3 C.L.R. 1987August26 [DEMETK1ADES, J ] INTHEMATTEROFARTICLE 146OFTHE CONSTITUTION SOPHOCLIS HADJIIOSIFAND OTHERS, Applicants, ν THE REPUBLIC OFCYPRUS, THROUGH 1 THE COUNCILOFMINISTERS, 2 THE MINISTER OFINTERIOR ANDDEFENCE, Respondents (CaseNn 584/84) ConsbbjhonalLaw—Right toproperty— Consbtubon, Art 23 8(c)—Requisibon ofproperty—Penodof—Cannot, bytheprovisions ofanySaw, beextended beyond threeyearsfromtheorderofrequisition—Prolongabon oforderfor apenod beyond suchpenod of threeyears —Offends Art 238(
- c)Requisibon ofproperty— Orderfor, forpurpose ofdefence published on 79 79 — Repeatedly renewed until23983 —New order requisiboning the same propertiesforthesame purposepublished on 7983—Such new orderwas not aself-existentandanindependent one, because nonewcircumstances arose since the making of the first order — Subjudice decision, ιe die renewal made in1984 ofthe order of 1983, annulled— Consbbibon,Art 238(
- c)On7979the respondents requisitionedby order publishedinthe Official Gazette certain immovableproperties oftheapplicants forapenod of one year forthedefenceofthe Republic Theorderwas renewed in 1980,1981 and 1982 Thelastrenewalexpiredon 21983 On 2983 therespondents issued anew order ofrequisition ofthesame properties andfor the samepurposeasthepurposeofthefirstorderofthe 7 979 On6784thisorderwasreneweduntilthe9985 Bymeansofthisrecoursetheapplicantsimpugnthevalidityoftherenewal dated6784 Held, annulling the sub judice decision
(1)Theprovisions of Article 238(ci*ofthe Constitution areclearand unambiguous The penodofthree •Quotedatρ959 957 HadjIIoallandOther*v.Republic
(1987)years provided therein cannot bythe provisionsof any law(seeLaw50/66, which extended such penod tofiveyears)be extended
(2)The new order of requisition was not a self-existent and independent one,becausenonewcircumstancesarosesincethemakingofthefirstorder
(3)The prolongation of the penod of the first order for a penod beyond three yearsoffends Art.238(c)ofthe Constitution 5 Subjudice decisionannulled Costsagainstthe respondents Recourse. Recourseagainstthedecisionoftherespondentstoextendthe 10 orderrequisitioningapplicants'immovablepropertysituatedatK. Lakatamia. A. Ladas,fortheapplicants. A. Papasawas, Senior Counsel of the Republic, for the respondents. Cur. adv.vult DEMETRIADESJ.readthefollowingjudgment.Theapplicants aretheregisteredownersofimmovablepropertysituatedatPano andKatoLakatamiaplots357,360,334,335and333ofcomplex B,SheetPlanXXX/12.EIandII,andbytheirpresentrecoursethey 20 complain thatthedecisionoftherespondentstoextendtheorder requisitioningthemuntilthe9thMay,1985,isnullandvoidandof no effect. It is to be noted that references which I shall be making hereinafter withregardto«Notifications»(Not.)aretobefoundin 25 Part II to the Third Supplement of the Official Gazette of the Republicoftherelevantyear. The undisputed facts of the case are: On the 7th September, 1979,therespondents,byorderpublishedunderNot.No.1026, requisitioned the said propertiesoftheapplicantsforaperiod of 30 oneyearforpurposesofpublicinterest,matis,forthedefenceof the Republic. The said requisition order was renewed in 1980, 1981and1982{seeNot.Nos.990,909and962respectively).The ordermadeunderNot.No.962expiredonthe21st September,
- By Not. No. 1006 of the 2nd September, 1983, the 35 958 15 3 C.L.R. Hadjlloslf and Other·v. Republic Demetriades J. respondents issued a new order for the requisition of the said propertiesoftheapplicants.Thepurposeforwhichthisorderwas made wasexactly thesame as that of the original one.This order wasonthe6thJujy, 1984,renewed untilthe9thSeptember, 1985 5 (seeNot.No. 1389). The constitutional and legislative provisions that govern the requisition of property (movable and immovable) are Article 23.8(c) of the Constitution and the Requisition of Property Law, 1962 (Law 21/62), as amended by the Requisition of Property 10 (Amendment)Law, 1966 (Law50/66). Article23.8(c) provides:- 15 «
- Any movable or immovable property may be requisitioned bytheRepublicorbyaCommunalChamber for the purposes of the educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only where the owner and the person entitled to possession of such property belong to the respective Community, and only(a) 20 (b (c)fora period notexceeding threeyears;and (d) :: Section 4
(3)-which isthesection relevantto ourcase -of Law 21/62,whichwasenactedbyvirtueoftheprovisionsofthisArticle 25 ofthe Constitution, originally provided rhat;- 30 «
(3)Theduration ofanorderofrequisitionshallbeforsuch periodorperiods,notexceedingthreeyearsintoto,asmaybe specified in such order or, if no period is specified therein, until the expiration of threeyearsfrom the date on which the requisition took effect: Provided that, at any time whilst an order of requisition remainsinforce,therequisitioningauthoritymay,byan order inthisrespectpublishedintheofficialGazetteoftheRepublic(a)revoketheorderofrequisition; or 35 (b)extendanyperiodspecified intheorderofrequisitionby such further period or periods, not extending beyond three 959 DemetriadesJ. Hadjtloeif andOthersv.Republic
(1987)years from the date on which the requisition first took effect, as the requisitioning authority may deem necessary.» Theperiod oftimematarequisition ordercouldbe inforce was, however, by section 2 of Law 50/66, extended tofive instead of three years. 5 Thelegal grounds onwhich theapplicantsbased theirrecourse are the following: The sub judice decision was taken
(1)in violation of Article 23.8(c) of the Constitution in that the requisition orderwas extended for atotalperiod of morethan 10 three years,
(2)contrarytotheprovisions of section4
(3)of theRequisition of Property Law, 1962 (as amended by Law 50/66) in thatthe total period of therequisition was extended tomorethan five years,
(3)undera misconception of law and/or facts,
(4)inexcess and/orabuse of power. Thecase for therespondents,asthisissetoutintheiropposition to the recourse, is thatthesub judice decision was taken lawfully and rightly in accordance with the provisions of the relevant Law 20 and in the correct application of the powers given tothemby the Law, inthat(
- a)as section 4(31of the Requisition of PropertyLaw, 1962 (Law 21/62, as amendedby Law 50/66) provides thata requisition order can be extended for a period of up to five years, the 25 requisition of the property of the applicants up to the 29th September, 1983, did not offend the provisions of the law, and (
- b)the second requisition order of the 2nd September, 1983, concerned a new requisition of the property, self-existent 3 · (αυτοτελή) and independent (ανεξάρτητη)of thefirst one and was made because of new requirements for the defence of theState. Counsel for the respondents in his written address relied onan opiniongiventotheDirector-Generalof theMinistryofDefencein 35 960 15 3 C.L.R. HadjtloalfandO t h e r · v.Republic Demetriades J . 1984bythe DeputyAttorney-General oftheRepublic Inthesaid opinion theDeputyAttorney-General, amongstothers, expresses thefollowing views 5 (
- a)A new requisition order of property which had previously been requisitioned isnot excluded (
- b)After the expiration of a requisition order, if new circumstances arise that make a new requisition of the propertynecessary,thisispermissibleas,inthiscase,thene order isconsidered tobeself-existent and independent from 10 the previous one and itspenod isnot added onto the penod of the previous order Thisissoeven though the purposesof the new order are the same asthose of the previous one, for instancethedefence ofthe State In addition, counsel further argued that in view of the 15 occupation of a great part of Cyprus by the Turkish forces, new circumstances are being created every day which give to the Council of Ministers the nght to requisition afresh properties for purposes of the defence ofthe country Counsel for the applicants submitted that the arguments of 20 counselfortherespondentsthatthenewrequisition orderisanew one, independent and self-existent, cannot stand He further argued that the second requisition, as well asthe subjudice one, were made in order to bypass the time limits imposed by the provisionsofthe Constitution 25 Having carefully considered the wording of Article 23 8(
- c)itis myviewthattheintention ofthe legislatorwastolimitthe powers of the Executive to depnve temporanly, by means of requisition orders, an individual of his nghts in movable and immovable property and that as the provisions of thisArticle are clear and 30 unambiguous, the penod of three years provided therein cannot. bytheprovisionsof anyLaw,be extended Inow come to the submission of the respondents that the new orderwasaself-existent andindependent one Asitappears from the file of the administration which isexhibitNo 1before me, no 35 new circumstances arose since the making of the first and subsequent to itrequisition orders, the purpose of which wasthe defence of the State In the circumstances, I find that the prolongation of the penod of three years of the first requisition 961 * DemetriadesJ. Hadjlloslf andOther·v.Republic
(1987)order offends the provisions of Article 23.8(c) and the respondents, in extending the period beyond three years, acted under a misconception of Law. Inthe result, therecoursesucceedsandthesubjudicedecision isannulled. Costsagainstthe respondents. Sub judice decision annulled. Costsagainst respondents. 962 5