(1987)19P7September 18 [KOURRIS J I INTHEMATTEROFARTICLE 146 OFTHE CONSTITUTION METRO FOODS LIMITEDANDOTHERS, Applicants, ν THE REPUBLIC OFCYPRUS, THROUGH 1 THE MINISTER OFINTERIOR, 2 THEMUNICIPALITY OFLARNACA, Respondents (CasesNos 403/86,462/86, 463/86 464/86) ConstitutionalLaw—Right toproperty— Constitution,Art 23—Street Widening Scheme published in virtue of section 12(c)of the Streets and Buildings Regulation Law, Cap 96— Itresults, inthenormalcourse,to limitations or restnctionsinthesense ofArt 23 3—Ecclesiasticalpropertyaffected thereby — Whetherthe wntten consent of the Churchisnecessary—Answer mthe 5 negative, because limitations or restnctions m the interests of Town and Country Planningareexempted fromsuch arequirement—Paras 9and10 ofArt 23 Streets and buildings — Street WideningScheme — TheStreets andBuildings RegulationLaw,Cap 96, section 12(c)—Scheme aimingattheconstruction of new road,not at the widening or straightening of an existing road — Decisionannulledastakeninabuse orexcess ofpower orcontrarytoproper admm.stration NaturalJustice — Right to be heard— Administrative matters— Authonty may determine complaint without heanng the complainant, provided there is sufficientmatena! beforeittoenable ittoreachadecision 10 15 As the Minister of Interior dismissed theapplicants' objections againsta Street WideningScheme, whichhadbeen published by the Municipalityof Lamaca, theapplicants filed these recourses The Street Widening Scheme in question affected Nicodemos Mylonas Streetand MetropolisSquare inLamaca 1334 20 3 C.L.R. MetroFoodsLtd. v. Republic Applicants' counsel argued, interalia,that a) The aforesaid Scheme cannot be implemented, because it affected ecclesiastical property and the Churchhad notgiven awntten consent, 5 b) The purpose of the Scheme as far as Nicodemos Mylonas Street is concernedwas nottostraightenorwiden theaforesaid street,buttoconstruct inthefuture anew road,and, c) The rules of Natural Justice had been violated because the Minister examined theobjections without heanngtheapplicants Held,annulling thesub judice decision 10 15
(1)A Street Widening Scheme does not, in the normal course, result in deprivation, but only in limitations or restrictions of property inthesense of Art 23 3 of the Constitution Restnctionsor limitations for thepurposes of Town andCountryPlanningunderArt 23 3areexpresslyexempted fromthe operation of paras 9 and 10 of Art 23 Itfollows thatinthiscase thewntten consentof theChurchwas notrequired 20
(2)There is no doubt that the Scheme in question did not aim at the widening or straightening (Section 12(i) of Cap 96) of Nicodemos Mylonas Street, but totheconstruction of a new road Itfollows thattheMunicipality acted in abuse or excess of power and contrary to the pnnciples of proper administration
(3)InAdministrative casesitisnotnecessary tohearthe personconcerned provided thatthe Authority examining the complaint had sufficient material before it to enable itto reach a decision such as for example a petition in wnting of theperson concerned 25 Subivdice decisionsannulled Costsagainstrespondents Casesreferredto Thymopoullosand Othersν The MunicipalCommittee of Nicosia
(1967)3 C L R 588, 30 Sofroniou and Othersν The Municipalityof Nicosia and Others
(1976)3 C L R 124, Marangosand Others ν The MunicipalCommittee of F'sta
(1970)3 C L.R. 7, Paridesv The Republic
(1984)3 CLR 715 35 Recourses. Recourses against the rejection by the respondents of 1335 MetroFoods Ltd.v.Republic
(1987)applicants' objections to the street widening scheme of Nicodemos Mylonas andMetropolisSquare in Lamaca. L. Papaphilippou, forapplicantsinCaseNo.403/
- L. Papaphilippou for N.K. Cieanthous, for applicants in Cases Nos.462/86, 463/86 and 464/
- 7". Ioannides, for respondent
- G.Nicolaides, for respondent
- Cur.adv.vult. KOURRISJ. read thefollowingjudgment.Theapplicantsinthe present recourses, which have been heard together as they 10 present common questions of law and fact, challenge the validity of thedecision of therespondents relatingtotheStreet Widening Scheme in respect of Nicodemos Mylonas street and Metropolis Square inthe town of Lamaca and claim: Adeclaration that the act ordecision ofthe Minister ofInterior 15 dated 20.5.1986bywhichthe applicants'objections- hierarchical recourses- to the Street Widening Plans of Nicodemos Mylonas StreetandMetropolisSquareinLamacawererejected,isnulland void and of no legal effect whatsoever. By virtue of s.2 of the Streets and Buildings Regulation Law, Cap.96,aNoticewaspublishedbytheMunicipalityofLamacain Supplement No. 3 to the official Gazette of the 7th September, 1984, under Notification No. 444, to the effect that plans have been prepared with the object of widening or straightening Nicodemos Mylonasstreet and MetropolisSquare in Lamaca. It should be noted that on the same day the Municipality of LamacabyvirtueofanoticepublishedinSupplementNo.3tothe official Gazetteunder Notification No.2086revoked the previous street widening scheme published in the official Gazette of 4.9.1977 relatingtothesame propertieswiththeexception ofthe 30 portionoflandcolouredgreenonthesurveyplanbelongingtothe applicants in Case No.403/86, because thisportion of land was ceded bytheapplicantstotheMunicipalityofLamacaand formed part of NicodemosMylonasstreetwhen theapplicants applied to build asupermarket on their land on 18.1.1982 (see reds24,25, 35 26 and 27 of the file exhibit3). As the said plans affected properties belonging to the 1336 5 3C.L.R. MetroFoods Ltd.v.Republic KounrisA, applicants, they objected to them by letter and their objections were considered bythe Ministerof Interior and finally rejected as shown in the letters of the Director-General of the Ministry of Interior dated 20.5.1986 which read as follows: 5 10 15 «1
- The objection having been considered by the appropriate Departments and the appropriate Authority, was put before the Ministerof Interior, asprovided bys. 18ofthe StreetsandBuildingsRegulationLaw,Cap.96,whohowever hasrejected itasitwasasc-rtained thatthepreparation ofthe said plans was carried out after having taken into consideration the future roadtraffic requirements ofthe area, as well as the consequences to the present and future development of the affected plots.» Hence thepresent recourse. Counsel for the applicant raised a number of legal pointsas to why the sub judice decision should be set aside mainly on the grounds of excess and abuse of powers and acting in 20 contravention of the principlesof proper administration. Iproposetodealfirstwithtwogroundsoftheserecourseswhich, Ithink, are decisive of the case. The first argument advanced by counsel for the applicants is that the Street Widening Scheme cannot be implemented at allbecause italsoaffects ecclesiastical 25 property forwhich theappropriate Authoritieshave not obtained the written consent of the Church concerned before deciding to publish inthe official Gazettethe saidStreetWidening Scheme. Ineed not elaborate on thispoint because ithasbeen decided in the case of Thymopoulios and others v. The Municipal 30 Committee ofNicosia
(1967)3 C.L.R.588whichwasfollowed in the case of Sofroniou and Others v. The MunicipalityofNicosia and Others
(1976)3 C.L.R. 124, which is a decision of the Full Bench of the Supreme Court. It was decided that a Street WideningScheme istoberegarded forthepurposesofArticle 23 35 of the Constitution as imposing, in the normal course, only restrictions or limitations, and not asresulting in deprivation; this maythe derived from thefactthatthough paragraphs9and 10of Article23providethatnodeprivation, restrictionorlimitationmay affect ecclesiastical orvakf propertieswithoutthewritten consent 1337 KoorrUJ. MetroFoodsLtd.v.Republic
(1987)of those in control of such properties, however, «restrictions or limitations for the purposes of town and country planning under the provisions of paragraph 3» of Article 23 are expressly exempted from the operation of the aforesaid paragraphs 9 and
- In the present case we are concerned with restrictions or limitationsfor thepurposes of town planningunderthe provisions of paragraph 3 which is exempted from the operation of paragraphs 9and 10and,therefore,nowrittenconsentofthosein control of the ecclesiastical properties is required. Consequently, 10 thispointfails. I, now,propose todeal withthesecondpointraised tothe effect that the Municipality of Lamaca is seeking by means of the sub judice streetwidening schemetoobtainapplicants'portionofland in Case No. 403/86 not for the purpose of widening or 15 straightening NicodemosMylonas street but to use itto form part of a future road appearing with dotted line and marked with the lettersΑ,Β,Γ,Δ,onthesurvey plan inthefile of theMunicipalityof Lamaca exhibit
- Section 12 of the Streets and Buildings Regulation Law, Cap. 20 96, so far as material for the determination of these recourses, reads as follows:«12
(1).Notwithstandinganything containedinthisLaw,an appropriate Authority may, with the object of widening or straightening any street, prepare or cause to be prepared 25 plansshowingthewidth ofsuch streetandthedirectionthatit shall take.» Counsel for the applicants argued that a mere glance on the Survey Plans showing the properties of applicants and the proposed StreetWidening Schemeleavesnodoubtinone'smind 30 that it is riot a widening or straightening of Nicodemos Mylonas Street;hesaidthattherespondentsintendtoacquiretheproperty of theapplicantsinordertouseittoform partof anew roadwhich they proposed toconstructinordertoconnectMetropolisSquare with NicodemosMylonasStreet.Heconcludedthatthesubjudice 35 street widening scheme isnotastreet widening schemewithinthe ambit of s. 12 of the Streets and BuildingsRegulation Law, Cap. 96. 1338 5 3C.L.H. MetroFoodsLtd.v.Republic Kourri» J. Counsel for the applicants invited the Court to give a narrow construction tothewordingofthissection asitaffects therightsof thecitizenandhecitedMaxwellonInterpretation ofStatutes, 12th edition, p.251whichreadsasfollows: 5 10 «Encroachment ofrights. Statuteswhich encroach onthe rightsofthesubject, whether as regards person or property, are subject to a strict construction inthe same way aspenal Acts.Itisa recognised rule that they should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction which is in favour of the freedom of the individualshouldbe adopted.» Thisprinciplewasfollowed inthecase ofMarangosand Others v. The Municipal Committee of Famagusta
(1970)3 C.L.R. 7, 15 where it was stated that in cases involving interference with a fundamental right, such as therighttoproperty, any doubt about the extentand effect oftherelevantenactmenthastobe resolved infavour ofthe libertiesof the citizen.» The Street Widening Scheme affecting Nicodemos Mylonas 20 Street which isthe property ofthe applicants inCase No. 403/86 isshowncolouredyellowinthesurveyplanwhichleavesnodoubt inmymindthattheappropriateAuthorityproposedtoacquirethis piece of land not for the purpose of widening or straightening NicodemosMylonasStreetbutforthepurposesofconstructingin 25 the future a new road connecting Metropolis Square with Nicodemos Mylonas Street without resorting to compulsory acquisition ofthispieceof land. Inthese circumstances Iam ofthe opinion thatthe appropriate Authorityactedinexcessand/orabuse ofitspowersand contrary 30 to the principles of proper administration and I set aside their decision with regard to allthe properties concerned in the cases under consideration because the sub judice street widening scheme forms a whole scheme which cannot be implemented in part. 35 Before concluding I propose to deal with some other points raised in these recourses. There has been an allegation that the Minister of Interior, when examining the objections of the applicants,didnothearthem. Ithasbeen decided inanumberof cases that in Administrative cases it iTnot necessary to hear a 1339 Kourri·J. MetroFoodsLtd.v.Republic
(1987)person provided that the Authority examining his complaint had sufficient material before ittoenable ittoreach adecision such as for example a petition inwritingbytheperson concerned.Asthe applicants inthepresentcaseobjected inwritingtotheMinisterof Interior and they have put the grounds of their objections in 5 writing,Iam oftheviewthattheMinisterofInteriorwasnotatfault and he did not act contrary to the rules of natural justice. {See Paridesv. The Republic
(1984)3 C.L.R.715). It was further argued that the decision should be set aside for lack ofdue reasoning. Ido notthink that thisargument canstand 10 and itishereby dismissed. For all the above reasons these recourses succeed with costs againstthe respondents. Coststobeassessed bythe Registrar. Sub judice decision annulled withcosts againstthe respondents. 1340 15