(1988)1988September 14 (A.L01Z0U, P.,DEMETRIADES,P1KIS,JJ.) MAROULLAXENOFONTOS M. MESARITIS, WIFEOFDIOGENIS HADJINICOLAOU, Appellant-Applicant, u. THE REPUBLICOFCYPRUS, Respondent. (CivilAppeal No. 7189), Compulsory acquisition — Compensation —Betterment — Purpose of acquisition — The construction of roads —One of such roads already constucted illegallythroughappellant's property —Rightly such construction was not taken into consideration incalculating bettennent tothe remainder —Rightlyheld thatbetterment wasthe 5 resultofthe acquisition. Compulsory acquisition —Compensation —Bettennent — The Compulsory Acquisition (Amendment) Law, 25/83, section 6 —Rightor obligation respecting betterment —Accrues on the date of the notice ofacquisition —Itscrystallisationand extent b determined at JO the date oftrial. On 21.2.1975 a notification was published for the compulsory acquisition of part of appellant's property for the construction of a trunk road and a service road. In fact, the trunk road had, already, been constructed illegally. Theorderforacquisition waseventuallypublishedand,asaresult, proceedings were initiated for the determination payable to the appellant. The trialJudge preferred theevidence oftheexpert valuerforthe acquiring authority and found that the appellant was not entitled to 20 any compensation, because of the betterment by reason of the acquisition of the remaining partofappellant* sproperty. The appellant contended that: (a)The trial Court failed to assess the value of the acquired part as-well as the betterment to the 534 15 1 C.L.R. Mesarttisv. Republic remainderasonthedateofthenotification ofthe,acquisition*,and .(b)Thebettermentwas duetotheconstructionofthetrunkroadthat preceded thenotification and, therefore, itshould not have been takenintoconsideration. r 10 15 Held,dismissingtheappeal:
(1)Noaccountcouldbetakenofthe unlawfully constructed road norcould its.existence.be takeninto considerationforthedevelopmentoftheproperty.Passagethereon couldatany stagebestopped at theinstanceoftheowners ofthe property. Theroadcameintoexistenceonlyafter theacquisition. It becamesoupontheacquisition oftheproperty anditsconvention intoalawfully constructedroad.Therefore,anybettermentbrought abouttotheremainderofthepropertyoftheClaimantwastheresult of theacquisitionoftheproperty.
(2)The right or obligation as-the case may be, respecting bettennent accrues on thedate of thenotice of acquisition. The crystallisation oftherightanditsextent fall tobedeterminedatthe dateoftrialasineverycasewheretheextentoftheright,otherthan therightitself,isaffected bysubsequent events. Appeal dismissed. No orderastocosts. . 20 Casesreferredto: DememouandOthersv. Republic
(1985)ΓC.L.R.
- Appeal. Appealbyclaimantagainstthejudgmentofthe DistrictCourtof 25 Nicosia (loannides, D.J.) dated the 9thJune, 1986(Ref.No. 79/ 84) whereby her claim for compensation for the compulsory acquisition ofherproperty atP. Deftera wasdismissed. P.Messaritis, forthe appellant. Chr.Kitromelides, forthe respondent. 30 Cur. adv. wit A. LOIZOUP.read thefollowingjudgment ofthe Court.Thisis an appeal againstthejudgment ofaJudge oftheDistrictCourtof Nicosia whoconcluded that the registered owner of propertyat Pano Deftera, theClaimant inthecase, was not entitled to any 35 compensation forthe part of the property compulsorily acquired by the Republic of Cyprus. *See theCompulsoryAcquisition(Amendment)Law,25/83, s.
- 535 A. Lolzou P. Mesaritis v. Republic
(1988)TheRepublicofCyprusunderNotification No. 125publishedin the official Gazette onthe21stFebruary 1975notified itsintention toacquire compulsorilypartofthepropertyoftheapplicantforthe purposes of constructing a new road from Nicosia to Anayia village and a service road through the property in question. 5 Subsequently theAcquiringAuthorityconfirmed theirintentionby an Order of Acquisition published in the Official Gazette of the Republic on the 25th April, 1975 under Notification No. 292. UnderthesaidOrderatotalareaofonedonumoneevlekand four hundred squarefeeti.e. 18,400sq.ft.hasbeen acquired outofthe i o total area of 11 donums one evlek and 3,400 sq. ft. By this acquisition the land wassevered intotwopartsnorth and southof the road, the service road to be constructed being alongside the boundary of the north part of the new road. Twovaluation reports werefiled; one onbehalf oftheClaimant 15 and the other on behalf of the AcquiringAuthority. Furthermore, the twovaluation experts gave evidence atthe trial. Itwasthe case of the Claimantthatthevalue oftheso acquired part of her property on the date ofacquisition was£1,200.-thatis £940 per donum, whereas the Acquiring Authority valued the 20 property in question at £255.55 cent, that is£200.- per donum and thatthebettermenttotheremainderwas£1,786,whereas the Claimant alleged that there wasnosuch betterment. ItwastheviewofthevalueroftheClaimantthatthevalueofthe acquired property had risen tremendously on account of the 25 Turkish Invasion of 1974 which displaced thousands of Greek Cypriots and forced them to seek land in that area. This demand was the reason for such increase inthe value of the property and no question of betterment of the remainder arose as a result of a Acquiring Authority Scheme, since the land retained had at all 30 times before the acquisition ample and sufficient access on two publicruralroadsof20ftwidthwhichwereaccessibleandusedby tractors, lorries, cars and other vehicular traffic; it therefore brought no benefit of road accessibility ordevelopment potential tothe property but on the contrary itcaused injurious affection to 35 the property by reason ofdust, noise,fumesancj vibrationdue to the heavy traffic and which*the'valuer of the Claimant had not estimated. On theotherhandthevalueroftheAcquiringAuthority testified 536 1 C.L.R. Mesaritis v. Republic A. Lolzou P. that asa resultoftheconstruction ofthenewroadthevalue ofthe property ofthe Claimantroseby 100%. It was not in dispute that the said road was constructed in the years 1972, 1973, but it became public after the 21st February 5 1975that isthe date ofthe Notification of Acquisition. Asregards the accessto'the property"in question through the rural road he said that the said road, was an agncultural dust one, proceeding through a stream, which during the winter was not usable on account ofthe flow of water. 10 Both experts gave their comparable sales and their mode of valuation and the learned trialJudge concluded as follows: (a)Witness Nicolaou (the expert for the Respondent acquiring Authority) took into consideration six comparable sales three of whichtookplacebefore theconstruction oftheroadandthe other 15 threeafter itsconstruction. Thelastone infact after the Invasion. There appears in these sale the increase in the value of the property brought about originally bythe construction of the road during 1972-1973and subsequently after 1974.On the other hand Mr. Pantazis (the expert for the claimant - appellant) took into 20 consideration only the comparable sale which took place on the 28th July 1975 that is a sale·after the construction and after the Turkishinvasion and infact after the notification of acquisition. (b)Whereas witness Nicolaou was prepared.to accept that the Turkish invasion brought increase in the value of property in the 25 area on account of the demand, witness Pantazis did not accept any increase in the value of property on account of the construction of thistrunk-road giving more importance tothe fact that the property had access before toa dust ruralroad, although same crossed a river and inwinter could notbe used when there 30 w ^s a flow of water in the said river, and not attaching any importance to the fact that with the acquisition the property had access toapublic road. (c)OnaccountthatthecomparablesalewhichMr.Pantazistook into consideration was made on the 28th July 1978, that is after 35 the construction of the road and after the notification of acquisition,thesaleinquestion could notindicatetherealvalueof the land before and after the construction of theroad aswellasat the date of notification because itdid not take into consideration the existing factors on the date of the Notice of acquisition. 537 A. Loizou P. Mesaritis v. Republic
(1988)Foralltheaforesaid reasonsthelearnedtrialJudgeaccepted the evidence ofthevalueroftheAcquiringAuthorityandrejected that of thevaluer of the Claimant and concluded thatthe construction oftheroadbroughtaboutahundredpercentincreasetothevalue oftheproperty oftheClaimantandthebetterment,therefore, was hundred per cent. 5 Thelearned TrialJudge proceeded toexaminethelegal aspect of the case and referred to the provisions of s. 10 of the Compulsory Acquisition Law 1962, (Law No. 15 of 1962 as amended by s. 6 of Law No. 25 of 1983 and the decision of this 10 Court in Vias Demetriou and other v. The Republic of Cyprus
(1985)1C.L.R. 217, where atp.225 thefollowing isstated: «The extent of the increase byreason ofthe acquisition isa matter of fact inevery case.ItisfortheTrialCourttoconsider on the evidence before it,ifthere isany betterment and the 15 extent thereof. Any scheme or project of any Public purpose forwhichan acquisition takesplacemustbe insomeshape or form and it develops from day to day and the ultimate question for the Courttodecide istowhatextentthe valueof the remainder land on the day by reference to which the 20 valuation isto be made has been increased by reason of the acquisition.Thelegislaturebythechangeeffected byLa> 25/ 83rationalised the law. Both elements -the value of the land acquired and betterment orinjurious affection ofthe remainder - are assessed by reference to the same day, the date of the 25 notice of acquisition». Itisthe contention of the appellant that the Trial Court did not infacttakeintoconsideration s.6of LawNo.25of 1983aswellas theJudgmentofthisCourtinthecaseof ViasDemetriou and other v. The Republic of Cyprus (supra) and that it failed to assess the 30 value of the acquired part of the property as well as of the remainder on the basis as on the date of the Notification of acquisition that isthe 21st February 1975 and furthermore it did not take into consideration that the trunk road in question was constructed by the Acquiring Authority byan unlawful entry into 35 the property of the claimant between July 1972 andJune 1973, that is two to three years before the date of the Notice of Acquisition. Itwas further argued by learned counsel for the appellant that anybetterment broughtabout bytheconstruction ofthesaidroad 40 538 1 C.L.R. MesaritU v. Republic A. Lolzou P. ".could not have been taken into consideration asthat betterment, if any, occurred before and not as a result of the compulsory acquisition of the property. Inourviewthe approach of thelearned trialJudge wascorrect. 5 No account could be taken of the unlawfully constructed road nor could its existence be taken into consideration for the developmentoftheproperty.Passagethereoncouldatanystagebe stopped attheinstanceoftheownersoftheproperty.Theroad came into existence only after the acquisition. It became so upon the 10 acquisition of the property and its convertion into a lawfully constructed road.Therefore, anybetterment brought about tothe remainder of the property of the Claimant was the result of the acquisition of thepropertyand thelearnedtrialJudgewas correct in thisapproach that the betterment was the result of the scheme 15 authorised tobe carried out bythe Notice of Acquisition. ThejudgmentinthecaseofDemetriou (supra)hasnot changed the law. The right or obligation as the case may be, respecting betterment accrues on the date of the notice of acquisition. The crystalisation ofthe rightand itsextent falltobe determined atthe 20 date of trial as in every case where the extent of the right, other than therightitself isaffected bysubsequent events. For the above reasons the appeal is dismissed, but in the circumstances there willbe no order asto costs. Appeal dismissed. No orderasto costs. 539