3C.L.R 1987 January 31 (STYLIANIDES J ] INTHE MATTEROFARTICLE 146OFTHE CONSTITUTION GEORGHIOS CHR ECONOMIDES, Applicant, ν 1 THE PUBLICHEALTHCOMMITTEEOFKATO AKOURDAL1A, 2 THEMINISTER OFINTERIOR, 3 THECOUNCILOFMINISTER, Respondents (CaseNo 755/85) 5 Legitimate interest—Pnncipies applicable—Summing up of—Revocation of ordersofcompulsory acquisibonandrequisition—Purpose oforders revoked was to widen a path leading toa public road—Applicant not the owner or possessorof thelandsaffectedby theordersrevoked butowner ofland in the vicinity—Between applicants land and the lands affected bv the orders revoked lies plot 107,not belonging to the applicant—Applicant hasno legitimate interest to challenge thesaid revocations The applicant owns a piece of land in Kato Akourdalia in the Distnct of Paphos, which abuts to plot 107 From theend of plot 107there existsa publicpathway about4ft wide,leadingtoapublicroad On22 684a notict of acquisition waspublished forthe purpose ofacquisition ofa stnp of lane from a number ofother plots forthe widening ofthesaid path Thestnpof land tobe compulsonly acquiredasaforesaidwas also requisitioned 15 20 On 11685 thenotice and therelevant order ofacquisition aswell as the order ofrequisition ofthesaid stnp of land were revoked The revocations were published inthe Official Gazette of21 685 By means ofthis recourse the applicant challenges thevalidity ofthe said revocations The applicant submitted that he has a legitimate interest to challenge the said revocations in that by reason thereof there are adverse consequences in the development of his land andhe was depnved ofthe benefit which he would have bythepurchase ofa pnvate nght ofway over plot107 Held, dismissing the recourse
(1)The existence of legitimate interesi creates the junsdiction of this Court TheCourt in itstask ofapplying in the 139 Economldesv.HealthC/tteeK.Akoordalla
(1987)light of the authorities paragraph 2 of Article 146 of the Constitution has to considerthe facts of eachcase.
(2)Theapplicant isneithertheownernorthepossessorofthepropertiesIn question. Plot 107 lies between his plot and the properties affected by the orders revoked. His position is not different from that of an owner of land 5 situated nearthelineofanintended roadadjoiningtwovillagesortwotowns. Ifthe appropriate authoritydecides nottoproceed withtheproject, hassuch an owner an existing personal legitimate interest directly and adversely affected?
(3)Anyadverseeffect ontheapplicantbyreasonofthesubjudicedecisions is indirect and, therefore, outside the ambit of Article 146.2 of the Constitution. ^ Recourse dismissed. No orderastocosts. Casesreferred to- 15 Demetriou andAnother v.TheRepublic, 1R.S.C.C.99; Rouhi v.TheRepublic, 2 R.S.C.C.84; lerodiakonou v. TheRepublic,3 R.S.C C.55; Kritiotis v.MunicipalityofPaphos and Others
(1986)3C.LR. 322; Papasawas v. TheRepublic
(1967)3 C.L.R.I l l ; 20 Markidesv. TheRepublic
(1967)3C.L.R. 167; Constantinou v. TheRepulic
(1974)3 C.L.R.
- Recourse. Recourse against the decision of the respondents torevokea ompulsoryacquisitionorderandacompulsoryrequisitionorder. 25 K.Talarides, fortheapplicants. A. Sophocleous,forrespondent
- Chr. loannides,forrespondents2and
- Cur. adv. vult, STYUANIDESJ.readthefollowingjudgment.Bythisrecourse 30 heapplicantseekstheannulmentoftheordersofrevocationofa :ompulsoryacquisitionandofacompulsoryrequisitionpublished 140 3C.L.R. Ecoaomideaτ.HealthC/tteeΚ.Akourdalia StylUnkU*J. in the Official Gazette of the Republic of 21.6.85 under Notifications No.929and
- Theapplicant owns a piece of landshown on D.L.O.mapsas Plot 108, Sheet/PlanXXV/36, inthevicinity of Kato Akourdalia 5 village in the Paphos District, 18 donums in extent. This is an agricultural land.ItabutsPlot
- Fromtheend of Plot107 thereexistsapublic path-way about 4 ft. wide, leading to a public road. After long pestering by the applicant, respondents No.l, the Public Health Committeeof 10 KatoAkourdalia village,decidedtocompulsorily acquireastripof landfrom anumberofplots,i.e.PlotsNo.87/1,87/2,95and94, for thewidening of thesaidpathupto20 ft. andthestraightening of it. The necessary procedure envisaged by the Compulsory Acquisition Law, 1962 (No. 15 of 1962), as amended, was 15 followed and notice of acquisition was published in the Official Gazetteof22.7.83, administrative act
- Two owners of the land affected objected thereto. Their objection was rejected. Later, as itwas found outthat probably theprovisions of theCompulsory Acquisition (Amendment)Law. 20 1983 (No. 25 of 1983) for the publication of the order of acquisition and requisition within 10 months was not complied with,anewnoticewas published intheOfficial Gazetteof22.6.84 under Notification No.
- Noobjections intimewere received and a new order of acquisition was published in the Official 2 5 Gazette of 2.11.84 under Notification No.
- Order of compulsory requisition was published onthesame day - 2.11.84 - underNotification No.
- An«outoftimeobjection»wassubmittedwhereby itwasalleged thattheacquisition was madenotfor a public utility purpose but 30 for theserviceofonepersononly,thatistosay,theapplicant.The previous objectors hadaimedatthesametarget,thatistosay,the object of the acquisition was to serve a single person, the applicant,ownerofPlot108,andnotthepublicinterestorapublic utility purpose. Thematterwas referred totheAttorney-General 35 for legal advice. The object of the acquisition and requisition, as set out inthe relevant orders, is public utility, thatis to say, the creation and development of public roads,intheRepublicandtheacquisition isnecessary fortheconstruction,improvement andstraightening 141 StyUanldeaJ. Economldes v.HealthC/tteeK.Akourdalia
(1987)of agricultural road inthevillage of KatoAkourdalia. TheMinisteroftheInterior,exercisinghispowersunderSection 7 of the Compulsory Acquisition Law - a power which was delegated to him bythe Council of Ministers-revoked the notice ofacquisition No. 970/84 and the order ofacquisition No. 1706/ 5 84on theground that thesubject-matter immovablepropertywas not necessaryforpurposesofpublicutilitywhicharesetoutinthe said notification. On the same day he revoked under Section 4, paragraph3, of the Compulsory Requisition Law the order of requisition. These 10 two revocations done on 11.6.85 were published in the Official Gazette of 21.6.85 under Nos.929 and 941,respectively. These are the decisions of revocation, the validity of which is contested bythisrecourse. Objection was taken bythe respondents that thisCourt cannot 15 entertain thisrecourse asthe applicant lackslegitimate interest in the sense of Article 146.2ofthe Constitution. Counsel for theapplicant, ontheotherhand, submitted thathis client,the applicant, ispossessed of legitimateinterestashe isthe ownerof land, Plot 108;hewouldbebenefited iftheobjectofthe 20 acquisition and requisition was finally effected and further thatin viewofthe sub-judice decisionshe purchased a rightofwayover theneighbouring Plot 107,10 ft. wide.The revocation oftheacts of acquisition and requisition brings on the applicant adverse consequencesinthedevelopment ofhislandanddepriveshimof 25 the benefit which he would have by the purchase of the private right of wayover Plot 107. For a claim under Article 146 tobe entertainable bythis Court the prerequisites required byparagraph 2 of such Articlehaveto exist. Such paragraph 2 readsas follows:- 3( «2.Such a recourse may be made bya person whose any existing legitimate interest, whichhehaseitherasaperson or byvirtue ofbeinga member ofacommunity, isadverselyand directly affected bysuchdecision oractor omission». This provision is similar to constitutional provisions in other 35 countnes and analogous to the corresponding provision in Greece, which iss.48 of LawNo.3713/1928. 142 3 C.L.R. 5 Econotnidesv.Health C/tteeK.Akourdalia StyllanldeaJ. The existence of legitimate interest creates the junsdicition of the Court Lack of legitimate interest depnves the Court of the power to deal with a recourse - (See, inter aha, Menelaos Demetnou and Another ν The Republic, 1 RS C C 99, 104 Mehmet Alt Rouhi ν The Republic. 2 RS C C 84. Efthymios lerodiakonou ν The Republic, 3 RS C C 55. Kntiotis ν Municipality ofPaphos and Others.
(1986)3 C LR 322) It is correct that the requirements of Article 146 2 must be satisfied atthetimeofthefilingandheanngofarecourse,thatsuch 10 requirementsaresatisfied if atthesaid matenaltimesitisclearthat the existing interest of an applicant, though not yet actually adversely and directly affected, is unavoidably bound to be so affected eventually - (Conclusions of the Junsprudence of the Greek Council of State 1929-1959, ρ 260. Papasawas ν The 15 /?epu6//c.
(1967)3 CL R 111) The initial burden lies on the applicant tosatisfy the Courtthat he has a legitimate interest for interference with the sub-judice decision when an objection on thisground israised -(Marhdes ν The Republic,
(1967)3 C LR 167) - though the Court has to 20 inquire into the presence of an existing legitimate interest ex propno motu -(Constantmou ν The Republic,
(1974)3 C L R 416) The Court in its task of applying in the light of the authonties paragraph 2 of Article 146 has to consider the facts of each 25 particular case The sub-judice acts are acts of revocation of a compulsory acquisition and requisition Theapplicant isneithertheownernor the possessor of the properties to be acquired Plot 107 lies between hisplotandtheproperty affected by theorders revoked 30 Hisposition is notdifferent from thatof an owner of land situated near the line of an intended road adjoining two villages or two towns If the State or the appropnate authonty decides not to proceedwiththeproject orchangetherouteoreven abandonthe project, has that owner an existing personal legitimate interest in 35 thesence of Article 146 2 which was directly adversely affectedJ Theactsof revocation do notdirectly relate totheapplicantand no adverse results are affecting any legitimate interest of the applicant m the sence of Article 146 2 Any adverse effect is 143 StyilanldesJ. Econonude*v.HealthC/tte*Κ.Akourdalia
(1987)indirectanddoesnotaffectanylegitimateinterestwithintheambit of«legitimateinterest»,asenvisagedinparagraph2ofArticle146. ForthisreasontherecoursecannotbeentertainedbythisCourt andit fails. Therecourseishereby dismissed. 5 Lettherebenoorderastocosts. Recoursedismissed Noorderastocosts. 144