(1987)1987 January 28 [MALACHTOS J ] IN T H E MATTER OF ARTICLE 146OF T H E CONSTITUTION KYPROS Ν KOURTELLARIS A N D OTHERS. Applicants. ν T H E REPUBLIC OF CYPRUS, T H R O U G H 1 T H E C O U N C I L OF MINISTERS. 2 T H E MINISTRY OF COMMERCEA N D INDUSTRY. Respondents (CaseNos 311/82, 312/82, 313/82, 316/82, 317/82 & 319/82) Administrative Law—General principles—Due inquiry—Purpose of—//mustbe earned out m all cases and it should be completed before reaching the decision—Facts placed before theAdministration expost factodonotleadto a conclusion of proper inquiry By meansoftheaboverecoursestheapplicantschallenge thevalidity ofthe order whereby their immovable propertiessituated bythe village ofErgates in the DistrictofNicosiawere compulsonly acquiredforthepurposeofsetting up anew industrial area The relevant noticeofacquisition waspublishedon 29 581 5 It should be notedthattherespondent Ministry madevariousinquiries both 1 0 before and after the publication of thenotice On 10980 the Ministry of Agriculture and Natural Resources informed the respondent Ministry that there would be a water supply problem On 22 12 81 the District Officer suggestedthat severalplotsbeexempted fromtheacquisition On43 82 the Department ofTown Planningexpressed itsdisagreement with theselection 1 5 of the particular area On 7582 the respondent Ministry sent a proposal to the Council of Ministers forthe acquisition ofthe area inquestion,suggestingthat the order be published by the 295 82. as after that date the relevant notice would expire By letter dated 205 82 the respondent Ministry stressed to the 2 0 Council ofMinisters thatifthe order isnot publishedbythe29 5 82.then the compensation payable, if paid at some future date, would certainly be increased andsuggested that theorder bepublished before theexpiry date and that any exemption therefrom of pnvate land beconsidered at a later stage and ifrequiredanorderofrevocation be publishedthen The orderwas 2 5 232 3 C.L.R. Kourtallarit ft Other· v. Republic eventually published on 28 5 82 The applicants complained, inter alia that no proper inquiry was earned out before the publication of the order whilst the respondents argued that such inquiry was earned outsubsequently tothesub judice decision 5 10 Held annulling the sub judice decision
(1)In accordance with basic pnnciplesof administrative law andof good administration adue andproper inquiry inallcasesmustbe earnedoutinorderthatallmatenalfacts be before theorgan ortheauthontyatthetimeof reaching thesubjudicedecision Facts which are placed before itex post facto donotlead toaconclusion of proper inquiry as thefactuaLsituation atthetimeof reaching thesub judice decision isincomplete
(2)In this case the respondents failed to carry a due and proper inquiry before reaching thesub judice decision 15
(3)Itmust always be borne inmind that «Compulsory acquisition leadsto depnvation of property which contravenes thefundamental nghtof property safeguarded by Art 23 of the Constitutionand theacquinng Authonties are expected to act in conformity with the pnnciples of good administration· (Agrotis ν ΕAC {1981)3 CLR 503) OQ Sub judicedecision annulled £50 costsinfavourofapplicants Casesreferredto Thymopoulosv TheMunicipalCommitteeof Nicosia
(1967)3 CLR 608 loannldesv TheRepublic
(1972)3 CLR 318 Agrohsv EAC (1981J3CLR 503 2S Recourses, Recourses against the decision of the respondents to compulsorily acquireapplicants'immovable properties Ε Efthymiou, for theapplicants Si.bannldou (Mrs), for therespondents. 30 Cur advvult. 233 Kourtellaris &Others v.Republic
(1987)MALACHTOS J read the following judgment The applicants bythepresentrecourses whichwereheardtogetherastheyattack the same administrative decision claim a declaration ofthe Court that the decision of the respondents, published in Supplement No 111to the Official Gazette of the Republic No 1780 dated 5 28 5 82 bywhich theirimmovable properties were compulsonly acquired isnull and void and of no legal effect whatsoever The factual background tothese recoursesisas follows In or about the year 1977 the need arose for either a new industrial aiea or for theextension of an existingmdustnal area in 10 Nicosia especially in order to accommodate labour from the villages of the Pitsilia Distnct Onginally in December, 1979, five areas were proposed inrespect of which inquines were made by trie Ministry of Commerce and Industry to vanous Government Departments such as the Department of Town Planning and 15 Housingand the Department ofGeological Surveyasregardssoil structure and watersupply the Department ofLandsand Surveys as regards the value of the proposed areas and CYTAas regards the possibility and cost of installation of telephone lines The respondent Ministryselectedoneofthefiveareasproposed 20 and informed thf Planning Bureau accordingly At the suggestion of the Planning Bureau inquiries were made for the possibility of one area near the village of Aredhiou and in December 1979 the Lands Registry informed the respondent Ministryoftheexistenceoftwopossibleareasbetweenthevillages 25 ofAredhiou-Episcopio.onewithintheareaofAnayia{AreaA)and one within the area of Ergates (Area B)which was between the villagesof Aredhiou andAnayia The views of the vanous Government departments were again sought The Department of Town Planning considered that the 30 distance of the two new areas from Nicosia was not a factor in their favour also that the cost of providing essential services e g electncity,wouldbeenormous Particularsoftheiraveragemarket valuewereobtained fromtheLandRegistryandfrom CYTAofthe costof installation of telephone lines „_ By letter of 10 9 80 the Ministry of Agriculture and Natural Resources, informed therespondent Ministrythatboth new areas were faced witha watersupply problem and thatthey werenotin 234 3C.L.R. Koartellaris &Others v. Republic MalachtosJ. a position to provide sufficient water for the requirements of the proposed industrial area. However, itwasstated therein that the possibilitythatadequate watermightbefoundasaresultofdrilling of boreholes could not be excluded, the cost, however, of which 5 couldonlybeassessedafter thewatersourcewouldbe specified. On 14.5.81the respondent Ministryproposed totheCouncilof Ministers that Area 'B'. the area by the village of Ergates. be approved asthe mostsuitable. TheCouncilofMinistersapproved theaforesaid proposalofthe 10 respondent Ministry and published in the Official Gazette of the Republic, No.1692. dated 29.5.81. the relevant notice of acquisition under Not.500 for the purpose of setting up the new industrial area. On 10.6.81 the amount of the assessment of compensation 15 payable wasrequested from theLand Registry. On 22.12.81 the Nicosia District Office by letter notified the respondent Ministry that several objections had been submitted because theareawasan irrigated area and a number of plotshad been included in the «Fourkismenos» Irrigation Division for 20 developmentpurposesandsuggestedthatseveralplotsshould be exempted. On 27.2.82 the respondent Ministry sent to the Department of Landsand SurveysandtotheTown Planning Department urgent letters by which it requested a survey map and the per donum 25. valuation ofthe properties in question. Subsequently, the Department of Town Planning wrote to the respondent Ministry on 4.3.82 that it disagreed with the area selected because itwas far away from Nicosia and also from the essential services as regards electricity, and water supply; 30 furthermore, the structure of the area was uneven and would createproblems.AlsotheNicosia-Pitsiliaroad,though ithad been widened atvariousparts,such widening wasnotsufficient for the purposesofanindustrial area. On7.5.82aproposalwassenttotheCouncilofMinistersbythe 35 respondent Ministryfortheacquisition ofthearea inquestion.Itis statedtherein thatdespitethesuggestionsoftheDistrictOfficerfor theexemption of certainplots,such plotsbeingscattered allover 235 MaJachto·J. Kourtetl.ri» A Othersv.Republic
(1987)the area to be acquisitioned, would affect its uniformity and its consequentdevelopmentandshould,therefore, notbeexempted but instead their owners should be compensated - such compensation of pnvately owned land reaching the region of £340 000 Itwas alsosuggested that the order of acquisition be 5 published mthe Official Gazette ofthe Republicbythe 29th May, 1982 asafter that datethe relevant notice would expire The respondent Ministrybyletterdated20 5 82stressed tothe Council of Ministersthat ifthe notice isnotpublished bythe 29th May then the compensation payable if paid at some future date 10 would certainly be increased and suggested that the order be published immediatelybefore theexpiryofthenoticeandthatany exemptions therefrom of pnvate land be considered at a later stage and ifrequired anorder of revocation be published then The Council of Ministers approved the proposed acquisition 15 and the relevant order was accordingly published in the Official Gazette of the Republic No 1780 dated 28 5 82 The grounds of lawon which the recourses are based may be summarised as follows 1 That the respondents acted under amisconception offact, 20 2 that the sub judice decision was reached without a proper inquiry and 3 that thesubjudicedecision lacksdue reasoning Itwas argued on behalf of the applicants that the Council of Ministers in reaching the sub judice decision failed to take into 25 consideration matenal factors such as the unwillingness of the industrialists to set up an mdustnal area 12 miles away from Nicosia, the unsuitability of the land, the lackof watersupply and theobjections oftheownersofthepropertiestobe acquisitioned Itwascontended thatnoproperinquirywasconducted before the 30 acquisition order was published but instead itwas decided thatit be rushed through and any inquines as regards the water supply, the objections of the pnvate land owners and the overall amount ofcompensation tobepaidwouldbeconsidered laterand ifneed bean order of revocation mightbe issued inthe future 35 Itwasarguedonbehalf oftherespondentsthatsufficient inquiry was earned out subsequently to the sub judice decision, 236 3 C.L.R. Kourtellari· & Others v. Republic Malachtos J. particularly as regards the question of the water supply, the possibility of supplying water with tankers in the event of it being found thatthere was nosufficient water supply Inaccordancewiththebasic pnnciplesofadministrative law and 5 thepnnciples of good administration, adue and proper inquiryin all cases must be earned outin order thatall the matenal facts be before theorgan orauthontyatthetimeof reaching thesub judice decision Factswhich areplaced before itexpost facto donotlead to a conclusion of proper inquiry, as the factual situation at the 10 time of reaching the sub judice decision is incomplete See Thymopoulos ν The Municipal Committee of Nicosia
(1967)3 C LR 608 at pp 612-613, also Constanttnos loanmdes ν The Republic
(1972)3CLR 318atpp 324-26 where the following is stated atρ 326 15 «Another reason for which the decision of the Council of Ministers has to be annulled is the failure to make a due inquiry with theresult thatthetwo matenalassumptionswhichwere relied on in reaching such decision were based on a factural position which was incomplete (see for example. Chnstides, supra, and 20 National Bank of GreeceS A , supra),from all thematenal before me - including theabsence of any relevant minutesof theCouncil of Ministers other than the text of its sub judice decision, and the fact that no wntten submission was made to the Council of Ministers in relation to the matter in question -it is to be denved 25 thattheCouncilofMinistersreacheditsdecision inahurryandthis explains why apparently no due enquiry was made in order to ensure complete andcorrectknowledge of all matenal facts The failure to make a due enquiry is aground for annulmentwhich in this case is closely related to the other already stated ground for 30 annulment, namely misconceptions of facts, but it is also an independent, sufficient by itself,ground for annulment» Inthecircumstances1find thattherespondentsfailed toconduct a due and proper inquiry before reaching thesub judice decision complained of and therefore, theorderof acquisition, as far asthe 35 applicants are concemed.has tobe annulled as made contrary to thewellestablished pnnciplesof administrative law Itmustalways be borne in mind that «Compulsory acquisition leads to depnvation of property which contravenes the fundamental nght of property, safeguarded by Article 23 of theConstitutionand the 40 acquiring Authorities are expected to act in conformity with the 237 Malacfato*J. KourteUart*AOthersv.Republic
(1987)principles of good administration». SeeAgrotis v.EAC
(1981)3 C.L.R.503atp.513. In the result, these recourses succeed and the sub judice decision,asfarastheapplicantsareconcemed,isherebydeclared nullandvoid. 5 On thequestion ofcosts,therespondentAuthorityisadjudged topaytotheapplicants£50.-againsttheircosts. Subjudicedecisionannulled. Respondentstopay£50.againstcosts. 238 10