clr/1987/1987_3_1253.pdf

(1987)28th September. 1978, Action 730/78 against the Republic of Cyprus for trespass totheirproperty. Thisaction waslaterwithdrawn subsequent tothe publication of theorder of acquisition. itmust,also,benoted thatboth inthenoticeofacquisition andintheorder of acquisition, inwhich reference ismade tothedescnption oftheproperties as appeanng in the notice of acquisition, the properties acquired are described by their plot numbers and by means of reference to the Lands Office recordsforidentification ofsamebutthereisnoreference tothenames of theowners of the propertiesaffected bythe acquisition. The issue that arose for determination was whether thisrecourse isout of 5 10 time. Held, dismissing the recourse-

(1)The notices tn this case are similar to those referred to in Pissas (No. 1) v. E.A.C.

(1966)3 C.L.R. 634 and in Bakkaliaouv. MunicipalityofFamagusta

(1969)3C LR 19inboth ofwhich theCourt found thatthey werenot sufficient noticestobringtothe noticeof 1 5 thepersonsaffected of the rejection oftheirobjections andof the factthat an orderof acquisition concerning theirpropertieswas made

(2)In view of the insufficiency of the notices, the question iswhether the applicants came actually to know of the compulsory acquisition and when such knowledge wasacquired. 20 The withdrawal of the action of trespass is a clear indication that the guardians oftheapplicantscametoknowabouttheorderofacquisition soon after its publication and, therefore, the penod of 75 days provided under Article 146.3began torun from such date In any event, the applicants acquired knowledge of the sub judice 2 5 acquisition alsothrough thenoticesoffering compensation, dated 9.12.1983 and 9.1 1984. It follows that the recourse, which was filed in November, 1984,isagain outside the timelimitsprovided bythe Constitution. Recourse dismissed. No orderastocosts. 3 0 Casesreferred to Pissas(No.l) v. TheElectricityAuthonty of Cyprus

(1966)3 C.L.R.634; Bakkaliaou v. TheMunicipalityofFamagusta

(1969)3C.L.R. 19; HjiCostasv. TheRepublic

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

(1977)3 3 5 C.L.R.

1. 1254 3C.L.R. Pana V ides& Othersv. Republic Recourse. Recourse against the validity of the acquisition order affecting applicants'property under Registration No.22481 atPaphos. E.Panayides,for the applicants. 5 M. Tsiappa(Mrs.), for the respondents. Cur.adv.vult, SAWIDES J. read the following judgment. The applicants in this recourse are co-owners by one-fourth undivided share, of a field underPlot288,287/1/2, SheetPlan51/2ofanextentoftwo 10 donums, two evleks and 500 sq. ft. under Registration 22481, which issubject to a compulsory acquisition order. Applicants 1 and2areinfantsandfiledthepresentrecoursethroughtheirfather asnatural guardian and next friend. Applicants3 and 4 are of full age but at the material time of the acquisition they were minors 15 and were represented bytheirfather asnaturalguardian and next friend. Applicant No. 3 was bom on the 26th May, 1964 and applicant No.4 on the 23rd May
2. The aforesaid property of the applicants was the subject of a notice of acquisition dated 26th September, 1978, published in 20 Supplement No. 3 of the official Gazette of the Republic dated 6.10.1978 under Notification 1048, for the improvement, straightening and asphalting of the road Paphos-Akamas-Polis. Forthe purpose of givingeffect tothe objectsof the acquisition a requisition order was aiso published in the same issue of the 25 official Gazette ofthe Republic. Fromwhat appears from the material before me,worksstarted beingcarried outpriortothepublication intheGazetteofthesaid orders and as a result the applicants, through their fathers as naturalguardians, filed on28th September, 1978,Action 730/78 30 againsttheRepublicofCyprusfortrespasstotheirproperty,which action was later withdrawn subsequent to the publication of the orderof acquisition. The applicants submitted, through their parents, on 10.10.78, written objections against the requisition and acquisition oftheir 35 property. The Council of Ministers considered the above objections andafter takingintoaccountallrelevantfactorsplaced before it,includingtheviewsofthePaphosDistrictEngineerofthe 1255 S a w l d e s J. Panayides &Othersv.Republic

(1987)Department of Pubic Weeks, decided, on 20.9.1979, to dismiss the objections and proceeded with the acquisition of the said property byissuingan orderof compulsory acquisition which was published in the official Gazette of the Republic of 28.9.1979, under Notification 10551 dated 20.9.1979. On 6.12.1978, the father of applicants 1 and 2 who is a practicing lawyer, wrote a letter to the District Engineer of the Public Works Department indicating that there was a difference between the plansshowingtheacquired property andtheroad as actually constructed, at the point where the road passed through 10 Plot288and requestinganewsurveyforthepurposeofcorrecting any mistake. The District Engineer of the Public Works Department inreply tosuch letterinformed theapplicantonthe 16thMarch, 1979,that after an inquiry itwas found that there was indeed a mistake and 15 the correct position of the new road was shown on the plan attached to the letter. The Director of Lands and Surveys sent to the fathers and natural guardians of the applicantswritten offers of compensation in respect of the property acquired dated 9.12.1983, and 20 9.1.1984, attached to which there were declarations of acceptance which had to be signed by them, in case of acceptance, and be attested bytheVillage Commission. The applicants did not accept such compensation and on the 10th November, 1984 filed the present recourse whereby they 25 pray as follows:(

1. a)Adeclaration of the Court that the acquisition order which waspublished underNotification 1048inSupplement No.3ofthe official Gazette of the Republic dated 6.10.1978, isnull and void and of no effect concerning Plots 288, 287/1/2, Sheet/Plan 5 1 / 30 2, Paphos, for the widening and straightening of Paphos-Akamas road and which belong totheapplicants in undivided shares. {b)That the time limitsfor filing a recourse under Article 146.3 of the Constitution does not apply in the present case due to the invalidity of theact and/or wrongand insufficient notification and 35 procedure concerning infant co-owners. (
2. c)For omission to reply to the objections of the applicants dated 10.10.78. 1256 5 3C.L.R. Panayldes& Othersv.Republic S a w i d e sJ . (
3. d)Unconstitutional and arbitrary exercise of discretionary power which materially renders useless the property of the applicants. The legal grounds on which the recourse is based are the 5 following:{1)The adjoining property under Plot 53 which belongs toa mosque and is Vakf property through which the road was constructed contrary to the provisions of the Constitution, has not been acquired. 10

(2)No sufficient inquiry was made for possible alternative solutions.

(3)A new road was constructed instead of widening and/or straightening an existing road, partof which isasphalted, withthe result that the property of the applicants was cut through and 15 converted intotwo uselesspieces.

(4)The Ministry of Communications and Works admitted the existence of a mistake in the survey of the new road concerning applicants' property and the exact line of the property under acquisition without proceeding to a new acquisition order, in 20 abuse and/or excessof powers.

(5)Lackof sufficient notification tothe infant co-owners. Counsel for the respondents by her opposition raised the preliminary objection that the recourse was not made within the timelimitspecified byArticle146oftheConstitutionand therefore 25 ithastobe dismissed. In the alternative, she contended that the order, subject matterofthisrecoursewasissuedbytherespondentsintheproper exercise ofthe authority vested inthem and isduly reasoned and was made inaccordance with the Compulsory Acquisition Laws, 30 1962-1983and the principles ofadministrative law. Inexpounding on hisgroundsoflaw,counselforapplicants,by hiswrittenaddress,after makingreference tothe factsofthecase, repeated hislegal groundsset out inthe recourse and concluded that the respondents did not act in accordance with the rulesof 35 proper administration and thatthey acted inabuse and/or excess of powers in that instead of constructing a straight road in compliance with the reasons given in the notice of acquisition, 1257 S a w l d e s J. Panayldes &Othersv.Republic

(1987)they constructed aroadwithanumber ofcurvesandcaused great hardshiptotheapplicants.Also,thattherespondentsfailedtogive any reply to the applicants regarding the outcome of their objection and proceeded tomaketheacquisition order operating under a misconception of fact and failed to pay heed to the fact 5 thattheownersofPlot288wereinfantsandasaresulttheyshould havecomplied withtherelevantprovisionsintheConstitution and the Law. Lastly, counsel argued that the notice of acquisition does not contain proper particulars because the existing road does not 10 touch the new road which has been constructed through the property of the applicants. Counsel for the respondents adduced evidence by two witnesses, that of Michalis Violaris, a Lands Officer, 1st Grade and Demetrios Papadopoullos who, at the material time, was a 15 District Engineer of the Public Works Department at Paphos, in support of her contention as to the reasons justifying the acquisitionand thattheroadwhichwasconstructed wastheresult of a proper inquiry and themostsuitable inthe circumstances. Before embarking on the substance of the case, I find it 20 necessary todealwiththepreliminaryobjection raisedbycounsel for the respondents as to whether the present recourse was filed outside the time limits prescribed by Article 146 of the Constitution. The question asto whether publication inthe official Gazetteis 25 sufficient publication for the purposes of Article 146.3 has been considered bythe Supreme Court ina number of cases. In Charalambos Pissas(No. 1)and The ElectricityAuthority of Cyprus

(1966)3 C.L.R. 634, Triantafyllides J. (as he then was), had thistosayat pp. 638,639:- 30 «Publication for the purpose of setting in motion the time within which a recourse may be filed has to be such publication as would state in full and clearly the contents of the act or decision concerned. This principle has been adopted in Greece (see Conclusions from theJurisprudence 35 of the Greek Council of State, 1929-1959, p. 251) and is,in my opinion, equally applicable in Cyprus because the relevant Greek and Cyprus provisions are, in thisrespect, in pari materia, and such principle is a widely accepted 1258 3C.L.R. Panayldes&Othersv.Republic S a w i d e s J. principle of Administrative Law in relation to computing the timewithinwhicharecourse,suchasthepresentone,maybe made, after publication. 5 10 15 20 25 30 35 We have,therefore, toseewhether inthe present Casethe publication in the official Gazette of the Order of acquisition wassuchastoamounttosufficient publication forthepurpose of the time prescribed under Article 146

(3)commencing to run. Though a Notice of acquisition is because of its nature a notice in rem (see Venglisand The Electricity Authonty of Cyprus,

(1965)3 C.L.R.p.252),itcannotbe lostsightofthat an Order of acquisition is, indeed, an individual act directly affecting the owner concerned. In the particular circumstances of this Case, I cannot accept that the publication, out of the blue, of the relevant Order of acquisition, withoutstatingtherein -eitherdirectlyor,atleast, by reference to the Notice of acquisition - the name of the Applicant, of theowner ofthe property acquired, amountsto suchclearandfullpublicationofthefactthatitwasApplicant's landwhichwasbeingcompulsorilyacquired,astobedeemed to be sufficient publication forthepurposes of Article 146

(3). Thus, in my view, time did not begin to run under Article 146

(3)untilthe 12th November, 1965,when Applicantcame actuallytoknowofthecompulsoryacquisition inquestion,for the first time, in the circumstances stated earlier in this Decision. Itfollows, thus,that thisrecourse isnotout oftime. In reaching the above conclusion, I mustmake itclearthat Icannotaccept theviewthatoncethere hasbeen publication of an Order in the official Gazette, in conformity with the provisions of a particular enactment, then, necessarily, that amounts also to sufficient publication for the purposes of Article 146

(3); there may be such publication as would complywithallthatislaiddowninaparticularenactmentfor the purposes of the inherent validity of anOrderand,yet,it may not amount to publication which gives to the person affected by the act or decision concerned a full and clear picture of the contents of such Order, as envisaged by a provisioninthenatureofArticle146

(3).» 1259 SavvtdesJ. Panayides&Othersv.Republic

(1987)The decision in the above case was adopted in the case of Bakkaliaou v. The MunicipalityofFamagusta

(1969)3 C.L.R. 19 inwhichtheFullBenchallowedtheappeal andsetasidethe order of the trial Judge dismissing the recourse (reported in

(1968)3 C.L.R.203).VassiliadesP.,inhisjudgmentadded thefollowing (at 5 pp. 25,26 and27):« The provision setting down a period of time withinwhich anadministrative decision canbe challengedby a recourse under Article 146,isobviouslyintended togiveon the one hand the opportunity to the citizen affected by the 10 decision toexercisehisrightof challenging itsvalidity,and on the other hand to give finality, in the public interest, to the position created byadministrative decisions.Thismatter was considered bytheSupreme Constitutional CourtinFebruary, 1961, inJohn Moranand theRepublic (1R.S.C.C. p. 10) 15 Inthe circumstances ofthiscase,we areof the opinion that the expropriated owner was entitled under Article 29 of the Constitution to expect, in the course of the original administrative action adopted bythe publicauthority, areply toherproposal;shehadnoreasontoanticipatethatthepublic 20 authority would circumvent her rightsbythe publishing ofan acquisition order, before giving her a reply. We have no reasontothinkthattheRespondentsactedinthismannerwith a sinister motive. In fact, it was considerable time after the filing of the recourse and their opposition thereto, that it 25 dawned on their lawyer that his client could defeat the recourse by relying on the Constitutional provisions which were intended toprotect it. In the present case, the publication is not attacked as defective in itself. Itischallenged as lacking 'sufficiency' (for the purpose ofArticle 146.3) in the circumstances inwhichit was made; it isattacked as a step taken in the course of an expropriation, in respect of which the authority concerned 35 chose totaketheproper administrative action (contemplated by practice in such cases) of approaching personally and directlytheowner ofthepropertybefore takingotherstepsin furtherance of the decision to acquire the property. Having takenthatcourse, and having led the ownerintoit,-counsel 40 1260 3 C.L.R. 5 10 15 Panayides& Othersv. Republic S a w l d e s J. argued -the public authority could not abandon the owner there and take a different course (that of compulsory acquisition by official publication) without informing her of thechange;andwithout replying totheowner's letterthather proposal was not acceptable and that it was, therefore, intended totake statutory action for compulsory acquisition. Such change of course having in fact resulted, or having at least contributed to the expropriated owner's actual ignorance of the true position and the consequential loss of herright1;,leads us without hesitation, tothe conclusionthat, in the circumstances, the publication of the acquisition order was not sufficient for the purpose of setting into motion the provisions of Article 146.3; and that the period of 75 days provided therein,did not begin to run untilthe true position came tothe knowledge of the Appellant by theservice upon her on June 8, 1966, of the notice of the proceedings for determination of the compensation, as in the Pissas case (supra).» In the case of HjiCostasv. The Republic

(1974)3 C.L.R. 1, A. 20 Loizou,J.,onthefacts of thecase, drew adistinctionbetween that case and Pissas(No. 1)and held that in the circumstances of the case a publication in the official Gazette under section 17 of the Streets and Buildings Regulation Law, Cap.96, intheform it was published, amounted to sufficient publication of the decision 25 challenged for the.purpose ofArticle 146.3 of theConstitution. Unlike the case of Pissas (No. 1) where in the Notice of Acquisition the property was identified by means of a description sufficient to identify such property in relation to Lands Office records and without mention of the name of the owner of the 30 property in the Notification published in the official Gazette in HjiCostas case the identification of the property affected by the decision of theMunicipalityof Nicosiawas madeby reference not only toadescription sufficient toidentify such property inrelation to Lands Office records, butalso by reference tothe name of ttV 35 street as wellas theapplicanthimself. Asimilarviewas inHjiCostascasewas expressed byL.Loizou, J., in Spyros Colocassider- Estate Ltd. and Another v. The Republic

(1977)3 C.L.R. 205, in which the decision of the respondents toimpose and collectsewagedues was published by 40 notices in the official Gazette which contained all necessary ingredients.The learned trialJudge held thefollowing atρ 212:1261 S a w l d e sJ. Panayides&Othersv.Republic

(1987)«Itisnot, therefore, inmyview, correct tosay that the said publications did not reveal their contents clearly or that the applicants could not have known that their properties were included in the area served by the system or that they could not, with reasonable diligence, find out the phase to which 5 theirproperties belongedand,therefore, theratesapplicable. And in this respect the present cases are clearly distinguishable from thePissascasereferred toearlieron. See alsoHjiPanayi v.TheMunicipalityofNicosia

(1973)3C L.R. 329 and HjiCostasv. TheRepublic

(1974)3 C.L.R. 1. 10 Havingcome tothisconclusion I must hold thatthe timeof 75daysprescribed byArticle 146.3oftheConstitution began to run from the date of thepublication of the relative notices imposing the rates and that, therefore, both recourses are clearlyoutoftimeand cannotbeentertained bythe Court.» 15 Bearing in mind the legal position as above concerning the publication of notices and orders of acquisition, Icome now to examine whether in the circumstances of the present case the publication, for the purpose of setting in motion the time within which a recourse maybefiled, came actuallytotheknowledge of 20 the applicants. Bothinthenoticeofacquisitionandintheorderofacquisitionin which reference is made to the description of the properties as appearing inthenoticeofacquisition, thepropertiesacquired are described bytheir plot numbersand bymeansofreference tothe 25 Lands Office records for identification of same but there is no reference tothenamesoftheownersofthepropertiesaffected by the acquisition. The notices are similar to those referred toin the case ofPissas(No.1)andBakkaliaou (supra),inboth ofwhichthe Court found that they were not sufficient notices to bring to the 30 notice of the persons affected of the rejection of their objections and of the fact that an order of acquisition concerning their properties-wasmade.Therefore, Ihavetoexaminewhether inthe circumstances of the present case it may be found that the applicants cameactuallytoknowofthecompulsory acquisition in 35 question and when suchknowledge was acquired. As mentioned earlier, counsel for applicants by his written address has admitted that upon the publication of the order of acquisition an action which was brought by the guardians of the infant applicants and was pending at the time before the District 40 1262 3 C.L.R. Panayldes & Othersv.Republic S a w i d e sJ . Court of Paphos, for trespass, was withdrawn. Counsel for the respondents by her written address contended that this fact isa clear indication that the guardianscame to know about the order of acquisition soon after itspublication and, therefore, the period 5 of 75 days provided under Article 146.3 began to run from such date. Neitherinhiswrittenaddressinreply,norinhisfinal address inclarification counsel forapplicantscontested this fact. From the material before me I find that inthe circumstancesof thiscasetheguardiansoftheapplicantswhowereactingforthem 10 all along came to know about the publication of the order of acquisition soon after itspublication. This isclearly indicated by theirconductofwithdrawingtheaction broughtbythemonbehalf of the infants in the Dirstrict Court of Paphos, a fact which is admitted inthewritten addressofcounsel forapplicants.Aperiod 15 of eight years lapsed ever since without the applicants having taken any steps to challenge the said order of acquisition. Furthermore, it is also evident that the applicants acquired knowledge of the sub judice acquisition also through the notices senttothem inaccordance withsection 17ofLaw 15/62, offering 20 compensation, which, as stated earlier, were not accepted by them.These noticesweredated9.12.1983 and9.1.1984, and the recourse,which wasfiled inNovember, 1984,isagainoutsidethe time limitsprovided bythe Constitution. I,therefore, find thatthe objection raised by counsel for the respondents that the present 25 case wasfiled out oftime isasound one. Inthe result thisrecourse fails asfiled out oftime and ishereby dismissed but inthe circumstances I make no order forcosts. Recoursedismissed. No order astocosts. 1263