clr/1986/1986_3_2281.pdf

(1986)Kypnanou v. Republic cant to the Minister of Commerce and Industry prove that the applicant was aware at that time of the order of acquisition. By letter dated 19.3.84 the Director of the Lands and Surveys Department offered to the applicant £900.- plus interest as provided by law as compensation for the property acquired. 5 On 30.4.84 the applicant filed the present recourse, seeking the annulment of: (a) The "decision" of the said Director communicated by the aforesaid letter of 19.3.84, and (b) The Notice of acquisition published on 29.5.81 and "any subsequent order of acquisition". 10 Held, dismissing the recourse:

(1)The offer of £900.was made with a view to reaching, if possible, a private treaty with the applicant in respect of the compensation 15 payable in respect of the acquisition (Section 8 of the Compulsory Acquisition Law 15/62). It was an act with a view to implementing the acquisition by arriving at a figure in connection with the compensation; it was, therefore, an act of execution of the acquisition itself. Acts of 20 execution are not executory acts and, therefore, they are non-justiciable under Article 146 of the Constiliition.

(2)As regards the notice of acquisition and "any subsequent order of acquisition" it is clear that the recouise is out of time. As it is obvious that the applicant knew 25 of the order as early as 15.3.83, whilst this recourse was filed on 30.4.84. there is no need to dwell with the issue, whether time begins from publication of the order or from the day when it came to the knowledge of the applicant. Recourse dismissed. No order as to costs. 30 ases referred to: Kolokassides v. The Republic

(1965)3 C.L.R. 542; HjiCostas v. The Republic

(1974)3 C.L.R. 1; Spyros Colocassides Estate Ltd. v. The 3 C.L.R. 205; 2282 Republic

(1977)35 3 C.L.R. Kyprianou v. Republic Koupepa v. The Municipal Corporationof Limassol (196! 3 C.L.R. 496; Nicosia Race Club v. The Republic

(1984)3 C.L.R. 799 Recourse. 5 Recourse against the notice of acquisition published ii the Official Gazette under Not. 500 and any subsequen order of acquisition in respect of applicants property si tuated at Erghates village. N. Clcridou (Mrs.), for the applicant. 10 St. Ioannides (Mrs.), for the respondent. Cur. adv. vult. LORIS J. read the following decision. The applicant by means of the present recourse prays (A) For a declaratory judgment that the so termed in the recourse "decision" of 15 the respondent Director of Lands and Surveys, set out in his letter of 19.3.1984 addressed to the applicant, is null and void. (B) For a declaratory judgment annulling the notice of acquisition published in the Official Gazette of the Re20 public on 29.5.81 under No. 500 and "any subsequent Order of acquisition" in respect of part of applicant's property situated at Erghates village covered by plot 103, Block D of sheet-plan X X X / 3 3 E 2 . 25 The salient facts of the present case are very briefly as follows: Upon approval by the Council of Ministers on 28.5.1981 of the creation of an Industrial Estate in the area of Erghates Village in the Nicosia District, a notice of acquisition was published in the official Gazette of the Republic on 30 29.5.1981 under Not. 500 relating to the acquisition of privately owned immovable property at Erghates village; among the properties to be so acquired the whole plot 103, belonging to the applicant, was included. 2283 Loris J. Kyprianou v. Republic (198G) Objections against the intended acquisition were sub­ mitted by owners of properties affected by the proposed acquisition, to the respondent Ministry of Commerce and industry through the District Officer Nicosia. The applicant was amongst those who submitted objections in respect of the proposed acquisition of their property. 5 The Council of Ministers examined the objections and on 28.5.82 an acquisition Order was published in the Official Gazette of the Republic under Not. 487; part of the afore­ said property of the applicant was included in the aforesaid 10 Order of acquisition but due to a printing error the pro­ perty of the applicant was described as "part of plot 33" instead of "part of plot 103 ! \ At a subsequent time i.e. on 23.12.82 the error was corrected by a publication in the Official Gazette of the Republic under No. 1473. 15 Applicant by letter dated 13.5.83 (exhibit "Y" before

1. me)addressed to the Minister of Commerce and Industry applied, for the exemption of the aforesaid part of his pro­ perty from the acquisition in question. In a subsequent letter of 23.8.83 (exhibit " Z " before
2. me)20 addressed to the same Ministry, the applicant offerred to grant gratis to the Republic portion coloured red on the plan (attached to ex. Z), which covers only a portion of the part of his property under acquisition, in consideration of the withdrawal of the acquisition Order for the re- 25 maining part of his property under acquisition; the part of plot 103 included in the Order of Acquisition is coloured yellow in exhibit "Γ" attached to the opposition. The Ministry in a letter dated 4.10.1983 addressed to the applicant (exhibit " P " before
3. me)turned down the afore- 30 said request of the applicant. The Director of the Land Registration and Surveys acting on behalf of the Acquiring Authority addressed a letter to the applicant on 19.3.84 offering the amount of £900.plus interest according to law as compensation for the pro- 35 perty of the applicant compulsorily acquired. The applicant filed the present praying as per prayer. 228-1 recourse on 30.4.84 3 C.L.R. Kyprianou v. Republic The respondents in their opposition nary objections as follows: Loris J. ra:se thtee prelimi- 1. The present recourse was filed out of time. 5 2. The decision impugned is not of an executory character within the ambit of Article 146 of the Constitution. 3. The applicant lacks an existing legitimate interest. Learned counsel for the respondents applied that these preliminary issues be disposed of by the Court first; learned counsel for applicant consenting the case was fixed for 10 hearing of the preliminary points first. Counsei for the respondents elaborated at length viva voce on the preliminary objections and produced several documents in addition to those already attached to the opposition. 15 20 Counsei for applicant applied that she may tile a written address in answer to the oral address on behalf of the respondents. Her application was granted and after repeated adjournments for reasons appearing on record, counsel for applicant filed a written address in answer to the preliminary objections advanced. Counsel for respondent, the counsel for applicant consenting, filed with the leave of the Court written address in reply. To-day I am pronouncing on the preliminary objections raised; I shall confine myself in ruling on the prel;minary 25 objections under 1 and 2 above, as preliminary objection under 3 although raised in the opposition was not argued before me at all. I hold the view that prayer "A" does not refer to an executory decision. It is obvious that the respondent Di30 rector in addressing the letter of 19.3.84 was acting on behalf of the acquiring authority with a view to negotiating in the first place the fixing of the compensation payable in respect of the compulsory acquisition in question. As envisaged by s. 8 of the Compulsory Acquisition of Pro35 perty Law, 1962 (Law 15/62) "The acquiring authority may. at nny time after the publication of a notice of ac2?85 Loris J. Kyprianou v. Republic

(1986)quisition, enter into negotiations for the acquisition of the property to which such notice relates by private treaty and the determination, by agreement, of the compensation payable therefor..." This is exactly what the respondent Director did; he offered to the applicant an amount with a 5 view to reaching, if possible, a private treaty with the applicant as regards the compensation payable in respect of the acquisition in question. In other words his offer was made in the course of assessment of the compensation payable in respect of the acquisition; it was an act with a view to implementing the acquisition by arriving at a figure in connection with the compensation payable in respect of the acquisition; it was therefore an act of execution of the acquisition itself. 10 It is well settled in administrative law that "acts of exe- 15 cution" are not "executory acts" and therefore non-justiciable under Article 146 of the Constitution (vide: Kolokassides v. The Republic

(1965)3 C.L.R. 542, HjiCostas v. The Republic

(1974)3 C.L.R. 1, Spyros Colocassides Estate Ltd. v. The Republic

(1977)3 C.L.R. 205, Koupepa 20 v. The Municipal Corporation of Limassol

(1968)3 C.L.R. 496, Nicosia Race Club v. The Republic

(1984)3 C.L.R.

1. Vide also: Conclusions from the Jurisprudence of the Council of State in Greece 1929 -1959 at p. 240). The preliminary objection on this point therefore sue- 25 ceeds and prayer under (A) is accordingly dismissed. Turning now to the objection that the present recourse was filed out of time: Independently of the fact that the notice of acquisition was published on 29.5.81 and the fact that such notice came to the knowledge of the applicant 30 ever since its publication, as he has raised an objection to it, it is clear that the Order of Acquisition was published on 28.5.
2. I shall not dwell on the issue raised whether the publication came to the knowledge of the applicant or whether same ought to have been known by the applicants Si as early as its publication; I shall confine myself in saying that it is evident from the letter of 13.5.83 (exh. "Y") addressed by the applicant to the Minister that at least as early as that date the applicant was aware of the existence of the Order; on 23.8.83 he addresses another letter to 40 2286 3 .C.L.R. Kyprianou v. Republic Loris J- the Minister (exh. "Z") and it is clear from this letter as well that he is aware of the existence of the Order which he attempts to vary by a succinct offer which is rejected by the Minister on 4.10.83 (exh. P.). The present recourse was filed as late as the 30th April,
3. On any view the recourse was filed out of time; it was filed almost two years after the publication of the Order and almost a whole year after 13.5.83, the time we know for certain that same was within his knowledge. The preliminary objection on this point succeeds as well, and Prayer under (B) is accordingly dismissed. In the result the present recourse fails and is accordingly dismissed. Let there be no order as to its costs. Recourse dismissed. No order as to costs.