clr/1984/1984_3_10.pdf

(I9S4) 1984 February 14 [Λ LOIZOL. J ] \' T H E M A T T E R OF A R T I C L E 146 OF T H E CONSTITUTION' COSTAS MAKRIS A N D A N O T H E R Applicants ι THE REPUBLIC O F CYPRUS THROUGH T H E D I S T R I C T O F F I C E R NICOSIA AS C H A I R M A N O F T H E I M P R O V E M E N T BOARD O F STROVOLOS RespoiuL nt (Case No 149/81) dinimstratne Law-—Adiiimistiutne acts οι decisions—Executor ν ait—Occupation and use oj building without a certificate oj uppiouil, tontian to section 10 oj the Stieets and Buildings Regulation Law Cap 96—Warning to occupants that /ud/ciaf pioteedings new intended, not excluding issue oj a demolition oida ij ilkgaht\ not abated—Not an executon admimstratne act that can be made the subject oj a lecowse undei Article 146 of the Constitution—Position pie\ailmg in Greece regaiding demolition oidas distinguished 5 The applicants in these recourses have been occupying and 10 using a kiosk, without a certificate of approval having been issued in respect thereof by the Appropriate Authority contrary to section 10 of the Stieet» and Buildings Regulation, Law Cap. 96 This kiosk was built on a Public road by a certain loanms Pcttemendes—now deceased—without a building permit under 15 C a p 96 On the 24th March, 1981, the respondents asked the applicant to remove the said kiosk by the 31st May, 1981, other­ wise Court measures will be taken against them not excluding the issue of an order of demolition Hence this recourse Held, thai the sub judice decision is not an executory admi- 20 rostral ιve one capable of being made the subject of a recourse under Article 146 of the Constitution, accordingly the r e c o u n e 10 3 C.I-.R. Makris and Another >. Republic should fail (position prevailing in Greece regarding demolitio orders distinguished—vide pp. 13-14 post). Application dismi.ssei, 5 Recourse. Recourse against the decision of the respondents whereby i was decided not to permit a kiosk, which was built without . building permit, to remain in Kiimataria Square. Strovolo; A. S. Angelides, for the applicants. G. Teoalidcs, for the respondent. 10 j5 Cur. adv. vitit A. Loizou J. read the following judgment. By the prese1 recourse theapplicants seek the annulment of "the decision an or act of the respondent which was communicated to applicant by letter dated 14.3.1981 and by which he decided not to pern the kiosk to remain in Kiimataria Square, Strovolos Avenue S and/or by which he decided that the said kiosk be removed fro the place where it stands since 30 and more years". This kiosk was built on the public square without a buildit permit by the late loannis Pettemerides to whom the Distri 2t) Officer, Nicosia, in his capacity as Chairman of the Improveme Board of Strovolos addressed on the 18th December, 1978 letter (exhibit 1) drawing his attention to the fact that he h; built on a public road, namely. Gri\as Dighenis Square Strovolos, a kiosk of cheap construction without a buildii 2s; permit and that no covering permit could be is ted as it hadn» been built in accordance with the StreiM> and >i tidings Reg. 1 lation Law. Cap. 96, and he was asking him v. demolish san within one month, otherwise leeal proceeding \>ould be ir.st luted against him without any furthci nonce IQ -5 Pettemerides by letter dated the 9th January. 1979 (exhibit ' through his advocate, acknowledged receipt of the aforesai letter and informed the respondent that he was a.ι invalid siru 30 years and in bad health and that he was at the time in a din: undergoing treatment. He requested that an extension of tin be given to him until his recovery from his illness so that meeting would be arranged obviously for the discussion of tf whole matter. II Λ. Loizou J. Makris and Another \. Republic (I9S4) On the 22nd June, 1979, the respondent wrote to the said advocate a letter (exhibit 3) informing him that the kiosk in question had been let by Pettemerides to applicant 1 for the monthly rent of C£30.- and that the Improvement Board of Strovolos insisted for the demolition of the arbitrarily placed 5 kiosk within one month, otherwise legal proceedings would be instituted against everyone who was responsible. Inreply tothe said letter counsel wrote on the 14th July, 1979 (exhibit 4) asking the respondent to postpone the demolition of the said kiosk until the 31st December, 1979, as with the rent of C£30.- his 10 client was meeting the expenses of his treatment. On the 10th November, 1980, the respondent wrote to appli­ cant 1(exhibit 5) informing him that it came to his knowledge that he was using a kiosk which was constructed unlawfully on the public road near Grivas Dighenis Square (Kiimataria) in Strovolos the construction of which consisted of cheap material and that a covering permit could not be issued, hence he was asked to demolish not later than the 30th November, 1980, same, otherwise legal proceedings would be instituted against them without further notice. 20 Applicant I acknowledged receipt of the said letter by his letter dated the 24th November, 1980 (exhibit 6) and stated. inter alia, therein thatthekiosk which it was mentionedas having been built unlawfully was functioning since 20 years and more and that he had bought it from the late loannis Pettemerides, of 25 Strovolos. since three years; that he was a poor family man, that he had built his house with a loan and that he had bought the said kiosk for a substantial sum and had stocked it with goods acquired on credit; that his wife was working in a che­ mist shop but since the purchase of the kiosk she gave up her 30 work and started operating the kiosk in question instead in the hope of a better future. Forthose reasons heasked that in case there were street works carried out for the development of the area and the kiosk interfered with them, he was prepared to move it elsewhere. 35 On the 14th March, 1981, and in reply to the applicant's letter of the 24.11.1980, respondent wrote to him the following letter (exhibit 7): "I refer to your letter dated 24.11.1980 by which you ask that you be permitted to keep the kiosk in Kiimataria 12 40 3 C.L.H. Makris and Another ι . Republic Λ. Loizuu J Square until the carrying out of the development works n the area and I inform you that the Board examined you request and decided to give you a last extension until th< 31st May, 1981. 5 2. After this you are asked to remove the said kiost until that date, otherwise Court measures will be takci against you not excluding also the issue of an order ο demolition". As against the decision contained in this letter, the applicant 10 filed the present recourse. 15 20 On these facts it is established that the kiosk in question wa· built on a public road by the late Pettemerides. without a build ing permit from the Appropriate Authority under the Street and Buildings Regulation Law, Cap.96, which in this case is tl Improvement Board of Strovolos. Furthermore same is no occupied and used by the applicants without a certificate · approval having been issued in respect thereof by the Appr< priate Authority contrary to section 10 of Cap. 96. It is abo theseviolations of the Law that the letters from the Improveme Board of Strovolos were intending to warn and inform tl applicants that if they failed to abate such illegality, legal pr> ceedings would beinstituted against them,obviously proceedin under the Streets and Buildings Regulation Law. being one > the courses open to the respondents. 25 These circumstances have led me to the conclusion that tl sub judice decision is not an executory administrative on capable of being the subject of a recourse under Article 146 » the Constitution. Counsel for the applicant has argued to tl contrary and sought to draw support to his contentionsfrom tl 30 fact that in the Case Law of the Greek Council of Stau, ordc of demolition of buildings are executory administrative ac capable of being the subject of a recourse for annulment,hem provisional orders for the suspension of their execution a, given because of the likelihood of irreparable damage beir 35 caused in case their execution is not suspended pending tl determination of the recourse on the merits. In support of this proposition he has referred me to a numb> of text-books, namely. V. Skouris "The Temporary Protectic 13 Λ. Loizou J. Makris and Another v. Republic