(1983)1983 March 29 [PIKIS, J.] IN THE MATTER OF ARTICLE 146 OFTHE CONSTITUTION TH. PAPAEFSTATHIOU AND OTHERS, Applicants, v,
- THEREPUBLIC O F CYPRUS, THROUGH THE DISTRICT OFFICER NICOSIA, AS CHAIRMAN OF THE IMPROVEMENT BOARD OF STROVOLOS,
- THE MINISTER OF INTERIOR, THROUGH THE DISTRICT OFFICER, NICOSIA,
- THE DISTRICT OFFICER, NICOSIA, Respondents. (Case No. 276/82). and THEIMPROVEMENT BOARDOFSTROVOLOS, Applicants. v.
- THEREPUBLIC OF CYPRUS, THROUGH THE DISTRICT OFFICER NICOSIA, AS CHAIRMAN OF THE IMPROVEMENT BOARD O F STROVOLOS,
- THE ΜINISTER OF INTERIOR, THROUGH THE DISTRICT OFFICER, NICOSIA,
- THE DISTRICT OFFICER, NICOSIA, Respondents. (Case No. 277/82). Legitimate interest—Article 146.2of the Constitution—Local Author ities—Improvement Boards and individualmembers of—Whether vested with legitimate interest to challenge acts of the Central Government affecting the interests of the Improvement Board. Time within whichtofile a recourse—Article 146.3of the Constitution 434 3 C.L.R. 5 10 20 25 30 35 Imp. Board Strovolos v. Republic —Decision of Minister of Interior, under section 4
(3)of the Petrol Stations Law, 1968, granting permit for the construction of petrol station—Licensing Authority, under the Law, declining to issue permit and permit issued by District Officer—Only the issue of the permit an executory act—Time for the purposes of the above article begins to run after issue of permit. Administrative Law—One cannot create a legitimate interest for judicial review out of hh own illegal act—Refusal of Licensing Authority under the Petrol Stations Law, 1968 to implement decision of Minister taken under J.4{3) of the Law, for the grant ofpermit to interestedparties to construct apetrol station—Licensing Authority estopped from challenging by recourse issue of the permit by the District Officer. On 17.8.1979 the interested party applied for permission to construct a petrol station in the Strovolos area. It was submitted to the licensing authority, the Improvement Board of Strovolos. As required by s.4
(2)of the Petrol Stations Law, 1968, Law 94/68, the Licensing Authority passed on the application to the consultative bodies, named in the law, for their views before deciding on the merits of the application and they all opined in favour of granting a permit. Thereafter, the Licensing Authority met to examine the application and decided to refuse a permit. In the event of a disagreement between the Licensing Authority and the consultative bodies respecting the outcome of the application, the Law constituted the Minister of the Interior the sole arbiter of the fate of the application (see section 4
(3)of Law 94/68 (as amended by Law 7/72). True to this duty, the Licensing Authority referred the application to the Minister for decision. On 10.10.1980 the Minister of the interior decided to grant the permit and communicated his decision forthwith to the Licensing Authority which, on 11.10.1980 decided not to implement the decision, disregarding it in effect, thereby attempting to neutralise it by inaction. On 26.4.1982 the District Officer of Nicosia faced with the refusal of the Improvement Board of Strovolos as Licensing Authority to give effect to the decision of the Minister, took it upon himself, presumably acting on instructions to resolve the conflict by issuing the permit applied for. Hence these 435 Imp. Board Strovolos v. Republic
(1983)recourses by the individual members of the Board and by the Improvement Board. Held, (I) on the question of the legitimacy of the Interest. in the sense of Article 146.2 of the Constitution, of Members of the improvement Board of Strovolos to challenge the sub judice decision: 5 For an interest to be legitimate in the sense of Article 146.2 of the Constitution it must be direct or personal interest. A member of an association may challenge an act or omission whenever the decision affects his status, duties and responsi- 10 bilities. Each and every member had an interest that the Chairman of the Board, the District Officer and the Acting District Officer who deputised in his stead, should not assume duties other than those entrusted to the Chairman of the Improvement Board by law. In law, the powers vested in the Chairman in 15 virtue of s.10, Cap. 243, are confined to execution of decisions of the Board; that each and every member of the Board has a personal interest in the manner that decisions of the Improvement Board are taken. Any unauthorised act by a member of the Board, in this case the Chairman, attributed to the Board, 20 amounted to a usurpation of their powers and an act ousting them of their position. And in the case of elected members of the Improvement Board, it superseded their political mandate to exercise the functions of a member of the Improvement Board. The decision complained of was in short an act of usurpation 25 of their legal duties and political mandate. It offended directly the interests of every member to be, collectively with fellow members, the custodian of the powers vested in the Licensing Authority by the Petrol Stations Law. The objection to the justiciability of the recourse, on grounds of lack of interest on 30 the part of members of the Improvement Board fails. (II) On the question of the legitimacy of the Interest of the Improvement Board of Strovolos: Local authorities are expected, within the sphere of their responsibilities and always subject to their authority under the 35 law, to giveeffect to what appears best for the locality they serve. There may be a conflict between the wider needs of the country, safeguarded by central administration and local needs. Inasmuch as political responsibility for the acts of local authorities 436 3 C.L.R. 5 10 Imp. Board Strovolos v. Republic does not vest in the central government, legal means must be provided for resolving a conflict, if there is any, between organs of central and local administration. Consequently, in an appropriate case, a recourse may be taken by an improvement board against organs of central government for the review of the legality of their actionsaffecting theinterests of theimprovement board. Accordingly the Improvement Board had a legitimate interest to challenge the grant, by the Ag. District Officer of a permit to the interested party. Hence the challenge to the validity of the recourse on this account, is ill-founded. (III) On the questionwhetherthe recourse was fled within thetimelimitof 75daysprovided byArticle 146.3of the Constitution 15 20 25 30 Thatonlyexecutory actscanbemadethesubject ofarecourse. Executory is an act that produces legal consequences; an act definitive of the rights of a person vis-a-vis the administration or any other body. Within the context of the Petrol Stations Law, only the issue of a permit confers a right to construct a petrol station. If the interested party attempted to construct astationwithoutapermitinvirtueofthedecisionoftheMinister of the Interior, their acts would be unauthorised and illegal. The issue of a permit made possible what was not otherwise legally permissible. The decision of the Minister paved the way for the grant of a permit but did not settle the fate of the application. And, as far as the interests of the Improvement Board of Strovolos were concerned, it was the decision of the Ag. District Officer, granting a permit that amounted to a usurpation of their rights and effectively deprived them of , theirauthority toissueapermit. Therefore, therecoursecannot be faulted on this ground either. (IV) On the question whether the applicants in bothor either recourse wereestoppedfrom makinga recourse because oftheir ownomission to carryout their duty under the lawthat required them to implementthe decision of the Minister: 35 40 That it is an acknowledged principle of administrative law that one cannot create a legitimate interest for judicial review out of his own omissions; that, further, one cannot generate a cause of action out of his own ill-doing; that in examining the legitimacy of the interest of an applicant in proceedings under Article 146,the Court must go to the core of the.matter and not restrict the inquiry to the subjudice act. The Court 437 Imp. Board Strovolos v. Republic
(1983)mustdelveintotheoriginofthematter. After all,therevisional jurisdiction of the Court is intended to ensure and entrench the supremacy of the law. Law would hardly reign supreme if the outcome of a successful recourse were to sustain perpetuation of an illegal state of affairs. One cannot build a 5 right upon an illegal act. The right collapses for, an interest to be legitimate and justiciable, it must have a lawful origin. It was the duty of the Improvement Board, as well as that of the applicants individually, to implement the decision of the Minister of the Interior, notwithstanding their reservations 10 about the expediency and propriety of granting a permit to the interested party. Their recourses will therefore, be dismissed. Any other course would be a reward for their illicit omission. Percuriam: Nothing said in this judgment should encourage the 15 respondentstousurpthepowersofImprovementBoards. In myjudgment, the decision of the Ag. District Officer to grant a permit to the interested party, was an act in excess and abuse of his powers. , Applications dismissed. 20 Cases referred to: Demetriou v. Republic, 1 R.S.C.C. 99; CyprusPolice Association v. Republic
(1974)3 C.L.R. 152; Bar Association of Nicosiav. Republic
(1975)3 C.L.R. 24; Pitsillos v. C.B.C.
(1982)3 C.L.R. 208; 25 Minister ofFinance v.Public Service Commission
(1968)3C.L.R. 691; Ozturk v. Republic, 2 R.S.C.C. 35; Marcoullides v. Republic,3 R.S.C.C. 30; Yiannaki v. Republic
(1965)3 C.L.R. 561; 30 Decisionsof the Greek Councilof State Mu:223/60, 779/60, 483/56 and 482/35. Recourses. Recourses against the decision of the respondents whereby a permit under the Petrol Stations Law (Law 94/68) was issued 35 to Mobil Oil Cyprus Ltd. P. Polyviou, for the applicants. A. VladhimiroUy for the respondents. A. Dikigoropoulos, for the interested party. Cur. adv. vult. 40 438 3 C.L.R. Imp. Board Stnnolos \. Republic Pikis J. PIKIS J. read the following judgment. The co-operation envisaged by law between the representatives of central administration—the District Officer or his Deputy and, thelocal members of the Improvement Board of Strovolos—broke down 5 givingrise to achain of eventsthat culminated inthe institution of the present proceedings. It seems that the District Officer of Nicosia or his deputy, faced with the refusal of the Improvement Board of Strovolos as licensing authority under the Petrol Stations Law—Law 94/68, to give effect to the decision of the 10 superior authority of his Ministry, the Minister of the Interior, took it upon himself, presumably acting on instructions, to resolve the conflict by issuing the permit·applied for. No law or regulation conferred upon the District Officer the power he assumed. The powers conferred upon the District Officer 15 as Chairman of the Improvement Board by s.10 of the Villages (Administration and Improvement) Law, Cap. 243,are limited to the implementation and execution of decisions of the Board. Therefore, the issue of the permit by the District Officer or his deputy, was an unauthorised act in usurpation of the powers 20 of the Improvement Board of Strovolos. Confronted with this abuse of their authority, the Improvement Board decided, at a meeting held on 2.7.1982,to challenge the decision asvoid. Thedecisionwasunanimous,exceptfor thedissent of itsChairman, the Acting District Officer of Nicosia. Also themembers 25 of the Board regarded the decision as offensive to their position as members of the Board, so they had recourse to this Court in order to vindicate their status and authority, as members of the Board, by the annulment of the same decision. The tworecourseshad acommon end, theannulment ofthedecision 30 of the District Officer embodied in the grant of a permit dated 26.4.1982 to Mobil Oil Cyprus Limited, the interested party. Therecourseswereopposed ontheground that the applicants in neither case possessed the legitimate interest required by Article 146.2 to seek judicial review of administrative action. 35 The validity of the recourses was questioned on another score as well: Failure to raise them within 75 days, a prerequisite for the exercise of the revisional jurisdiction of the Supreme Court under Article 146.3 of the Constitution. The two recourses wereheard together as they were directed 40 againstthesameactandraisedmanysimilar,andsomeidentical, questions for decision* 439 Pikis J. Imp. Board Strovolos v. Republic
(1983)Thedispute arose in the following circumstances: The interested party applied on 17.8.1979 for permission to construct a petrol station in the Strovolos area. It was submitted to the licensing authority, the Improvement Board of Strovolos. As required by s.4
(2)of Law94/68,the Licensing Authority passed 5 on the application to theconsultative bodies, named in the law, for their views before deciding on the merits of the application. After some time and a degree of prevarication on the part of at least one of those consulted, they all opined in favour of granting a permit. Thereafter, the Licensing Authority met 10 to examine the application. They decided to refuse a permit. In the event of a disagreement between the Licensing Authority and the consultative bodies respecting the outcome of the application, the Law constituted the Minister of the Interior the sole arbiter of the fate of the application. Section 4
(3)15 of Law94/68 (as amended by Law 7/72), provided, in theevent of conflict of opinion between the aforesaid authorities as tothepropriety ofgrantingorwithholdingapermit, thedecision should rest with the Minister of the Interior. True to this duty, the Licensing Authority referred the application to the 20 Minister for decision. On 10.10.1980 the Minister of the Interior decided to grant the permit and communicated his decision forthwith to the Licensing Authority. It is evident that the Licensing Authority was alarmed by the decision and apparently took exception to the Minister overriding their 25 views on a matter affecting the area under local administration. The situation wasreviewed at a meetingheld theday following, on 11.10.1980. They decided not to implement the decision, disregarding it in effect, thereby attempting to neutralise it by inaction. Notwithstanding thepower vested in the Minister 30 under s.4
(3)to decide the fate of an application in the circumstances outlined above, power to issue a permit remained with the Board, in virtue of the provisions of s.4{4) and s.6 of Law 94/68 (as amended). Faced with the persistent refusal of the Licensing Authority 35 to implement his decision, the Minister sought advice from the Office of the Attorney-General. In response thereto, Mr. Loucaides, Deputy Attorney-General, advised the Minister therewasnomachineryinlawtocompeltheLicensingAuthority to implement the decision of the Minister, bound though they 40 440 3 C.L.R. Imp. Board Strovolos v. Republic Pikis J. were to do so. He pointed out, however, that the interested party was not remediless but could challenge the decision by a recourse under Article 146.1 of the Constitution. Also, he hinted at criminal proceedings against those members of the 5 Board whorefused tocarry out their dutiesfor disobedience of lawful orders under-ss. 136and 137of the Criminal Code. In fact, criminalproceedingsweretakenagainstthemembersofthe Board; later they were discontinued by the entry of a nolle prosecui. Thediscontinuanceofcriminalproceedingsconcided, 10 itseems,withtheissuebytheDeputyDistrictOfficer ofapermit, , a drastic course of action taken to resolve the impasse. Whythe advice of Mr. Loucaideswasnot heeded to theend, is not altogether clear. Apparently, a second opinion was receivedfrom anotherofficer servingintheOffice oftheAttorney 15 -General, advising it was competent for the District Officer to dispose of the omission of the Licensing Authority byissuing a permit in the manner he did. The questions raised for decision are the following, in order of logical priority:20 (a) Was it competent for the members of the Board (Applicants in Recourse 276/82) to challenge the sub judice decision? 25 Theanswerdepends onwhether thedecision affected a legitimate interest of the applicants in the sense of Article 146.2 of the Constitution. 30 (b) Did the Licensing Authority (Applicants in Recourse 277/82)havealitigablecausetheycouldpursueinlaw? Again the answer depends on whether the decision of theDistrict Officer affected a legitimate interest of the Improvement Board of Strovolos. '(c) Were the recourses taken in time? Theanswerdependsonthenatureoftheactof26.4.80. If executory, the recourse was taken in time but not otherwise. 35 (d) Are the applicants in both or either recourse estopped from making arecoursebecauseoftheir ownomission to carry out their duty under the law that required them to implement the decision of the Minister? 441 Pikis J. Imp. Board Strovolos v. Republic
(1983)The Legitimacy on the Interest of Members of the Improvement Board of Strovolos to challenge the subjudice decision: The concept of legitimate interest in the context of Articiu 146.2 has, on no occasion been exhaustively defined in Cyprus. But it is settled that, for an interest to be legitimate in the sense 5 of the aforesaid article, it must be a direct or personal interest. (See, inter alia, Menelaos Demetriou as Chairman of C.B.C. Staff Society and/or personally v. Republic, through The Public Service Commission, 1 R.S.C.C. 99; Cyprus Police Association v. The Republic
(1974)3 C.L.R. 152; The Bar Association of \Q Nicosia etc. v. The Republic
(1975)3 C.L.R. 24). In Pitsillos v. The C.B.C.
(1982)3 C.L.R. 208, it is pointed out that despite trends in other jurisdictions, especially France, an interest is not legitimate in the sense of Article 146.2, unless it is direct or personal. We pointed out that, subject to certain exceptions, 15 unless the decision has direct implications on the interests of the applicant, he has no right to a recourse. These exceptions mostly concern the rights of members of corporate or unincorporated bodies or associations to raise a recourse where their rights as members, as distinct from the rights of the asso- 20 ciation as such, are prejudiced by a decision. Extraordinarily, they may be held justified to raise a recourse on behalf of the body if there isa real risk ofthe interests of the body in question being defeated because of inaction on the part of the management. The trend in Greece isto broaden the right of a member 25 of an association to raise a recourse by relaxing to an extent the element of directness necessary tojustify judicial review. It has been held that a member of an association may challenge an act or omission whenever the decision affects his status, duties and responsibilities as a member of an association. A right tojudi- 30 cial review was acknowledged to a professor, member of an academic body, to challenge a decision of the Board regarding an award prejudicial to his position, notwithstanding the fact that his interest as a member of the school was not questioned. (See, Tsatsos - Application for Annulment before the Greek 35 Councilof State, 3rd ed., p.59 - Instructive on the subject are the cases under 223/60 and 779/60). The interest affected by the decision complained of, need not qualify as a positive right, in the sense of a right actionable per se, in order to justify a recourse. (See, Tsatsos supra, p.44). 40 442 3 C.L.R. Imp. Board Strovolos v. Republic Pikis J. As we pointed out in Pitsillos supra, the path tojudicial review shouldnot beblocked, unlessinevitable,inviewoftheprovisions of Article 146.2. What interests of members ofthe Board wereactually offended 5 or affected by the decision in question? Each and everymember had an interest that the Chairman of the Board, the District Officer and the Acting District Officer who deputised inhis stead, should not assume duties other than those entrusted to the Chairman of the Improvement Board by law. 10 In law, the powers vested in the Chairman in virtue of s.10, Cap.243, are confined to execution of decisions of the Board. Each and every member of the Board has a personal interest in the manner that decisions of the Improvement Board are taken. Any unauthorised act by a member of the Board, in this 15 case the Chairman, attributed to the Board, amounted to a unsurpation of their powers and an act ousting them of their position. And in the case of elected members of the Improvement Board, it superseded their political mandate to exercise the functions of a member of the Improvement Board. The de20 cision complained of was in short an act of usurpation of their legal duties and political mandate. It offended directly the interestsofeverymember tobe,collectivelywithfellowmembers, the custodian of the powers vested in the Licensing Authority by the Petrol Stations Law. The objection to the justiciability 25 of the recourse, on grounds of lack of interest on the part of members of the Improvement Board, fails. The Legitimacy of the Interest of the Improvement Board of Strovolos to raise Recourse 277/82: Objection to the amenability of the recourse of the Improve30 ment Board to review, stems from the principles adopted by the Supreme Court in Minister of Finance v. Public Service Commission
(1968)3 C.L.R. 691. Theprinciple adopted was that an organ of public administration cannot challenge a decision of another organ or authority ofpublicadministration for much the 35 same reasons that were found by the Greek Council of State to justify a similar approach in Greece.. Mr. Vladhimirou for the respondents, suggested that the principle in the aforesaid case is fatal to the validity of the proceedings. 443 Pikis J. Imp. Board Strovolos v. Republic
(1983)Mr. Polyviou for the applicants, argued that the decision in MinisterofFinancesupra,validthough itisinthearea itcovers, itisinapplicable inthepresent casebecause ofdifferences inthe factual situationand thenature ofthebodiesconcerned and, for that reason, it should bedistinguished. Theprinciple emerging 5 from the aforesaid case should be limited to recourses among organs of central administration. No compelling reasons justify extensionoftheprincipletobodiesoflocaladministration. The conflicting arguments advanced are finely balanced. Unaided by direct Cyprus authority on the subject, as to the 10 competence of a local authority to challenge a decision of an organ of central administration, considerations relevant to the policy of the law acquire especial significance. In Greece, where thejurisdiction of the Council of State is comparable to that of the Supreme Court under Article 146,recoursesby local 15 authoritiesagainst actsof organsofcentraladministration,have been held to be entertainable where interests of the local administration, as distinct from those of local residents, are affected in consequence of a givendecision. (See, Tsatsos ~ Application for Annulmentbefore theGreek CouncilofState,3rded., 57and, 20 Decisions of the Greek Council of State, Vol.A, 1956 - /J.613, Decision 483/56). The reasoning behindGreek case-law on the subject is, as I understand it, that there is objectively sufficient division of interests between organs of central and local administration, as to justify judicial review as an avenue for the 25 determination of a dispute in the event of conflict of interests. In France, the revisionaljurisdiction reposed in the Council of State iswider than that vested inadministrativeCourtsineither Greece or Cyprus. The Court can take cognizance of a recourse not only by an organ of local administration but by an 30 organofcentraladministrationagainstanothercentralauthority. Before attempting to answer the question, we may note that it has been authoritatively settled that the word "person",in the context of Article 146.2, includes a public authority (see Turhan M. Ozturk v. TheRepublic, 2 R.S.C.C. 35and, Andreas 35 Antoniou Marcoullidesv. The Republic,3 R.S.C.C. 30). The question ultimately turns on the existence, if any, of satisfactory reasons for making a distinction between the right of an authority of central administration and a body of local 444 3 C.L.R. Imp. Board Strovolos v. Republic Pikis J. administration to pursue a recourse against a decision of an organ of central government. It is in the public interest to maintain unity of purpose and coherence in policy, among organs of central administration. Ultimately, political respon5 sibility for their actions lies with the same body, that is, the government of the country. Such conflicts asmay exist, must beresolved bytheemploymentof internalmechanismsthat may be devised, as government may deem necessary, for the coordination of its policies. 10 Improvement Boards are authorities of local administration, manned in part by elected representatives of the inhabitants residingin the area ofitsadministration. Theirprimary aim is to sustain and promote the interests of the locality within the sphere of their authority. For the discharge of their duties, 15 theybearpolitical responsibility tothosethat electedthem,~that is, to represent them on the Board. Improvement boards are not, in any sense, organs of central administration. Membershipof an officer of central administration, such as the District Officer, exofficio Chairman of the Board, doesnot subordinate 20 Improvement Boards to central government. In his capacity asChairman,theDistrictOfficer is,likeanyothermemberofthe Board,entrusted withdutiespertinent toregional administration and must act with that end in mind. Local government and bodiessetupforthepurposes,aredesignedtodiffuse theexerci25 seofgovernmentalpowersintheinterestsofwiderparticipation by the citizenry in the affairs of the country. The democratic process isbest served by theeffective institutionalisation of this participation. The entrustment of local affairs to bodiesof local government composed, be it in part as in the case of the 30 Improvement Boards, by elected representatives of the community, is certainly a process that serves democratic rule. Local authorities are expected, within the sphere of their responsibilities and always subject to their authority under the law, to give effect to what appears best for the locality they 35 serve. There maybe a conflict between thewider needs of the country, safeguarded by central administration and localneeds. Inasmuchaspoliticalresponsibility for theactsoflocalauthoritiesdoesnotvestinthecentralgovernment,legalmeansmustbe provided for resolving aconflict, ifthereisany,betweenorgans 40 ofcentralandlocaladministration. Consequently,inanappropriate case,a recoursemay be taken byan improvement board 445 Pikis J. Imp. Board Strovolos v. Republic
(1983)against organsofcentralgovernment for thereviewof thelegality of their actions affecting the interests of the improvement board. What happened in effect in this case, was that an organ of central government -theDistrict Officer or theofficer actingon 5 his behalf, organs subordinate to the Minister of the Interior usurped the powers of the Improvement Board of Strovolos, ousting them thereby of their authority under the law. Consequently, they had a legitimate interest to challengethe grant, by the Ag. District Officer of a permit to the interested party. 10 Hence the challenge to the validity of the recourse on this account, is ill-founded. Timeliness of theRecourse: On behalf of the respondents we were invited to rule that the proceedings were taken out of time because the issuing of the 15 permit was nothing other than an act of execution. The only executory decision was that of the Minister of 10.10.1980 and, inasmuch as it was not challenged, any attempt for its review after the lapse of 75days, isprecluded by the time limit of 75 dayssetupbyArticle 146.3oftheConstitution. For theappli- 20 cantsitwassubmitted that thedecisionoftheMinister wasnot in itself executory, an inchoate administrative act, paving the way for the grant of a permit. I shallnotreviewthecase-lawonthesubject ofexecutoryacts. The ground is so well trodden and so solid as not to require 25 support from any particular decision. Executory isan act that produces legalconsequences; an act definitive of therightsof a person vis-a-vis the administration or any other body. The productionoflegalconsequencesmustbeobjectively identifiable and not subjectively determined. Within the context of the 30 PetrolStationsLaw,onlytheissueofapermitconfers arightto construct a petrol station. If the interested party attempted to construct a station without a permit invirtue of thedecisionof the Minister of the Interior, their acts would be unauthorised and illegal. The issue of a permit madepossible what wasnot 35 otherwise legally permissible. The decision of the Minister paved the way for the grant of a permit but did not settle the fate of theapplication. Also, it mustbe saidthat thedecision ofthe Minister did not and could not settleallmatters relevant tothepermit,forinstance,itwastheresponsibiUtyoftheImpro- 40 446 3 C.L.R. Imp. Bocrd Strovolos τ. Rcpddtc PlUs J. vement Board of Strovolos to determine the conditions that should be attached to the grant of a permit incidental to the decision of the Minister. And, as far as the interests of the Improvement Board of Strovolos were concerned, it was the 5 decision of the Ag. District Officer, granting a permit that amountedtoa usurpation of their rights andeffectively deprived them of their authority to issue a permit. Therefore, the re course cannot be faulted on this ground either. Implications of theIllegal Omission of theImprovement Boardof 10 Strovolos toimplement theDecision of theMinister of theInterior on the Justiciability of the Recourses: 15 20 25 30 The refusal of theImprovement Board of Strovolos to imple ment the decision of the Minister of the Interior was an act in defiance of the law and, a negation of the duties cast upon themthereunder. Inthecontentionof the respondents andthe interested party, their illicit act deprives them of a right to judicial review,in that it saps of legitimacy, an interest arising in consequence thereof. The applicants, without purporting to justify theomission of the ImprovementBoard and its members to implement the decision of the Minister, argued that the acts complained of in these proceedings should be divorced from their own omissions. It is an acknowledged principle of admi nistrative law that one cannot create a legitimate interest for judicial review out of his own omissions. (See, inter aha, the Decisions of the GreekCouncil of State under 482/35). This principleis,tomycomprehension,anaspect of a wider principle of the law, reflecting its poUcyinall spheres of legal activity. It is this: Onecannotgenerate a cause of action out of hisown illdoing. It is a rule of considerable antiquity,encountered from the early days of civil law, expressed by the maxim "ex turpi causa non oritur actio". The maxim of equity that one must cometoCourtwith clean hands, is anothermanifestation of the policy of the law in the sphere of equity. In ParaskeviYiannaki v. TheRepublic
(1965)3 C.L.R. 561, 35 TriantafyUides, J., as he then was, denied legitimacy tothe interest of a party complaining of the refusal of theappropriate authority tosanctionthedeepeningofawellillegallysunk. The ratio of the decision is that in examining the legitimacy of the interest of an applicant in proceedings under Article 146, the 40 Court must go to the core of the matter and not restrict the 447 Pikis J. Imp. Board Strovolos v. Republic
(1983)inquiry to the subjudice act. The Court must delve into the origin of the matter. After all,therevisionaljurisdiction ofthe Court is intended to ensure and entrench the supremacy of the law. Law would hardly reign supreme if the outcome of a successful recourse were to sustain perpetuation of an illegal 5 state of affairs. That, I am afraid, would be the result of this recourse if the acts of the respondents, illegal though they are, were set aside. You cannot build a right upon an illegal act. The right collapses for, an interest to be legitimate and justiciable, it must have a lawful origin. It was the duty of the 10 Improvement Board,aswellasthat oftheapplicantsindividually, to implement the decision of the Minister of the Interior, notwithstanding their reservations about the expediency and propriety of granting a permit to the interested party. I shall, therefore, dismissbothrecourses. Anyothercoursewouldbea 15 reward for their illicit omission. Nothing said in thisjudgment should encourage the respondents to usurp the powers of Improvement Boards. In my judgment, the decision of the Ag. District Officer to grant a permit to theinterested party,wasan act inexcessand abuseof 20 hispowers. Indeed,adecisiontakenindefiance ofthelaw. It isappropriatetoremindtherespondents,aswellasallorgansof government, of thedicta ofMr. Justice Brandeis in Olmstead v. UnitedStates, 72 L.Ed. 944: "In a government of laws, existence of the government willbe imperilled if it fails to observe 25 thelaw scrupulously. Our government isthepotent, theomnipresent teacher. For goodorfor ill,itteachesthewholepeople by its example". Later on, the learned Justice adds that, if government breaks the law, it breeds contempt for the law. "It invites everyman to become a law unto himself; it invites 30 anarchy". Although the above comments were made in relation to crime,theyapplywithequalcogencytoeveryactofgovernment. It isan article of faith in ademocracy that government shallbe by law, not above or outside but subject to and within the law. 35 The recourses are dismissed. There shall be no order as to costs. Recoursesdismissedwith noorderasto costs. 448