(1985)1985 May 10 [L. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION PANAYIOTIS N. CHIRATIS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF AGRICULTURE AND NATURAL RESOURCES, Respondents. (Case No. 7/78). Time within which to file a recourse—Article146.3 of the Constitution—Executory act—Confirmatory act—Decision subject-matter of the recourse out of time—Because it is a confirmatory one of previous executory decisions which have not been challenged by recourse within the time- 5 limit of 75 days provided by the above article. On the 8th October, 1977, the applicant and another person addressed a letter to the Minister of Agriculture and Natural Resources in which they stated that although there had been several applications for the grant to them 10 of government land in exchange for part of their property which was allegedly utilized by the Irrigation Division of Ayia Napa, no progress had been made and no final decision was taken. The Director-General replied on behalf of the Minister by letter dated the 12th October, 1977 15 stating that from the correspondence so far exchanged between them and various government services the subject was exhausted and is considered as closed. Another similar letter on the same subject also dated 8th October, 1977, addressed by the applicant to the Minister of the Interior, 20 was transmitted to the Ministry of Agriculture and Natural Resources and a reply was given to the applicant by letter 926 3 C.L.R. Chlratis v. Republic dated 30th November, 1977 referring him, to the letter of the Minister of Agriculture and Natural Resources dated 12th October, 1977. 5 10 The applicant filed, on the 5th January, 1978, the present recourse challenging the decision contained in the last letter. By his Opposition counsel for the respondents raised the preliminary objection that the recourse was out of time and the sub judice decision was not an executory act, being confirmatory of another previous decision. On the preliminary objection: 15 Held, that the decision contained in the letter of the 30.11.77, does not contain any executory decision but it is confirmatory of the letter of the 12.10.77 which is, also, confirmatory of a previous decision; and that, therefore, the recourse having been filed on the 5.1.1978, is out of time with regard to the letter of 12.10.1977; and that, accordingly, it must be dismissed. Application dismissed. 20 Cases referred to: Chiratisv. Republic
(1982)3 C.L.R. 540. Recourse. Recourse against the refusal of the respondents to grant applicant government land situated near his land at Ayia 25 Napa village. L. N. Cerides, for the applicant. R. Gavrielides, Senior Counsel of the Republic, the respondents. for Cur. adv. vult. 30 L. Loizou J. read the following judgment. The applicant by this recourse seeks a declaration that the refusal of the respondents to grant to him government land situated near his property, plots Nos. 38, 39, 40 and 41 of sheet/ plan 42/23 at Ayia Napa village, communicated to him 927 L. Lolzou J. Chiratis v. Republic
(1985)by letter dated 30th November, 1977, be declared void and of no legal effect whatsoever. The relevant facts are briefly as follows: The applicant, together with another person who is not a party to these proceedings, on the 8th October, 1977, 5 addressed a letter to the Minister of Agriculture and Natural Resources (exhibit 2) in which they stated that although there had been several applications on their part for the grant to them of government land in exchange of part of their property which was allegedly utilized by the 10 Irrigation Division of Ayia Napa, no progress had been made and no final decision was taken and requested an interview with the Minister in order to explain their complaint personally to him. The Director-General replied on behalf of the Minister by letter dated the 12th October, 15 1977 (exhibit 3) stating that from the correspondence so far exchanged between them and various government services the subject was exhausted and is considered as closed. Another similar letter on the same subject also dated 20 ,8th October, 1977, addressed by the applicant to the Minister of the Interior, was transmitted to the Ministry of Agriculture and Natural Resources and a reply was given to the applicant by letter dated 30th November, 1977 (exhibit 1) referring him to the letter of the Minister 25 of Agriculture and Natural Resources dated 12th October, 1977 (exhibit 3). The applicant filed, on the 5th January, 1978, the present recourse challenging the decision contained in the last letter (exhibit 1). By his Opposition counsel for the respondents raised the preliminary objection that the recourse is out of time and the sub judice decision is not an executory act, being confirmatory of another previous decision. On the joint application of counsel this point was heard 35 as a preliminary issue. The sub judice decision (exhibit 1) reads as follows: "I have been instructed to refer to your letter to 928 30 3 C.l.?. 5 Chiratis v. Republic L. Loizou J. the Honourable Minister of Interior, dated 8th October, 1977, which was transmitted to this Ministry, on the subject of the grant to you of government land situated near your property plots Nos. 38, 39, 40 and 41 of sheet/plan 42/23 of Ayia Napa village and in reply to refer you to the contents of my letter of the same number and dated 12th October, 1977, which speaks for itself." There can be no question that the above letter does 10 not contain any decision at all but is confirmatory of the letter dated 12th October, 1977. The recourse, having been filed on the 5th January, 1978, is out of time with regard to that letter. It is, however, the case for the applicant (as stated in paragraph 7 of the facts in support of 15 the Application) that he did not receive this letter until the 20th October, 1977. This allegation has not been substantiated but in any case, even so, again more than 75 days have elapsed from the 20th October, 1977, until the 5th January, 1978 when the recourse was filed. 20 Moreover, and independently of the above, it appears that the letter of the 12th October, 1977 (exhibit 3) also is confirmatory of some other decision and it, therefore, does not contain any executory decision. This letter reads as follows: 25 "I have been instructed by the Honourable Minister of Agriculture and Natural Resources to acknowledge receipt of your letter addressed to him, dated the 8th October, 1977, on the subject of the grant to you of forest land and to inform you that from the correspondence so far exchanged between you and the various government services the subject has been exhausted and is considered as closed.*' 30 The above letter again does not contain any decision but simply informs the applicant that on the basis of pre35 vious correspondence the matter is considered as closed. Various documents have been produced in this case in order to show that there have been other decision before. It is not, however, quite,clear from these documents which is the original decision. But it is obvious that there 40 have been other decisions and one of them is to be found 929 L. Loizou J. Chiratis v. Republic
(1985)in a letter of the District Lands and Surveys Department of Famagusta dated 20th May, 1975, addressed to the applicant (exhibit 5) which reads as follows: "With reference to your application No. A1222/69 by which you apply for the grant to you of certain 5 forest land situated at Ayia Napa village I have been instructed by the Director of the Department of Lands and Surveys to inform you that it cannot be proceeded with because the forest land claimed by you is necessary for purposes of public utility and, in addition, 10 its grant is not covered by the existing policy of the government regarding disposition of government lands." Another recourse of the applicant on the same subject, as it appears from the history of the proceedings narrated 15 therein, is reported in
(1982)3 C.L.R.
- In that case also the recourse was dismissed on the ground that the decision challenged was confirmatory, inter alia, of the decision contained in the letter of the 20th May, 1975 (exhibit 5 in the present recourse) and that it was out of time. 20 It is obvious from the above that the contents of the letter of the 12th October, 1977 (exhibit 3) are, at least, confirmatory of the decision contained in that of the 20th May, 1975 (exhibit 5) and a recourse against the latter decision would be well out of time. The sub judice decision 25 also must, in the light of all the circumstances, be confirmatory of that contained in the letter of the 20th May,
- In the light of the above the decision challenged by this recourse is not an executory act and the recourse has been filed out of time. In the result the recourse fails and is hereby dismissed. There will be no order as to costs. Recourse dismissed. No order as to coJs. 930 30