(1987)1987November 28 [A.LOIZOU,J,J INTHEMATTER OFARTICLE 146OFTHE CONSTITUTION MICHAELTHEODOSIOU LTD., Applicants, v.
- THEMUNICIPALITY OFLIMASSOLAND/OR THEMUNICIPALCOMMITTEEOFLIMASSOL,
- THEREPUBLICOFCYPRUS,THROUGH THE MINISTEROFINTERIOR, Respondents. (CaseNo. 517/85). CompulsoryAcquisition—TheCompulsoryAcquisitonofProperty(Amendment) Law25/83, section8 — Whether the effectof noncompliance with its provisions, i.e. failingtonegotiatewithin thetimelimitprescribedtherein or tooffercompensationasprovidedtherein, isthenullificationoftheprocess ofacquisition —Whetherin case ofsuch noncompliance the ownerofthe 5 propertyhasarighttodemandtherevocationoftheNoticeandOrderofthe Acquisition—Bothquestionsansweredinthenegative. CompulsoryAcquisition—TheCompulsoryAcquisition ofPropertyLaw 15/67, section 7
(1)—Ambitandeffectof. Construction ofStatutes—Canons ofconstruction intheabsence ofclearand 10 expresslanguage—Thesateofthelawwhenthestatutewasenacted—The objectofthestatute—Thestatuteshouldbeinterpretedasa whole. The process of compulsory acquisition of applicants' property beganin 1972, whentherelevantNoticeofAcquisitionwaspublished inthe Official Gazette.Therefollowedthepublicationin1973oftheOrderofAcquisition. 15 When Law 25/83 came into operation the aforesaid compulsory acquisition proceedings hadnot been completed and, forthisreason, the provisionsofsection8* ofthesaidnewlawbecameapplicabletothecasein hand. Thequestion raisedInthisrecourseiswhataretheconsequencesofhon 20 compliancewiththeprovisionsofsection8byanacquiringauthority. •Quotedatpp. 1754 •1755post 1750 3 C.LR. 5 10 Theodoriou Ltd v. Republic Theapplicants,who,by meansof thisrecourse,seek adeclarationthatthe said Notice and Order of Acquisition are null and void and that the respondents' omission torevoke the said Noticeand Orderof Acquisition is, also, nulland void, submitted thattheeffect of failingtocomply with thesaid section 8, that is the effect of failing to negotiate compensation within the timelimitprovided thereinorof failingtooffer thepaymentofcompensation asprovided therein,isthenullification of thewhole process of acquisition Held, dismissing the recourse
(1)In the absence of clear and express language, section 8 should be construed by having regard to certain well known and accepted principles which govern the construction of Statutes These are (a)Thestate of thelaw atthetimeLaw 25/83 was enacted,itsstructure as a whole and the intended changes (Marangos ν MunicipalityofFamagusta
(1970)3 C L R 7) 15 (b)Theobject of theStatuteandthepurposeforwhichitwas enacted (Wia OraCo Ltd ν /?epub/ic{1973)3C L R 273} (c)That theStatute should be construed as a whole {Georghiadesν The Republic
(1969)3 C LR 3%) 20 25
(2)Froma mere looking of theamendmentintroducedby means of Law 25/83, itis clear thatits main features are (a) toprovide for a process for the prompt payment of compensation (b)The payment of interest at 9% per annum from thetimeof theNotice of Acquisition untiltheactual paymentof thecompensation Ineffect the amendmentsaimatsafeguarding thefinancialinterests ofthe ownerand nootherinterest 35
(3)The result suggested by counsel for the applicant is avery drastic one and with many senous repercussions, one such repercussion being the abandonment of the public utility purpose for which the acquisition was effected Ifthe legislature intendedthatthefailure of theacquinngAuthonty toactasinsection8
(1)provided, would haveledtosuchdrashcrepercussions andconsequencesitwould havesaidsoinexpress andclearlanguage andnot leave it to theCourtto construe theStatute Where the legislator wanted to make provision for theabandonmentorabatementofthe acquisition forany reason,they did so by express words andsection 7of Law 15/62 provides a glanng example 40 Even if inthiscase therewas an omission toactundersection 8
(1)of Law 25/83,such omission does notlead tothe nullification of theacquisition As section8of Law 25/83,aimsonlyatsafeguarding thefinancial interestsof the owner by the prompt payment of compensation, any omission to act thereunderhasonly financial consequencesontheAcquiring Authority 30 1751 Thcodoslou Ltd v. Republic
(1987)
(4)Now prayer (a)makes reference torevocation undersection 7 of Law 15/62, and/orsection 8 of Law 25/83 Fatthe reasons above appeanngthe acquinng Authonty is undernoduty by virtue of section 8 of Law 25/83 to revoke theNoticeorOrderofAcquisition Regarding section 7of Law 15/62 nonghtisgiven totheownerof thelandsubject of acquisitiontodemandthe revocation of an acquisition order and the return of the property on the ground that it is not required for the purpose of the acquisition or on the groundthatthepurposefor whichitwas acquiredhasnotbecomeattainable 5 Section 7
(1)as already mentioned, empowers an acquinng authonty to revoke an acquisition order The exercise of such power is a matter of 1 0 discretion andifsuch discretion inrevoking anorderof acquisitionis wrongly exercised, thena recourse maylie for wrong exercise of discretion Recoursedismissed No orderas to costs \5 Casesreferredto Michael Theodossiov Co Ltd ν The Municipality of Limassol
(1975)3 C L R 195, Nemitsas Industries Ltd ν Municipal Corporation of Umassol
(1967)3 C L R 134, Thymomoullos ν TheMunicipality ofNicosia
(1967)3 C LR 588, 20 ChryssaBmsν TheRepublic
(1982)3 C LR 320, Koupepav Municipal Committee ofLimassol
(1968)3 C L R 496, Costeav TheRepublic {1983) 3 C LR 115, Μ D Μ EstateDevelopments Ltd ν TheRepublic
(1980)3C LR 54, Marangosν Municipality ofFamagusta
(1970)3 C LR 7, 25 VitaOraCo Ltd ν TheRepublic
(1973)3 C L R 273, Georghiadesv TheRepublic
(1969)3 C L R 396, Cyprus Tanneryν /?epub/ic
(1980)3C LR 405, CyprusTanneryν Republic
(1985)3C LR 572 Recourse. 30 Recoursefor adeclarationthatNoticeofAcquisition No.824/ 1972 and/ortheOrderof Acquisition No. 65/1973 are nulland void andwithoutanylegal effect asaresultofthenon-application ofand/ornon-compliancebytherespondentswiththeprovisions oftheCompulsoryAcquisitionLaw,1962 and/orArticle23ofthe 35 Constitution. 1752 3 C.L.R. Theodosiou Ltd v. Republic Chr. Triantafyllides. for the applicants. J Patamitis. for respondent 1. A. Papasavvas. Senior Counsel of the Republic, for respondent 2 5 Cur. adv. vuh. A L 0 1 Z 0 U J. read the following judgment. By the present recourse the applicant Company seeks 10 15 20 «(
- a)A declaration that the omission of the respondents and either of them to publish in the official Gazette ot the Republic an order revoking the Notice of Acquisition S24/72 and even,· relevant Order published, that is the Order of Acquisition 65/ 1973. constitutes an omisssion contrary to s 7 of the Compulsory Acquisition of Property Law 1962 and/or s S of the Compulsory Acquisition of Property (Amendment) Law. 1983 and/or'Article 23 of the Constitution; (
- b)A declaration that the Notice of Acquisition 824/1972 and/or the Order of Acquisition 65/1973 are null and void and/or without any legal and/or other effect as a result ot the non-application of and/or noncompliance by the respondents and/or either of them with, the provisions ot the aforementioned legislation and/or the Constitution >» After the Order of Acquisition in respect of the property of the applicant Company was published, same was challenged by a recourse to this Court under Article 1 4 o o l the Constitution which 25 was ultimately dismissed. The judgment ot the Couit i s i e p o i t e d a s Michael Theodossiou Co . Ltd. ν The Municipality ot Lima^ol
(1975)3 C.L.R. p. 195 and one may find therein all relevant matters including the description of the subiect p i o p e i t y and the contents of the two orders, which naturally contain the purpose o; 3 0 public benefit for which the property was required to be compulsonly acquired. The purpose of the said acquisition ha.s been in effect the furtherance ot a municipal plan to nd the foreshore of Limassol of privately o w n e d buildings, and the property of the applicant company to which these proceedings 35 relate, is the only immovable property which remains for thp completion of the said plan the execution of which is absolutely necessary. O n the application of respondent 1. the Lands and Surveys Office assessed the value of the said property which consists o f a 4 0 complex of stores still being used as b o n d e d warehouses at £100,000. 1753 A.LobouJ. TheodoaiouLtdv.Republic
(1987)In the light, as itis stated in their Notice of Opposition, of the provisions of the Compulsory Acquisition of Property (Amendment) Law 1983, (Law No. 25 of 1983), respondents 1, triedtoreach anagreement withtheapplicant Company andthey offered topaythem bythe28th February 1985,ascompensation. 5 £200,000,an amount which included thecompensation assessed by the LanoXOfnce and interest up to 28th February 1985.This amount was not accepted by the applicant Company in spite of the several meetings which were held and during which respondentstriedtopersuadethemtoacceptsame.Theapplicant 10 Company askedforthesumof£250,000.Inthecourseofcontacts which respondents 1 had with the advocate of the applicant Company it transpired that they were prepared to accept £230,000onconditionthattheywouldbepaidwithintwomonths and the rest bearing interest at 9% until the middle of February, 15
- In May 1984, respondents 1, applied to the Government and askedthatthisoffer beaccepted,butinSeptember, 1984,the offer was turned down by the Government. After successive contacts which respondents 1 had with various Government 2 departments, the matter wasre-examined in
- " It is asserted by respondents 1 that their efforts continue and they were and still are ready to pay reasonable compensation which willbe agreed or,intheabsence ofan agreement, will, be fixed bytheappropriate Court. Section 8 of Law No. 25/1983, which sets out the transitional 25 provisions(and thatamending law)readsas follows:«
- Where compulsory acquisition proceedings in respect of any immovable property have been taken buthave not been completedbefore thedateofthecomingintooperation ofthis Law, the following provisionsshallapply: 30 (a)the acquiring authority shall, within ten months of the date of the coming into operation of this Law, enter into negotiations for the acquisition pf the property which is subject tocompulsoryacquisitionand, ifnoagreement has been reached within the aforesaid period of time, the 35 acquiring authority shall promptly offer the compensation assessed thereby. (b)The owner may,subject to determination ofthe sum to be paid as compensation by the competent Court, accept the compensation offered, on condition that his 40 1754 3C.L.R. 5 10 15 20 TheodostouLtdv.Republic A.LolzouJ. acceptanceshallbeaccompaniedbyhisconsentinwriting that the acquired property be promptly registered in the nameoftheacquiringauthority.Insuchacasetheowner shall, within seventy five days at the latest, apply to the Court for the determination of the sum to be paid as compensation;andwhen suchperiodhaselapsed itshall bedeemedthatanagreementhasbeen reached between himandtheacquiringauthority. Forthepurposesofdeterminationofthecompensationas inparagraphs (a)and (b)of thissubsection there shallbe assessed an interest at the rate of seven per centum per annum from the date of publication of the notice of acquisitiontothedateofthecomingintooperationofthis Law,orwhere the immovable property tobeacquiredis chargedwithamortgageorotherencumbrance,thereshall beassessedfortheaforesaidperiodaninterestattherateof interest of the mortgage or such encumbrance, and an interestattherateofninepercentumperannumfromthe dateofthecomingintooperationofthisLawtothetimeof paymentofsuchcompensation.
(2)Wherecompulsory acquisition proceedingshavebeen takeninrespectofimmovablepropertythevalueofwhichhas been affected by the imposition of any restrictions or limitationsundertheprovisionsoftheAntiquitiesLaworany 25 otherLaw,accountshallbetakenofanycompensationwhich maybedeemedpayableinaccordancewiththeprovisionsof article23oftheConstitution.» Learnedcounselfortheapplicanthasarguedthattheaforesaid provisions are mandatory and not directory; it is a section of 30 fundamental importance in curing the ills created under the directoryprovisionsofs.8ofLawNo.15of1962whichhasnow beenrepealedandsubstitutedbyanewsectionwhichintroduces anobligationontheacquiringAuthoritytoenterintonegotiations, Whereasthemarginalnotetotherepealedsection8referredtothe 35 powersoftheacquiringauthoritytopurchasepropertybyprivate treaty. It was further contended that section 8
(1)(a) is part of the proceedsofacquisitionandtogetherwiththeNoticeandOrderof Acquisitionconstitutespartofthesamecompositeadministrative 40 actandtheInvalidityofonepartleadstotheautomaticinvalidity ofdieother.Insupportofthispropositioncounselhasreferredto thecaseofNemltsasIndustriesLtd., v.MunicipalCorporationof 1755 A. Loizou J. Theodoslou Ltd v. Republic
(1987)Limassol,
(1967)3 C.L.R. 134; Thymopoullos v.The Municipality of Nicosia.
(1967)3 C.L.R.588, Chryssafinisv.Republic
(1982)3 C.L.R 320. Learned counsel further argued on the question whether an omission tonegotiate or offer compensation canbe thesubject of 5 a recourse. He referred in thatrespect to the case of Koupepa ν Municipal Committee of Limassol
(1968)3 C L.R 496 inwhich it was held that the offer of compensation could not be made the subject of a recourse,and heargued thatinview of the obligatory nature of section 8, thatcase would be decided differently today. 10 The gist of the case before me today is, however, his last argument as towhat are theconsequencesof noncompliancewith the law by an acquiring Authority. Itwas argued thatit istheduty of such an Authority toabide by the mandatory provisions of the law and that any failure can only result in the nullification of the 15 process of acquisition and in that respect, of the Notice and the OrderofAcquisition. Insupportof thispropositionIwas referred to the case of Costea v. The Republic
(1983)3 C.L.R. 115, where it was held that«failure toact (Omission)is only subject toreviewin the face of a mandatoryprovision toact». Inview of theprovisions 20 of section 8
(1)(a)being mandatory,theomission, itwas argued to act thereundercan be thesubject of judicial review. In M.D.M. Estate Developments Limited v. The Republic
(1980)3 C.L.R.54, itwas said «thatas a general rulethe omission to comply with a prescribed form inadministrative law is essential 25 and has as a result theannulment of theadministrative act». It was argued thatfrom themomenttheacquiringAuthority contravenes the owner's constitutional protected right to just and equitable compensation, then of necessity it places in doubt its right to continue with theprocess. Reference hasbeen madetoapassage 30 from the textbook of Costa Haromide, The Compulsory Acquisition, at p. 133 were thefollowing isstated: •In the process of acquisition there have been placed conditions for its realization which comply with the constitutional protectionof ownership and itsrestriction for a 35 purpose of public benefit, a purpose which would not have been achieved if the order of acquisition was left hanging at the expense of the ownership withouttimelimitsnotpursued by its completion by the full compensation of the owner and the use of the acquiredpropertyfor the executionof the work 40 of public benefit. The expedition of the execution of the 1756 3 C.L.R. Theodoelou Ltd v. Republic A. Lolzou J. acquisition and itecompletion by the realization of the work constitute the ultimate completion of the process of acquisition and if itis notrealized thepossibility of its reversal is open by revocation.» 5 Onbehalf of therespondentithas been argued thatthe process of compulsory acquisition was completed before the cominginto operation of Law No. 25/
- as inthecase of Koupepa (supra) theoffer andthepaymentofcompensationwereheldtoconstitute part of theexecution of thecompleted acquisition. Ifthe intention 10 of thelegislator was toannulthenoticeandorderof acquisition by the omission to make an offer of compensation within the period of tenmonths,thatwould have been expressed insomany words. Moreover, the owner of property which is the subject of an order of acquisition could secure the execution of the obligation of the 15 acquiringAuthority undersection8of the Law byjudicial process. The Law of Administrative Acts by Stassinopoullos p.
- does not support the proposition that the non-offer of the compensation within the time specified by law annuls the notice and order of acquisition. On the contrary, as it is stated therein,it 20 is an indication of the law to the administration to expedite its actions. Now section 8 of Law 25/
- does notexpressly state thatany failure of the acquiring Authority to comply with its provisions results in the nullification of the process of acquisition. Once the 25 language of the Statute is not clear and express, we shall endeavour tofind outwhether thesubmission of learned counsel about nullification of the process of acquisition is bom out by the language of the Statute.And in this endeavour we shall construe the said section 8 by having regard to certain well known and 30 accepted principles which govern the construction of Statutes. These are: (a) Thestate of the law atthetime Law 25/83 was enacted, its structure as a whole and the intended changes(Marangos v.MunicipalityofFamagusta
(1970)3 C.L.R. 7). / 35 (b) The object of the Statute and purpose of Which it was enacted {Vita Ora Co. Ltd. v.Republic
(1973)β C.L.R. 273). 1757 A.LofaonJ. Thcodo*louLtdv.Republic
(1987)(c) That the Statute should be construed as a whole (Georghiadesv. TheRepublic
(1969)3C.L.R.396). Regarding the state of the Law at the time Law 25/83 was enacted,sameappearsinsection8ofLaw15/62beforeitsrepeal bymeansofsection4ofLaw25/83.Undersection8ofLaw15/62 5 theacquiringAuthorityhaspowertopurchasepropertybymeans of a private treatyand alsotoassessthe compensation payable again bymeansofanagreement and itsapportionment amongst thoseinterested.Section4ofLaw25/83,whichrepealedthesaid section 8 of Law 15/62, provides that «the acquiring Authority 10 shall within ten months from the publication of the Notice of Acquisition enter into negotiations for the acquisition of the property,subject matterofthe NoticeofAcquisitionbymeansof aprivatetreatyandforthedeterminationofthe compensationby means of an agreement and its apportionment among those 15 interested. If no agreement is reached within the time above mentioned, the acquiring Authority shall forthwith offer the compensation assessedthereby.» Thedifferences betweentheoldsection8andthenewsection 8 are: (a)Thenewsection8setsatimelimitoftenmonthswithinwhich theacquiringAuthorityshallenterintonegotiations,whereasthe oldsectionleftthetimeatthediscretionoftheacquiringAuthority. (b) The new section 8 makes it obligatory for the acquiring Authoritytooffer forthwith thecompensation.Nosuchprovision 25 appeared intheoldsection8. Itisinterestingtorefer alsototheprovisionsofsection8
(2)of Law 25/83 whereby the owner can accept the compensation subjecttoitsassessmentbytheappropriateCourt,whereuponhe hasto apply to the Court within 75daysof the payment of the 30 compensation. Further, section 9 of Law 15/62, asamended bysection 5of Law25/83, providesthat«withoutprejudice totheprovisionsof section 8, if by the time of the publication of the Order of Acquisitionnoagreementisreachedasprovidedinsection8,the 35 Acquiring Authority or any interested person may apply to the Court for the assessment of the Compensation, payable for the acquisition....» 1758 20 3CLR. TheodosiouLtdv.Republic A.LotzouJ. Therefore the remedies available to the owner in case by the time of the publication of the order of acquisition there is(
- a)no agreement fortheacquisition ofthepropertybyprivatetreaty,(
- b)for the assessment of the compensation by agreement, are to 5 apply totheCourtfortheassessment of the compensation. Anotherimportantinnovation introducedbymeansofLaw25/ 83, isthe one provided by section 6(b)thereof, whereby «on the compensation payablethere isassessedannualinterestatthe rate of 9% from thedate ofthepublication ofthenoticeof acquisition 10 and untilthetime ofpayment ofsuch compensation*. Lastly we have section 8
(1)of Law 25/83, which has been quoted above. Froma merelookingoftheamendments introduced by means ofLaw25/83,itisclearthatitsmainfeaturesare (a)toprovide for 15 a process for the prompt payment of compensation, (b) The paymentofinterestat9% perannum from thetimeofthe Notice ofAcquisition untiltheactualpayment of the compensation. In effect the amendments aim at safeguarding the financial interestsoftheowner and no other interest. 20 Coming nowtosection 8
(1)of Law25/83, and construingitby having regardtothe aforesaid principles, Icannot read intosuch sectiontheresultsuggested bylearned counsel fortheapplicants, namely that the failure of the acquiring Authority to abide by its provisions can only result in the nullification of the process of 25 acquisition and in that respect, of the notice and order of acquisition.Suchresultisaverydrasticoneandwithmanyserious repercussions, one such repercussion being the abandonment of thepublicutilitypurpose forwhichtheacquisition waseffected.If the legislature intended that the failure of the acquiring Authority 30 to act as insection 8
(1)provided, would have led to such drastic repercussionsand consequences itwouldhave saidsoin express and clear language and not leave itto the Court to construe the Statute. Where the legislator wanted to make provision for the abandonmentorabatementoftheacquisitionforanyreason,they 35 did so by express words and section 7 of Law 15/62 provides a glaringexample. Regardingthereference oflearned counselfortheapplicant to thecaseof Costeav.Republic
(1983)3C.L.R.115,letmesaythat itisof no helpto the applicant. Whatwasdecided inthe Costea 1759 A. Loizou J. Theodosiou Ltd v. Republic
(1987)case was thequestion of when omissions of theadministrationare of an executory character and amenable to review More to the point is the judgment of the Full Bench in Cyprus Tannery ν Republic
(1980)3 C L R 405 At ρ 415 5 «The exercise of the said powers is a matter of discretion and itappears tobe wellsettled thatanomission inthe sense of paragraph 1 of Article 146 of the Constitution means an omission to do something required by law, as distinct from the non-doing of a particular act or the non taking of a 10 particular course as a result of the exercise of discretionary powers (see inter aha ThePoliceAssociation and Others ν The Republic
(1972)3 CL R 1 23) Inthe present instance there has notbeen eithera refusal or an omission toconsider the relevant claimof theappellantundersection 7of Law 15/ 15 62 as the appellant has hurried to file a recourse while the matter was still under consideration» Even if m this case there was an omission to act undersection 8
(1)of Law 25/83, such omission does notlead tothe nullification of the acquisition As section 8 of Law 25/83. aims only at 20 safeguarding the financial interests of the owner by the prompt payment of compensation any omission to act thereunder has only financial consequenceson theAcquiring Authority anddoes not lead to the nullification of the acquisition In any event the financial interests of applicantaresafeguarded bytheprovision for 25 payment of interest For the above reasons prayer (b) in the motion for relief must fail Now prayer (a)makes reference to revocation under section 7 of Law 15/62, and/or section 8 of Law 25/83 For the reasons 30 above appearing Ihold that the acquiring Authority is under no duty by virtue of section 8 of Law 25/83 to revoke the noticeor Order of Acquisition Regarding section 7of Law 15/62 same was considered in Cyprus Tannery ν Republic
(1985)3 C LR 572. where the following were stated atρ 589 35 «No right is given by section 7
(1)to the owner of the land subject of acquisition to demand the revocation of an acquisition orderandthereturnof thepropertyontheground that itis not required for the purpose of theacquisition oron the ground thatthepurpose for which itwas acquired has not 40 1760 3 C.L.R. 5 10 15 20 25 Theodosiou Ltd v. Republic A. Loizou J. become attainable The remedy of the owner to object to a notice of acquisition is to be found in section 4 of the Law. whereby he is entitled to object to the notice ol acquisition and if his objection is rejected, then he may challenge such decision by a recourse In cases where the purpose of the acquisition has not become attainable within the penod of three years fromthecompletionoftheacquisition by payment of compensation the owner derives his remedy from Article 23 5 of the Constitution and the provisions of section 15
(1)of Law 15/62 which was enacted for the purpose of regulating the procedure to be followed in case where the object of acquisition is not attained within the period of three years To interpret section 7
(1)as giving an additional remedy to the owner to claim the revocation of an acquisition order would amount to adefeat of the object of Article 23 5 Section 7
(1).asalready mentioned, empowers an acquiring authority to revoke an acquisition order The exercise of such power is a matter of discretion and if such discretion m revoking an order of acquisition is wrongly exercised, then a recourse may lie for wrong exercise of discretion (See Michaehdes and Another ν The Republic (supra)) » Applying the pnnciples enunciatedin theabove case,Iholdthat no right is given to the owner to demand revocation of an Acquisition Order for failure of the acquiring Authority to comply with section8 of Law 25/83.andalso,that theacquiring Authonty is under no duty to revoke the Acquisition Order due to failure to comply withthe Law. section8 Therefore prayer (b)must failtoo The recourse is therefore dismissed but in the circumstances there will be no order as to costs 30 Recourse dismissed No order as to costs 1761