clr/1983/1983_3_474.pdf

(1983)(b) Declaration that the omission of the respondents, and particularly the Minister of Agriculture and Natural Resourses, to supply water for domestic purposes for the aforesaid land is null and void, and what has been .omitted should have been performed". The Nicosia Water Board was established under the Water Supply(Municipal and OtherAreas) Law,Cap.350. Theduties and powers of the Board are set out in Part II[ of the Law. Section 12

(2)(e) provides that the Board may supply water for any purpose to any area outside the area of supply, if by such 10 supply the water in the area of supply is not likely to be diminished or affected. Part VI of the Law empowers the Water Board of Nicosia to undertakedutieswithrespecttotheprovisionofwatersupplies outside its area of supply for and on behalf of the Government 15 butsuchpowerorduty maybeundertaken onlywith theconsent of the Council of Ministers and subject to such terms and conditions as the Council of Ministers shall approve—(section 43 of Cap. 350). These powers of the Council of Ministers were delegated to the Ministers of the Interior and Agriculture. 20 Held, (I) with regardto the recourse againstrespondent 2: That, an "omission" in the sense of paragraph 1 of Article 146 of the Constitution means an omission to do something required by law, as distinct from the non-doing of a particular act or the non-taking of a particular course 25 as a result of the exercise of discretionary powers (see Stassinopoulos The Law of Administrative Disputes, 4th edition,

(1964)p. 195; Cyprus Tannery v. The Republic

(1980)3 C.L.R. 405; GreekCouncil of State Case Nos.1137/63, 91/62 and 1862/63); that the Minister of Agriculture respondent 2, 30 had no power or duty under the law; he was not required by law to do any act in respect of the supply of water to the applicant from the supply of the Nicosia Water Board because the Council of Ministersdelegated itspowersunder s.43 ofCap. 350toa MinisterialCommittee;accordinglytheallegedomission 35 of the Ministry of Agriculture does not come within the ambit of "omission" in Article 146 of the Constitution. 476 5 3 C.L.R. Argyrou and Others v. Republic (II) On the question whether the letter of 23.4.1982 is an executory administrative act: 5 10 15 20 25 That an administrative act and decision is only within the competence of this Court under Article 146 if it is executory, i.e. an act by means of which the will ("ή βούληση") of the administrative organ concerned has been made known in a given matter, an act which is aimed at producing a legal situation concerning the citizen affected and which entails its execution by administrative means—(Conclusions from the Jurisprudence of the Council of State in Greece, 1929-1959, at pp. 236-237); that the appropriate authority for the water supply in this parti­ cular case is the Nicosia Water Board; that since the application of the applicants dated 15.9.1981, to the Minister of Interior is not and could not be a hierarchical recourse as^here is no provision in the Law that an appeal lies from the decision of the Nicosia Water Board to the Minister of the Interior the Minister of the Interior had no competence in the matter; that since the letter of the District Officer dated 23.4.1982 was written in his capacity as District Officer and not as Chairman of the Nicosia Water Board, it is of informatory nature. It might be considered as a confirmatory act if it was written by him in his capacity as Chairman of the Nicosia Water Board; and that therefore this Court has no competenceto entertain this recourse against the acts, decisions or omissions challenged by this recourse as they fall outside the ambit of Article 146.1 of the Constitution. The decision of the Nicosia Water Board commu­ nicated to the applicants on 16.9.1981 could not be made now the subject of a recourse as the time-bar is an unsurmountable obstacle; accordingly the recourse should fail. 30 Application dismissed. Cases referred to: Koiokassides v. Republic

(1965)3 C.L.R. 542; Vrachimi and Another v. Republic, 4 R.S.C.C. 121 at p. 123; Cyprus Tannery v. Republic

(1980)3 C.L.R. 405; 35 Decisions of the Greek Council of State Nos.; and 1862/63. 477 1137/63, 91/62 Argyrou and Others v. Republic

(1983)Recourse. Recourse against the decision at the respondents whereby they rejected applicants' application for the supply of domestic water to applicants' land at Strovolos. A. S. Angelides, for the applicants. 5 N. Charalambous, Senior Counsel of the Republic, for the respondent. Cur. adv.vult. STYLIANIDES J. read the following judgment. The applicants by this recourse seek:- 10 "(

1. a)The annulment of the decision and/or act of respondent No. 1, the Minister of the Interior, and/or the District Officer of Nicosia dated 23.4.82 received by the applicants on 27.4.82 whereby they rejected the application for the supply of domestic water to appli- 15 cants' land shown on D.L.O.plans as Plot 222,Sheet/ Plan XXI/6l.W.l, of Strovolos; and, (
2. b)Declaration that the omission of the respondents, and particularly the Minister ofAgriculture &Natural Resources, to supply water for domestic purposes for 20 theaforesaid land is null and void, and what hasbeen omitted should have been performed". The respondents raised the objection that the act or decision complained of are not executory and/or they are informatory and are not amenable to the jurisdiction of this Court. 25 The applicants are displaced persons. They agreed to purchase a piece of land situate in thevicinity of Strovolos,Chrysseleoussa Quarter, Plot 222, Sheet/Plan XXI/6l.W.l, Block "E'\ This piece of land is outside the area of the Nicosia Water Board. On 26.11.80 they applied to the Ministry of Agriculture & Natural Resourcesfor thesupplyofwaterfrom thewatersupply of Nicosia in order to enable them to partition the aforesaid plot into three building sites. 478 30 3 C.L.R. ArgyrouandOthersY.Republic Stylbmldes J. On 29.11.80 they received a reply signed on behalf of the Director-General of that Ministry, informing themthat,as they were displaced persons and as water had already been supplied inthepast totheadjoining Plot220,theMinistry of Agriculture 5 decided to "εγκρίνει" their application in spite of the policy not to supply water for the division of land in areas outside the water supply of Nicosia into building sites. The applicants on 19.3.81 submitted Application No.D.480/ 81 to the appropriate authority for the division of the land in 10 questionintothreeseparate sites. A site-plan andthe aforesaid letter from theMinistry of Agriculture were attachedtothe said application. The usual procedure for the examination of applications for division was followed and thefile was referred, interalia,tothe 15 Water Board of Nicosia. This is necessary in view of the provisions of ss. 3 and 9, as amended by Law 13/74 of the Streets & Buildings Regulation Law, Cap. 96. At its meeting of 10.9.81 the Water Board of Nicosia declined to accept, for the timebeing,theapplicationof theapplicantsduetodearthof 20 water and as the property was situated outside the area of the Water Board. On 16.9.81 this decision was communicatedto the applicants, copy of which is Blue 6 in the file D.480/81. It reads as follows:25 " 'Αναφέρομαιels τήν αΐτησιν σαςδιαπαροχήννεροΰ έκτο? των ορίων ύδατοπρομηθεΐαςκαΐ λυπούμαι νά σαςπληρο­ φορήσω ότι δεν δύναται νά γίνη αποδεκτή, τουλάχιστον κατά τήν δύσκολον, λόγω του γνωστοϋ προβλήματος λειψυδρίας, ταντηνπερίοδον. ΊΗ αίτησις σα$6ά έπανεξετασθή" είς χρονον εύθετώτερον". 30 ('* Irefer toyour applicationfor thesupply of water within the limits of thewaterboard and regret toinform youthat it cannotbe approved, at least during this difficult, dueto the well known scarcity of water, period. Your application will be re-examined in due course**). 35 That decision was not challenged before the administrative Court 479 Stylianides J. Argyrou and Others v. Republic

(1983)By letter dated 15.9.1981 they applied to the Minister, stating their problem and expressing their belief that he would solve it. It is not mentioned in this letter that at the time they were conversant of the decision of the Nicosia Water Board but the reasonable inference from perusal of this letter is that they 5 might have been aware. Counsel for the Republic submitted that either through leakage or through informal information they" knew of the decision of the Water Board. Be that as it may, on 9.11.1981 the letter of the applicants of 15.9.1981 was sent to the Ag. District Officer for his views. 10 On 27.11.1981 the Ag. District Officer informed by letter (Blue 14 of exhibit No. 1) the Director-Generalof the Ministry of the Interior that the plot of the applicants is outside the area of the Water Board of Nicosia and that the applicants were displaced persons. He made reference to the "consent" 15 ("συγκατάθεσις") given by the Ministry of Agriculture and Natural Resources and the negative decision of the Nicosia Water Board due to the known problem of the scarcity of water. He mentioned further that there were many similar cases and in his opinion it was objectively impossible to supply water 20 to the said plot of the applicants. On 23.3.1982 the Minister of the Interior sent letter, Blue 14A, to the District Officer, Chairman of the Nicosia Water Board, with regard to the applications for supply of water outside the area of the Water Board of Nicosia. There were 25 16 applications, six of which had "the consent" ("βεβαίωσης") of the Ministry of Agriculture. I consider pertinent to quote seriatim the material paragraph of this letter:"To δικαίωμα παραχωρήσεως νεροΰ έκτος των ορίων της ύδατοπρομηθείας, ανήκει στο Συμβούλιο ΎδατοπρομηθεΙας. 30 Το δικαίωμα τοϋτοδιέπεταιύπότοΰεδαφίου2(ό)του άρθρου 12τουπερίΎδατοπρομηθείας (Δημοηκαΐκαΐάλλαιπεριοχαΐ) ' Νόμου, Κεφ.

1. Το Συμβούλιο δμως δεσμεύεται ύπό τοϋ Νόμου καΐ τότε μόνο δύναται νά παραχωρήσει νερό έκτος των ορίωντηςπεριοχής τηςευθύνηςτουέάνκαΐ δταν υπάρχει 35 διαθέσιμη ποσότης νεροΰ. Μέτήν ϋλλειψη νεροΰ πού παρα­ τηρείται στή Λευκωσία (κατά 25% λιγότερο άπό τ!ς σημε- 480 3 C.L.R. Argyrou and Others τ. Republic Styllanldes J. ρινές ανάγκες της περιοχής υδρεύσεως) καΐ Ιχοντας υπόψη τΙς πρόνοιες τοϋ νόμου χωρίς αμφιβολία το Συμβούλιο δεν μπορεί νομικώς νά παραχωρήσει νερό έκτος των ορίων της περιοχής υδρεύσεως. •5 10 15 20 Κατά συνέπεια πιστεύω πώς καμμιά από τΙς αΐτήσεις θάπρεπε νά Ικανοποιηθεί". ("The right of granting water outside the limits of the waterboard vests on the waterboard. This right is governed by sub-section 2(e) of section 12 of the Water Supply (Municipal and Other Areas) Law, Cap.
2. The Council is bound by the law and it can grant water outside the limits of the area under its responsibility only if and when there is available a quantity of water. With the scarcity of water observed in Nicosia (by 25% less than today's needs of the water supply area) and having in mind the provisions of the law undoubtedly the Council cannot grant lawfully water outside the limits of the water supply area. Therefore I believe that none of the applications should have been satisfied"). On 23rd April, 1982, the District Officer in his capacity as such sent, to the applicants the letter, subject-matter of this recourse which reads as follows:- 25 30 35 " 'Επιθυμώ νά αναφερθώ στην αΤτηση σας ήμ. 19.3.1981 σχετικά μέ τήν παροχή ποσίμου νερού στό τεμάχιο σας μέ άρ. 222, Φ/Σχ.21/6I.W.I. στό Στρόβολο,γιά τό διαχωρισμό οίκοπέδων,καΐ νά σας πληροφορήσω ότι τό δικαίωμαπαρα­ χωρήσεως νεροΰ έκτος τών ορίων της ύδατοπρομήθειας ανήκειστό ΣυμβούλιοΎδατοπρομήθειας. Τό δικαίωματούτο διέπεται ύπό τοϋ εδαφίου 2(ε) τού άρθρου 12 τοΰ περί Ύδατοπρομήθειας (ΔημοτικάΙ καΐ "Αλλαι Περιοχαΐ) Νόμου, Κεφ.
3. Τό Συμβούλιο όμως δεσμεύεται άπό τό Νόμο Kcrtτότε μόνο δύναταινάπαραχωρήσει νεράέκτος τών Ορίων τής περιοχής τή*ςευθύνηςτου αν καΐ ότανυπάρχει διαθέσιμη ποσότητα νεροΰ.
4. Μέτήν Ελλειψη νερούπού παρατηρείται στή Λευκωσία 481 Stytianidcs J. Argyrou sod Otfam τ. Repettk

(1989)κατά 25%λιγότερο άπό τΙςσημερινέςανάγκεςτης περιοχής υδρεύσεως) καϊ έχοντας υπόψη τΙς πρόνοιες τοϋ Νόμου, ή πιό πάνω αίτηση σας δέν μπορεί νάΙκανοποιηθεί". ("I wish torefer toyourapplicationdated 19.3.1981 regard­ ing the supply of drinking water to your plot under No. 5 222, Sh/Plan 21/61.W.I. at Strovolos for the division into building sites and to inform you that the right to grant water outside the limits of the water supply vests on the Water Board. This right is governed by sub-section 2(e) of section 12 of the Water Supply (Municipal and Other 10 Areas) Law, Cap.

1. But the Councilis bound by the Law and it can grant water outside the limits of the area under its responsibility only if and when there is available a quantity of water.
2. With thesearcity of water observed in Nicosia (25% 15 lessthantoday'sneedsofthewater supply area)andhaving in mind the provisions of the law your above application cannot be satisfied"). Christofides, one of the applicants, on 31.3.1982 addressed a letter to the Minister of the Interior on the same matter. 20 This letter was transmitted by the Director-General of the Ministry to the Ag. District Officer of Nicosia, directing him to reply to this applicant,bearing in mind the contentsof the letter of the Ag. District Officer of 27.11.1981 and the letter of the Minister No. 162/81 of 23.3.
3. Thereuponthe Ag. 25 District Officer, on 11.5.1982, sent to applicant Christofides a letter identical to that of 23.4.1982 above referred to. The Nicosia Water Board was established under the Water Supply (Municipal and Other Areas) Law, Cap.
4. The dutiesandpowersof theBoardaresetoutinPartIIIoftheLaw. 30 Section 12(2Xe) provides that the Board may supply water for any purpose to any area outside the area of supply, if by such supply the water in the area of supply is notlikely to bedimi­ nished or affected. Part VI of the Law empowerstheWater Boardof Nicosiato 35 482 3 C.L.R. Argyron and Others τ. Republic Styllantdes J. undertake duties with respect to the provision of water supplies outside its area of supply for and on behalf of the Government butsuchpower ordutymaybeundertakenonly withtheconsent of theCouncilof Ministersandsubject tosuchtermsand condi5 tions as the Council of Ministers shall approve—(section 43 of Cap. 350). These powers of the Council of Ministers were delegated to the Ministers of the Interior and Agriculture. At a meetingheld on4.2.1981, at which theMinister of Agri­ culture and the Minister of the Interior as well as officials of 10 their respective Ministries participated, it was decided that the procedure to be followed for the implementation of the provisions of s.43 of the Water Supply (Municipal and Other Areas) Law, Cap. 350, was that the applications for supply of water outsidetheareaof theNicosiaWater Board should firstly 15 be submitted to the Nicosia Water Board and, if the Nicosia Water Board, after consideration of each case, was of theview that the application was justified, then such application to be submitted to the Minister of the Interior for examination by the Ministerial Committee, i.e. the Minister of the Interiorand 20 theMinister of Agriculture; if thedecision of theNicosia Water Board was negative, the applications to be dismissed without reference to the Ministers. It is clear from the above that the appropriate authority for the supply of water is the Water Board of Nicosia. It has the 25 power and the duty to supply water outside the area of supply unders.12(2Xe),if by suchsupply thewater intheareaof supply is not likely to be diminished or affected; under s.43, with the consent of the Ministerial Committeeand subject to such terms and conditions, as they shall approve, to supply water in an 30 area not being within the area of its jurisdiction. It is well established that a decision, act or omission of any organ, authority or person exercising any executive or admi­ nistrative authority, must be of an executory nature in order to be amenable to the competence of this Court under Article 35 146 of the Constitution. (See, inter aha, Nicos Kolokassides v. The Republic,

(1965)3 C.L.R. 542). A "decision" or "act" in the sense of paragraph 1of Article 483 Stylianides J. Argyrou and Others v. Republic

(1983)146 must be such as would directly affect a right or interest, protected by law, of a particular person ascertainable at the time of taking such decision or doing such act. (Eleni Vrahimi & Anotherv. TheRepublic, 4 R.S.C.C. 121, at p. 123). An administrative act and decision is only within the com- 5 petence of this Court under Article 146 if it is executory, i.e. an act by means of which the will ("ή βούληση") of the administrative organ concerned has been made known in a given matter,anactwhichisaimedatproducingalegal situation concerning the citizen affected and which entails its execution 10 by administrative means—(Conclusions from the Jurisprudence of the Council of State inGreece, 1929-1959, at pp. 236-237). An "omission" in the sense of paragraph 1 of Article 146 of the Constitution meansanomission todosomethingrequired by law, as distinct from the non-doing of a particular act or 15 the non-taking of a particular course as a result of the exercise of discretionary powers—(Stassinopoulos— The Law of Admi­ nistrative Disputes, 4th edition,

(1964)p. 195; Cyprus Tannery v. The Republic,

(1980)3 C.L.R. 405; GreekCouncil of State Cases No. 1137/63, 91/62 and 1862/63). 20 The Minister of Agriculture had no power or duty under the Law; he was not required by law to do any act in respect of the supply of water to the applicant from the supply of the Nicosia Water Board. The Council of Ministers delegated its powers under s.43 of Cap. 350 to a Ministerial Committee. 25 It is significant that three different words were used for the description of the act of the Ministry of Agriculture set out in the document of 29.11.1980: "gyxpiois", "ονγχατάθεσίϊ" καΐ "βεβαίωση". Having regard to all the documentary material before me, I have come to the 30 conclusion that it was nomore than a recommendationto the Board. The supply of water to areas outside the area of the Nicosia WaterBoardfrom the water supplyis within theexclu­ sive competence of the Nicosia Water Board. The Water Boardhad beforeitthe documentof 29.11.1980 emanatingfrom 35 the Ministry of Agriculture. In exercice of theirpowersunder s.l2(2Xe) they decided not to accede to the request of the 3 C.L.R. Argyrou and Others v. Republic Stylianides J. applicants due to scarcity of water. They further stated that the application would be re-examined at a more appropriate time, obviously when the water condition would improve. The alleged omission of the Ministry of Agriculture does not come 5 withintheambitof"omission"inArticle 146oftheConstitution. Does the letter of 23.4.1982 of the District Officer constitute an executory administrative act? The appropriate authority for the water supply in this particular caseis the Nicosia Water Board. The application of the applicants dated 15.9.1981 10 is not and could not be a hierarchical recourse as there is no provision in the Law that appeal lies from the decision of the Nicosia Water Board to the Minister of the Interior. The Minister of the Interior has no competence on the matter. In GreekCouncil of State CaseNo. 420/68 it was held that 15 a document containing the views of the Central Service of the MinistryofCommunicationswasnotanexecutoryactandcould not constitute the subject of a recourse for annulment, as the appropriate authority for the renewal of circulation licences of motorcars was the District Service. 20 In CaseNo. 754/66 the act of the Minister, expressing the viewsof theMinistry onthesubject of thelegalityofa building permit,wasconsiderednottobeanexecutoryactastheMinistry was not the competent authority. The same was held about the reply of the Ministry of Public Works to the Technical 25 Servicesof a district inwhichtheopinion ofthe Ministry about the issuing of a building permit was expressed. In CaseNo. 301/69 it washeld that a document containing information and the views of the Director of a Fund on the subject ofpension,which waswithinthe competence of another 30 organ,wasonlyofinformatory natureand not executory. (See also Cases No. 479/66, 896/66 and1113/66). In-CaseNo. 1282/67 the letter of the director of T.S.A., whereby it was made known to the applicant that his request for revision of a decision for hispension could not be satisfied, 35 was considered as only of informatory nature and was not an executory act as the appropriate organ was the Board of the Fund. 485 Styliaoides J. Argyrou and Others v. Republic (1983; Iconsidered carefully theletter ofthe District Officer of23.4. 198". This was written in his capacity as District Officer and not as Chairman of the Nicosia Water Board. It is of informatory nature. It might be considered as a confirmatory act if it was written by him in his capacity as Chairman of the 5 Nicosia Water Board. It does not state anywhere that a new application for supply of water to the applicants will not be examined in the future; it onlyconfirms that due to the present scarcity of water—25% less than the present needs of the population within the area of the Water Board—and theprovi- 10 sions of the Law, the request of the applicants cannot be satisfied. 1 see no difference between the contents of this letter and thedecisionoftheBoard assetoutintheletterof16.9.1981. The attitude of the Administration—both the Nicosia Water Board, which is the appropriate organ, the District Officer and 15 the two Ministries—is rather favourable to the applicants. They want to help them in their plight but unfortunately the dearthofwaterdoesnotpermitthem toaccomplishtheirwishes. Afavourableexaminationofanapplicationisnottobeconsidered as imposing a duty, if such a duty is not privided by law. 20 I hope that when the water situation permits, the Board, in exercice of its powers either under s,12

(2)(e) or under s.43, will help these displaced persons. In view of the aforesaid, this Court has no competence to entertain this recourse against the act, decision or omission 25 challenged by this recourse as they fall outside the ambit of Article 146.1 of the Constitution. The decision of the Nicosia Water Board communicated to the applicants on 16.9.1981 could not bemadenowthesubject ofarecourseasthetime-bar is an unsurmountable obstacle. 30 This recourse fails and is hereby dismissed but in all the circumstances I make no order as to costs. _ Recourse dismissed with no order as tocosts. 4S6