clr/1981/1981_3_503.pdf

(1981)Agrotis r. Electricity Authority vable property at Strovolos for the purpose of establishing a sub-station thereon. The respondent Authority commenced the procedure of selecting a site for the above purpose early in 1976;andattheinitialstageitconsideredfour sitesassuitable. It first proposed to the owner of plot 1040 to acquire his plot 5 but following representations by him that the erection of a sub-station on his plot would adversely affect his plans for building a second house thereon, the Authority abandoned the idea of acquiring this plot. The respondent Authority thenproposed to theownerofanother plot (No. 1188)toacquire 10 his plot and at some stage, on I2th March, 1977, he offered to sell a sub-station site to the Authority at C£2,

1. The respondent Authority considered this amount as rather high andtwomonthslater,onthe 13thMay, 1977, itaskedtheL.R.O. to make a valuation of the land in order to enable it to make a 15 counter offer to the owner. On the 11th July, 1977 it was ascertained that plot 1188changed hands and thenew owners were not willing to sell the required site to the Authority. Following this development the District Engineer suggested to the Deputy Chief Engineer of the Authority that the "second 20 best site" was applicant's plot (No. 1186) and also, suggested that "an alternative sub-station site worth considering is within plot 901 marked A2 on the attached plan. If an unconditional wayleave can be secured from the owner of plot 908 then it willbepossible to establish4 LVfeeders from this sub-station". 25 The Deputy Chief Engineer in reply authorized the District Engineer to take action, according to the standard procedure, for the acquisition of applicant's plot and made no mention of the suggestion of the District Engineer regarding plot
2. Applicant informed the respondent Authority that he was obje- 30 cting to the erection of a sub-station on his plot but in the end it was compulsorily acquired; and hence the above recourse. Held

(1)(after statingtheprinciplesof administrativelawgoverning compulsory acquisition vide pp.511-12 post) thatthough there existed properties very suitable for the purpose of the 35 acquisition,yetthey werenot chosen and in any event no proper comparison was made at the time so that before resorting to thecompulsoryacquisitionofthesubjectpropertytherespondent Authorityhasexhaustedthepossibility ofacquiring compulsorily other suitable immovable property, the acquisition of which 40 would entail a deprivation less onerous than the deprivation 504 3 C.L.R. 5 10 15 20 25 30 Agrotis v. Electricity Authority entailed in the proposed acquisition; that, moreover, the respondent Authority failed to inquire duly into the suitability of plot 901 and into the possibility of acquiring it either by private purchase or compulsory acquisition; that a failure to make a due inquiry results due to the contravention of the general principles of Administrative law to the invalidity of the relevant administrative decision because the notion of "Law" in Article 146 of the Constitution has been construed as including the well settled principles ofAdministrative law(seeIoannidesv. The Republic

(1972)3 C.L.R. 318 and the very recent case of Mikellidou v. The Republic

(1981)3 C.L.R. 461); that, therefore, the sub judice decision should be annulled on the ground that the matter was not duly inquired into. Held, further, that the sub judice decision must be annulled on the ground of excess and abuse of power inasmuch as the respondent Authority upon being informed that there was a willing seller initiated the process of valuation by asking the Lands Registration Office to make valuation of the property but it did so after the lapse of two months, which lapse of time was unreasonable in the circumstances and as a result of this delay there has not been a proper compliance with the requirements of good administration and to the principles that before resorting to the onerous method of compulsory deprivation of ownership the possibility of finding property that is voluntarily offered to for sale should be exhausted; that, on the contrary, in this case the very offer for voluntary sale was lost because of this delay in taking advantage of same; and that no doubt an unreasonable delay by the administration that causes a detriment to the citizen as a result of changes that occur in the meantime amounts to excess and abuse of powers. (See (Loiziana Hotels v. Municipality of Famagusta

(1971)3 C.L.R. 466). Sub judice decision annulled. Cases referred to: 35 Chrysochou Bros v. CYTA and Another

(1966)3 C.L.R. 482; Ioannides v. Republic

(1972)3 C.L.R. 318; Mikellidou v. Republic

(1981)3 C.L.R. 461; Loiziana Hotels v. Municipality of Famagusta

(1971)3 C.L.R. 466; 505 Agrotis v. Electricity Authority

(1981)Nemitsas Industries Ltd. v. Municipal Corporation of Limassol and another

(1967)3 C.L.R. 134; Angelidou& Another v. Republic

(1975)3 C.L.R. 404; HadjiGeorghiou v. Republic

(1974)3 C.L.R. 436; Michaeloudes & Another v. Republic

(1979)3 C.L.R.

1. 5 Recourse. Recourse against an order of compulsory acquisition affecting part of applicant's property situated at Strovolos. A. Dikigoropoulos, for. the applicant. G. Cacoyannis, for the respondent. 10 Cur. adv. vult. A. Loizou J. read the following judgment. The applicant by this recourse seeks:" A declaration that the act and/or decision of the respon­ dents to compulsorily acquire part of the immovable? 15 property registered inhis nameand described in the relevant Certificate of Registration as part of plot 1186 of the L.R.O. Sheet/Plan XXX.6.W.1, of block Ή \ which act and/or decision was published as Administrative Act No. 309 in the Official Gazette dated the 6.4.1979, is null and void 20 and of no effect whatsoever as having been made and/or taken contrary to the provisions of the Law and/or of the Constitution and/or of the principles of Administrative Law and/or in excess and/or abuse of their powers". The salient facts are briefly these: The applicant is the regi- 25 stered owner of a building site described in the relevant certificate of registration as plot 1186 of L.R.O. Sheet/Plan XXX/6W.1 of block Ή \ Strovolos. In a report dated 5.1.1976 to the General Manager of the respondent Authority, its District Engineer made preliminary 30 proposals (exhibit 1-1) for the establishment of a sub-station at Mandres locality, Strovolos. There were named therein seven plots, namely, plots 844, 1039, 1040, 1187, 1185, 1186 and
2. With regard to plots 844 and 1039 it was stated that the establishment of a sub-station thereonwas not feasible, 35 and with regard to the remaining four plots the following were stated: "Plot 1040—Only the front part of this plot is developed 506 3 C.L.R. Agrotis v. Electricity Authority A. Loizou J, and a sub-station may be established at the back of this plot. However,theownerrefuses tonegotiate,maintaining that a sub-station at the back of his plot would adversely effect his future extension plans. 5 10 15 20 Plot1187—Empty;the owner refuses to negotiate, maintaining that a sub-station at the only one available comer wouldadverselyaffect hisplansoferectinga semi-detached building. Plots 1185 & 1186—Empty, owned by one person; owner turneddowntheideaofestablishingasub-stationinanyone of his plot. However, site S2 (in plot 1186) is considered technically suitable with less hardship to the owner, provided, of course, that these two adjacent plots will be developed independently. Alternatively the S/S could be erected at the south-western corner of plot
3. Plot 1188 (site SI)—Empty; owner refuses to negotiate. However, this site is considered technically suitable with the lesshardship to the owner as compared with the other possible alternative sites mentioned above. It is suggested to establish the substation on this site. Please consider and advise". To the above proposals there was a reply from the Deputy Chief Engineer dated 20.1.1976 (exhibit 1-2) which so far as relevant runs as follows: 25 30 35 "After a careful consideration it has been established that the most suitable s/s site in this case both technically and withthelesshardshiptotheowneristheoneinthenorthern corner of plot
4. Your suggestion to establish the s/s in plot 1188 has been noted. However, when this plot is compared with plot 1040,the latter ispreferred as thisisalready developed and hence the extent of hardship to the owner would be less. From the technical aspect plot 1040 is tetter than plot 1188 for bringing out more direct LV u/g feeders, 2 on pole 7 East and West, oneNorth andtheotherSouth of the cross roads". From the above it appears that at the early stages of the process, that eventually led to the compulsory acquisition of 507 A. Loizou J. Agrotis v. Electricity Authority

(1981)the applicant's plot, the most suitable plot was not his plot but another plot, namely, plot

1. In reply to the above letter of the General Manager, the District Engineer byhisletter dated 30.3.1976 (exhibit 1-3) informed the General Manager that the owner of plot 1040 after considering the matter for some time 5 and following."consultation with his architect, has forwarded a letter, dated. 22.3.1976, to this office, turning down the idea of establishing a sub-station and maintaining that the erection of a sub-station anywhere on the space available within his plot would adversely affect hisplans for building a second house 10 for his second daughter". In answer to this last letter the Deputy Chief Engineer replied by letter dated 6.4.1976 (exhibit 1-4) stating that "in view of the fact that the owner of plot 1040 is in possession of plans for building a second house in his plot, the matter has now 15 been reconsidered. Under the circumstances the second best alternative site from all aspects will have to be considered and thisis at the north-eastern corner of plot
2. You are, therefore, advised to take further action in accordance with the Standard procedure for sub-station sites". 20 There followed a letter from the respondent Authority to the owner of the second best alternative site, viz. plot 1188, dated 7.6.1976 (exhibit 1-5) informing him that after a thorough study it was ascertained that the best site for the establishment of the sub-station in question was his plot. The owner of plot 25 1188 made representations against the selection of his plot and the Chief Engineer by his letter dated 22.10.1976 (exhibit 1-6) informed him, inter alia, that the question had been thoroughly reconsidered and that the site in question continued to remain the best, taking into consideration all the criteria 30 both from the technical aspect and from the point of view of causing less hardship to the owner. It was subsequently ascertained by the Authority (see the letter of the new owner dated 12.3.1977, exhibit 1-8) that plot 1188 changed ownership and that the new owner was willing to sell a sub-station site 35 to the respondent Authority at the price of C£2,
3. As the pric: of C£2,000.—was considered as rather high,the respondent Authority by letter dated 13.5.1977 asked the L.R.O. to make a valuation of the land in order to enable them tomake a counter offer to the owner. It is significant to state, at this stage, that 40 508 3 C.L.R. Agrotis v. Electricity Authority A. Loizou J. it took the respondent Authority two whole months (the offer forvoluntary salewasreceivedon 12.3.1977)toinitiatetheprocedure for valuation of the plot in question. On the 11.7.1977it wasascertained bythe respondent Autho5 rity that plot 1188changedhandsanditbelongedequallytotwo sisters who intended to construct two semi-detached houses andwereinnowaywillingto selltherequiredsitetotheAutho(seeexhibit1-9 dated 15.10.1977). In view of this development the District Engineer suggested as the "second best site" plot 10 1186 ("the subjudice plot"), which belongs to the applicant. The District Engineer in that letter (exhibit1-9) also suggested that "an alternative sub-station siteworth considering is within plot 901marked A2on the attached plan. If an unconditional wayleave can be secured from the owner of plot 908 then it 15 willbepossibletoestablish4LVfeeders from this sub-station". The Deputy Chief Engineer agreed that the second best sitewas the subjudiceplot (see exhibit1—10, dated 21.10.1977), authorized the District Engineer to proceed to take furthtr actionaccordingtothestandard procedureandmadenomention 20 of the alternative suggestion of the District Engineer regarding plot
4. It is convenient to state at this stage that it would have been more in accord with the realities of the situation if the subjudice plot had been described as the "third btst site" for aswehave already stated the "first best site"was plot 25 1040 and the "second best site" was plot
5. Byletter of the District Engineer dated 1.6.1978, (exh.1-11), the applicant was informed, interalia,that "after a thorough study it was ascertained that for technical reasons the most suitablesitewasthesitewithinthe said plot 1186". Theappli30 cant then by his letter dated 24.6.1978 (exhibit1-12) informed the respondent Authority that he was objectingJo^theerection ofa sub-station within hisplotbecauseit would affect adversely its future development for building purposes. The Board of the respondent Authority met on the 8.8.1978 35 and decided to acquire compulsorily the sub judice plot as it isrecordedinitsminutesofthat date(exhibit 1-14). Following this decision of the 8.8.1978 a relevant notice of acquisition was published under Notification No. 938, in Supplement 3 to the Official Gazette of the 1.9.1978 and the applicant was 509 A. Loizou J. Agrotis v. Electricity Authority

(1981)informed of this fact by letter dated 1.9.1978 (exhibit1-15). Applicant objected by his letter dated 5.9.1978 (exhibit 1-16) andthe Board ofthe respondent Authority metonthe 7.10.1978 and after considering the objection it found that it was not sjuppojled by good grounds and rejected if. The matter was 5 thereafter referred to the Council of Ministers and upon taking its sanction an Order of compulsory acquisition was published under Notification No. 309 in Supplement 3 to the Official Gazette of the 6.4.1979; hence this recourse. Counsel for the applicant mainly contended that: 10 "The decision complained of is contrary to the general andwellsettledprinciplesofAdministrativeLawasadopted by the Supreme Court in Chrysochou Bros.v. CYTAand Another

(1966)3 C.L.R. 482in that the compulsory acquisition was ordered: (

1. a)Withoutexhaustingalternativepossibilitiesofachieving the objects of acquisition either by purchasing other suitable land voluntarily offered for sale orbycompulsorily acquiring other more suitable land such as plot 1188 which was described by them as the most 20 suitable in 1976. (
2. b)Without exhausting the possibility of using for the relevant purpose state land more or less equitably suitable for the purpose concerned. (
3. c)Without a sufficient study of possible alternatives". 25 Moreover that "The sanctioning of the acquisition wasmade and/or taken in a manner inconsistent with all notions of proper administration and/or without the proper and/or due inquiry into all relevant facts and/or circumstances and/or in 30 a manner inconsistent with the notion of equal treatment envisagedinArticle28ofthe Constitution, applicant having never been notified of the contents of the respondents' observations and/or recommendations to the Council of Ministers or given the opportunity to present his case 35 before the Council of Ministers". On the other hand counsel for the respondent Authority submittrd that:5i0 15 3 C.L.R. Agrotis v. Electricity Authority A. Loizou J. Thedecisionoftherespondentstoacquirethesubject property waswithin the powersofthe respondents,within the provisions of the Constitution and the terms of all relevant legislation including the Compulsory Acquisition of Property Law 1962, 5 the Electricity Development Law Cap. 171 and the Electricity Law Cap. 170; and that the decision of the respondents to acquire the subject property was taken in the proper exercise of the respondents' powers and a proper exercise of their discretion after a full and thorough enquiry from all possible 10 aspects including actual and technical suitability and repercussions to the owners of alternative plots. The principles of administrative law governing questions of the compulsory acquisition of properly have been stated in Chrysochou Bros.v. CYTA

(1966)3 C.L.R. 482, where at 15 page 497Triantafyllides J., as he then was, said the following: 20 25 30 35 "In this connection it is useful to bear in mind that the requirements of proper administration and the proper useofthe relevantdiscretionary powersrenderitimperative that a compulsory acquisition should not be ordered if its object can be achieved in any less onerous manner; and it should only be resorted to if it is absolutely necessarytodosoand after exhausting thealternative possibility ofachievingitsobject bymeansofpurchasingother suitable property which is voluntarily offered for sale by its owner. Moreoever, before resorting to compulsory acquisition of a particular immovable property the acquiring authority must exhaust the possibility of acquiring compulsorily other suitable immovable property the acqmsition ofwhich will entail a deprivation less onerous than the deprivation entailed in the proposed acquisition; (see Conclusions from the Jurisprudence of the Greek Council of State 1929-1959 p. 87); and the above principles render all the more striking the already found, in this Judgment, lack of proper consideration of the matter by the Board of CYTA". He then referred to Decisions Nos. 300/1936, 1023/1949,608/ 1955 and 92/1957 of the Greek Council of State and went on to say at page 499: "All the above decisions propound widely accepted prin511 A. Loizou J. Agrotis \. Electricity Authority

(1981)principles ofAdministrative Law whichare, in my opinion, to be regarded as applicable to compulsory acquisition of immovable property in Cyprus, (see also Venglis and Electricity Authority

(1965)3 C.L.R., p. 252) in that they regulate the proper exercise of the relevant discretionary 5 powers in accordance with the notions of proper administration; it is to be borne in mind, in this respect, that the relevant constitutional provisions (Article 23in Cyprus and Article 17 in Greece) are provisions in pari materia". Applying the aforesaid principles to the facts of this case 10 as hereinabove set out, I am led to the conclusion that thesub judicedecisionshould beannulled ontheground that the matter wasnotdulyinquired into. Itappearsthatthereexistedproperties, very suitable for the purpose of the acquisition, and yet they were not chosen and in any event no proper comparison 15 wasmade at thetime sothat before resorting to the compulsory acquisition of the subject property the respondent Authority had exhausted the possibility of acquiring compulsorily other suitable immovable property, the acquisition of which would entail a deprivation lessonerousthanthedeprivation entailedin 20 theproposed acquisition. Moreover the respondent Authority failed to inquire duly into the suitability of plot 901 and into the possibility of acquiring it either by private purchase or compulsory acquisition. It is well settled that a failure to make a due inquiry results 25 due to the contravention of the general principles of Administrative Law to the invalidity of the relevant administrative decision because the notion of "Law" in Article 146 of the Constitution has been construed as including the well settled principles of Administrative Law (see Ioannides v. TheRepublic 30

(1972)3 C.L.R. 318 and the veryrecent caseof Mikellidou v. The Republic

(1981)3 C.L.R. 461. Furthermore the subjudice decision must be annulled on the ground ofexcessandabuseofpowerinasmuchasthe respondent Authority upon being informed that there was a willing seller 35 initiated the process of valuation by asking the Lands Registration Office to make valuation of the property but it did so after the lapseoftwomonths,whichlapseoftimewasunreasonable in the circumstances and as a result of this delay there 512 3 C.L.R. Agrotis v. Electricity Authority A. Loizou J· has not been a proper compliance with the requirements of good"administration and to the principles that before resorting to the onerous method of compulsory deprivation of ownership the possibility of finding property that is voluntarily offered 5 to for sale should be exhausted. On the contrary in this case the very offer for voluntary sale was lost because of this delay in taking advantage of same. No doubt an unreasonable delay by the administration that causes a detriment to the citizen as a result of changes that occur in the meantime amounts to 10 excess and abuse of powers. This principle is born out from what was held in thecase of Loiziana Hotels v. TheMunicipality of Famagusta

(1971)3 C.L.R. p. 466 where a delay of about 2 1/2 months to deal with an application for a building permit, with the result thatthelawhaschangedinthemeantime and the 15 granting of the building permit as applied for was not possible, was held to amount to an excess and abuse of powers. The subjudice acquisition must, therefore, beannulled onthis ground too. As the subjudice order of acquisition is a composite admi20 nistrative act in that it has been made by the respondent, Electricity Authority, and sanctioned by the Council of Ministers under section 6

(3)of the Compulsory Acquisition of Property Law, 1962 (Law No. 15 of 1962),for its validity to bs upheld such act has to be vaUd with regard to both its essential compo25 nents viz. action taken by the respondent Authority and the action taken by the Council of Ministers. This is so because it is a fundamental principle of administrative law that the invalidity of part of a composite administrative action leads to the invalidity of the said action as a whole (see, inter alia, 30 Nemitsas Industries Ltd. v. Municipal Corporationof Limassol and Another

(1967)3 C.L.R., 134; Angelidou & Another v. Republic

(1975)3 C.L.R., 404; Hadjigeorghiou v. Republic

(1974)3 C.L.R. 436; the Chrysochoucase (supra), and Michaeloudes & Another v. Republic

(1979)3 C.L.R. 56). 35 Therefore, for all the above reasons I have reached the conclusion that the subjudice order of compulsory acquisition has to be annulled as made contrary to well established principles of administrative law and is thus contrary to law and in abuse and excess of powers. It should not be forgotten that compul40 sory acquisition leads to deprivation of property which contravenes the fundamental right of property, safeguarded by Article 513 Λ. Loizou J. Agrotis v. Electricity Authority

(1981)23 of the Constitution and acquiring Authorities are expected to actinconformity with the principles ofgood administration, diligently and within reasonable speed. In theresult this recourse succeeds but in thecircumstances I make no order as to costs. Subjudice decision annulled.No order as to costs. 514 5