(1988)1988June15 '. [SAVVIDES,J.] INTHEMATTEROFARTICLE146OFTHECONSTITUTION 1.HOLYMONASTERYOFKYKKO, 2.AYIOSANDRONKOSDEVELOPMENTCO.LTD., Applicants, v. THEREPUBLICOFCYPRUS,THROUGH 1.THECOUNCILOFMINISTERS, 2.THEMINISTEROFINTERIOR, 3.THEDIRECTOROFTHEDEPARTMENTOFLANDS ANDSURVEYS, Respondents. (CaseNo.909/87). Actsordecisions inthesense ofArt.146.1 ofthe Constitution—Immovable property—Publicroads—Alienationof—TheImmovableProperty(Tenure, ValuationandRegistration)Law,Cap. 224, section 18,firstproviso—An actinthedomainofpubliclaw. Immovableproperty—Publicroads—TheyvestintheGovernmentfor the use $ ofthepublic(Section 8 of Cap.224)—A decision toalienate them (first proviso tosection18)affectstheinterestofthepublic—Thatiswhyitisin thedomainofpubliclaw. ImmovableProperty—PublicRoads—TheImmovableProperty(Tenure ValuationandRegistration)LawCap.224,firstprovisotosection18—Whether \Q CouncilofMinistersentitledtodemandmoneyconsiderationforthealienationofapublicroad—Questiondeterminedintheaffirmative. Words andphrases—"Alienation" insection 18oftheImmovableProperty (Tenure, Valuation andRegistration)Law, Cap. 224—Meansanymodeof passingimmovablepropertybytransferfromonepersontoanother. \5 Theapplicants 1 aretheownersandapplicants2thepurchasersofimmovableproperty.Apermissiontodividetheproperty intobuildingsites 1240 3 C.L.R, Kykko Monastery v. Republic was grantedonconditiono^securingapprovalfrom theCouncilofMini: ' tersfor theabolitionofpublicroadsandfootpath's situatedwithinth'e lam TheCouncilofMinistersdecidedtotransfer suchroadsandiootpathsinth nameofapplicants 1,thereby abolishing their status aspublicroads mU footpaths,butdemanded£54,300.-inconsiderationtherefor. ;, » 5 Hencethisrecourse. 10 Theprinciples expoundedandappliedby theCourtinthiscaseappes '\» sufficiently from thehereinaboveheadnote.Inthelightofsuchprinciple andofa furtherfindingthat,onthe material before it,itwas reasonabf opentothe CouncilofMinisterstofixthepriceat£54,300, theCourtdi: .misseduWecourse.' § f l " ; ( l < ' / | , τ . , . ' · ; ! l ' * ; > : - , J ,. , | ( l . , t ( „ r ,,(-, j,.., yit>r Recoursedismisses t,r , .ι \. ,Noorderastocost: t ι -· :, · ί j o , ., Casesreferrredto: r * • · · "'** 15 , •, t •ir Ί . , !•' I O C <t •» I / ι --,.,, . · ...,» t. ' • "•' Ί ' " ' . HjiKyriacouv. HjiApostolou andOthers^ 1R.S.C.C.&9-, t '. , . . ( ,Asproftassv. TheRepublic
(1973)3.C.L.R.366;, . .Va/anev.The Republic, 3R.S.C.C.91; ·' . *' . Ι Ί .'· ' . ' ^. . . ι · , t. i.i "* , I" . , |ι 77K:Republic v.MX).M. Es/aicsDevelopmentLtd.
(1982)3C.L.R.642 '• *•") ί - * ι Ί ' i f ..: ' • " •-. '.." « · . '", Charalambidesv. 77ieRepublic
(1982)3C.L.R.40,3;, ,·, 20 Chiratis v.TheRepublic
(1982)3C.L.R. 540; ' ;·*·...: ι ,v .· ,* '.'·• .i/ s • ·, JO ' ·=*'* Tekkis v.Jte"Republic
(1982)3 CL.RJ68G;, Ί/ t Mahlouzaridesv.TheRepublic
(1985)3C.L.R. 2342. Recourse „ k 25 I * i I . I ' Recourse against the decision of the respondents demandii from applicants the payment of the amount of £54,300.- forti Ji( 1241 Kykko Monastery v. Republic
(1988)grant and/ortransfer tothemofpublicroadsandfootpaths atK. LakatamiaandEngomi. G.Triantajyllides, for theapplicants. P.Clerides, fortherespondents. Cur. adv.vult. 5 SAVVIDES J. read the followingjudgment. Thepresentrecourse is directed against the decision of therespondents containedinaletterdated 6thOctober, 1987,signedonbehalfofthe District Lands Officer, Nicosia, whereby therespondents have demanded from the applicants the payment of the amount of 10 £54,300.- for the grant and/or transfer to them of public roads andfootpaths atKatoLakatamiaandEngomi.Thelettercontainingthesubjudicedecisionreadsasfollows: "Irefertoyourapplication No.M.A.161/78andwishtoinform you thattheCouncilofMinistersapproved thegrantof 15 thepartsofpublicroadsandfootpaths marked inyellow,red andgreenontheattachedplan,ofatotalextentoftwodecares . (daa) and 393sq.metreson paymentof thesumof£54,300.which represents themarketvalueof thesaidpartsofpublic roadsandfootpaths,onconditionthattheywillbeamalgamat- 20 edwiththeadjoining propertiesoftheMonastery. Therefore, you are requested, within sixty days from the dateof postingof this letter, todepositin thetreasury of the DistrictLandsRegistryoffice thesumof£53,625.-(youhave already deposited the sumof £675.- to the ex-Improvement 25 Board of Lakatamia) as well as the sum of £3,397.50 for transferfees,plansandsurvey." Itis thesubmission oftheapplicantsthatundertheprovisions of section 18of Cap.224therespondents arenotentitled todemand any money for the transfer of the said public roads and 30 footpaths totheapplicants. 1242 3 C.L.R. Kykko Monastery v. Republic Savvides J. Thefacts of thecasearebriefly as follows: Applicants 1-are theregistered owners of-land at'Kato LakatamiaandEngomi which isbeingdivided intobuilding sitespursu*anttoadivision perrhitD386/73issuedbytheappropriate authorApplicants;2 have purchased-by contract of sale from applicants'1 thelandinquestion. Oneof theconditionsof thesaidpermitfordivision requires thesecuringof theapprovalof theCouncil of Ministers for the abolition of public roads and footpaths 10 situated within theland' underdivision.Theapplicantsinorder to comply with the aforesaid condition applied-to the'Council of ' Ministers through theDirector of Lands and Surveysfor thecession to them of those parts,of the public roads and footpaths which weresituated within theirland underdivision. : 15 20 25 30 TheDirectorofLands andSurveysdemandedcertain amounts tobepaid for thegrant and/or transfer-to theapplicantsof thesaid public roads and footpaths and as a result'applicants filed recourse-No. 191/82 challenging"such decision! The Supreme Court decided'in such recourse that because the decision1of the Directorof Lands& Surveys'had not been ratified bytheCouncil of Ministers the recourse was'premature'and dismissed it. (See, Holy Monastery of Kykko v.The Republic
(1982)3 C.L.R. 1080)'.,Subsequently, theapplicants'by letterdated 6th December, 1982 directed to the Minister of Interior demanded from the Council of Ministers the abolition of the said public roads and footpaths. On the 8th March, 1983,respondent 3 informed the applicants byletter thecontentsof which read as follows: " * ' "With reference ufyourapplication No^M.A. 161/78for the abolition and grant to the Holy Monastery of Kykko of parts of public roads and footpaths at KatoLakatamia,Engomi and Strovolos Iam in the pleasant position toinform you that the valuation for the assessment of the value of the said public ' roads andfootpaths hasbeen completed. - t ." 1243 . Savvides J. Kykko Monastery v. Republic
(1988)- Following a request from Mr. P. Manglis on behalf of AyiosAndronikosDevelopment Co.Ltd.thequestion of grant of rights of use by the public over the pathway marked A-B andcoloured red on theattachedplan willbeplaced before the Ministry of Interior. The valueof therightsof usebythepub- 5 lie of thisfootpath amounts to£675.-This amount represents 10%of thevalue of theland which isassessed asafootpath at £1,064 mils per square foot. Theextent of thefootpath is one evlek and 2,745 sq. ft.
- You are requested within 60 days from the date of the JQ posting of this letter to deposit with the treasury of the Improvement Board of Kato Lakatamia the aforesaid sum of £675.- and produce to this department the relevant receipt of payment.
- I wish to point out that the payment of the aforesaid 15 amount does not in any way bind the government concerning thegrantapplied for ortheamountof themarketvalueof the rights of use by the public over the said footpath as the approval orrejection of your application as well asthe approval of theamount of themarketvalue are within theexclusiveju- 20 risdiction of theCouncil of Ministers." The applicants in compliance with the aforesaid request paid · the amount of £675.- totheImprovement Board of Kato Lakatamia. On 6thOctober, 1987therespondent havingfinallydecided on 25 the applicants' request informed them bylettertothecontentsof which reference has already been made, that for the abolition of the said public roads and footpaths and their grant to the applicants, theamount of £54,300.- was claimed. Counsel for applicants by his written address based his argument mainly on·two alternative grounds. It was his submission that the fate of this recourse depends solely on the interpretation of the provisions of s.18 of the Immovable Property (Tenure, 1244 30 •3C.L.R. Kykko Monastery,^.Republic Savvides.J. Registration!and Valuation) Law, Cap.t
- His contention was that nopower.is vestedwith theCouncil of Ministers underfS.18 toalienateanypublicroadorpartthereof,bysaleof same butpnly :for thepurposesprovidedunders.18whichdonotembpdy pow5 .erof disposition by sale. Jir . .. (1 , . -· ·,, . / v ^ ,. His alternative submission was that in any event the amount demanded bytherespondents for the.abplition ofthepublicroads andfootpaths in.question isexcessive and unreasonable andcannotbesupported bythefactsof thecase. 10 15 Counsel for the respondents, on the other hand, both by his opposition andhiswritten address,raisedapreliminary objection that the subjudice decision does not fall within the domain of public law butwithin thedomain of private law asitconcerns the management ofprivateproperty.of theState.Hefurther contended that the sub judice decision was properly taken and it was within the provisions of the law and that by reading s.18 as a whole nothing can beinferred totheeffect that anyrestriction is imposed on therespondents preventing them from claiming any compensation for thegrantof aroad orpart thereof toan individ- 20 · u a L Ishall dealfirst with thepreliminary objection raised by counselfor respondents. • , < '• 25 30 . ' '••• I Publicroads vest in theGovernment for the use of the public by virtueof theprovisionsof s.8of Cap.224.They arenotproperty inthenatureof privateownership asitis abuilding ora plot of land registered in the name of the Republic, the dealing with which may bring it within the field of private law. Publicroads areregistered as such and there is a right vested in the public in generaltomakeuseandenjoyment of same. , ,, The authorities cited by learned counsel for therespondentin his address and in particular HadjiKyriacou v. Hadjiapostolou and Others, 3 R.S.C.C. 89,Asproftas v.The Republic
(1973)3 C.L.R. 366, Valanav. The Republic, 3.R.S.C.C. 91,-The Re•1245 Savvides J. Kykko Monastery v. Republic
(1988)public v. M.DM. Estates Development Ltd.
(1982)3 C.L.R. 642; Charalambides v.TheRepublic
(1982)3C.L.R. 403,Chiratis v.The Republic
(1982)3C.L.R. 540,Tekkis v.The Republic
(1982)3 C.L.R. 680; Mahlouzarides v.TheRepublic
(1985)3 C.L.R. 2342, have no bearing in the present case as all those 5 casesconcern eitherboundary disputes astoprivateproperty,reserve price for the sale of private land under acompulsory sale by theLands Office, leaseof immovableproperty, encroachment of immovableproperty bytheRepublic,claims over hali-land.A common factor in all the above cases was that the preliminary .( purpose of such acts or decisions was that regulation of theprivaterightsof thecitizens wereinvolved and thepublic had nointerest inthesaid actsor decisions. In the present case we are not concerned with aregulation of private rights and disputes over private property but with public roads which though belonging tothe Republic nevertheless their existence is for the benefit of the public, and the right of enjoyment of thepublic atlargeisaffected byadecision of theRepublic toalienate such publicroads inaddition toanyrightof anyprivate individual. Itherefore, havecome totheconclusion that the ^ present case falls within thedomain of public law and as such is amenable byarecourse asit happened in thepresentcase. • Having dealt with the preliminary objection I come now to consider thelegal groundsraisedbycounselfor theapplicants. In arguing his legal ground based on s.18 counsel for appli- y cants submitted that s.18of Cap. 224 empowers the Governor, now the Council of Ministers, togrant, lease,exchangeor otherwise alienate any immovable property vested in theRepublic for any purpose and on such terms andconditions as the Council of Ministers may deem fit. This general power of the Council of * Ministers applies toallimovable property vested in the Republic with theexception of public roadsand foreshore, for which there are special provisions in s.18of Cap.
- Under thefirst provisotheCouncilof Ministersmayexchange 1246 3 C.L.R. Savvides J. or alienate any part'of a-public road,provided they are.satisfied < thatotheradequate public road has been provided in theplace thereof or that such exchange of alienation will improve:such publicroad.Itwas counsel's contention thatfor thealienationof any partof apublic road oneof these two conditions should be satisfied andthealienation should bemadegratisas nopower.is vested in theCouncil of Ministers toimposeany othertermor condition suchasthepaymentofmoneyl·- • · •:·'; ·*% */ 5 . .io · Kykko Monastery v. Republic .-• • '.-"•. ' JI : -. "• ..".·. . ι . .i '· S. 18·of the Immovable Property (Tenurei'Registration.and Valuation) Law,Cap/224 readsasfollows:, ;·* ·• . " · "
- TheCouncil'of Ministers may grant, lease, exchange •-orotherwise alienate anyOown propertyor.immovableprop' erty vested in the Crown by'virtue-of the provisions of this Law, other than:apublic>roador,the'foreshore,rfor any.ipur15 poseandonsuchtermsandconditionsastheymay deem.fit: Provided thattheCouncil-of Ministers mayexchange oral ienate any part'of any:publiciroad if satisfied thatotherade quatepublicroadhasbeenprovided intheplacethereof or that suchexchange or alienationwillimprovesuchpublicroad: 20 '" ' Provided alsO'that theCouncil of Ministers may.leaseany part of the foreshore for the purposes of harbours; jetties, • ' 'piers;wharves,fisheriesandanyotherpurpose of public utili tysubjecttosuchconditionsashemaythink fit:" Having carefully perused theprovisions of theabovesectionI 25 -'find myself unable toacceptthesubmission of counsel for appli cant concerning the interpretation of s.
- The provisoιto s.18 does notinany way restrict thegeneral power of theRepublicto claimanymonetarycompensationfor thegrantof any'immovable •'property vested in it by virtue of the:provisions of the-law. It 30 clearly empowers the Councilof Ministerstoexchangeoralienate 'any-partof any public road subject^ however,tothp satisfaction of additional conditions in the interest'of thepublic than inthe case of alienation of any otherimmovable property,-such addi. -
- Savvides J. Kykko Monastery v. Republic
(1988)tional conditions being that other adequate public road has been provided in the place thereof or that such exchange or alienation will improve suchpublic road. Theword "alienation"ofimmovableproperty mentioned inthe provisomeans,according toitsdefinition every modeof passing 5 realty bytransfer from oneperson toanotherwhethereffected by sale,gift, marriage settlement,or other transmission of property by themutual consent of theparties (see,Blacks Law Dictionary, 6th ed., p.66,Words and Phrases Legally Defined, 2nd ed.,vol. I, p.66, Strouds Judicial Dictionary, 4th ed., vol. 1, p.106). JQ Therefore, I have come to the conclusion that it was within the powersof theCouncil of Ministers toproceed with the alienation of the said parts of the roads and footpaths having been satisfied that the prerequisites of the proviso to s.18 have been complied with and claim any money inrespect of their value from theper- ,c son inwhose name suchroadsarebeing transferred. Icomenext tothe alternative submission ofcounsel for applicants in that the amount claimed by therespondents is excessive and unreasonable. It was counsel's submission thay by virtue of the letter dated 20 8th March, 1983,of the Director of the Department of Lands & Surveys addressed to the applicants the value of the land should• be assessed on the basis of thedeprivation of its useby thepublicwhich according to thesaid letterrepresents 10%of the value of theland. «< .I find myself unable to agreewith the submission of counsel for applicants.In theletterofthe8th March, 1983,adistinction is drawn between twofactors: Theone wastheabandonment by the public of the right of use of the said path and theother was the value of the land corresponding to the pathway and it was made ™ clear to the applicants under paragraph 2 that they had to pay compensation of 10%of thevalueof theland asrepresenting the right of use by the public and in paragraph 4 it is clearly stated that thisdoes not prejudice anydecision of theCouncil ofMinis1248 3'C.'L.R. Kykko Monastery v. Republic Savvides J. tersastothevalu:ofthelanditself. 5 10 Therespondentsin takingtheir decision as tothevalueof the landrelied onavaluation carried out bytheDepartment of Lands & Surveys.The applicants have notcalled any evidence that the valuation of the Department of Lands & Surveys was wrong or excessive. In the absence of any evidence to the contrary Ifind thatitwasreasonably open totheCouncilof Ministerstotakethe subjudice decision. In the result the recourse is hereby dismissed but in the circumstances T.makenoorderastocosts. Recourse dismissed. No orderasto costs. 1249