clr/1983/1983_3_1397.pdf

(1)ofthe Streets and Buildings Regulation Law, Cap. 96. 10 15 20 On tlie question wliether the recourses have been abated, as having been deprived of tlteir subject-matter due to thefact that the sub judice Notices have, in the meantime, been revoked: Held,that where an act of limited duration has ceased to exist without having produced, before ceasing to be operative, any adverse consequences for the applicant the recourse which was made against it is abated, because if there are no adverse consequences of such an act no need to annul it, in view of the provisions of Article 146.6, would arise; that as while the sub judice Notices were operative the applicants may, quite probably have been adversely affected in the sense that they were prevented from developing their properties otherwise than subject to the restrictions set out in such Notices; and that as in relation to applicant in Case No. 98/77 parts of his two properties, affected by the sub judice Notices, werecompulsorily acquired, while 1397 Agrotis v. Republic

(1983)such Notices were still operative; and as it cannot be excluded that the restrictions which were imposed by the sub judice Notice and which were in force at the material time in relation to the properties in question of the applicant in Case 98/77, may bea faaor to betakenintoaccount inassessingtheamount 5 ofcompensation payabletohimin respectofthepartscompulsorily acquired as aforesaid, these recourses have not been abated and should be heard further. Order accordingly. Cases referred to: Frangos v. Republic

(1970)3 C.L.R. 312 at p. 334; Kyriakides 10 v. Republic, 1 R.S.C.C. 66 at pp. 74-75; Christodouhu v. Republic

(1978)3 C.L.R. 193 at p. 197; Platis v. Republic

(1978)3 C.L.R. 384 at p. 394; Hapeshisv. Republic

(1979)3 C.L.R. 550; 15 Maliotisv. Municipality of Nicosia

(1965)3 C.L.R. 75 at pp. 94, 95; Vafeadesv. Greek CommunalChamber

(1966)3 C.L.R. 197 at p. 199; Andreou v. Republic

(1975)3 C.L.R. 108 at p. 110; 20 Manglisv. Republic (Case No. 197/72 etc., not reported yet); Decisions of the Greek Council of State Nos: 1101/1975, 1265/1956 and 701/

1. Decision. Decision as to whether the recourses filed against two notices 25 in respect of building zones have been abated, as having been deprived of their subject-matter, due to the fact that they have, in the meantime, been revoked. A. Ladas, for the applicant in Case No. 98/
2. /. Typographos, for the applicants in Cases Nos. 101/77 30 and 102/
3. R. Gavrielides, Senior Counsel of the Republic, for the respondents. K. Chrysostomides, for the Municipal Committee of Paphos. Cur. adv. vult. 35 TRIANTAFYLLIDES P. read the following decision. At this stage of the present proceedings I have to decide whether these recourses have been abated, as having been deprived of their 1398 3 C.L.R. Agrotis \, Republic Triantafyllides Ρ subject-matter, due to the fact that the building zones Notices, in respect of which they were made, have, in themeantime, been revoked. 5 10 The first of the said two Notices, against which cases 98/77 and 102/77 have been filed, was published on 7th January 1977 (No. 2 in the Third Supplement, Part 1, to the Official Gazette, to be referred to hereinafter as "Notice 2/77") under section 14

(1)of the Streets and Buildings Regulation Law, Cap. 96, as amended, in this respect, by the Streets and Buildings Regu^ lation (Amendment) Law, 1964 (Law 65/64) and by the Streets and Buildings Regulation (Amendment) (No. 2) Law, 1969 (Law 38/69). Notice 2/77 was repealed and replaced by a new Notice the validity of which is not being challenged in the present 15 proceedings and which was published on 7th August 1981, also under section 14

(1)of Cap. 96 (No. 180in the Third Supple. ment, Part I, to the Official Gazette, to be referred to here­ inafter as "Notice 180/81"). The other one of the two Notices in question, against which 20 case 101/77 has been filed, was likewise published under section 14

(1)of Cap. 96 again on 7th January 1977 (No. 1in the Third Supplement, Part 1, to the Official Gazette, to be referred to hereinafter as "Notice 1/77") and was repealed and replaced by a Notice published on 31st August 1979, also under section . 25 14

(1)of Cap. 96 (No. 199 in the Third Supplement, Part I, to the Official Gazette, to be referred to hereinafter as "Notice 199/79"). Notice 199/79 is not being challenged in the present proceedings. 30 35 As this Courthas constantly in thepast relied on relevant principfes of administrative law which were expounded in Greece (see, for example, Frangos v. The Republic,

(1970)3 C.L.R. 312, 334), I have been invited to hold that once the Notices against which these recourses have been made have ceased to exist the present recourses have been deprived of their subject-matter and in accordance with principles applicable in Greece they have to be treated as having been abated; and I have been referred, in this respect, to the Conclusions from the CaseLaw of the Council of State in Greece (Πορίσματα Νομολογία* τοΰ Συμβουλίου της Επικρατείας), 1929-1959, pp. 275, 276, 1399 TriantafyHides P. Agrotis v. Republic

(1983)Tsatsos on The Recourse for Annulment before the Council of State (Τσάτσου, Ή Αίτησις 'Ακυρώσεως ενώπιον τοϋΣυμ­ βουλίου της Επικρατείας), 3rd ed., ρ. 370, para. 188, and the Manual of Administrative Law by Spiliotopoullos (Σπηλιωτοπούλου, Έγχειρίδιον Διοικητικού Δικαίου), 2nd ed., p. 454, para. 505—(from which it appears that the relevant principle was given also staturory effect in Greece)—as well as to the Decision of the Council of State in Greecein case No.1101/1975 (reported in "The Constitution" (To Σύνταγμα), 1976, vol. 2, p. 77). 5 Even in Greece,however, the revocation of an administrative act deprives an administrative recourse, which has been made against it, of its subject-matter only if such revocation has obliterated completely the adverse for the applicant conse­ quences which occurred while the act was in force (see, in this 15 respect, inter alia, Tsatsos supra, p. 371, para. 188, Spilioto­ poullos, supra, p. 455, para. 505, subparagraph (vi), and the Decisions of the Greek Council of State in cases Nos. 1265/1956 and 701/1970). The position in Cyprus is somewhat different in this connect- 20 ion from that in Greece because as it is to be derived from the aforementioned Decision of the Council of State in Greece, No. 1101/75, an applicant whose recourse has been abated through the repeal or revocation of the act concerned can claim compensation before a civil Court for any damage suffered by 25 him while such act was operative, whereas in Cyprus, in view of paragraph

(6)of Article 146 of our Constitution,the annul­ ment by this Court under Article 146 of the administrative act which has caused damage to the applicant is a prerequisite for a claim by him for compensation in respect of such damage; 30 the said paragraph

(6)reads as follows: "

1. Πάν πρόσωπον ζημιωθέν έξ αποφάσεως ή πράξεως ή παραλείψεως κηρυχθείσης άκυρου κατά την τετάρτην παράγραφον τοΰ παρόντος άρθρου δικαιούται, έφ* όσον ή άξίωσις αύτοΰδέν ίκανοποιήθη Οπότοΰ περί ου πρόκειται 35 οργάνου, αρχής ή προσώπου, νά επιδίωξη δικαστικώς άπρζημίωσιν fjj άλλην θερσπείαν επί τ φ τέλει, όπως έπιδίκασθη είς τοϋτο δικαία καΐ εύλογος άποζημίωσις καθορι­ ζομένη Οπό τοϋ δικαστηρίου ή παρασχεθη είς τοϋτο άλλη 1400 10 3 C.L.R. Agrotis v. Republic TriantafylHdes P. δικαία και εύλογος θεραπεία ήν το δικαστήριον έχει την έξουσίαν νά παράσχη". 5 10 (
2. Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satis­ faction by the organ, authority or person concerned, to institute legal proceedings in a Court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the Court or to be granted such other just and equitable remedy as •such Court is empowered to grant"). In Kyriakides v. The Republic, I R.S.C.C. 66, the following were stated (at pp. 74-75): 15 20 25 "The Court is of the opinion that no question of parallel legal remedies can arise through the correlation of Articles 146 and
3. Article 172 lays down the general principle that the Republic is made liable 'for any wrongful act or omission causing damage committed in the exercise or purported exercise of the duties of officers or authorities of the Re­ public'. It is clearly aimed at remedying the situation existing before the coming into force of the Constitution whereby the former Government of the Colony of Cyprus could not be sued in tort. The principle embodied in Article 172 has been given effect, inter alia, in the Constitution by means of para­ graph 6of Article 146 inrespect of all matters coming within the scope of such Article
4. 30 35 Therefore, in the opinion of this Court, in respect of all wrongful acts or omissions referred to in Article 172 and which acts or omission come within the scope of Article 146 an action for damages lies in a civil Court only under paragraph 6 of such Article, consequent upon a judgment of this Court under paragraph 4 of the same Article, and in such cases an action does not lie direct in a civil Court by virtue of the provisions of Article 172". (and see, further, also, inter alia, ChristodouUdes v. TheRepublic, 1401 Triantafyllides P. Agrotis v. Republic

(1978)3 C.L.R. 193,197,Platis v. TheRepublic,

(1978)3C.LR. 384, 394 and Hapeshis v. TheRepublic,

(1979)3 C.L.R. 550). Of course, in Cyprus the principle has been duly followed, as in Greece, that where an act of limited duration has ceased toexist without havingproduced,beforeceasingtobeoperative, 5 any adverse consequences for the applicant the recourse which was made against it is abated, because if there are no adverse consequences of such an act no need to annul it, in view of the provisions of Article 146.6, wouldarise (see,inter alia, Maliotis v. The Municipality of Nicosia,

(1965)3 C.L.R. 75, 94, 95, 10 Vafeadesv. The Greek Communal Chamber,

(1966)3 C.L.R. 197, 199 and Andreou v. The Republic,

(1975)3 C.L.R. 108, 110). It is very pertinent to refer in this respect to the judgment of Manglisv. TheRepublic (in cases 197/72 etc., not reported 15 yet), where the Full Bench of this Court held that in circumstances which areexactly thesame asthose ofthepresent cases the recourses which were made against repealed and replaced Notices published under section 14

(1)of Cap. 96had not been abated, because while the said repealed Notices were in force 20 theyseemedtohaveaffected legitimateinterestsoftheapplicants and, also, because in each one of the new subsequent Notices, by means of which they were repealed, there was a paragraph

(7)stating expressly that theearlier Notices were repealed without prejudice to anything done or omitted to be done under 25 them; and the same paragraph

(7)is to be found in the aforementioned Notices 199/79 and 180/81, which have repealed, respectively, the sub judice Notices 1/77 and 2/77. Indeed, in the present cases while Notices 1/77 and 2/77, above, were operative the applicants may, quite probably, 30 have been adversely affected in the sense that they were prevented from developing their properties otherwise than subject to the restrictions set out in such Notices; and in relation to the applicant in case No. 98/77 it has to be observed, also, that parts of his two properties in Paphos, which were affected 35 by Notice 2/77 were compulsorily acquired, while such Notice was still operative and prior to its repeal by Notice 180/81 (see No. 1046in the Third Supplement, Part II, to the Official Gazette of 6th October 1978 and No. 80 in the Third Supple1402 3 CUR. Agrotis v. Republic Triantafyllides P. ment, Part II, to the Official Gazette of I8th January 1979); and, to say the least, it cannot be excluded that the restrictions which were imposed by Notice 2/77, and which were in force at the material time in relation to the properties in question of 5 the applicant in case 98/77, may be a factor to be taken into account in assessing the amount of compensation payable to him in respect of the parts compulsorily acquired as aforesaid. In view of the foregoing reasons I find that these recourses have not been abated and should be heard further. 10 Order accordingly. 1403