3 C.L.R. 1986 July 3ϋ [TRIANTAFYLL1DI?S. P.I IN THE MATTER OF ARTICLE Uo OF ΓΗΕ CONSTITUTION SAVVAS G KAPARTIS AND ANOTHER. AppLiunh. r. THE REPUBLIC OF CYPRUS, THROUGH
- THE COUNCIL OF MINISTERS,
- THE ATTORNEY-GENERAL, Respondents. (Case No. 350/83}. Time ^ 10 15 20 within which to file a recourse—Constitution, Ar·.icle 146.3—Notit e of acquisition—Objection by applicants— Publication of order of acquisition on 17.6.83—Letter, in forming applicants of the dismissal of their obje< lion. dated 24.6.83—The period of 75 days began to run as from the date of such letter and not as from the date of publication of the order. Executory act—Composite administrative action—Notice of ac quisition—// it ever was executory, it ceased to be uuh upon the final outcome of the composite administrative action, that is the order oi the acquisition. Recourse for annulment —Practice —Parties — Attornex-General joined as a respondent in a recourse directed against a notice and an order of compulsory acquisition—Not u proper party to the proceedings. This recourse is directed against a nnt'ce of acquisition and an order of acquisition of applicant" immovable proper'y in Nicosia. The notice was published in the Of ficial Gazette of 30.7.
- By letter daied 18.8 82 the applicants lodged an objection. The order of acquisition was published in the Official Gazette of 17.6 S
- The letter, 2529 Kapartis & Another v. Republic (1988; whereby the applicants were informed that their objection was dismissed, was dated 24.6.
- This recourse was filed on 3.9.
- Counsel for the respondents raised the following preliminary objections, namely that the notice cannot be challenged by a recourse as the only act of an executory nature is the order of acquisition, that the recourse as regards the order is out of time and that the AttorneyGeneral was wrongly joined as a party. Held,
(1)The applicants were informed of the fate of their objection a whole week after the publication of the order of acquisition. In the light of the rather special circumstances of this case and the case law of (his Court, the Court reached the conclusion ihat the per'od of 75 days under Article 146.3 of the Constitution began to run from the date of the letter informing ihe applicants of the fate of their objection and not from the date of publication of the order. It follows that this recourse is not out of time. 5 10 15
(2)The no*ice of acquisition, even if it ever was exe- 20 cutory, has ceased to be so, as it merged in the final outcome of the composite administrative action of which it forms part, that is the order of acquisition.
(3)The Attorney-General has nothing to do wi'h the sub judice decisions. He •is not a proper organ through 25 which to proceed against, the Republic, the real respondent. It follows that the title of this case should be amended by erasing the reference to him.
(4)In the light of the above the recourse will be heard on its merits as regards the order of acquisition. 30 Order accordingly. Cases referred to: Pissas (No. 1) v. Electricity Authority 3 C.L.R. 634; 2530 of Cyprus
(1966)3 C.L.R. Kapartls & Another v. Republic Bakkaliaou v. The Municipality of Famagusta
(1969)3 C.LR. 19: Prezas and Another v. The Republic
(1986)3 C.L.R.
- Recourse. 5 Recourse against the validity of a notice of acquisit on published in the Official Gazette in respect of applicant's property in Nicosia. C. Pamballis, for the applicants. A. Vladimirou, for the respondents. 10 Cur ddv. vult. TRIANTAFYLLIDES P. read the following judgment. In this case the applicants, who are the owners of immovable property in Nicosia, challenge the validity of a notice of acquisition (see No. 790, Third Supplement, Part II, in 15 the Official Gazette of the 30rh Ju'y 1982) and of an oider of acquisition (see No. 700, Third Supplement, Part IT, in the Official Gazette of the 17th June 1983) which were published in respect of the aforesa:d immovable property of the applxants. 20 Counsel for the respondents has raised the preliminary objection that the notice of acquisition cannot be chal'enged by means of the present recourse because it is part of a compes'te administrative action wh;ch has cu'minated in the order of acqu:sition and that, therefore, it is on'y the 25 order of acquisition which is of executory nature and could be challenged by this recourse. Furthermore, he has argued that in respect of such order of acquisition the present recourse is out of time since the order of acqu'sit'on was published on the 17th June 1983 and this lecour*··: was 30 filed on the 3rd September
- that is after the l.ipsc of the period of seventy-five days which :·- prescribed by Article 146.3 of the Constitution. 35 As regards the objection that tne rccrursc *-. out oi time in relation to the order of acquisition ; t is to be noted that after the not;ce of acquisition was pub'ished on the 30th 25J1 Triantafylltdes P. Kapartis & Another v. Republic
(1986)July 1982 the applicants objected to the acquisition by means of a letter dated the 18th August 1982, and they received a reply to their objection dated the 24th June '983, by means of which they were informed that the Council of Ministers had rejected their object'on; thus the 5 applicants were informed of the fate of their objection to ihr: ccniDulscry acouisiticn a whole week after the order oi acquisition had been published in the Official Gazette. In the ! ght of the rather special circumstances of this case, and bearing in mind relevant case-law of this Court 10 such as Pissas (No. 1) v. The Electricity Authority of Cyprus,
(1966)3 C.L.R. 634 638, and Bakkaliaou v. The Municipality of Famagusta.
(1969)3 C.L.R. 19, 27, I have reached the conclusion that the period of seventy-five days under Article 146.3 of the Constitution should be 15 reckoned as runn;ng not as from the date of the publication of the order of acquisition on the 17th June 1983, but as from.'the date of the letter by means of which the applicants were informed that their objection against the acquisition had been rejected, that is as from the 24th June 20 1983, and. consequently, this recourse, which was filed on 'he 3rd September 1983, is not out of time. As regards the :ssuc of whether bv means of th's recourse the notice of acquisition can be challenged I am of the view that even if it could be said that such notice is an --5 executory act, ;»nd no* merely a preparatory act, it cannot be challenged separately on its own, because it has merged in !he final stage of the composite admin:strat:ve action of which it forms part, namely in the order of acquisition, and only, therefore, the order of acquisition is of executory 30 nature; and the notice of acquisit'on if it ever was executory has ceased to be so after the publication of the order of acquisition (see, in this respect, Prezas v. The Republic, R. A. 491, judgment delivered on the 4 July 1986 and not reported yet.*). Of course, in challenging the validity of the 35 order of acquis't'on there may be put forward as a ground of invalidity of such order any defect of the notice of acquisition which forms part of the relevant composite administrative notion. Counsel for fhe respondents has. also, objected that the 40 Attorney-General of the Republic should not have been * N'ow reported in [1986) 3 C LR. 2525 2532 3 C.L.R, Kapartis & Another v. Republic Tnantafyllides P. made a party to these proceedings because he has nothing to do with either the notice or the order of the acquisition. 1 do agree with this contention of counsel for the respondents and, apparently, the Attorney-General was joined 5 in his capacity as the legal adviser of the Republic, which does not. however, render him a proper organ through which to proceed against the Republic, which is the real respondent in this case. 1, therefore, order that the t'tle of this case should be amended accordingly so as to erase 10 the reference to the Attorney-Geneial of the Republic. In the light of all the foregoing this case will be he-.ird on its merits as regards the validity of the sub judice order of acquisition. Order accordingly. 2533