(1987)1987October8 [LORIS J] INTHE MATTER OFARTICLE 146 OFTHE CONSTITUTION PHIVOSD GRIVA ANDOTHERS, Applicants, ν THE MUNICIPAL COMMITTEEOF LIMASSOL, Respondent (Case No 399/86) Time withinwhichto filearecourse— Knowledge — Burden ofproofas to when applicantcame to have completeknowledge of the actinquestion— Lies on the partyallegingthat recourse is out of time— Doubtas to time whensuch knowledge was acquired—It shouldberesolvedforthe benefitofapplicant AdministrativeLaw — Misconceptionof fact— Divisionpermit todividelandinto 5 buildingsites — Condition that a roadshould be constructed— Such road affectednetghbounng landbelongingto thirdparties(applicants)—Decision annulledon ground of misconception Streets and buildings— Division of landinto buildingsites— Division pennit — Thedivisionshould not interfere withproperty of thirdpersons 10 Theinterested parties sought andobtained apermitfor thedivision oftheir land underplots 397 and398 intobuilding sites It is admitted that one of the conditions of the permit related to the construction of a road,part of which affected netghbounng plot 399 As a result the applicants, who are the co-owners of plot399 in undivided 1 5 shares, filed this recourse impugning the validity of the aforesaid division permit The respondents andthe interested parties raised a preliminary objection that the recourse is out of time, because the sub judice act came to the knowledge of theapplicants as early asJanuary, 1986, whereas therecourse 2 0 was Medon 21 6 86 Held, annulling the sub judice decision
(1)Itis common ground thatthe respondent Municipality took the sub-judice decision acting on the 1448 3C.L.R. 5 10 15 20 Griva v. M'palC'ttee L'ssol applicationof theinterestedpartiesandthattheapplicantswere neithercalled to state theirviewsnorhave they many way taken part intheprocess which led to the sub-judice decision, furthennore, this decision was neither published norcommunicated totheapplicants Theburden of proof thatan applicant came to have complete knowledge of the act impeached rests on the party alleging that therecourse is out of time,and if there is doubt as to when thedecision cametotheknowledge of thepersons filingtherecourse, then such adoubt <'iustbe decided in favour of theapplicants In this case there are doubts whether anyone of the applicants had full knowledge of the nature and extent of the sub-judice decision pnor to the 10th May 1986 It is clear from the case of Kalogeropoulos ν The Improvement BoardofMesayitoma&Another {1969J3CLR 108atp 110 that the proposed division of the property of the interested parties into building sites should not entail interference with property belonging tothird persons Theconstructionof the road inquestion affects applicant'slandand such constructionisa«sinequanon»of thedivision permit So ineffect inthis case theRespondentMunicipalityacting on theapplication of the interested parties granted a division permit{sub-judice decision) by virtue of which the property of theapplicantswas prejudicially affected withouttheparticipation ortheconsentof the applicants tothatend It is clear from the above thatthe RespondentMunicipality failed to carry outaproperinquirywhichresultedtoamisconceptionoffact,notablythefact that theproposed division entailsinterference with applicants' land Subjudicedecision annulled No orderas to costs 25 Casesrefened to Neofytou ν Republic,1964 CLR 280, SaEngineenngand MarketingCo ν /?epub/;c
(1984)3 CLR 393, 30 Kalogeropoulosν TheImprovement Boardof Mesa Yitonta &Another
(1969)3CLR 108 Recourse. Recourse against the decision of the respondent to issue divisionpermitNo.29239totheinterested partyfor thedivisionof their property situated of Kapsalos area in Limassol town. 35 Ph.Pitsillides, for the applicants. Y.Potamitis, for the respondent. £ Theodoulou, for the interested parties. Cur adv vult 1449 Griva v.M*polC'ttee L'uol
(1987)LORIS J. read the following judgment. All eight applicants in the present recourse impugn the decision of the Respondent Municipality of Limassol, whereby a division permit under No. 29231 dated 6.7.84 was issued by the Respondent Authority for the division of immovable property situated at Kapsalos area, Limassol town, belonging tothe interested parties, which permit allegedly entails interference with the property belonging to the applicants. 5 The undisputed factsof the present case are briefly as follows: The interested parties,namely Maria Pantazi, EleniPanayiotou 10 and Martha Papachristoforou being the registered owners in undivided shares of 1/3 each of plots397and 398of Sheet/Plan 54/501.IV,appliedtotheRespondentMunicipalityforthedivision oftheiraforesaid property intofour buildingsites. Bywayof parenthesis, itmaybe added here thatthe aforesaid 15 interested parties applied in 1981 and obtained division permit under No. 26830 dated 17.3.82 for the division of the aforesaid properties into four building sites.The aforesaid division permit wasnot madeuseof, bytheinterestedpartiesforaperiodofmore than a year and therefore same expired according to Law. On 20 23.5.84 the interested parties applied to the Respondent Municipalityfortherenewal oftheexpireddivisionpermitaltering this time the relevant plans accompanying their application, so that the position of the proposed four building sites would be demarcated on the land in a completely different way than the 25 one provided inthe expired division permit. The Respondent Municipality granted a division permit under No. 29231 dated 6.7.84 to the interested parties, which is described by the respondent and the interested parties in the present proceedings as an altogether new division permit, whilst 30 the applicants maintain that the latter division permit isa renewal oftheexpired one. Ishallhavetheopportunityofdealingwiththismatterlateron inthe present judgment; forthe purpose ofstatingthefacts Ishall confine myselt insayingthatthedivisionpermit underNo.29231 35 dated 6.7.84 isbeing impugned bythe applicantsin the present case on the ground that the proposed division of the property of the interested parties into building sites entails interference with 1450 3C-L.R. Grfoa ν Μ'pal C'ttee L'ssol LorisJ. the propety belonging to the applicants, covered by plot 399 of the same Sheet/Plan andwhich isregistered inthenameof the 8 applicants in undivided shares, applicant No. 1 owning 20/60 under registration No.293 of 26.4.1984 (vide exh. X). 5 The respondentMunicipalityaswellas theinterestedpartiesin their opposition and the written addresses filed subsequently, as well as viva voce before me on 23.9.87 at the clarification stage, raised a preliminary objection to the effect that the present recourse is out of time. It is the submission of both that the 10 applicants were well aware of the sub-judice decision of the Respondent Municipality as early as January 1986 and that therefore thepresentrecourse which was filed onthe21.6.86 was filed outof time as more than 75 days have elapsed from the day when theapplicantscametoknowaboutthesub-judice decision. 15 Independently of the preliminary objection of the respondent and the interested parties, the time envisaged by Article 146.3 of our Constitutionis of vital importance and goes totherootof the recourse and can be examined by the Court even acting ex proprio motu;therefore I shall proceed toexamine thisissue first, 20 before going intothe meritsof the recourse. Itiscommonground thattherespondent Municipality took the sub-judice decision acting on the application of the interested parties and that the applicants were neither called to state their viewsnorhave theyinany way takenpartintheprocess which led 25 to thesub-judice decision; furthermore, thisdecision was neither published norcommunicated totheapplicants. Atthe same time as ittranspires from the material before me and the evidence of applicant No. 1given viva voce before me on 23.9.87 as well as the oral evidence of Panayiotis Tsangaris, an advocate, applicant 30 No.1cameto know about thesub-judice decision as early as the end of January 1986 and thathe submitted an application on his behalf protesting against the aforesaid decision totherespondent on 8.2.26(Vide Letter«C»attachedtothereply of the applicants}. Theextentof theknowledge ofapplicantNo. 1asthatofapplicant 35 No.2 is not quite clear. Itseems that they had some knowledge that the sub-judice decision might interfere with the property under plot 399 of which they were owners in undivided share (applicantNo.1,20/60andapplicantNo.2,8/60), butitisdoubtful whether they had complete knowledge by the end of January 1451 LorieJ. Grtvev.M'pal C'ttee L'esol
(1987)1986soastoknowwithcertainty and precision the damage they were to suffer as a result of the sub-judice decision. Inrespectof the remaining applicants -and itisbefore me thatapplicant No. 5 is residing in England and she comes to Cyprus once a year perhapsthehusband ofapplicant No.6mighthave knowledge of 5 theallegedinterferenceasearlyastheendofJanuary 1986.There is no other precise evidence as to whether the remaining applicants were aware of the alleged interference by the end of January 1986, and it is clear from the evidence of Panayiotis Tsangaris that it was as late as the 10th May 1986 when even 10 advocates acting on behalf of all applicants came to acquire complete knowledge of the facts pertaining to the sub-judice decision. The burden of proof that an applicant came to have complete knowledge of the act impeached rests on the party alleging that 15 the recourse is out of time; and if there isdoubt as to when the decision cametotheknowledge ofthepersonsfilingtherecourse, thensuchadoubtmustbedecidedinfavouroftheapplicants(vide Neofytou v.Republic, 1964C.L.R. 280atp.290,Sa Engineering and Marketing Co., v.Republic
(1984)3 C.L.R. 393 atpp. 398- 20 399. Inviewofthematerialbefore meIhavedoubtswhether anyone oftheapplicantshadfullknowledgeofthenatureandextentofthe sub-judice decision priorto the 10th May 1986;therefore, giving the aforesaid doubt intheirfavour, Iamdutybound toresolvethe 25 matter in favour of the applicants. For the reasons stated above, the preliminary objection ishereby dismissed. Turningnow tothemeritsofthecase;Idonotintend to decide thesubsidiaryissueraised,notablywhetherdivisionpermit29231 of 6.7.84 isa renewalofthe expired permit 26830dated 17.3.82 30 as alleged by the applicants or whether same is an altogether new permit. It is sufficient to note that it is admitted by the respondent Municipality (videpara. 3of itsopposition) that itwas a condition of the permit aforesaid that a road should be constructed affecting plot399i.e.thepropertyoftheapplicants.It 35 is immaterial whether the respondent denies that the permit in question covers 8,000sq.ft. of plot 399,butallegesthat itcovers a much lesser extent. The fact remains that it covers part of plot 399, the property of the applicants without the consent of the applicants being taken and without the applicants having taken 40 any part whatever in the process of the issue of the sub-judice decision. 1452 3 C.L.R. Griva v.M'pal C'ttee L'ssol LorUJ. Itisclearfrom the caseofKalogeropoulosv. The Improvement Board of Mesayitonia&Another
(1969)3 C.L.R. 108 at p. 110 thattheproposed division ofthepropertyofthe interested-parties into building sites should not entail interference with property 5 belonging to third persons, the applicants in this case, and itis apparent both from theadmission oftherespondent Municipality, as well as from the division permit and the plan attached thereto (vide attachment to the written address on behalf of the respondent, exh. 1 attached to the opposition of the interested 10 partiesand theadministrative filewhichisexh.«Y»before me)that inviewofthedivision of theproperty oftheinterestedpartiesinto four building sites as envisaged by permit 29231 of 6.7.84, the interested partiesarebound toconstructaroadtothesouthofplot 398 which covers not only asmallportion from 398,butalsopart 15 ofplot399,theproperty ofthe applicantsandinthisconnectionI must say straight away that Ido not agree with the submissionof learned counsel for the interested parties that the only thing the interested parties have to do is to construct part of the road affecting onlytheirownpropertyi.e.plot398withoutconstructing 20 the whole road, thereby trespassing on plot399 belonging tothe applicants, because the construction of the road in question isa «sinequanoncondition»forthegrantingofthesub-judicedivision permit which was being granted under s. 3 of the Streets and BuildingsRegulationLawCap.96.anditisabundantlyclearfrom 25 the provisions of s. 11 of the same Law that «every street constructed byvirtue of a permit granted under the provisionsof s.3ofthisLawshall,assoonasthecertificate ofapprovalhasbeen granted be deemed tobe a publicstreet». So ineffect in thiscase the Respondent Municipality actingon 30 the application of the interested parties granted a division permit (sub-judice decision) by virtue of which the property of the applicants was prejudicially affected without the participation or theconsent ofthe applicantstothat end. It is clear from the above that the Respondent Municipality 35 failed to cany out a proper inquiry which resulted to a misconception of fact, notably the fact that the proposed division of the property of the interested parties intobuilding sites would entail interference with the property belonging to the applicants who never applied for the division of their own plot of land into 40 buildingsites. 1453 t o r i · J. Griva v. M'pal C'ttee L'MOI
(1987)For the reasons I have endeavour to explain above the sub judicedecision,notably29231of6.7.84isherebyannulled. Lettherebenoorderastocosts. Subjudicedecision annulled.Noorder astocosts. 1454