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clr/1982/1982_3_1118.pdf

(1982)1982 September 25 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION MODESTOS PITSILLOS, Applicant, v.
  1. THE DISTRICT OFFICER OF NICOSIA,
  2. THE IMPROVEMENT BOARD OF AY. DHOMETIOS, Respondents. (Case No. 458/81). Practice—Recourse for annulment—Competent organ involved in sub judice decision the Improvement Board of Ayios Dhometios respondent 2—District Officer, Respondent 1, involved not as a separate competent organ of the administration but only as the Chairman of the Improvement Board—Once Improvement Board 5 made a respondent, District Officer could not have been made a separate respondent—Village (Administration and Improvement) Law, Cap.
  3. Time within which tofile a recourse—Article 146.3 of the Constitution —Running of time—Applicant afforded opportunity to lodge 10 objection against administrative decision—Lodging such an objection and receiving a reply thereto—Time begins to run from the date of such reply—Which amounts to an executory act. The applicant was on the 30th July, 1981 given notice by the respondent Improvement Board about the imposition on him 15 of property tax and of refuse collection fees. On the notice there was an endorsement stating that an objection could be lodged until the 31st August,
  4. On the 18th August the applicant addressed a letter to the respondent District Officei objecting against the tax and fees in question and the District 20 Officer rejected his objection by letter dated the 22nd Septembei,
  5. Hence this recourse which was filed on the 3rd December,
  6. 1118 ϊ 3 C.L.R. Pitsillosv. DistrictOffice-N/sia andAnother On the preliminary questions whether (a) The District Officer could be made a separate res­ pondent. (b) The recourse was out of time. 5 10 1 \ 1 t 15 20 25 30 (c) The above letter of the 22nd September, 1981 was merely confirmatory of the decision of the Board which had been communicated to the applicant by the notice of the 30th July,
  7. Held,
(1)that the competent organ in this connection was, in accordance with the relevant provisions of the Villages (Administration and Improvement) Law, Cap. 243, only the Improvement Board of Ayios Dhometios and that the District Officer was involved in the matter not as a separate competent organ of the administration but only as the Chairman of the Improvement Board; that, consequently, once the Improve­ ment Board is a respondent the District Officer could not have been made a separate respondent and .to that extent this lecourse cannot succeed and had to be dismissed accordingly.
(2)That since by the endorsement on the notice of 30th July 1981 the applicant was afforded the opportunity to lodge an objection till 31st August 1981, and since the applicant did, in fact, object on 18th August 1981, and the final decision of the respondent Board was communicated to him on 22nd September 1981, after the examination of his objection, it has to be found that the relevant administrative action which is complained of by the applicant was not clothed with finality prior to 22nd September, 1981 and consequently the seventy-five days' pe­ riod has to be regarded as running from that date; therefore, the present recourse is not out of time (see, in this respect, inter alia, Nedim v. The Turkish Communal Chamber, 5 R.S.C.C.l, 7)· 35
(3)That as the final decision of the Board, after consideration of the objection of the applicant, was the one communicated by the letter of 22nd September, 1981 it is clear that by the said letter there was communicated an executory, and not a merely confirmatory, decision of the respondent Board (see, inter alia, Economides v. Republic
(1980)3 C.L.R. 219, 225). Order accordingly. 1119 Pitsillos v.District Officer N/sia andAnother (19S2) Cases referred to: Nedimv. The TurkishCommunal Chamber, 5 R.S.C.C.1 at p.7; Paschaliv. The Republic
(1966)3 C.L.R. 593 at p. 602; Economidesv. The Republic
(1980)3 C.L.R. 219 at p.
  1. Recourse. 5 Recourse against the imposition on applicant, by respondent 2, of property tax and of refuse collection fees. Applicant appeared in person. E. Odysseos, for the respondents. Cur. adv. vult. 10 TRIANTAFYLLIDES P. read the following judgment. By means of the present recourse the applicant challenges the imposition on him, by the respondent Improvement Board of Ayios Dhometios, of property tax amounting to C£5 and of refuse collection fees amounting, also, to C£
  2. 15 The applicant is the owner of a house, in which he is residing, at Ayios Pavlos, within the area of the Improvement Board of Ayios Dhometios. On 30th July 1981 the applicant was given notice from the said Improvement Board that he had to pay the aforementioned 20 tax and fees. On the notice there was an endorsement stating that an objection could be lodged until 31st August
  3. On 18th August 1981 the applicant addressed a letter to the respondent District Officer of Nicosia objecting against the tax and fees in question and the District Officer, in his capacity as 25 Chairman of the Improvement Board of Ayios Dhometios, informed the applicant, on 22nd September 1981, of the rejection of his objection. The applicant, under section 54
(1)of the Villages (Administration and Improvement) (Amendment) Law, 1969 (Law 30 31/69), could have filed within fourteen days an appeal to the Minister of Interior against the final decision of the respondent Board which was communicated to him, as aforesaid, on 22nd September 1981,but he failed to do so and he filed the present recourse. 35 At this stage of the hearing of this case arguments were heard 1120 3 CX.R. PitsMosv.DistrictOfficer N/siaandAnother Triantaf>Hides P. only as regards preliminary issues which were raised by counsel for the respondents and in this judgment 1shall, therefore, deal with such issues only: 10 15 The first contention of counsel for the respondents was that the respondent District Officer of Nicosia was not involved at all in his capacity as District Officer in the administrative action which is the subject-matter of this recourse. It is clear that the competent organ in this connection was, in accordance with the relevant provisions of the Villages (Administration and Improvement) Law, Cap. 243, only the Improvement Board of Ayios Dhomeiios and that the District Officer was involved in the matter not as a separate competent organ of the administration but only as the Chairman of the Improvement Board; consequently, once the Improvement Boaid is a respondent the District Officer could not have beenmade a separate respondent and to that extent this recourse cannot succeed and has to be dismissed accordingly. It has been submitted further that this recourse as against the respondent Improvement Board is out of lime. 20 25 30 35 40 As has already been stated in thisjudgment the applicant was first called upon to pay the tax and fees in question on 30th July 1981; and if the period of seventy-five days within which, as prescribed by Article 146.3 of the Constitution, this recourse had to be filed is regarded as running from the said date then this recourse which was filed on 3rd December 1981 would be clearly out of time. But, since by the endorsement on the notice of 30th July 1981 the applicant was afforded the opportunity to lodge an objection till 31st August 1981,and since the applicant did, in fact, object on 18lh August 1981, and the final decision of the respondent Board was communicated to him on 22nd September 1981, after the examination of his objection, it has, in my opinion, to be found that the relevant administrative action which is complained of by the applicant was not clothed with finality priot to 22nd September 1981 and consequen:ly the seventy-five days' period has to be regarded as running from that date; therefore, the present recourse is not out of time (see, in this respect, inter alia Nedim v, The Turkish Communal Chamber, 5 R.S.C.C. 1, 7, Paschali v. The Republic.
(1966)3 C.L.R. 593, 602 and Economides v. The Republic.
(1980)3 C.L.R. 219, 225.). 1121 Trianlafyllides P. Pitsillosτ.DistrictOfficer N/siaand Another
(1982)For thesame, as above, reasons there cannot be upheldthe contention of counsel for the respondents that the letter sent to theapplicant on22nd September 1981 bytheDistrict Officer as Chairmanof theImprovement Board ismerely confirmatory of the decision of such Board which had been communicatedto 5 the applicant by thenotice of 30th July 1981and, therefore, it is notof anexecutory nature andit cannot bechallenged bya recourse such as the present one. As thefinal decision of the Board, after consideration of the objection of the applicant, was the onecommunicated by Ihe 10 letter of22nd September 1981 itisclear, inmyview,thatbythe said letter there was communicated an executory, and not a merely confirmatory, decision of the respondent Board (see,in this respect, inter alia, Economides, supra, 223,224,andCon­ clusions from Case-Law of the Council of State in Greece 15 —Πορίσματα Νομολογία? τοϋ Συμβουλίου της 'Επικρατείας -1929-1959, pp. 236-241). In thelight ofall theforegoing itisheld that thisrecoursehas to be heard as regards itsmerits, butas against the respondent Improvement Board only. 20 Order accordingly. 1122

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