article 146.1 of the Constitution as being closely related to judicial proceedings in criminal cases and therefore this Court had no jurisdiction in the matter. 25 30 35 In the case of Modestos Pitsillos v. Elias Aristodemou

(1969)3 C.L.R. p. 226, Hadjianastassiou, J. at p. 230 had this to say:"With regard to the true construction of paragraph 1 of Article 146,it becomesvery clear, in myview, from what I have already said, that the jurisdiction of this Court is confined only and exclusively to matters concerning a decision, act or omission of any organ, authority or person exercising executive or administrative authority and has no jurisdiction or competence to deal with the decision of the Appeal Court, complained of inthis recourse, because it is a judicial decision and, therefore, cannot be made the subject of a recourse to this Court under the said Article 146 of the Constitution". No doubt the proceedings and the judgments of civil and 501 A. Loizou J. Raftis Co. v. Municipality Paphos

(1981)criminal Courts a.nd the sentences imposed in criminal cases are judicial acts and do not come within the ambit of Article 146of the Constitution. Likewise the execution of suchjudgments and the enforcement of punishments are a corollary ofthejudicial process andin any event are soclosely connected 5 withjudicial acts that do not come within the ambit of the said Article. See White Hills Ltd., and others v. TheRepublic

(1970)3 C.L.R. p. 132 at p. 134 and where reference is made also to Xenofontos and TheRepublic 2 R.S.C.C. 89. The attempt made by learned counsel for the appUcant Company to differentiate between the order as such and the suspension of the time limit sought hereby after the lapse of which and in case of failing to obtain a building permit, the order could be enforced, cannot stand as it is contrary to the principles hereinabove enunciated. For all the above reasons I have come to the conclusion that I do not possess competence under Article 146 of the Constitution to entertain the subject matter of this application for a provisional order which should therefore fail. But this, however, pronouncement does not refer to the subject matter of 20 therecourseproperwhichistherefusal toissueabuildingpermit and which as such, is an executory administrative act falling within the ambit of Article 146 of the Constitution. Intheresulttheapplicationfor aprovisionalorderisdismissed with no order as to costs as none have been claimed. 25 Application dismissed. No order as to costs. I I 502 10 15