(1982)1982 June 25 [A. Loizou, SAVVIDES AND STYLIANIDES, JJ.] CHARALAMBOS CHRISTODOULOU PEYIOT1S AND ANOTHER, Appellants-Applicants. v. ANDREAS CHRISTODOULOU POLEMIDIS, Respondent. {Civil AppealNo. 5239). immovable Property—Might of way—Termini (route) of theaccess —Determination of, by Director of Landsand Surveys—Section \\A of the ImmovableProperty(Tenure, Registration and Valuation)Law, Cap. 224 and rule 6 of the Immovable Property (Granting of Access)Rules, 1967—Director failing to take into 5 consideration an alternative routewhich admittedlywas thebest —And took into considerationfacts which he oughtnot to take —His decisionwronglyreached—Set aside. Thiswas an appeal against thejudgment of theDistrict Court of Paphos whereby the decision of the Diiector of Lands and 10 Surveys Department granting a right of way in favoui of respondent's immovable property over appellants' land was upheld. The right of way was granted under the piovisions of section IIA* of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 (as amended) and undei the 15 provisions of rule 6** of the Immovable Property (Granting of Access) Rules, 1967. Thetermini -route -of theaccessgranted was lunning acioss the middle of the pioperties of the appellants and the D.L.O. clerk who carried out the local inquiry and who in substance took the sub judice decision did not 20 think fit to examine any other possible or alternative route. The D.L.O. clerk decided as he did because about 30ft. from thepublic pathway and upto the end of one of appellants*plots * Section 11A is quoted at pp. 445-446 post. ** Rule 6 is quoted at pp. 448-449 post. 442 I C.L.R. 5 Peyiotis v. Polemldis there was a "sort of a road", which in effect was nothing moie than a temporary layout made by the appellants when they weiein theprocessof developing byexcavators their propeities. According to the D.L.O. clerk if the so-called road was not in existence the best route would be along the northern boundary of appellants* plots (route 13-14 on the plan). Held, that in the light of the clear evidence of the local inquiry clerk adduced by the respondent and accepted by the District Court, the decision appealed against was wrongly 10 reached in the sense that the Diiector and/or the land local inquiry clerk failed to consider at all route 13-14 which admittedly was the best, being shorter, less injurious, running along the northern boundaries of the servient tenements and reaching the main road and not the pathway, and he took into 15 consideration the existence of a load which in substance and in fact was not a road but only a temporary construction made by the appellants not from the pathway to the other end of their properties but along part of the extent of one of their plots as a temporary means for their convenience for the de20 velopment of their lands; that in reaching the decision as to the termini, ("katefthinsis"), the Director failed to take into considerationfacts whichheought to;that hedid not advent to route 13-14and he took into consideration facts which he ought not to,theexistenceof the so-called"road"in oneof appellants' —2 5 - — -plotsjwhich,was not a_road; accordingly the appeal will be allowed, the decision of the Director *wiirr>e~set'aside~and-a — fresh inquiry and a new process to be taken by him in the exercise of hispower under s.ll of Cap.224and the Immovable Property (Granting of Access) Rules. 30 Appeal allowed. 35 Cases referied to: Re Sidebotham [1880] 14Ch.D.458; Ealing Borough Council v.Jones[1959] 1 All E.R. 286at p.289; A-G. of Gambia v. N'Jie [1961] 2 All E.R. 504 at p.511; Valana v. Republic, 3 R.S.C.C. 91; Charalambides v. Republic, 4 R.S.C.C. 24; Georghiou v. HjiPhesa
(1970)1 C.L.R. 58; Kafieros andAnother v. Theocharous andOthers
(1978)1C.L.R. 619. 443 Peyiotis τ. Polemides
(1982)Appeal. Appeal by applicants against the judgment of the District Court of Paphos (Laoutas, D.J.) dated the 21st May, 1973 (D.L.O. Appeals Nos. 11/72 and 12/72) whereby the decision of the Director of Lands and Surveys Department granting right of way in favour of respondent's is immovable property over appellants' land was upheld. 5 £ . Efstathiou with D. Koutras, for the appellants. G.I. Pelaghias, for the respondent. Cur. adv. vult. 10 A. Loizou J.: The judgment of the Court will be delivered by Stylianidcs, J. STYLIANIDES J.: This appeal is directed against the judgment of the District Court of Paphos whereby the decision of the Director of Lands and Surveys Department granting right 15 of way in favour of respondent's immovable property over appellants* land was upheld. The appellants are husband and wife. The appellanthusband is the registered owner of plots 89 and 88/2 of Sheet/ Plan 45/21 and Plot 691/2 of Sheet/Plan 45/20 of Kili village, 20 and the wife is the registered owner of plots 690 and 691/1 of Sheet/Plan 45/
- The respondent is the registered owner of a vineyard shown on the D.L.O. maps as plot 92, Sheet/Plan 45/21, of Tsada village. This is an enclaved property and has no access on 25 any public road. Plot 92 is abutting plot 88/
- Plot 690 has as its boundary the public road. All the said plots of the appellants on the plan are adjacent the one to the other and form one entity though each is covered by separate registration in the name of the appellants separately, as afore- 30 said. The respondent applied to the D.L.O. of Paphos by Application No.1710/71unders.l 1A of the Immovable Property (Tenure, Registration' and Valuation) Law, Cap. 224, as amended, for a right of way over the immovable property 35 of the appellants. The material part of s.ll A before its amendment by Law 444 1 C.L.R. Peyfotts v. Polemtdis Stylianides J. 16/80, i.e. as in operation at the material time, was in the following terms:- 5 10 "11A.-
(1)Notwithstanding the provisions of this Law, if any immovable property is, for any reason, in such a way enclaved as to be lacking the necessary access to a public road, or if the existing access is inadequate for its proper use, development or utilization, the owner of such immovable property shall be entitled to claim an access over the adjacent immovable properties on payment of a reasonable compensation. For the purposes of this sub-section 'access' includes the right of conducting water through channels or pipes or any other suitable means. 15 20 25
(2)The route of the access and the extent of the right to the use thereof, as well as the compensation payable shall be determined by the Director after previous notice to all interested parties.
(3)There shall be no obligation of the neighbour to provide an access if the communication of the immovable property to the publicroad hasceased through a voluntary act or omission of the owner thereof.
(4)If, asa result of the alienation of a part of theimmovable property, the communication of the part alienated or of the remainder to the public road has been cut off, the owner of the part through which the communication had heretobefore been made shall be obliged to provide an access. The alienation of one or more immovable properties belonging to thesameownershall be assimilated to the alienaticn of a part. 30
(5)If, as a result of the opening of a new access or for any other reason, the need foi the access established has ceased, the owner of the immovable property over which it isexsreised shall beentitled to claim thai it be abolished on his returning the compensation paid, 35
(6)An accessgranted under thissection shall bedeemed to be a right, easement or advantage acquired under the 445 Stylianides J. Peyiotls v. Polemidis
(1982)provisions of section 11 of this Law, and the provisions of this Law shall apply to any such access.
(7)The Council of Ministers may makeregulationsregulating any matter requiring to be regulated for the better application of this section and, in particular, the procedure to be followed for the purposes thereof: 5 Provided that regulations made under this subsection shall be laid before the House of Repiesentatives which shall within fifteen days of such laying decide thereon. In the event of approval or amendment of the regulations 10 so laid, they shall come into operation as approved by the House of Representatives.
(8)Theprovisions of thissection shallnot apply tostate land of any nature, without a specific decision of the Counoil of Ministers in this respect and on such terms 15 and conditions as may be provided in the decision". The D.L.O. purporting to act under the provisions of the Law and the rules made by the Council of Ministers, the Immovable Property (Grant of Access) Rules, 1967 made under s. 11A
(7)issued and served the prescribed notices; a local 20 inquiry was carried out on 6.3.1972 by Demos Panayiotou, a D.L.O. clerk, 2nd grade, in the presence of the respondent's father, the appellants and a representative of the chairman of the village committee. After the local inquiry the Director decided to grant a right of way in favour of plot 92 over plots 25 88/2, 89 and 690, the termini of such right being from the boundary line of plots 92and 88/2 along ths eastern boundary of plot 88/2, along the southern boundaries of plots 89 and 690, ending to a narrow public road or pathway. He made the necessary valuation and decided the compensation to be 30 paid by the owner of the dominant tenement to the owners of the servient tenements. This decision was communicated to the interested parties, including the appellants, by notices dated 30.3.1972. Onamapattachedthedirectionofthepassage was marked with red dotted lines. The appellants using the 35 machinery of s.80 appealed to the District Court of Paphos. Section 80 reads as follows:"Any person aggrieved by any order, notice or decision of the Director made, given or taken under the provisions 446 1 C.L.R. 5 10 Peyiotis τ. Polemidis Styllanldes J. of this Law may, within thirty days from the date of the communication to him of such order, notice or decision, appeal to the Court and the Court may make such crder thereon as may be just but, save by way of appeal as provided in this section, no Court shall entertain any action or proceeding on any matter in respect of which the Director is empowered to act under the provisions of this Law. Provided that the Court may, if satisfied that owing totheabsencefrom theColony, sickness orotherreasonable cause the person aggrieved was prevented from appealing within the period of thirty days, extend the time within which an appeal may be madeundersuch termsandcondi tions as it may think fit". 15 "A person aggrieved" is, in the absence of any definition in the particular context, incapable of any precise explanation. It is a phrase, however, which is continuously used in modern statutes without any explanation or definition being given in the statute. Ever since the judgment of James, L.J., in the 20 case ofReSidebotham, [1880] 14Ch.D.458,ithasbeen generally accepted thatthewords "person aggrieved" in a statute connote the person with a legal grievance, thatis to say, someone whose legal rights have been infringed. Donovan, J., in Ealing BoroughCouncilv. Jones, [1959] 25 1 All E.R. 286, said at p. 289:- 30 35 "If one came to the expression 'person aggrieved by the decision' without reference to judicial authority one would say that the words meant no more than a person who had the decision given against him; but the courts have decided that the words mean more than .that and have held that the word 'aggrieved' is not synonymous in this context with the word 'dissatisfied'. The word 'aggrieved' connotes some legal grievance, for example, a deprivation of something, an adverse effect on the title to something, and so on". Lord Denning in A.-G. of Gambia v. N'Jie, [1961] 2 All E.R. 504, at p. 511,said that the definition adopted by James, L.J., in the Re Sidebotham case above should not be regaided as exhaustive and he continued:- 447 Slyliaiiides J. Peyiotis v. Polemidis
(1982)"The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody whe is interfering in things which do not concern him, but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests". 5 A person aggrieved is almost synonymous with a person having a legitimate interest in public administrative law. In any view of the law as to "aggrieved persons", the appellants 10 are within the ambit of "aggrieved persons" and they were en titled to appeal to the District Court against the decision of the Director. The Immovable Property (Granting of Access) Rules, 1967, official Gazette 1967, Supplement No. 3, p.282, rule 6 reads 15 as follows: **6.-(l) Ό Διευθυντής, κατόπινέπιτοπίουέρευνης κσΐ μελέτης ττάντων των σχετικών στοιχείων καΐ γεγονότων, καθορίζει την κατεύθυνσιν της διόδου, την εκτασιν τοϋ προς χρήσιν αυτής δικαιώματος τοΰ αποκτώντος μέρους καΐ την ύπ* 20 σύτοΰ καταβλητέαν άποζημίωσιν, καΐ γνωστοποιεί τόν ύπ' αύτοϋ καβορισμόν των θεμάτων τούτων προς πάντα τα ενδιαφερόμενα μέρη.
(2)Έν περιπτώσει υπάρξεωςκαΐ άλλου ή άλλων ακινήτων πλην τοϋ δουλεύοντος ακινήτου τά όποια κατά την γνώμην 25 τοΰ Διευθυντού εϊναι κατάλληλα διά τήν δημιουργίανδιόδου έπ' αυτών, ό Διευθυντής δύναται νά άναβάλητόν καθορισμόν της αίτουμένης διόδου καΐ νά ζητήση παρά τοϋ αποκτώντος μέρους όπως, εντός έξήκοντα ήμερων από της εκφράσεως της τοιαύτης γνώμης ύπό τοΰ Διευθυντού περί της υπάρξεως 30 καΐ άλλων καταλλήλων ακινήτωνδιά τήν δημιουργίανδιόδου έπ* αυτών, έπιδώση είς τόν Ιδιοκτήτην ή τους Ιδιόκτητος των τοιούτων ακινήτωντήν έν τίο Κανονισμφ 3 προνοουμένην είδοποίησιν, καΐ επί τη συμμορφώσει τοΰ αποκτώντοςμέρους προς τάς προνοίας τοΰ Κανονισμού 4 καΐ τοΰ Διευθυντού 35 προς τάς προνοίας τοΰ Κανονισμού 5, ό Διευθυντής κατόπιν νέας έπιτοπίου έρεύνης καΐ μελέτης πάντων των σχετικών στοιχείων καΐ γεγονότων και επί τ φ σκοπφ όπως προκληθή ή μικρότερα δυνατή ζημία, όχληρία ή ταλαιπωρία άποφα448 1 C.L.R. 5 10 15 20 25 30 Peyfotis ?. Polemidis StylianMes J. σίζει έπι ποίου ή έπΐ ποίων ακινήτων θά παραχωρηθη ή δίοδος καΐ καθορίζειτήν κατεύθυνση της διόδου,τήν εκτασιν τοΰ προς χρήσιν αύτηςδικαιώματος τοΰ αποκτώντοςμέρους καΐ τήν υ π ' αυτού καταβλητέανάποζημίωσιν,καΐ γνωστοποιεί τόν ύπ* αυτού καθορισμόν των θεμάτων τούτων προς πάντα τά ενδιαφερόμεναμέρη". ("6
(1)The Director after a local enquiry and considera tion of all the relevant material and facts, fixes the route of the access, the extent of the right to the use thereof by the acquiring party as well as the compensation payable by him and notifies all interesed parties of the determi nation by him of these matters.
(2)In the case of the existence of another or other immovable properties other than the servient tenements which in the opinion of the Director are suitable for the creation of an access on them, the Director may postpone the determination of the applied for access and to request from the acquiringparty,within sixty days from the expres sion of such opinion by the Director as to the existence of other suitable movable properties for the creation of access on them,to serve on the owner or owners of such immova ble properties the notice required by rule 3 and on the acquiring party complying with the provisions of rule 4 and the Director with the provisions of rule 5,theDirector after a new local enquiry and consideration of all the rele vant material and facts and with the intention of causing the least possible damage, nuisance or hardship determines on which of the immovable properties will the access be granted and fixes the route of the access, the extent of the Tight to the use thereof by the acquiring party and the compensation payable by him, and notifies all interested parties of the determination by him of these matters"). The Director is empowered after a local inquiry and con sideration of all relevant factors to fix the direction and extent 35 of the access. In doing so he has to take into account the cause of the least possible damage, nuisance or inconvenience. The Director is vested with discretionary powers and determines private rights. His decision is outside the ambit of paragraph 1 of Art. 146 of the Constitution. (Savvas Yianni Valana v. 449 Stylianides J. Peyiotis v. Polemidis
(1982)The Republic, 3 R.S.C.C. 91; Theocharis Charalambides v. The Republic, 4 R.S.C.C. 24). TheDirector and theland registry clerk who acts onhis behalf is an arbitrator and his function is quasi-judicial. (Constantinos Nicolaou Georghiou v. Evangelia HjiGeorghiou HjiPhesa,
(1970)1 C.L.R. 58). His quasi-judicial decision is an essential part of an administrative process. The rules of procedure provided in the law have to be observed. In determining a route due consideration to alternative routes has to be given. 5 The District Court in reviewing the decision of the Director 10 should follow the principles applied by theSupremeCourt in its administrative jurisdiction in the domain of public law with the only diffeience that the District Court in deciding an appeal under s.80 cf Cap. 224 is empowered to substitute its own discretion for that of the Director whereas in a recourse under 15 Art. 146 of the Constitution the Supreme Court cannot substitute its own discretion for that of the administration. (Kafteros & Another v. Theocharous & Others
(1978)1 C.L.R. 619). The District Court may make such order as may be just. (Section 80 of Cap. 224). 20 The District Court had before it the reasoned decision signed by the District Lands Officer for the Director. Evidence was adduced by both sides. R.W.I, Demos Panayiotou, is the D.L.O. clerk who carried out the local inquiry and who in substance took the decision. 25 His evidence was accepted by the trial Court. He admitted that the termini - route - of the access granted was along the boundaries of plots 690, 691, 89 and 691/2, thus running across the middle of the properties of the appellants, if considered as one entity, but he reached that decision because about 30 ft. from 30 the public pathway and upto the end of plot 690 there was a "sort of a road" which in effect was nothing more than a temperary layout made by the appellants when they were in the process of developing by excavators and otherwise their properties. He did not think fit to examine any other possible 35 or alternative route. He stated that if the so-called road was not in existence, the best route would be along No. 13-14 on the plan (exhibit No. 2), that is to eay, along the northern boundary of plots 88/2, 89 and
- Route 13-14 starts from 450 1 C.L.R. Peyfotls v. Polemidis Stylianides J. the main public road in the area and runs along the edge of plots 690, 89and 88/
- It is shorter to the one determined by him. He admitted that plots 691/2, 89, 690and 690/1 are one unity on the spot with the exceptionofsomenatural "ochtos" 5 at some points which could be demolished in the development of these lands. The best route would be along the line from point No. 13-14 on the plan (exhibit No. 2); if a road or a passage cuts a property into two, the property is injuriously affected. 10 There was evidence before the District Court that in 1972 there was no more any road in plot 690 as, having served the purpose of its construction, the "road" was demolished by the appellants. In the light of this clear evidence of the local inquiry clerk 15 adduced by the respondent and accepted bythe District Court, we are of the view, and so hold, that Che decision appealed against was wrongly reached in the sense that the Director and /or the land local inquiry clerk failed to consider at all route 13-14 which admittedly was the best, being shorter, less in20 jurious, running along the northern boundaries of the servient tenements and reaching the main road and not the pathway, and he took into consideration the existence of a road which in substance and in fact was net a road but only a temporary construction made by the appellants not from the pathway 25 to the other end of their properties but along part of the extent of plot 690 as a temporary means for their convenience for the development of their lands. In reaching the decision as to the termini,("katefthinsis"), theDirector failed to take into consideration facts which he ought to. He did not advent to 30 route 13-14 and he took into consideration facts which ought not to, the existence of the so-called "road" in plot 690which was not a road. In view of the foregoing the appeal will be allowed. It gave us some concern whether to make an order ourselves 35 but in view of the fact that this appeal for reasons wholly unconnected with the Court but only with the litigants, it was taktn up by this Court as late as May, 1972, and the conditions inthearea might haveradically changed, weprefer only 451 Stylianides J. Peyiotis v. Polemidis
(1982)to setaside the decision of theDirector and direct a fresh inquiry and a new process to be taken by him in the cxercice of his power under s.ll and the Immovable Property (Grant of Access) Rules. With regard to costs, we seeno reason why the costs should 5 not follow the event both inthis Court and in the Couit below. Appeal allowed with costs. 452