3 C.L.R. 1987 March 14 [PIKES J] INTHE MATTER OFARTICLE 146 OFTHE CONSTITUTION DEMETRAKIS N I C O D E M O U FAKONTIS. Applicant, υ T H E REPUBLIC OF CYPRUS T H R O U G H T H E C O U N C I L OF MINISTERS Respondents (Case No 613/85) Compulsory acquisition —Revocation ofanorderforacquisition before perfection — Thepower vests m theacquiring authority— The nature of suchpower is discretionary— The Compulsory Acquisition Law 15/62 section 7
(1)5 10 15 20 Constitutional Law—Right of property—Constitution Art 23 5 — Compulsory acquisition — Penod of threeyears begins to run asfrom time ofperfection of the acquisition Executory act — Informatory or advisory act — Not justiciable — Offff for compensation in respect of immovable property compulsonfy acqured — Demand by applicant for the return ofhisproperty — ReplybyDistort Lands Officer expressing opinion that order of acquisition isstill valid as it had not beenrevoked — Saidreply does not embody a decisionofan executory,but merely of an informatory character Applicant spropertywas compulsonly acquiredin 1974 By theyear 1979 it became clear that the purpose for which the property was acquired was abandoned Nevertheless it was decidedto pursue the acquisition and,asa result,the procedurefor the perfectionofthe acquisitionwas reactivated and on 14 3 85 an offer was made by the Paphos Lands Officer for the compensation of the applicant The applicant rejected the offer and demanded the return of the property In reply, the Lands Department expressedtheopinion (Letterdated234 85)thattheorderofacquisitionwas valid asit had notbeen revoked by any subsequent act Hence the present recourse, which is essentially directed against the decision, if any, embodied in the letterof23 4 85 However, counselfor the 557 Fakontis v. Republic
(1987)applicantbroadened hischallenge byattributinganomission tothe Acquinng Authonty to returnthepropertyas allegedlybound todo by Art 23 5 of the Constitution Held, dismissing the recourse
(1)Communicationsof an informatory or advisory character are not justiciable as they leave unchanged the legal 5 regime applicable to the determination of the nghts of the petitioner The letterof23 4 85isof an informatory character Inanyeventthe PaphosLands Officer had nopower torevoke theorderof acquisition Thepower to revoke an order of acquisition before perfection, ιe before change of ownership, vests inthe Acquinng Authonty (Section 7
(1)of the Compulsory Acquisition 1 0 Law) and is of a discretionary nature The exercise of the discretion is, of course,reviewablebythisCourt Inthiscase,however, nodecisionwastaken under section 7
(1)
(2)Art 23 5 of the Constitutionimposes a duty onanAcquinng Authonty to return property compulsoniy acquired, if the purpose for which the acquisition was effected is not attained within a penod of three years The penod of three years does not run until after perfection of the acquisition (Cyprus Tannery ν TheRepublic
(1985)ΐ C LR 522 followed) 15 Observations by the Court Nodoubt the applicant is free to petitionthe Council of Ministers to revoke the acquisition in exercise of their powers 2 0 under section 7
(1)of the Compulsory Acquisition Law Considenng the abandonment of the purpose of the acquisition and in the light of the provision inArt 23 5of the Constitutionthat- acquiredpropertyshall only be used for the purpose for which ithasbeen acquired» revocation maywell be inevitable 25 Finally this Court cannot overlook the scanty regard paid in this case by administrative organs to theeffective protectionof thenghtssafeguarded by Art, 23 of the Constitution One is apt to gain the impression that they put administrative convenience above theneed toprotecttheaforesaid nghts 30 Recoursedismissed No orderas tocosts Cases referred to Cyprus Tannery ν The Republic
(1980)3 C LR 405 and on appeal ( 1 9 8 5 ) 3 C L R 522, Vassfadou ν The Republic
(1986)3 C L R 955 and on appeal Rev Junsd Appeal 602, tobe reported in
(1987)3 C LR Recourse. Recourseagainsf the omissionofthe respondentstorevokethe acquisitionofapplicant'spropertydue totheabandonmentof the purposeforwhichthepropertywasacquired. 558 35 3 C.L.R. Fakontts v. Republic Chr.Georghiades, forthe applicant. M.Clerides-TsiappafMrs.), for the respondents. Cur.adv. vult. PIKISJ. read the following judgment. Far back in 1974, the 5 property ofthe applicantwascompulsoniy acquired for purposes signified a year earlier in the notice of acquisition, namely, the improvement of air communications by the construction of an airport inthe Paphos district.The plansforthe implementationof the project were, as can be gathered from the history of the 10 acquisition, left in abeyance for a number of years. And no steps were taken to perfect the acquisition by the payment of compensation, a prerequisite for the vesting of ownership in the Acquiring Authority. Bytheyear 1979itbecameclearthatthepurposeforwhichthe 15 property was acquired was abandoned. Another location was chosen and acquired inthe Paphosdistrict fortheconstruction of anairport.Foratimegovernmentdepartmentstoyedwiththeidea of returning theproperty tothe ownersand correspondence was exchanged on the subject between various departments of 20 government. But no firm decision was taken either way. Eventually, it was decided to pursue the acquisition notwithstanding the abandonment ofthepurpose forwhichitwas acquired.Itwasplanned toretaintheimmovable propertyanduse itfor defence needs. 25 Followingthe decision to keeptheproperty,theprocedure for the perfection of the acquisition was reactivated and on 14th March, 1985,an offer wasmade bythe Paphos LandsOfficer for the compensation of the owner. Promptly, he rejected the offer (18/4/85)anddemandedthereturnofthepropertyonthe ground 30 that the purpose for which itwasacquired had been abandoned. In reply, the Lands Department expressed the opinion that the order of acquisition wasvalid, reminding ithad notbeen revoked by any subsequent act (letter of 21/4/85). The recourse, both as originally framed and as subsequently amended, is essentially 35 directed against the decision, ifany, embodied intheletteror the omission torevoke the order of acquisition. Thejusticiability of thesubject matterof the recourse isthe first ground upon which it is opposed. In the contention of the respondents the letter of 23/4/85 disclosed no executory 559 Pikl i J. Fakontis v. Republic
(1987)administrative decision amenable to the revisional jurisdiction of the Court. It merely signified the opinion of that departmentof government on the legal implications of the order of acquisition and its validity in the absence of any revocatory decision discharging it. Furthermore, itwas notinthepower of theDirector 5 of LandsDepartmenttorevoke theorderofacquisition. Discretion to recall a notification or an order of acquisition under s.7 of the Compulsory Acquisition Law*, vests, whenever the Republic is theAcquiring Authority, intheCouncilofMinistersinaccordance with the provisions of s.6
(3)of the Law. So, under any 10 circumstances it was beyond the power of the Paphos Lands Officer to exercise any of the powers vested in the Acquiring Authority by s. 7 of the Law. Counsel for the applicants in a thorough and illuminating address examined therightof ownership from a variety of angles 15 and drew attention to its protection in Cyprus by Article 23 as a fundamental right not to be denied or interfered with, save as provided in the Constitution.InGreece there is provision in the Constitution** for the automaticrevocation or lapse of an order of acquisition whenever the Acquiring Authority is guilty of 20 inordinate delay {18 months) in the payment of compensation adjudged whether on provisional or a permanent basis***- No comparable provision is included in our Constitution. Power to revoke an order of acquisition before perfection, that is, before change of ownership, vests intheAcquiring Authority, conferred 25 by s.7 of the Compulsory Acquisition Law. The discretionary nature of the power was acknowledged by the FullBench inthe Cyprus Tannery v.Republic****. Being power of a discretionary character no statutory duty is cast on the Acquiring Authority to exercise itundergiven oranycircumstances.Ofcourse, adecision 30 resulting from the exercise of the discretion vested by s.7 is reviewable underarticle 146.1. •(law 15/62) "(see. article17of the Constitutionof 1975) ***(Thesubjectof compulsory acquisition inGreece isdiscussedingreatdetailinthe workof Κ Horomides - CompulsoryAcguisition, atpp 132-133, 136,137-161. 389-398) — ·
(1980)3 CL R.405, 415, andCyprus Tanneryν Republic
(1985)3C.LR 560 522) 3 C.L.R. Fakontis v. Republic Pikis J. In thiscase no decision wastaken under s.7(l) of the Law nor the letter of 23/4/85 makes reference to any such decision. It merely informs of the understanding of the Paphos Lands Authorities that the order of acquisition is still in force in the 5 absence of a decision revoking it, information factually correct. Communications of an informatory or advisory character are not justiciable asthey leave unchanged the legal regimeapplicable to thedetermination oftherightsofthepetitioner.Norwasitforthat matter in the power of the Paphos Lands Officer to revoke an 10 order of acquisition. Consequently, the recourse to whatever extentitisdirected againstadecision oromission embodied inthe letterof 23/4/85,must necessanly fail. Ontheotherhand, counsel didnotconfine thechallenge tothe content of the letter of 23/4/85 but broadened it, attributing an 15 omission to the Acquiring Authority to return the property as allegedly bound to do by the provisions of article 23.5 of the Constitution. Paragraph 5 of article 23 imposes a duty on an acquiringauthoritytoreturn property compulsorily acquired ifthe purpose for which the acquisition was effected is not attained 20 within a period of three years. In pressing thisaspect of his case counsel didnotignoreobstaclesinhiswayor underestimate their effect. Inthe submission of counsel the three-year period should be computed from the date of the order of acquisition and notits perfection bythetransfer ofownership.InCyprusTannery,supra, 25 itwasdecided otherwise withthe Courtholdingthattheperiodof three years does not run until after the perfection of the acquisition.The interpretation ofarticle23.5,favoured inthe case of Cyprus Tannery, is unavoidable in view of the concept of compulsory acquisition, elicited in para.4 of article 23. The 30 payment of just compensation is a condition precedent to the compulsory acquisition ofproperty. Etymologicallytoo,the word «acquisition»connotesvestingofownership. Itis,therefore, fairto presume that the constitutional legislator used the expression «compulsorily acquired»inarticle23.5intheabovesenseand not 35 as synonymous to the sanctioning of the acquisition that leaves ownership wholly unaffected. Before the perfection of the acquisition theproperty remainsforallpurposes inthe ownership and possession of the owner who may do withhispropertyas he pleasesunlessitisrequisitioned inthe meantime. Butinthat case 561 Piki* J. Fakontis v. Republic
(1987)also, requisition cannot last for longer than three years as laid down inarticle23.8(c)*. Itmust be addedthatcompensationof theowneraffected byan order of acquisition is notleft tothediscretion andspeedy action of theAcquiring Authority. Section 9 of the Law** empowers the owner to have recourse to a civil court for the determinationof compensation where no agreement is reached within a month after publication.Thattheapplicantwas notcompensated inthis case intimeis, at the least, partly his fault. 5 For the reasons explained above therecourse cannotsucceed; 10 itis,inthefirst place,directedagainst anonexecutory act whereas totheextent thatitisfounded onalleged omission togiveeffect to theprovisions of article23.5,itisillfounded astheacquisition was not perfected. No doubt the applicant is free to petition the Council of Ministers to revoke the acquisition in exercise of the 15 powers vested themby s.7(l)of theCompulsoryAcquisition Law. Considering the abandonment of the purpose for which the acquisition was effected, its revocation may well be inevitable. Paragraph 5 of article 23 explicitly provides that «... acquired property shall only be used for thepurpose for which ithas been 20 acquired.»However,nomoreneedbesaidonthematterasitdoes not immediately anse for consideration.What Icannot overlook reflecting upon administrative records before me relevant to the sub judice acquisition, is thescanty regard paid by administrative organs to the effective protection of the rights safeguarded by 25 article 23. One is apt to gain the impression that they put administrative convenience above need toprotecteffectively the rights safeguarded by article 23.1 remind thatinaccordancewith article35 of theConstitution,itisthedutyofeveryexecutive organ to secure within the limits of their competence the efficient 30 application of Part IIof the Constitution. In the result, therecourse fails and itis dismissed. Therewill be no orderas to costs. Recourse dismissed. No orderas to costs. 35 •See, Loulla^Vassiadou ν TheRepublic
(1986)3CLR.955 (RevisionalJurisdictionAppeal No 602 •decided on27 2 87, to be reportedin
(1987)3CLR) ** (Law 15/62) 562