(1982)1982 May 17 [TRIANTAFYIXIDES, P., HADJIANASTASSIOU, A. LOIZOU, SAVVIDES, JJ.] THE REPUBLIC OF CYPRUS, THROUGH
- THE MINISTER OF INTERIOR,
- THE DIRECTOR OF THE DEPARTMENT OF LANDS AND SURVEYS, Appellants, v. M.D.M. ESTATE DEVELOPMENTS LTD., Respondents. (Revisional Jurisdiction Appeal No. 223). Act ordecision in the sense of Article 146.1 of the Constitution—Which can be made the subject of a recourse thereunder—Fixing of reserveprice ofproperty undercompulsory sale by virtue of section 4 of the Immovable Property (Restriction of Sales) Law, Cap. 223 (as amended by Law 60/66)—Interest of the public in the 5 enforcement of Cap. 223, whichwasprincipally intended to protect theproperty offarmers, declined by the extension of its provisions to urban areas by means of section 8 of Law 60/1966—Therefore decision fixing a reserveprice a matter within the realm of private Law and not of public law—And as such it cannot be made the 10 subject of a recourse under the above Article. The sole issue in this appeal was whether a decision of the Lands and Surveys Department fixing the reserve price of immovable property, under compulsory sale, in exercise of powers under section 4 of the Immovable Property (Restriction 15 of Sales) Law, Cap. 223 (as amended by section 8 of Law 60/66) was a decision in the domain of public law and as such could be made the subject of a recourse under Article 146 of the Constitution. Held, TriantafyHides, P. dissenting, that the Immovable Property (Restriction of Sales) Law, Cap. 223 was a piece of legislation that was principally intended to protect the property 642 20 .1C.L.R. 5 10 15 20 25 30 Republic v. M.D.M. Estate of farmers from sales at ruinous prices; that at the time of its enactment, and for many years subsequently, the value of land in rural areas and particularly the financial position of faimers, was of very grave concern to the public, considering that Cyprus was an intensely agricultural country, largely dependent on the productivity of farmers; that by extending the application of the provisions of Cap. 223 by means of section 8 of Law 60/66 to urban areas, equating thereby town and country properties for the purposes of the law the special association of Cap. 223 with land in rural areas and the financial position of faimers, has, as from 1966, ceased to exist; that, consequently, it may be validly presumed that the interest of the public in the enforcement of the law has correspondingly declined, particularly its interest in the protection of farmers; that the disappearance of the special interest of the public in the enforcement of Cap. 223, arising from its connection with rural properties and the financial position of farmers, takes away that special interest of the public that might conceivably be invoked to render a decision fixing the reserve price to thejurisdiction of this Court; and that, therefore, the fixing of a reserve price is a matter within the realm of private law and not of public law and it cannot be made the subject of a recourse under Article 146.1 of the Constitution. Appeal allowed. Cases referred to: Achilleas HadjiKyriakos v. Theologia Hadjiapostolou and Others, 3 R.S.C.C. 89 at pp. 90-91; Vaiana v. Republic, 3 R.S.CC. 91 at pp. 93-94; Greek Registrar of Co-operative Societies etc. v. Nicolaides "
(1965)3 C.L.R. 164 at pp. 170-171; Cyprus Industrial Mining Co. Ltd. v. The Republic
(1966)3 C.L.R. 467; Gaiip v. Minister of Interior and Another
(1974)3 C.L.R. 94; Silentsia Farms v. Republic
(1981)3 C.L.R. 450; 35 Charalambides v. Republic, 4 R.S.C.C. 24; 40 Christodoulouv. Republic
(1970)3 C.L.R. 38 at p. 46 (and
(1970)3 C.L.R. 377 C.A.); White Hills Ltd. v. The Republic
(1970)3 C.L.R. 132; Kourris v. The Supreme Council of Judicature
(1972)3 C.L.R. 390 at p. 401; 643 Republic v. M.D.M. Estate
(1982)Moustafav. The Republic
(1973)3 C.L.R. 47 at p. 51; Poyiadjisv. The Republic
(1975)3 C.L.R. 378; I.W.S. Nominee Co.Ltd. v. TheRepublic
(1967)3 C.L.R. 582 at p. 586; M.D.M. Estate Developments Ltd. v. The Republic
(1980)3 C.L.R. 54. 5 Appeal. Appeal against the judgment* of a Judge of the Supieme Court of Cyprus (Malachtos, J.) given on thi 29th December, 1979 (Revisional Jurisdiction Cass No. 212/77) whereby the 10 fixing of a reserve price under Cap. 223 was found to be an act or decision in the realm of public law and within the ambit of Article 146 of the Constitution. N. Charalambous, Senior Counsel of the Republic, for appellants. 15 A. TriantafyHides, for the respondents. Cur. adv. vult. TRIANTAPYLLIDES, P.: The Judgment of the Court will bo delivered by Mr. Justice Hadjianastassiou. HADJIANASTASSIOU J.: This is an'appeal against the Judg- 20 ment of a Judge of the Supreme Court of Cyprus given on the 29th December, 1979,whereby thefixing of a reserveprice under Cap. 223 for the property in question was wrongly found to be an act or decision in the realm of public law and within the ambit of Article 146 of the Constitution. 25 THE FACTS: The applicants in their recourse claimed a declaration of the Court that the decision of the respondents to fix the reserve price for their property under Registration No. 8371 situated at Ayii Omoloyites Quarter, Nicosia at £162,000 is null and 30 void. Indeed, the applicants are the registered owners of building site under Registration No. 8371 dated 10th November, 1969 situated at Nicosia at Ayii Omoloyites Quarter locality, Prodromos, and is plot 335 of S/P XXI 54.1 IVX. In the meantime, and in the course of the erection of a block of flats 35 on the said building site, the applicant contracted among other loans a loan of £41,537,-, from the interested party N.P. Lanitis • Reported in
(1980)3 C.L.R.
- 644 3 C.L.R. Republic v. M.D.M. Estate Hadjianastassiou J. Ltd., which was secured by mortgaging the said property to them under Mortgage No. Y966/
- On 22nd March, 1972, the interested party filed against the applicants in the District Court of Nicosia Action No. 1823/72 5 and on 23rd October, 1972, obtained judgment for the above sum and also an order for the saleofthemortgaged property. On 13th July, 1973,the interested party applied to the District Lands Office of Nicosia for thesale oftheproperty in question in satisfaction of the judgment debt. 10 The D.L.O., acting under s.4 of the Immovable Property (Restriction of Sales) Law, Cap. 223, (as amended) fixed the reserve price of the building site in questionat £1,500.000and addressed a letter dated 14th February, 1974, notifying all parties concerned. 15 On 5th March, 1975, the applicants applied to the D.L.O. for a review of the reserve price. The applicants informed the District Lands Officer that on the said building site there were under construction 27 flats which were almost at a completion stage. In addition, it appears from the D.L.O. file that there 20 was a re-assessment of the reserve price which was made on 1st April, 1974, and it was fixed at £136,
- (See exh. 4). Bya new letter dated 18th April, 1975,the D.L.O. informed the parties concerned that the sale of the property in question wasfixed on 15thJune, 1975, at 10.00a.m. at Ayii Omologi25 tes. On 8th May, 1975,theapplicants addressed a letter to the District Lands Officer and had this to say:- 30 35 "We have received your letter dated 18th April, 1975, regarding the sale of our immovable property. By order of the District Court of Nicosia and by the present letter we bring to your knowledge the following:
(1)Our letter of objection dated 5th March, 1974, remains unanswered;
(2)Your Notice for the reserve price of our said immovable property wasnever sent to us;
(3)Asfrom Juneand uptoDecember 1974wehavespent on the said property according to the attached amounts the sum of £43,962.436 mils without your knowledge and sinceJune 1974wecameto an agreement that the Embassy of the People's Republic of China by virtue of a contract 645 Hadjianastassiou J. Republic v. M.D.M. Estate
(1982)of lease for the period of 5years and the sum of £30,000 has been paid to us for the purpose of completion of the building;
(4)Due tothe Turkish invasion we have been unable to complete the said building and efforts are now being made for this puipose;
(5)We therefore pray, 5 ifit ispossible, for 2-3years'extension oftimeso asto bo able to meet our commitments;
(6)we also pray for a re-assessment of the reserve price since as you must realize weshall suffer damageto a great degreeas wellasourcollaborators who work for the completion of the said build- 10 ing and also the purchasers of land who have paid to us the sum of £28,000.
(7)We hope that you will help us on thesaid subject andthis isdueto the situationcreated." The Director of Lands and Suiveys instructed the District Lands Officer of Nicosia tocall off the sale oftheproperty and 15 carry out a newlocalinquiry as soon as possiblein order toreassessthe earlier reserveprice. In compliance with the instructions, theofficer concernedcalled offthesale,and after carrying out a new local inquiry, fixed the reserve price at £162,000, and by letter dated 9th October, 1975, notified all inteiested 20 parties including the applicants. In the meantime,theapplicants on 10th May, 1975, filed an application in the District Court of Nicosia by virtue of the Debtors Relief (Tempoiaiy Provisions) Law for an order of the Court to stay the sale which was about to take place on 15th June, 1975. 25 On 13th February, 1976,when that application came on for hearing before the District Court, an order was made staying the sale of the said property till 31st October, 1976. Indeed, the sale of that property was fixed for the 12th June, 1977at 10.00a.m. at Ayii Omologites and a notice dated 20th May, 30 1977wassent to all interested parties informing them accordingly. On 3rd June, 1977,the applicants, through their advocates, addressed the following letter to the D.L.O.:"On behalf of our clients M.D.M. Estate Developments Ltd., we refer to your letter of the 20th May, 1977, by 35 which you inform us that the sale of the immovable property of the said company will take place on 12th June, 1977. On the 9th October, 1975, you fixed the reserve price for the sum of £162,000, but the sale was stayed by a decision of the Court. We are, therefore, of the view 40 646 3 C.L.R. 5 10 15 Republic v. M.D.M. Estate Hadjianastassiou J. thatwhenyoufixed anewdateofsaleyouhavetofix again a new reserve price based on the present prevailing circumstances, since the prevailing circumstances of the market changedconsiderablyfrom October, 1975tilltoday, andthepresent valueoftheproperty ofourclientsismuch greater and exceeds, according to the estimates of the assessors of our clients, the sum of £350,000. By our present letter we call upon you that (
- a)you fix a new reserve price for the forced sale of the property of our clients and (
- b)furthermore and in the alternative we call upon you that you review the already fixed price of October, 1975. Since the sale of the property of our clientsisfixed for the 12thJune, 1975,wepraythatwemay have the soonest possible your answer." On 4th June, 1977, the District Lands Officer informed the interested parties that the sale of the property in question was called off due to technical reasonsand that the saleoftheproperty was to be fixed the soonest possible. On 27th June, 1977,a new local inquiry wascarried out and 20 the reserve price of the property in question was again fixed at £162,000, and the D.L.O. informed all the interested parties by a letter dated 16th July, 1977. FINDINGS OFFACT: The learned trial Judge, having considered the arguments of 25 both counsel and having stated that in his opinion the fixing ofa reservepriceunder Cap.223wasanactionwhichisprimarilyintended toservea publicpurpose, and,therefore, an "act" or "decision" in the realm of public law and within the ambit of Article 146 of the Constitution, proceeded to state the fol30 lowing at p. 66:- 35 "Now, as regards the question of jurisdiction, although I entertain some doubts as to whether thefixing of a reserve price under sections 4and 6of Cap.223,isa decision that fallswithinthedomain ofpubliclaw,yet,Iamnot inclined to goasfar astoholdthat thecaseof the CyprusIndustrial and MiningCo.Ltd. v. TheRepublic, was wrongly decided or that is no longer good law. I do not subscribe to the view that the abolition of section 11has changed the pur647 Hadjianastassiou J. Republic v. M.D.M. Estate
(1982)pose of the law but I am of the opinion that the object of the legislator in abolishing this section was to extend the application of the law so as to cover the creditors and debtors in the urban areas as well." Thenthe learned trial Judge,having dealt withthelegaleffect of ss. 3-6 inclusive of Cap.223,had this to say at pp.66-67: 5 "It isclear from the wording of theprovisions oftheLaw, quoted above, that once the District Lands Officer decides that the sale of immovable property should be carried out subject toa reserveprice,then heisbound to fix suchprice 10 according to the provisions of section 4 of the Law. If an application is madewithin the appointed time by either the debtor or anyoneofthecreditors for the review ofsuch price, then he fixes the reserve price following the provisions of section 6 subsections
(2)and
(3)of the Law. 15 Once the reserve priceisfixed under the provisions ofsection 6 of the Law, theDistrict Lands Officer is not bound to accept any other application to reconsider it on the grounds that the prices had gone up from the date of assessmenttillthedateofthefixing ofthesaleoftheproperly 20 by public auction. In the case in hand, however, the District Lands Officer called off the sale and carried out a new local enquiry and fixed the reserve price again at £162,000.-. So the question posed is whether the nonparticipation of the village authority in refixing the re- 25 serve price is an essential omission which renders the act or decision complained of a nullity or in the circumstances of the present case is a mere formality which could be dispensed with. As a general rule the omission to comply with a pres- 30 cribed form in administrative Law is essential and has, as a result, the annulment of the administrative acts. (See in this respect the LawofAdministrative Acts byStasinopoullos 1951 Edition, p. 229). Every form which is prescribed by administrative 1> 35 gislation is considered asessential and only in exceptional cases the administrative Judge may consider certain forms prescribed by legislation as non-substantive. (See in this 648 .1 C.L.R. Republic v. M.D.M. Estate Hadjianastassiou .
- respect System of Administrative Law by PapaHadjis 5th Edition 1976, at pages 476 - 477). 5 10 In the present case I consider the non-participation of the village authority as an essential omission. Their prcsencc at the local enquiry is, in my view, indispensable as they are the people who know better than anybody else the current prices of immovable property in the particular area and their advice to the assessor of the D.L.O. nominated by the District Lands Officer to assess the value of the property concerned is essential. For this reason the decision of the District Lands Officer complained of is declared null and void." GROUNDS OF LAW: Counsel for the appellants, in support of his grounds of law 15 arguedveryably indeed that the trialJudgewronglydecided that he had jurisdiction in accordance with the provisions of Article 146 of the Constitution to try that case becaxisc the decision under attack was regulating private rights in dispute which relate to the realm of private law. He further added that the 20 main criteria as to the jurisdiction is whether the object of the law is public as distinct from ]>rivate. Coimsel relies on Achilleas Hadjikyriakos and Theologia Hadjiapostolou and Others, 3 R.S.C.C. 89 at pp. 90 - 91; Savvas Yianni Valana and The Republic (Director of Lands and Surveys) 3 R.S.C.C. 91 25 at pp. 93 -
- On the contrary, Mr. Triantafyllides, in a strong argument, also stated that this Court in a number of cases said that the main criterion as to jurisdiction iswhether the object of the law is a public one as distinct to the private law. (See also Valana 30 v. The Republic (supra) and the Greek Registrar of Co-operative Societies etc. v. Nicos A. Nicolaides
(1965)3 C.L.R. 164 at pp. 170 -171. Also The Cyprus Industrial Mining Co. Ltd. v. The Republic
(1966)3 C.L.R. 467). Counsel further argued 35 that the principle formulated applies here also with regard to thefixing of the price once it isa matter of public law. Indeed, counsel went on to add that 10 years later this Court decided in Said Galip v. the Minister of Interior and Another
(1974)3 C.L.R. 94, that the fixing of a reserve price, primarily aims at 649 Hadjianastassiou J. Republic v. M.D.M. Estate
(1982)serving a public purpose and therefore is administrative action not in the realm of private law. In HadjiKyriakos v. Hadjiapostolouand Others (supra), Forsthoff P., in delivering the judgment of the Court had this to say at pp. 90 - 91:5 "It isnotwithin theambitofthisreferencetodealingeneral with the whole question of the distinction between the domains of public and private law. Nor is it material, in the case under reference, to decide in general upon the constitutionality of section 80 of Cap. 224, in relation to 10 all orders, notices or decisions of the Director (as he is defined in section 2 of Cap. 224) because only an appeal against a decision of the Director under section 58of Cap. 224 is the subject-matter of civil application No. 4/
- Section 58 of Cap. 224 provides for the determination 15 bythe Director of disputes as to boundaries of immovable property. The determination of disputes as to boundaries of immovable property is a matter in the domain of privatelaw. In so far as a public officer, i.e. the Director in a case of 20 this nature, is vested with competence to take action in connection with the determination of such disputes as to boundaries, with the primary purpose of regulating private rights,thensuchactionisa matter inthedomain of private lawandnot inthedomainofpubliclaw; consequentlythis 25 is not a matter within the ambit of Article 146." In Valanas case (supra), Forsthoff P. had this to say at pp. 93 - 94:"What falls to bedecidediswhether theaction of Respondent complained of by Applicant amounts to an 'act' or 30 'decision' in the sense of paragraph 1 of Article
- Asstated inthe Decision ofthisCourt inCaseNo.23/62 (Achilleas Hadjikyriacou (supra) letter F p. 89), an 'act' or 'decision' in the sense of paragraph 1of Article 146 is an act or decision in the domain only of public law and 35 not an act or decision of a public officer in the domain of private law. Civil law rights in immovable property are, as a rule, matters in the domain of private law. 650 3 C.L.R. 5 10 15 Republic v. M.D.M. Estate Hadjianastassiou J . In so far as a public officer, in this case the Director, is vested with competence to take action in connection with civil law rights in immovable property, and the primary object of such action is not the promotion of a public purpose, but the regulation of the aforesaid civil law rights, then such action is a matter within the domain of private law and does not amount to an *act' or 'decision' in the sense of paragraph I of Article 146 In the circumstances of this case the Court has no competence to entertain this recourse under Article 146 and it is dismissed accordingly. It should be observed that there may be other cases under section 61 of Cap. 224 where the primary object of the action taken is the promotion of a public purpose and in all such cases this Court would have competence under • Article 146." In Nicolaides case (supra), TriantafyHides, J. (as he then was), in delivering his judgment, had this to say at p. 173:- 20 25 30 35 "In determining preliminary objection
(1)I have to decide whether the exercise of the paiticular power, under rule 89, has resulted in a decision or act in the domain of public law or in the domain of private law. If the latter is the case then it is clsar that no recourse,lies under Article 146, in view of the nature of the competence under such Article. (See Hadjikyriacou andHadjiApostolou, 3 R.S.C.C. p. 89 at p. 90 and Valana and the Republic, 3 R.S.C.C, p. 91 at p. 93). The same organ may be acting either in the domain of private law or in the domain of public law, depending on the nature of its action. This is clearly stated in the aforesaid two cases of Hadjikyriacou and Valana and has been, also, recognised under thejurisprudence of the Greek Council of State. (See Conclusions from the Jurisprudence of the Council of State, 1929-1959, p. 126). The function of Respondent under rule 89is one which, in my opinion, has as its primary object the promotion 651 Hadjianastassiou J. Republic >. M.D.M. Estate
(1982)of a public purpose viz. the proper functioning of co operative societies. Such an object has been treated as a characteristic of an act or decision in the domain of public law in Valana and the Republic (above)." In Cyprus Industrial & Mining Co. Ltd. (No. 1) v. The Re- 5 public
(1966)3 C.L.R. 467 on a preliminary point taken by counsel for the respondent it was said that the fixing of such reserve price is a matter of civil law and therefore it cannot be challenged by a recourse under Article 146 of the Constitution. Triantafyllides, P., in dealing with this point, had this to say at 10 p. 472:"It is, first of all, necessary to bear in mind that once an act or decision emanates from an organ of administration, then, as a rule, it is an 'act' or 'decision' within the ambit of a revisional jurisdiction such as the one laid down under 15 article 146 (vide Conclusions from the Jurisprudence of the Greek Council of State 1929-1959 p. 228). As the fixing of the reserve price in the present case has, no doubt, been made by an organ of administration, it follows that it should be looked upon to begin with, as an 20 'act' or 'decision' within Article 146, unless it is established that it only amounts to action in the domain of private law, thus being outside the sphere of administration and con sequently outside also the ambit of Article 146. Looking at the provisions of Cap. 223 as a whole - and 25 particularly at its long title which reads Ά law to restrict forced sales of immovable property in certain cases', and at the provisions of section 11 thereof, which renders the law inapplicable to rural areas - it does appear that the fixing of a reser\e price in cases of a public sale by auction 30 of mortgaged property is intended to ensure that rural properties shall not be allowed to be so sold at prices below their proper valuss. It is thus a measure intended to protect the rural community of Cyprus, by way of public policy; it is noteworthy in this respect that under Cap. 35 223 (see sections 4 and 7 thereof) a reserve price may be fixed even where a sale of immovable property has been ordered by a Court and such Court has not proceeded to fix itself a reserve price (as under section 40 of the Civil Procedure Law, Cap. 6). 40 652 3 C.L.R. 5 Republic v. M.D.M. Estate Hadjianastassiou J. I am, thus, of the opinion, that the fixing of a reserve price under Cap. 223 is an action which is primarily intended to serve a public purpose and, '.h;reforc, an "act' or 'decision' in tht realm of public law, and within the ambit of Article 146 of the Constitution." In Said Galip v. Minister of Interior and Another
(1974)3 C.L.R. 94 at p. 98,Triantafyllides, P. had this to say:- 10 15 20 "The mortgaged properties of the applicant, in the present case, are properties in a rural area; in other words. they are not in one of the urban areas to which, because of its section 11, Cap. 223 was inapplicable, except with the consent of the creditor concerned. I cannot agree with the view that the repeal of section 11 of Cap. 223, by section 8 of the Immovable Property (Restriction of Sales)(Amendmcnt) Law, 1966 (60/66), with the consequence that the distinction - in applying Cap. 223 between properties in rural and properties in urban areas was abolished, has resulted in the fixing of a reserve price not being any longer action primarily intended to serve a public purpose; in my opinion the abolition of the said distinction extended the scope of serving such public purpose, by including therein properties in urban areas as well." Finally, in a recent case, in loakim v. The Republic,
(1981)3 25 C.L.R. 603, Triantafyllides, P., dealing with the refusal of the respondent to review the amount which was fixed as the reserve price in respect of the sale by public auction of property of the applicant at Kalopanayiotis village, in relation to a mortgage debt due byher to theinterested party, had this to sayat p. 606:30 35 40 "As our law stands at present, it appears that when a decision fixing the reserve price is challenged, this Court has, prima facie, jurisdiction, under Article 146 of the Constitution to entertain a recourse against such decision (see Cyprus Industrial and Mining Co. Ltd. (No. 1) v. The Republic
(1966)3 C.L.R. 467, Galip v. The Minister of Interior andanother,
(1974)3 C.L.R. 94, M.D.M Estate Developments Ltd. v. The Republic
(1980)3 C.L.R. 54). The judgments in all these cases arc first instance judgments of Judges of this Court, but by means of Revisional Jurisdiction Appeal No. 223, which has been 653 Hadjianastassiou J. Republic ?. M.D.M. Estate
(1982)filed against the judgment in M.D.M. Estate Developments Ltd. v. The Republic
(1980)3 C.L.R. 54, the Supreme Court is being asked to hold that there is no jurisdiction to challenge by recourse the fixing of the reserve price in a case such as the present one; as, however, that appeal 5 is still being heard I have, for the time being, to take it that this Court possesses jurisdiction to entertain the present recourse of the applicant." It emerges from a study of the case law, arising from the long series of first instance judgments earlier referred to, that 10 thefixing of the reserve price is a matter in the domain of public law on account of the interest of the wider public in the outcome of the process. Consequently, it was repeatedly held that jurisdiction vests in the Supreme Court under Article 146 to take cognizance of the matter. The act possesses the 15 remaining insignia of an administrative act, it emanates from a body of public administration, in this case charged with the application of the provisions of Cap. 223. We have been invited to depart from this line of authority on the ground that the decision falls outside the domain of 20 public law. Essentially, we were asked to hold that the sub judice decision concerns primarily, if not exclusively, the debtor and creditor directly affected thereby. The interest of the wider public being of a general character, limited to insisting as in other areas, on the faithful application of the law. 25 The Immovable Property (Restriction of Sales) Law, Cap. 223, as one may gather from its provisions and the reasons that led to its enactment, is a piece of legislation that was principally intended to protect the property of farmers from sates at ruinous prices. At the time of the enactment of Cap. 30 223, and for many years subsequently, the value of land in rural areas and particularly the financial position of farmers, was of very grave concern to the public, considering that Cyprus was an intensely agricultural country, largely dependent on the productivity of farmers. Realities had changed consi- 35 derably since, a fact heeded by the legislature in 1966, by extending the application of the provisions of Cap. 223 to urban areas, equating thereby town and country properties for the purposes of the law. (See section 8 Law 60/66). This 654 3 C.L.R. Republic v. M.D.M. Estate Hadjianastassiou J. does not mean that Cyprus had ceased to be an agricultural country or that the position of farmers is no longer of interest to the public at large. But it signifies that the position of fanners is not, in comparison to other sections of the commu5 nity, as vulnerable as it used to be. The special association of Cap, 223 with land in rural areas and the financial position of farmers, has, as from 1966, ceased to exist. Consequently, it may be validly presumed that the interest of the public in the enforcement of the law has correspondingly declined, parti10 cularly its interest in the protection of farmers. We may also take stock of the fact that the number of forced sales of agricultural properties has, over the last decades, dropped appreciably in view of the improvement of credit facilities to farmers. 15 The question we must, therefore, resolve, is whether any valid grounds subsist for elevating a matter primarily affecting private rights into the realm of public law because of any special interest of the public in the proper enforcement of the particular piece of legislation. That the fixing of the reserve 20 price is otherwise a matter of private law, we are in no doubt considering its implications on the rights of debtor and creditor involved. The decision in Valanas supra, clearly establishes that decisions of the public administration relevant to the adjustment of private rights are pre-eminently matters of 25 private law. A recent decision of first instance, notably, Silentsia Farms v. Republic
(1981)3 C.L.R. 450, reinforces this view. In our judgment, the disappearance of the special interest of the public in the enforcement of Cap. 223, arising from its connection with rural properties and the financial 30 position of farmers, takes away that special interest of the public that might conceivably be invoked to render a decision fixing the reserve price to the jurisdiction of this Court. Therefore, for all the above reasons, the appeal isallowed, but we are not prepared to make an order for costs. 35 Appeal allowed. No order as to costs. A. Loizou J.: I am in agreement with the judgment just delivered by my brother Judge Mr. Justice Hadjianastassiou which I had the advantage of reading in advance and I have nothing to add. 40 SAWIDES J.: I, also, am in agreement with the judgment 655 Sav>ides J. Republic v. M.D.M. Estate
(1982)just delivered by my brother Judge Mr. Justice Hadjianastassiou which I had the advantage of reading in advance and to which I have nothing to add. TRIANTAFYLLIDES P.: In this case I have had the privilege of studying in advance the judgment which has just been de- 5 livered by my learned brother Mr. Justice Hadjianastassiou and though I agree with the view that the approach adopted in Valana v. The Republic, 3 R.S.C.C. 91, is still the correct approach, I will deliver a separate dissenting judgment because I do not agree with the way in which the ratio decidendi of the 10 Valana case, supra, is to be applied, in the present instance, to the matter of the reserve price which was fixed for the purposes of a compulsory sale, by public auction, in satisfaction of a mortgage debt of the respondents. That in the light of the judgment in the Valanacase, supra, 15 a decision of the Director of Lands and Surveys, in the exercise of his relevant discretionary powers, as regards the fixing of the sale of mortgaged property in satisfaction of a mortgage debt is a matter coming within the domain of private, and not of public, law appears to be well established in view of the 20 judgment in Charalambides v. The Republic, 4 R.S.C.C. 24, which was referred to with approval in, inter alia, the cases of Cyprus Industrial and Mining Co. Ltd. (No. 1) v. The Republic
(1966)3 C.L.R. 467, 471, Christodoulouv. The Republic,
(1970)3C.L.R. 38, 46 (and sec, also,on appeal Christodoulou v. 25 Republic,
(1970)3 C.L.R. 377), White Hills Ltd. v.The Republic
(1970)3 C.L.R.132, 134, Kourris v. The Supreme Council of Judicature,
(1972)3 C.L.R. 390, 401, Moustafa v. The Republic,
(1973)3 C.L.R. 47, 51,Galip v. The Minister of Interior,
(1974)3 C.L.R. 94, 96, Poyiadjis v. The Republic
(1975)3 30 C.L.R. 378, 384 and Silentsia Farms Ltd. v. The Republic
(1981)3 C.L.R. 450, 454. On the other hand, in the case of Cyprus Industrial and Mining Co. Ltd. (No. 1), supra, it was held that the fixing of the rcsei^e price for the purposes of sales by auction of mortgaged 35 properties in rural areas was a matter within the domain of public law, and the said case was referred to with approval in I.W.S. Nominee Co. Ltd. v. The Republic,
(1967)3 C.L.R. 582, 586, in Moustafa, supra, at p. 51,Galip, supra, at p. 96, Poyiadjis, supra, at p. 385, and by the learned trial Judge in 40 656 3 C.L.R. Republic τ. M.D.M. Estate Triantafyllides P. the present case (sec, M.D.M. Estate Developments Ltd. v. The Republic
(1980)3 C.L.R. 54). In the Galip case, supra, I took the view that the fixing of the reserve price for the purposes of a public sale, for the sa5 tisfaction of a mortgage debt, of a property in a rural area was still a matter in the domain of public law even after the Im movable Property (Restriction of Sales) Law, Cap 223, was amended by the Immovable Property (Restriction of Sales) (Amendment) Law, 1966 (Law 60/66), so as to delete therefrom 10 section 11, which rendered Cap. 223 applicable to rural areas outside the limits of the six main towns of Cyprus. In the present case, the mortgaged property is in an urban area, in Nicosia, and I cannot agree with the view that the fixing of the reserve price, in the present instance, during the 15 difficult times now prevailing, is not a matter in the domain of public law, especially when one bears in mind that the still continuing abnormal situation has rendered necessary the enactment of legislation such as the Debtors Relief (Tempo rary Provisions) Law, 1979 (Law 24/79), as amended by the 20 Debtors Relief (Temporary Provisions) (Amendment) Law, 1980 (Law 78/80). The pioperty involved in the present proceedings does not appear to come within the protection afforded by Laws 24/79 and 78/80 but I think that the situation which has rendered 25 necessary the enactment of such Laws shows that the fixing of the reserve price in relation to the compulsory sale, by public auction, of any immovable property is very much, indeed, a matter relevant to the public interest and should, therefore, be treated as coming within the domain of public 30 law in the light of cases, such as Cyprus Industrial and Mining Co. Ltd., supra, and Galip supra. 35 I, respectfully, observe that, unless 1am mistaken, the judg ment of Hadjianastassiou J., which is going to be the majority judgment in this case, will result in judgment debtors, who object to a reserve price, having no remedy before any Court, because there is not such remedy provided in Cap. 223, as amended by Law 60/66; nor would the remedy under section 657 Triantafyllides P. Republic v. M.D.M. Estate
(1982)80 of the Immovable Property (Tanure, Registration and Valuation) Law, Cap. 224, be available in a case such asthe present one because the remedy under the said section 80is available only in respect of decisions, orders or notices based on the provisions of Cap.224,as amended, inter alia, by the 5 Immovable Property (Tenure, Registration and Valuation) (Amendment) Law, 1980 (Law 16/80). For all the foregoing reasons I would dismiss this appeal. TRIANTAFYLIDES P.: In the result this appeal is allowed by majority, but there shall beno order as to its costs. 10 Appeal allowed. Noorder asto costs* 658