clr/1986/1986_3_2267.pdf

(1986)Held, dismissing the recourse: (I) This Court is entitled to examine ex proprio motu the issue as to whe'her a recourse could he filed against the sub judice decision.

(2)Applying the principles emanating from the case law to the facts and circumstances of this case, this Court 5 reached the conclusion that the sub judice decision is not capable of being the subject of a recourse under Article !46 of the Constitution. Recourse dismissed. No order as to costs. 10 Cases referred te: HajiKyriakos v. Had'fiapostolou, 3 R.S.C.C. 89: Valana v. The Republic, 3 R.S.C.C. 9 1 : Antoniou v. The Republic

(1984)3 C.L.R. 323; Mahlouzarides v. The Republic

(1986)3 C.L.R. 2342. 15 Recourse. Recourse against the decision of the respondents to grant to the interested party the immovable property under plot 82, S / P . L V I I / 1 4 situated at Pissouri village, while the said property had been ieased to the applicant and a 20 building permit was issued to him. L. Clerides, for the applicant. N. Charalambous, Senior Counsel of the Republic, for the respondents. M. Christofides, for the interested party. 25 Cur. adv. vult. J. read the following judgment. In this recourse, which is made under Article 146 of the Constitution, the applicant claims, as stated therein, a declaration of the Court that the decision of the respondents, 30 wh : ch has been communicated to the applicant by letter dated 2.6.1978, of the District Lands Officer of Limassol, to grant to Mufulira Ltd. Company, the immovable proMALACHTOS 2268 3 C.LR. 5 Lazarou ν Republic Malachtos J. pertv under Plot 82, S/P LVII/14, situated at Pissouri vil­ lage. while the said property had been leased to the appli­ cant and a building permit was issued to h:m dated 2.12.1976, should be dedared null and void and of no legal effect whatsoever. The following a<-e the relevant facts of the case: 10 By its Decision, dated 1.3.78, the Council of Mmisteis approved, among other things, the grant to Mufulira Ltd. Company a piece of land with a store standing on it situated at Pissouri Gulf of an extent of 2 evieks, and 200 sq. ft. being plot 82 of the village S/P LVII/14. at the price of €1.800.- under *he following terms and conditions:- 15 Ca) that the said immovable should merge in the other immovable property of the said company under Plot 93 of S/P LVn/14; 20 (

1. b)that the said company should complete the erection of tourist establishments on the sa:d immovables and put them in*o operation within a period of four years from the tune the said decision would be communicated to them: and 25 (
2. c)that the said company should pay to Theocharis Lazarou of Pissouri, the applicant in this recourse, any compensation to be assessed by the District Officer of L'massol in respect of anv repairs he had carried out in connection with the premises standing on the «ranted government property. It should be noted here that Theocharis Lazarou was in possession of the granted property under a contract of lease concluded in December, 1971 between him and the District 30 Officer of Limassol. 35 Subsequently, the District Officer of Limassol assessed the compensation to £1,100.- and the applicant was informed accord:ng!y. In view of the fact that the applicant refused (o receive the said compensation and evacuate the said property, he was notified by the District Lands Officer of Limassol by letter dated 2.6.78, by the Director of Lands and Surveys by letter dated 14.7.78 and by the District 2269 Aalachtos J. Lazarou v. Republic

(1986)officer of Limassol by letter dated 15.7.78, to stop inerfering with the said immovable property. As a result the applicant on the iled the present recourse. 12th August, 1978, One of the submissions of counsel for applicant in sup- 5 )ort of his case is that the decision complained of to grant he property, the subject matter of this recourse, to the nterested party amounted in law to an abuse of power, >ecause the Government decided to grant it to the inteested party by virtue of section 2 of Government Lands 10 .aw, Cap. 221 and section 18 of the Immovable Property Tenure, Registration and Valuation) Law, Cap. 224, at . time when Government well knew that it had contractual elations with the applicant and was, therefore, estopped rom making a grant of property which had already been 15 ;ased to the applicant with the right to make certain •uilding alterations in the premises by virtue of a building ermit. Although there is a consensus among counsel appearing >r the parties that the sub judice decision falls in the do- 20 lain of public law, yet, in view of the arguments of ounsel and the other material placed before me, I feel ound, as I am entitled to do, to examine ex proprio motu le issue as to whether a recourse under Article 146 of the onstitution could be filed against the said decision. 25 The question of distinction between the domain of puic and private law was examined in a series of cases of is Court starting from the case of Hadfikyriakos v. Hadjilostotou, 3 R.S.C.C. 89, Valona v. The Republic, 3 R.S. .C. 91, up to the recent decision in Antoniou v. The Re- 30 iblic

(1984)3 C.L.R. 323. In the most recent case of 'ahlouzarides v. The Republic, a Revisional Jurisdiction ppeal No. 452, issued on the 9th December, 1985*; and >t reported yet, reference is made, with approval, by the ill Bench of this Court, to the following passage from 35 ntoniou case, supra: "The ascertamment of the rights of citizens to immovable property is primarily of interest to the parReported in

(1985)3 C.L.R. 2342. 2270 3 C.L.R Lazarou v. Republic Malachtos J ties immediately affected thereby. The public has but a remote interest in the matter. 5 10 15 20 25 30 The Supreme Court was alive to the conceptual difficulties inherent in drawing the dividing line be­ tween acts of administration in 'he domain of public law en the one hand and in the domain of pri\ate law on the other. In one sense the public is interested in every decision of the administration. Under­ lying the above decision is the appreciation by the Court that the degree of interest on the part of the public in act;ons of the administration varies in pro­ portion to the extent to which such decisions ar likely to affect the public or sections of it. The Suprem Constitutional Court adopted a practical test t chart the line of demarcation between decisions in th domain of public and private law. It revolves roun the primary object of the act or decision. If the dec s'on is primarily aimed to promote public purpose falls in the domain of public law: otherwise in that c private tew. Naturally the public has a livelier interei in publ:c purposes." Applying the above principles to the facts and circum stances of the present case, I have come to the conclusio: that 't frlls in the domain of private law and not of publi law and that the decision complained of is not capable ο being the subiect of a recourse under Article 146 of th Constitution. This recourse, therefore, fails and is dismissed but η the circumstances I make no Order as to costs. Recourse dismissed. No order as to coits. 22'Ί