clr/1986/1986_3_539.pdf

(2)and 3

(2)(h)—"Ancienf monuments" or "Antiquities" in s. 3

(2)(h)—These expressions are not defined either in the Constitution or The Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224—They should be read in the context of the Antiquities Law, Cap.

1. Compulsory Acquisition*—Necessity of acquisition—A matter to be decided by the Government—In the absence of valid reasons to the contrary this Court does not interfere. The Antiquities Law, Cap. 31 as amended by Laws 48/64 and 32/73 ss. 6 and
2. The applicant's property under Reg. No. 4227 situated at Kaliana village, together with certain plots of land that belong to a number of other persons, are known as the "Inn of Kaliana". On the 23.9.77 an order of the Council of Ministers was published in the Official Gazette declaring the said property an anc'ent monument and emplacing it in the second Schedule of the Antiquities Law, Cap.
3. The applicant did not challenge this order by means of a recourse to this Court. 539 Christophidou v. Republic

(1986)On 6.10.78 a notice of acquisition of applicant's property was» published in the Official Gazelle. The applicant objected, but the Council of Ministers rejected the objection and on the 28.9.79 the relevant order of acquisition was published in the Official Gazette. As a result the applicant 5 filed the present recourse, based inter alia on the following grounds, namely, that: (

1. a)Her property is neither an '"Ancient monument" nor an ''Antiquity*', (
2. b)The notice of acquisition does not specify adequately the purpose of the acquisition and further the prerequis:tes of the law are 10 not satisfied, and (
3. c)The respondent did not consider an alternative solution less onerous to the applicant. In arguing ground (
4. c)above counsel for the applicant submitted that since the property was listed in the second Schedule of Cap. 31. its restoration cnuld have been carried out with- 15 out resorting to compulsory acquisition. Held, dismissing the recourse:

(1)Section 2

(2)of Law 15/62 provides that "Expressions in th's Law not otherwise defined shall, unless otherwise resulting from the context, have the meaning attached to such expressions by the Constitution and the Immovable Property (Tenure. Registration and Valuation) Law Cap. 224". There is no definition of the words "Ancient Monument" or "Antiquities" either in the Constitution or in Cap. 224. From the wording of section 3

(2)(h) of Law 15/

1. it is obvious that the above expressions should be read in the context of Cap.
2. Once the property in question had been declared an "Ancient Monument" under s. 6 of Cap.
3. the applicant, who d : d not challenge the decision, cannot now question its validity.

(2)In the light of the last part of the notice of acquittion that the acquisition of the properly "is required for the following reasons, that is the preservation or improvement of ancient monuments or antiquities in the village of Kalliana" the submission that the purpose of the acquis!- 35 tion had not been adequately defined in the Notice cannot stand. The question whether it is necessary 'hat property is to be acquired for a purpose to the benefit of the public is a matter to be decided by the Government and in the absence of any valid reasons to the contrary, the decision J 0 540 20 2**. 30 3 C.L.R. Christophidou v. Republic of the Government so to do cannot be interfered with by this Court. From material before the Court it emanates that the discretion of the acquiring authority was reasonably exer­ cised in this respect. The property was required for a pur­ pose of public benefit, that is preserving and restoring buildings of traditional architecture, which is one of the purposes listed in s. 3 of Law 15/62.

(3)Despite s. 8* of Cap 31 as amended by Laws 48/64 and 32/73 the material produced before the Court show that the applicant was unwilling to co-operate with the Department of Antiquities, notwithstand'ng the attempts by that Department to enter the property for the purpose of its restoration; and further the owners of the Inn showed complete indifference for its restoration The attempt of the said Department to come to an arrangement with all the owners of the Inn were unsuccessful It follows that the respondent was not unreasonable to make the sub judice order. Recourse dismissed. Costs against applicant. Case·; referred to: Lordos Ltd. and Others v. The Republk C.LR. 447.

(1974)3 Recourse. Recourse against the decision of the respondent whereby applicant's property situated at Kaliana village was compulsorily acquired. E. Efstarhinii, for the applicant. A. Papasavvas. Senior Counsel of the Republic, the respondents. for Cur. adv. vult. * Quoted at ρ 547 post 541 Christophidou' v. Republic

(1986)DEMETRIADES J. read the following judgment. Trie applicant, who is the owner of the property under Registration No. 4227 plot Nos.

1. 424, 425-, 426/1 and 427 of Sheet/Plan XXXVIT. 5.W.I. situated at Kfdiana village. by this recourse challenges the validity of the decision of 5 the respondent which was published in Supplement No. 3 Part II of the Official Gazette of the Republic dated tlv 28th>September, 1979, under Notification No. 1046 and by which her said property was compulsorily acquired. The above property of the applicant, together with cer- 10 tain plots of land that belong to a number of- other persons, are known as the "Inn of Kaliana". As the above property forms an old type of an inn, the Department of Antiquities decided in 1976 that it had to be requisitioned' for the purpose of restoring it in order to 15 prevent it from being ruined. As a result, a requisition order was made on the 27th August, 1976, which was renewed annually. On, the 20th May, 1977, a notice was published1 in the Official Gazette of the Republic to the effect that the said 20 inn was to be declared an Ancient Monument and emplaced in the second Schedule to the Ant'quities Law. Cap.
2. Although the applicant objected· to· it, her objection was rejected1 by the Council of Mhvsters which then proceeded· to publish an order declaring the property an 25 Ancient Monument. This order. wh'ch was published in the Official· Gazette of the 23rd September,
3. was not challenged by the applicant by recourse to this Court. The Department of, Antiauities then proceeded with attempts to restore the place and', in the meantime, put in motion the 30 procedure for its compulsory acquisition. As a result, the notice of the acquisition of the property owned by the applicant was published in the Official Gazette of the Republic on the 6th October,
4. To this, the applicant objected' by letter of her counsel dated the 12th October, 35 1978 (see blue 95 in File No. 41/76 which is an exhibit before me").Her objection was referred to the Counc'V of Ministers accompanied bv two submissions made by the M:nistry of Communications and Works dated the 7th May,
5. and the 19th September, 1979, respectively, in 40 542 3 C.L.R. 5 Christophidou v. Republic Demetriades J. which it was suggested that it be dismissed. The Council of Ministers rejected the applicant's objection. An order of the acquisition of the property of the applicant was then published under Notification No. 1046 in Supplement No. 3 Part II of the Official Gazette of the Republic dated the 28th September. 1979, and the applicant filed the present recourse. On the directions of the Court the case of each side was presented by written addresses. 10 Counsel for the applicant based his case on the following legal grounds: (a) The sub judice decision is contrary to the law nnd the Constitution in that the property of the applicant is neither an "Ancient Monument" nor an "Antiquity." 15 fb) The notice of acquisition is invalid in that it does not specify adequately -the special purpose for Hiich the acquisition of the property in question is necessary and further that the prerequisites of the Law are not satisfied. 20 (c) The respondent acted under a misconception of farts. ((!"! The r?sp< ndent did not consider an alternative solution less onerous to the applicant. (c) T!ic sub judice dec:sion was taken in excess or in abuse of power. 25 In arguing his case on the first ground, counsel 'for the applicant submitted that the terms "Ancient Monument" or •'Antinuities" in section 3

(2)h) of the Compulsory Acquisition of Property Law (Law 15/62) should not be given the same meaning as that attached to them by the Ant*qui™ ties Law.-Can. 31.but that 'thev shou'd "be.given the meaning attached to them by the Constitution nnd the Tmmovab'c Property (Tenure Registration and Valuation) Law. Cap. 224. It was further submitted 'by counsel that the building which stands on the property of -the applicant and which 35 was constructed in 1923 cannot be considered an "Antiquity" or an "Ancient Monument". 543 Demotriade* J. Christophidou v. Republic (1986] Section 2

(2)of the Compulsory Acquisition of Property Law, (Law 15/62) reads as follows: "Expressions in this Law not otherwise defined shall, unless otherwise resulting from the context, have the meaning attached to such expressions by the Con- 5 stitution and the 'Immovable Property (Tenure, Registration and Valuation) Law' (Cap. 224)." It has not been pointed out to me, and I have not been able to trace, either in the Constitution or in the Immovable -•Property (Tenure Registration and Valuation) Law, Cap. 10 224, a definition of the words in question. From the wording of section 3

(2)(h) of Law 15/62, it is obvious that the above expressions should be read in the context of the Antiquities Law, Cap. 31. It is, therefore, my view that once the property of the applicant has already been de- 15 dared an "Ancient Monument", under section 6 of Cap. 31, the applicant, who did not challenge the above decision, cannot now question its validity. Having regard to the definition of the expression "Ancient Monument" and the provisions of section 6 of Cap. 31, I find that the de- 20 cision declaring the property in question an "Ancient Monument" was a valid one. This ground of Law. therefore, fails. I now propose to deal with the second legal ground on which the applicant bases her recourse. 25 Counsel for the applicant submitted that under section 4 of Law 15/62property can be compulsorily acquired if and only if it is shown that the acquisition is necessary for a purpose beneficial to the public. He further argued that this prerequisite of the law, i.e. the necessity of the acquisition 30 of property for the benefit of the public, was not clearly or adequately stated in the notice to treat (notice of acqu:sition). The purpose of the acquisition in the said notice, be alleged, was very general and vague. Tn support of bis argument counsel made reference to a note of the Director 35 of the Department of Antiquities under the heading "Protection of the Cultural Inheritance of Cyprus" dated the 3rd 1979, July, photocopy of which was produced and in 544 3 C.L.R. 5 Christophidou v. Republic Demetriades J. which, amongst others, it is stated that the applicant re­ fused to co-operate with his Department for the restoration of the Inn. Counsel rejected this statement of the Director and submitted that the real purpose the authorities want to acquire the property of the applicant is none other but the use of the Inn for purposes of tourism. Whether it is necessary that property is to be acquired for a purpose to the benefit of the public is a matter to be decided by the Government and in the absence of any valid H) reasons to the contrary the decision of the Government so to do cannot be interfered with by this Court (see Lordos Ltd. and others v. The Republic,

(1974)3 C.L.R. 447). 15 20 25 30 35 From the material before me, especially the contents of File No. 41/76, I am satisfied that the discretion of the acquiring authority was reasonably exercised in this respect. Specific reference may be made to blues'8, 58, 64, 98, 110 (which is the submission to the Council of Ministers) and 114 in the same file, where the importance of the inn is stressed, from the point of view of traditional architecture, it being unique in its kind, the ruinous state in which it was found and the indifference of its owners regarding its restoration, as well as the refusal of the applicant·, even after the requisition order, to allow the representatives of the Department of Antiquities to enter her premises and carry out the restoration works. As to the requirement of the property for a purpose of public benefit, this becomes evident from the material in the files produced. The property was required for the pur­ pose of preserving and restoring buildings of traditional architecture, which is one of the purposes listed in section 3 of Law 15/62. I now come to the clarity of the purpose of the acquisi­ tion in question. The notice of acquisition, which was pu­ blished in Supplement No. 3 Part II of the Official Gazette of the Republic, dated the 6th October, 1978. under Notification 1044, reads: «Διά τοϋ παρόντος γνωστοποιείται Οτι ή εν τω παρατιθεμένω Πινάκι περιγραφόμενη ακίνητος ιδιοκτησία εί­ ναι αναγκαία διά τον άκόλουθαν σκοπόν δημοσίας ώ545 Demetriades J. Christophidou v. Republic

(1986)φελείας, ήτοι δι' αρχαιολογικός άνασκαφάς ή την συν­ τήρησαν ή άΕιοποίησιν αρχαίων μνημείων ή αρχαιοτή­ των ή τήν άνάπτυΕιν των πέριξ κειμένων χώρων και ή άπαλλοτρΐωσις αυτής επιβάλλεται διά τους ακολού­ θους λόγους, ήτοι διά τήν συντήρησιν ή άΕ'Οποίησιν αρχαίων μνημείων ή αρχαιοτάτων εις το χωρίον Κα­ λιά να». Λ ,('!It is hereby notified .that the immovable property described in the attached Schedule is necessary for the following purpose of public benefit, .that is for archac- 10 ological excavations or the preservation or improve­ ment of ancient monuments or antiquities or the deve'lopment of the surrounding places ^nd its acquisition is required for the following reasons, that is the preser­ vation or improvement of ancient monuments or ant;- 15 quities in 'the village Of .Kaliana.") Considering the contents of the last part of the above notice which reads "its acquisition is required for the fol­ lowing reasons, that is the preservation or improvement of ancient monuments or antiquities in the village of Kaliana" 20 and which are, in my mind, very clear of what it was Ή tended and meant by them, I find that as the app'xant failed to challenge the declaration of her property as an ancient monument she cannot now be successful in her recourse bv which jshe is .in fact attacking the purpose >for which the ?5 respondent seeks the compulsory acqu:sition of her property. In ,any .event, the applicant has failed to satisfy me that the* purpose 'for which -her property is compuhorly acquired is not .one which is for the public benefit. This ground is, 'therefore, dismissed. The third legal ground on which the applicant bases hei recourse is that the respondent acted under a nvsconception of facts. No evidence was adduced and no argument was advanced establishing this ground and I feel that I need not say anything more on it. I now come to ground (d) by which the applicant com­ plains that the respondent has failed to consider other alter­ native solutions less onerous to her. Her subm'ssion is that since the respondent has specified her property as one listed 546 30 35 3 C.L.R. Christophidou v. Republic Demetriedee J. in the second Schedule to Cap. 3 1 , there was no need- for its compulsory acquisition and, therefore, its restoration could have been carried out without the respondent having to resort to its compulsory acquisition. 5 H) 15 20 25 30 35 Section 8 of Cap. 3 1 , as amended by Laws 4 8 / 6 4 and 3 2 / 7 3 , reads:. "8.

(1)No person beneficially interested in- any ancient monument specified' in' the Second Schedule to this Law, or in any other ancient monument as may from time to time be added thereto^ shall' make any alterations, additions or repairs affecting its architectural character to such ancient monument or shall demolish the same or fell any tree growing within the boundaries of the1same-or shall do· any other act which might damage or destroy the archaeological importance and stratification' of the ancient monument save in accordance- with the terms of a<permit in· writing from the District Officer previously obtained. 02) The District Officer may, with the approval of of the Minister, grant to any person beneficially interested in any ancient monument to which this section applies, such sum as to the District Officer may seem fit for the purpose of assisting such person in the maintenance; preservation or restoration of such monument.

(3)Any person who is d:ssalLsfied· w'th any term imposed' by the District Officer in any permit issued under this section may, within one month from the date of notification of the decision of the District Officer. appeal to the Council of Ministers whose decision thereon shall be final and conclusive.

(4)Any person who acts in contiavention of sub section (I) of this section shall be guilty of an offence nnd shall be liable to a fine not exceeding ten pounds and the ancient monument in. respect of which the offence- has been committed shall upon conviction vest in the Government." 547 Demetriades J. Christophidou v. Republic

(1986)However, having gone through the files produced, it is my finding that the respondent was not unreasonable in reaching its decision to make the order for the compulsory acquisition of the property of the applicant, in that, although the property was requisitioned for the purpose of its resto5 ration, the applicant showed no willingness to co-operate with the Department of Antiquities despite the attempts on a number of occasions by that Department to enter the property for that purpose. Further reasons that emanate from the said files and which justify the decision reached 10 by the respondent is the complete indifference and the lack of interest for the restoration of the inn by the owners of it and the fruitless attempts of that Department to come to an arrangement with all the owners for the restoration of the inn. (See blue 8 para 2 (γ) of the letter of the Director 15 of Antiquities to the Director-General of the Ministry of Communications and Works in File 41/76). In the light of the above and having in mind that the Department of Antiquities considers the inn as unique in its kind, I find that the sub judice dec:sion was reasonably 20 reached after a due inquiry was carried out. The last- ground of Law on which the applicant bases her recourse is that the respondent acted in excess or abuse of its powers. Considering my findings on the other legal grounds on wh ; ch this recourse is based, I find that the submissions made on this ground cannot stand. 25 In the result, the case is dismissed with costs against the applicant. Costs to be assessed by the Registrar. Recourse dismissed with costs against applicant. 548 30