clr/1982/1982_1_839.pdf

(1982)borehole 01 well within a water reserve area; that it does not create any rights at civil law in favour of anyone affected asu tesult of sinking illegally a borehole. Held,further, that the only law that confers a right in law upon owners of wells prejudicially affected from the sinking of 5 a borehole or a well, isCap 351,sections 7and 8in particular; that notwithstanding the provisions of Article 23.! of the Constitution and those of Cap. 341,the owner of a source of water, as defined in s.7 of Cap. 351,is entitled to the lemedies set out in s.8 of the same Law, wheie the supply of water diminishes 10 as a result of the constiuction of another well,within a distance of 600 feet or less; that here, the distance that separated the two wells was not less than 790 feet; therefore, no actionable right vested in the appellants; that, consequently, the possibility of success was remote, and in the light of this leality the 15 learned tiial Judge was perfectly right to lcfuse to make an interim injunction petmanent and discharge it instead; accoidinglj the appeal must be dismissed. Appeal dismissed. Appeal. Appeal by plaintiff against the order of the District Court of Nicosia (Papadopoulos, P.D.C.) dated the 16th May, 1982 (Action No. 4852/80) whereby the interim order issued on 30.10.1980 on an ex parte application ordering the defendant not to pump water from borehole "Katzilos 2" at Peristerona 25 village was dismissed. E. Vrahimi (Mrs.), for the appellant. A. Haviaras, for the respondent. Cur. adv. vult. HADJIANASTASSIOUJ. read thefollowing judgment of theCourt. 30 The appellant, Andreas MichaelTsiaostreasurer ofthe irrigation division "Katzilos", sued the treasurer of "Katzilos 2" and claimed an order of the Court that the members of "Katzilos 2" should be ordered not to pump any water from the borehole belonging to them. An ex parte application was filed for an 35 interim injunction against the defendant no to pump any water from the said borehole pending the final determination of his action. Indeed in the affidavit in support of that application it was stated that the borehole of "Katzilos 2" was illegal and 840 20 1 C.L.R. Tsiaos v. Kyprianou Hadjlanastassiou J. that thewater of "Katzilos"wasseriouslyaffecting thepumping of "Katzilos 2". Theinterim order wasgranted and wasmade returnable at a later date and although many efforts weremade for the settlement ofthat case,eventuallyit cameupfor hearing 5 before the learned trial Judge. Thelearned Judge havingdealt withtheprovisions of section 32 of Law 14/60 and having quoted a number of cases to the effect that an applicant seeking an injunction must show that there is a serious question to be tried, proceeded to add that 10 although the case was long and bitterly contested there are two pointswhichareundisputed. Thefirstpointisthattheborehole of "Katzilos 2" has been constructed at a distance of at least 790feet from "Katzilos" and the second one isthat this action has beenfiledwithout a written consent of the District Officer. 15 As to thefirstpoint section 7 of Cap. 351reads: 20 25 "Notwithstanding that a permit may have been granted by the Commissioner under s. 3 or 15of this Law no well shallbesunkorconstructedwithinadistanceofsixhundred feet of any point of any chain or system of wells whereby underground water flows to the surface or of any spring or source of any water whichflowsnaturally to the surface or within eighty feet of any other well from which water is raised to the surface by any means whatsoever if, by thesinkingortheconstruction ofanysuchwell,the amount of water in any such chain or system of wells or spring or source or other well is or is likely to be substantially diminished". Section 8 of Cap. 351 reads: 30 35

(1)"If a person, beneficially interested in any chain or system of wells or in any spring or source of water or in anyother well,brings an action against any person who has sunk or constructed a well contrary to the provisions of s. 7 of this Law, the court may— (a) make such order (including the filling in or closing of such well) as may be required to prevent damage to the plaintiff and may award to the plaintiff such compensation as may appear reasonable and just: Provided that the court shall not order thefilling 841 Hadjianastassioa J. Tsiaos v. Kyprianou

(1982)in or closing of any such well, unless it is satisfied that there is a reasonable probability that its filling in or closing will prevent the continuation of the damage complained of; (b) order the person who has sunk or constructed the 5 wellto provide the plaintiff with such supply of water, continuous or periodical, as the Court may think reasonable and just.

(2)No action shall be brought under this section unless such action be commenced within twoyearsofthecomple- 10 tionof thesinkingorconstruction ofthe well in respect of which the claim is made". Section 3 of Cap. 341 reads:

(1)"Notwithstanding anything to the contrary contained in any other Law now in force in the Colony— 15 (

1. a)all underground water (including second water) for which no measures have hitherto been taken enabling such water to be brought or raised to the surface or to run on the surface; and (
2. b)all water running to waste from any river, spring, 20 stream or watercourse; and (
3. c)allotherwastewater,shallbedeemedtobetheabsolute property of the Government, and no person shall take or utilize or take measures to utilize such water without the written permission of the Commissioner 25 first obtained. Provided that no permission under this subsection shall be required in respect of any water from any well or line of wells sunk or constructed in virtue of a permit of the Commissioner issued under the 30 provisions of the Wells Law". The trial Judge continued as follows: "From the combined effect of the above cited authorities I find that the Republic has given a right to person who is beneficially interested in any chain or system of wells 35 842 1 C.L.R. 5 Tsiaos v. Kyprianou Hadjianastassiou J. or in any spring or sourch of water or in any well to seek a remedy against such persons who are in contravention of s. 7 of Law 351 i.e. a person whosunk or constructed a well at a distance of less than 600feet at the maximum. In essence Ifindthat no remedy is offered against persons who have constructed or sunk wells etc. over a distance of 600 feet". Finally,thelearnedJudgeconcludedthatinviewoftheprovisions of section 32 of Law 14/60 the injunction cannot stand 10 and the interim order is dismissed with costs.. On appeal Mrs. Vrachimi in support of her grounds of law argued (
4. a)that the trial Judge erroneously disregarded and/or did not give any weight to the fact that the area of the sub judice borehole was declared as a "special reserve"under Law 15 32/64 and that such Law supersedes and renders Cap. 351 inapplicable in the present case; (
5. b)that the trial Judge went wronginrelyingontheprovisions of Cap. 351and holdingthat in essence no remedy is offered against persons who have constructed or sunk wells over a distance of 600 feet and that 20 such condition is not provided by Law 32/64. We have carefully considered every aspect of the appeal. In the end the question turns on whether Law 32 /64 confers, as suggested on behalf of the appellants, a civil law remedy on a party aggrieved, from the unlawful sinking of a borehole 25 within a controlled area. The answer is in the negalive. Law 32/64 is designed to impose further limitations and restriction upon the grant of a permit for the sinking of a borehole or well within a water reserve area. It does not create anyrights ' at civil law in favour of anyone affected as a result of sinking 30 illegally a borehole. Not that this would help appellants for, at the time when proceedings were taken, a temporary permit was in existence that was made final, as we were informed on appeal. Theonly lawthat confers a right in lawupon ownersofwells 35 prejudicially affected from the sinking of a borehole or a well, is Cap. 351, sections 7 and 8 in particular. Notwithstanding the provisions of Article 23.1 of the Constitution and those of Cap. 341,the owner of a source of water, as defined in s.7, 843 Hadjianastassioa J. Tsiaos v. Kyprianou

(1982)Cap. 351,is entitled to theremedies set out in s. 8 of the same law, where the supply of water diminishes as a result of ihe construction of another well, within a distance of 600 feet or less. Here, the distance that separated the two wells was not less than 790 feet; therefore, no actionable right vested 5 in the appellants. Consequently, the possibility of success was remote, and in the light of this reality the learned trial Judgewasperfectly righttorefuse tomakean interim injunction permanent and discharge it instead. In the result, the appeal in dismissed with costs. 10 Appeal dismissed with costs. 844