(1984)1984 July 17 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION YIAKI ESTATES LTD., Applicants, v.
- THE IMPROVEMENT BOARD OF AY. NAPA
- THE DISTRICT OFFICER OF FAMAGUSTA, NOW OF LARNACA, Respondents. (Case No. 265/81). Constitutional • Law—Equality—Discrimination—Article 28 of the Constitution—Reasonable differentiations permissible in view of the intrinsic nature of things and only arbitrary and unreasonable differentiations constitute impermissible discrimination and offend Article 28 of the Constitution. 5 Practice—Parties to a recourse—improvement Boards—Recourse against decisions of—District Officer acting solely in his capacity as Chairman of the Board and taking no executory decisionof his own—He could not be made a respondent. The respondent Board refused applicants' application for a building permit for the construction of a block of flats on the ground that their property was outside the water supply area; and hence this recourse against the respondent Board and the District Officer Famagusta. 10 Counsel for the applicants mainly contended that the respon- 15 dents acted in a discriminatory manner because they isued a building permit for the construction of touristic appartments to "Romulus Hotel Appartments Ltd.'*whose propertywas situated in the same area as theirs. The intended buildings of the applicants were purely residential whereas those of the above company were for touristic development. 966 20 3 C.L.R. 5 10 15 20 25 30 Yiaki Estates v. Imp. Board Ay. Napa Η hi,that reasonable differentiations are permissible in view of the intrinsic nature of things and only arbitrary and un reasonable differentiations constitute impermissible discrimina tion and offend Article 28 of the Constitutionwhich safeguards the principle of equality; thatthere was a fundamental reason able differentiation in this case because the"Romulus" buildings were a touristic development project coming under the Hotels and TouristicEstablishments Law of 1969, as amended,whereas the intended buildings of the applicant Companywerea residential development lying outside the inhabited area of the village and the water supply thereof; accordingly the recourse must fail.
(2)Held, further, that the District Officer acted solely in his capacity as Chairman of the respondent Board and he took no executory decision of his own or confirmed any decision taken by theappropriateauthority; that for all intentsandpurposes it would be enough in the circumstances to have made the Improvemend Board of A.yia Napa as the respondent in these proceedir.gs, the DistrictOfficer of Famagusta as suchhaving no locus standi in his said capacity in thepresent proceedings; and that, therefore,the recourse against him must be dismissed for that reason. Application dismissed. Recourse. Recourse against the refusal of the respondents to issue a building permit to applicants. A. Karras, for the applicants. Y. Panayi, for respondent
- A. Vladimirou, for respondent
- Cur. adv. vult. A. Loizou J. read the following judgment. By the present recourse the apphcants seek the annulmentof thedecision of the respondent Board contained in the letter of respondent No.2, dated 1st June, 1981, by which they refused to them a permit for 35 the building of a block of flats in plot No. 59, Sheet/Plan 42/21 in Ayia Napa. On the 4th November, 1978, an application for a building permit was submitted to the respondent Board by a certain 967 A. Loizou J. Yiaki Estates v. Imp. Board Ay. Napa
(1984)Anastasios A. Economou, acting as a duly authorized agent of a number of persons r.s per the Power of Attorney which c-n be found in the relevant file of the Adminisiration (exhibit 'X' Blue 22). Same was accompanied by the necessary archi tectural plans for the building of two five-rtorey blocks which 5 would consist of 19flats. The above said plot of hnd is within Zone ' C which has been defined as such in Regulatory Order under Notification 145/72, published in Supplement No.5, Part I, to the official Gazett.;of ihe Republic of the 5th August,
- The buildings to be constructed wore purely residential 10 and not a touristic development and the plot of land in question was away from the inhabit'*! arc."1,of the village, Zone Ή ' ,and outside the Village Water Supply. The Medical Services of Cyprus madeit a conditionThai"each of the proposed buildings will bu supplied by sufficJTit quantity 15 of piped water stored in suitable water tanks for the noimal functioning sanitary installations in case of interruption of the water supply". On the 19th May, 1979, the said application was refused on the ground that the property in question was situa'i: outside 20 the Water Supply Area. On the 7th September, 1979, the advocate of the applicants re-submittcd the plans having been informed, as it is statud by him in his letter Appendix *D\that his client had heard, that similar applications were being re examined. He referred, however, lo the present applicants, a 25 Company limited, which apparently are the successors of the previous applicants. On the 12th May, 1980, the respondent Board informed the • applicants that in order to proceed further with their application, it was necessary that there should be secured sufficient quantity 30 of piped water for the needs of the proposed flats in accordance with the special terms put by the Medical Department. In themeantime, however, counsel for the applicants wrote to respondent 2, protesting at not having received a reply to his letter, pointing also out that as he had information that appli- 35 cations submitted later were being dealt with and granted. By letter datedthc 1st June, 198Κrespondent 2 replied to this letter of the applicants and informed them that their application 908 3 C.L.R. Yiaki Estates v. Imp. Board Ay. Napa A. Loizou J. could not be proceeded further on account of lack of drinking water. It is as against this decision so communicated that the applicants filed the present recourse. The only ground upon which the applicants rely is that of 5 discrimination and they claim that the respondent Board issued a building permit for the construction of touristic apartments to "Romulus Hotel Apartments Ltd.", in respect of an application submitted during the second semester of 1979, that their property is situate in the same area as theirs and the building 10 permit was in respect of more flats ihan those to be constructed by the applicants. It was urged that this indicated inconsistency in the handling of all similar situations and showing arbitrariness in that some citizens were denied in an arbitrary manner advantages which ]
- were given to others as oiVending Article 28 of the Constitution. It was further urged that the Administration exercised its discretionary powers in a self-contradictory manner undermining the confidence of the citizens to it, contrary to the demands of good administration. 20 It is the case for the respondent Board that at the material time of the submission of the application of the applicants, the water supply of Ayia Napa was in a very bad situation. The quantity of waver through the Main Famagusta Supply, as well as thn additional quantity of 1,000 cm. per day approved by the 25 Council of Ministers by its Decision No. 15.660 of the 3rd March, 1977, was intended to cover the water supply of the villages of Ayia Napa and Paralimni and partly the Touristic Development. On the other hand, the additional quantity of water of 1,200 cm. daily, approved by the Council of Ministers 30 by its Decision No. 16967 of the 8th June, 1978, was for the purpose of being disposed exclusively and only for purely touristic development. It was pointed out that characteristic in this respect of the seriousness of the subject, was the letter of the Director-General 35 of the Ministry of Agriculture under No. 23/59/490, dated' 21st March, 1970,· addressed to,the Director-General of the Cyprus Tourist Organization, in which-he mentioned that the, supply of additional quantity of water from the FamagustaSupply to make possible the issue of new building permits for 969 A. Loizou J. Yiati Estates v. Imp. Board Ay. Napa
(1984)the construction of hotel units was impossible, given that it was doubtful on the basis of the new factors regarding the Lcfkara Dam whether the Ministry of Agriculture could respond even to theexisting commitmentswhich emanatefrom the said decisions of the Council of Ministers. In respect of the building permit granted to "Romulus" the following differentiations are pointed out by the respondent Board. In the first place, the building was on property away from the inhabited area of the village and the supply from the public water supply was notjustified. Furthermore,in no case 10 until that time had public water supply been given for residential development away from the inhabited area and outside resi dential zones. On the contrary, there had been given public water supply for purposes of Touristic Development as it is the case of the Romulus Hotel Apartments Ltd., where their appli- 15 cation refers to the construction of an organized block of flats and the development included six two-storey buildings which in all, included 44 flats, one ground floor with a basement which included a discoteque and subsidiary areas and on the ground floor, reception area, cafe-bar, kitchen, one shop, office, sanitary 20 conveniences and a swimming pool. The architectural plan of the said "Romulus" flats had been approved by the K.O.T. in accordance with the provisions of the Hotels and Touristic Establishments Law of 1969, whereas the architectural plans of the applicants, as they were intended for a mere residential 25 development, had not been submitted at all and consequently had not been approved by K.O.T. The refusal of the permit of the applicant Company was based on theexpress provisions of the Streets and Buildings Regulation Law, Cap. 96, as amended by Law No. 13 of 1974, which latter 30 Law amended section 9 and it is provided by subsection 2, para graph (c), which was added to the basic Law the following new provisions: **9
(3)(α) 'Οσάκις υποβάλλεται αίτησις(ι) δυνάμει της παραγράφου (α) ή (γ) τοΰ εδαφίου
(1)τοΰ 35 άρθρου 3 άναφορικώς προς οίανδήποτε γαΐαν ή (ιι) δυνάμειτης παραγράφου (β) ή (δ) τοΰ εδαφίου
(1)τοΰ άρθρου 3 άναφορικως προς οίανδήποτε οίκοδομήν, εξαιρουμένης μόνον της περιπτώσεως οίκοδομής άπο970 5 3 C.L.R. Yiakl Estates v. Imp. Board Ay. Napa A. Lofzou J. τελούσης μονοκατοικίαν καΐ μη αποτελούσης τμήμα οίκοδομής ή ομάδος οίκοδομών ή κτιριακού συγκροτήματος ή ετέρας οίκοδομής αναπτύξεως, κειμένην έκτος περιοχής ύδατοπρομηθείας, ή αρμόδια αρχή δέν θά χορηγη" άδειαν άναφορικώς προς τήν έν λόγω γαϊαν ή οίκοδομήν έκτος έάν αΟτη,αφούλάβη τήν συμβουλήν τοΰ Διευθυντού τοΰ Τμήματος 'Αναπτύξεως Υδάτων τοΰ Υπουργείου Γεωργίας καΐ Φυσικών Πόρων (έν τοϊς έφεξη5 έν τώ παρόντι έδαφίω καλουμένου " Ο ρηθεϊς Διευθυντής1 Ικανοποιείται πλήρως ότι 6 έν τη ϋποπαραγράφω (ιι) της παραγράφου (γ) τοΰ εδαφίου
(1)τοΰ άρθρου 9 όρος άναφορικώς προς οίανδήποτε γαϊαν ή, αναλόγως της περιπτώσεως, άέν τη οποπαραγράφω (xi) της παραγράφου (β) τοΰ εδαφίου
(1)τοΰ άρθρου 9 δρος άναφορικώς προς οίανδήποτε οίκοδομήν, πληρούται κατά τρόπον Ικανοποιοΰντα ταύτην ή ή πλήρωσίς του διασφαλίζεται κατά τόν ρηθέντα τρόπον. 5 10 15 Νοείται ότι έάν, ένοίαδήποτε συγκεκριμένη περιπτώ σει, ή αρμόδια αρχή διαφωνη προς τόν ρηθέντα Διευθυντήν, αύτη δέον νά παραπέμψη τό ζήτημα αμελλητί είς τόν Υπουργών Εσωτερικών όστις αποφασίζει έπ' αϋτοϋ τό ταχύτερον καΐ κοινοποιεί αμελλητί τήν άπόφασιν α\*τοΰ είς πάντα ένδιαφερόμένον, καΐ άπό της τοιαύτης κοινοποιήσεως ή άπόφασις τοΰ Υπουργού καθίσταται εκτελεστή. 20 25 (Ρ) " In English it reads: "9(3Xa) Whenever an application is submitted 30 35 (i) By virtue of para, (a) or (c) of subsection
(1)of section 3 regarding any land or (
- ii)By virtue of para, (
- b)or (
- d)of subsection
(1)of section 3 regarding any building, except only regarding the case of a building consisting of a single residence and not constituting part of a building or a group of buildings or a building complex or other building development, situate outside a water supply area, the appropriate authority shall not grant a permit with regard to the said land or building except if, after obtaining the advice of the Director of the Department 971 A. Loizou J. YiakijEstates v. Imp. Board Ay. Napa
(1984)of Water Development of the Ministry of Agriculture and Natural Resources (hereinafter in the present subsection referred to as "the said Director"), is fully satisfied that the condition in sub-paragraph (
- ii)of para, (c)ofsubsection 1 ofsection9regardinganyland 5 or as the case may be, the condition in subsection (
- xi)of para, (
- b)of subsection 1of section 9regarding any building is satisfied in a manner satisfying it or its compliance is secured in the said manner: Provided that if in any particular case the appro- 10 priate Authority disagrees with the said Director, it must refer the matter forthwith to the Minister of Interior who decides the soonest and communicateshisdecisionimmediatelytoeveryinterested person and as from such communication the deci- 15 sion of the Minister becomes executory." Before proceeding any further with the examination of the sole issue of discrimination raised in this recourse, I shall deal with the objection of respondent No. 2, whoin thepresentcase obviously acted in his capacity as Chairman of the respondent 20 Improvement Board ofAyiaNapa,that heshouldnothavebeen joined asa partytothepresentproceedingsasheacted solelyin hissaidcapacityandhetooknoexecutorydecisionofhisownor confirmed any decision taken by the appropriate Authority other than having participated in the collective decision of the 25 respondent Board which in accordance with the Streets and Buildings Regulation Law,Cap.96,section 3
(2),para, (b),isthe appropriate Authority and as such the Authority to which the applicantsappliedfor a buildingpermit. Iuphold theobjection as by virtue of section 51 of the Villages (Administration and 30 Improvement) Law, Cap. 243: "
(1)In all legal proceedings the Board may sue and besued in its name.
(2)A Board shall, for the purposes of this Law, bear the name 'Improvement Board of ' (inserting the 35 name of the improvement area)". For all intents and purposes it would be enough in the circumstancesto havemadetheimprovement BoardofAyiaNapa 972 3 C.L.R. Yiaki Estates v. Imp. Board Ay. Napa A. Lolzou J. as the respondent in these proceedings, the District Officer of Famagusta as such having no locus standi in his said capacity in the present proceedings. The recourse, therefore, against him is dismissed for that reason. 5 Asregardsthe ground ofdiscrimination, ithas beentime and againsaidthatreasonabledifferentiations arepermissibleinview of the intrinsic nature of things and only arbitraly and unreasonable differentiations constitute impermissible discriminationandoffend Article28oftheConstitutionwhichsafeguards 10 the principle of equality. In the present case, as already seen, there was a fundamental reasonable differentiation. The "Romulus" buildings were a touristic development project coming under the Hotels and Touristic Establishment Law of 1969asamended,whereastheintendedbuildingsoftheapplicant 15 Company were a residential development lying outside the inhabited area of the village and the water supply thereof. For alltheabovereasonstherecourseisdismissed, but inthe circumstances there will be no order as to costs. Recoursedismissedwith noorder asto costs. m