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(1988)1988February3 [LORIS,J,] INTHEMATTER OFARTICLE 146OFTHE CONSTITUTION CHRISTAKIS ECONOMOU, Applicant, v. THEIMPROVEMENTBOARDOFAYIANAPA, Respondent. (CaseNo.236/85). Time within which to file a recourse—Imposition of "rent" fee by an ImprovementBoard—Objection without submissionof new material—No new inquiry carried out —Decision turning down the objection—Of a confirmatorynature—Lodgementofobjectiondidnotinterruptthetime. Time withinwhich to file a recourse—Theissue maybe raised andexamined bytheCourtexproprio motu. The Villages(Administration andImprovement) Law, Cap.243,section 24
(1)(
  1. d)as enacted by section 7(
  2. a)of Law 31/69—Enables an Improvement Board to enact bye-Laws providingfor "rent"fees—Bye - law 181
(1)as amended byRegulatory Administrative Act 108/82oftheAyiaNapa Bye Laws—The "rent"fee isataxinthewider sense. Constitutional Law—Equality—Constitution, Article 28.1—Does not convey thenotion ofexactaritheticalequality, butsafeguardsonlyagainstarbitrary differentiations. Constitutional Law—Taxation—Constitution, Article 24.4—"Ofa destructive orprohibitive nature"—Subjudice "rent "fee (tax)havingregard toother duties, ratesortaxespayable byapplicantisnotofsuchanature. ConstitutionalLaw—Taxation—Constitution,Article24—"Double taxation"— Fact that the same person has topay other taxes, rates or duties—Not a validreasonfor annullingsubjudice"rent"fee. The applicant was the owner of 2/7 undivided shares in 7 touristic 192 3 C.L.R. Economou v. Impr. Board Ay. Napa apartmentsandahouse,situatedwithintheareaoftherespondent Board. 5 BymeansofthesubjudicedecisiontheBoardimposedontheapplicant a "rent" fee of £120 for 1984. On 27.6.84 the applicant objected. On 5.12.84 the Board turned down theobjection. On 22.2.85 the applicant filed thisrecourse. Held,dismissing therecourse:(A)
(1)TheCourt should examineex propriomotu whether thisrecourse was filed within thetime limitof75 daysprovidedforbyArticle 146.3oftheConstitution. .„ I-5
(2)Though the date on the letter whereby the first decision of the respondent was communicated to the applicant is illegible, it must be assumedthatitwasdie27.6.84(whentheobjection wasfiled)oranearlier date.
(3)Theapplicantdidnotsubmitnewmaterialwithaviewtoenablethe Boardtocarryoutanewinquiry;consequently,nonewascarriedout.The decisionof5.12.84wasconfirmatory ofthefirstone.Thelodgementofthe objectiondidnotinterrupttherunningoftime.
(4)Itfollowsthattherecourseisoutoftime. (B)
(1)Para,(d)of section24
(1)forCap.243(enactedbyLaw31/69, section7(a))enablestherespondent Board toprovide for thepaymentof feesbytheownerofanypremiseswhetherletorcededonpaymentofrent. 20 95
(2)InvirtueofsuchpowertheBoardenactedBye-Law 181,which,as amendedbyRegulatory Act 108/82,enablestheBoardtoimposearentfee ofupto£500.
(3)Itfollowsthatthesaidbye-lawisintraviresthelawandthatthesub judice decision is within the limits of the respondents' discretionary powers.
(4)Applicant failed to substantiate hisallegation for discriminatory treatment.
(5)The"rent"feeinquestionisataxinthewidesenseoftheterm. 30
(6)Ithasnotbeenshowntothesatisfaction oftheCourtthatthefeein questionis,havingregardtotheothertaxes,dutiesorratespayablebythe applicant,"ofadestructiveorprohibitivenature",inthesenseofparagraph 4ofArticle24oftheConstitution.
(7)Withregardtotheissueofdoubletaxation,thefactthattheapplicant 193 Economou v. Impr. Board Ay. Napa
(1988)has to pay other taxes or fees is nota valid reason for annulling the sub judice decision. Recoursedismissedwith£30costsagainstapplicant. Casesinferredto: 5 More ι v. TheRepublic, 1R.S.C.C. 10; Markoullidcsv. Greek Communal Chamber, 4 R.S.C.C.7; Larkos v.TheRepublic
(1987)3 C.L.R.2189; Constantinides v. EAC
(1982)3C.L.R.798; ApostolouandOthers ν.TheRepublic
(1984)3C.L.R.509; 10 LamiGrovesLtd. v.TheRepublic
(1986)3C.L.R.2378; Arislidou v.ImprovementBoardofAyiaPhyla
(1965)3C.L.R.686; Xydiasv.TheRepublic
(1976)3C.L.R.303; Micrommatis v. TheRepublic, 2R.S.C.C. 125; Republic v. Arakian andOthers
(1972)3C.L.R.294; 15 Matsis v. TheRepublic
(1969)3C.L.R.
  1. Recourse. Recourse against the decision of the respondent to impose on applicant the fee of £120.= as rent fee for the year
  2. N. Econonou, for the applicant. 20 P. Angelides, for the respondent. Cur. adv. vult. LORIS J. read the following judgment. The applicant impugns 194 3 C.L.R. 5 IQ Economou v. Impr. Board Ay. Napa. Loris J. by means of the present recourse the decision of the Improvement Board of Ayia Napa (a statutory body under the provisions of the Villages (Administration and Improvement) Law, Cap. 243), whereby a fee of £120.- was imposed on the applicant for theyear 1984,as "rent" fee, inrespect of properties situated within theareaof the Impovement Board of Ayia Napa, leased tothird persons. Other fees under two separate Heads-apart from the aforesaid "rent" fees - were imposed on the applicant by the respondent Board for 1984; applicant submitted to respondent an objection on 27.6.84 for all three fees imposed, but his objection was eventually turned down by the respondent Board on 5.12.84 (vide letter of the respondent Board addressed tocounsel acting for applicant, allegedly received on 11.12.84). 15 The present recourse is directed against the imposition of "rent" fee of £120, only. 20 25 Before proceeding to examine the merits of the present recourse I have decided to examine the time within which the present recourse was filed, acting ex proprio motu, as the provisionsof paragraph 3of Article 146aremandatory and they have to begiven effect in the public interest (vide Moran v.The Republic 1R.S.C.C. 10,Markoullides v.The Greek Communal Chamber, 4 R.S.C.C. 7). The respondent Board notified the applicant about the imposition of the "rent" fee in question; the relevant notice is appended totherecourse and ismarked Exhibit "A" unfortunately the date appearing thereon is illegible. The fact remains though, that the applicant submitted an objection dated 27.6.
  3. (vide exhibit "B"attached to the recourse). In the circumstances itcan be safely inferred that the applicant received the notice of assessment either on 27.6.84 or some time prior tothatdate.The objection of the applicant was turned down on 5.12.
  4. Itisclear from Exhibit "B"thatnonewmaterial was submitted 195 Loris J. Econoniou v. Impr. Board Ay. Napa
(1988)by theapplicant with aview toenabling therespondent Board to carry out a new inquiry, inconsequence thereof nonewas carried T out herefore thereply of the respondent dated 5 12 84 did not con ~y to the applicant an executory decision but merely a confirmatory one indicating the adherence of the respondent Boai i to its initial decision In thecircumstances thedecision of 1 5.12.8 being of confirmatory character is not justiciable accordi ig totheprinciples of Administrative Law Furthermore, the objection of the applicant (notenvisaged by Law) dated 27 6.84 does notinterrupt therunning of the75 days JQ (envisaged by para 3 of Article 146) which commenced running from the time - the initial the executory decision - was communicated to the applicant (In this connection vide the majority decision of theFull Bench of this CourtinLarkos ν The Republic (19&1)3 CLR 2189 5 i 5 So the present recourse, which was filed as late as the 22.2 85, 1 e more than 240 days after the initial executory decision of the Respondent was communicated toapplicant, was filed out of time and for this reason it is doomed to failure 20 I shall now proceed to examine the merits of the recourse, assuming that same was filed intime The applicant was at all material times the owner of 2/7 undivided shares in 7 touristic apartments and a house, situated within the area of the Improvement Board of Ayia Napa,which were let toa third person The respondent Board acting obviously pursuant to the provisions of s 24(
  1. d)of Cap 243, as amended, and the relevant Regulations made thereunder,imposed on the applicant a "rent" fee of £120.-, in respect of the leased premises aforesaid, owned by theapplicant Hencethepresent recourse. 196 25 30 3 C.L.R. Economou v.Impr. Hoard Ay. Napa Loris J. The main complaints of the applicant may be grouped under twobroad Heads. A.Abuseorexcess of power. B.Unconstitutionality of therelevant regulations: (
  2. i)as allegedly the fee in question- a tax-was not imposed in virtue of aLaw, thusdefying Article 24.2of the Constitution. (
  3. ii)The fees in question are allegedly of a destructive or prohibitive naturecontrary toArticle 24.4of the Constitution. (iii) The fees were allegedly imposed in a discriminatory mannerin violation of Article 28of the Constitution. The complaints under A and B(
  4. i)above, as I was able to apprehend them, arise out of a misconception of the Law by the applicant; itisapparent from his written address (page 2)that his submission tantamounts in effect to an allegation that the regulations in question (to which I shall be referring later on in the presentjudgment) are ultra virestheenabling enactment. The applicant sets out in his written address the contents of section 24
(1)(
  1. d)of the Villages (Administration and Improvement) Law, Cap.243obviously inorder toindicate that the respondent Board had no power to make bye-Laws for the collection of "rent"fees bythe Respondent. Paragraph (d), the enabling section of the Law, as it initially stood in the Statute Book, and as cited by the applicant reads as follows: "(
  2. d)to provide for the payment of rates or fees by the ownerof any premises whether letor in theoccupation of the owner: Provided that no rate or fee shall be payable in respect of 197 Loris J. Economouv. Impr. Board Ay. Napa
(1988)premises let or used solely for agricultural purposes;» With respect para, (d) of s. 24
(1)of Cap.243 was repealed and replaced by a new para (
  1. d)in virtue of s.7(
  2. a)of Law 31/69 which is still in force, something which obviously the applicant did notnoticeas it is nowherereferred toeitherin his recourse or 5 his written address. The new paragraph (
  3. d)substituted by s. 7(
  4. a)of Law 31/69 reads as follows: "(
  5. d)να προνοή δια τήν καταβολήν δικαιωμάτων υπό του ιδιοκτήτου εφ' οιωνδήποτε υποστατικώντα οποία ενοικιάζονται ήπαραχωρούνται επί μισθώσει: 10 Νοείται ότι ουδένδικαίωμα θακαταβάλληται εν σχέσει προς υποστατικά τα οποία χρησιμοποιούνταιαποκλειστι­ κώς δια γεωργικούς σκοπούς." (English Translation: 15 "(
  6. d)toprovide for thepaymentof fees by theowner of any premises whether let orceded on paymentofrent: Provided thatno fee shall be payable in respect of premises which are being used exclusively for agricultural purposes." The Improvement Board of Ayia Napa in exercise of the ~n powers vested in it by section 24 of Cap. 243, as amended,made certain bye -laws which were published under Notification No. 28 in Supplement No. 3 to the Cyprus Gazette No. 1168 of the 31st January, 1975 (Κ.Δ.Π. 28/75) whereby the Village (Administration and Improvement) Pedoulas Bye-Laws, 1951, were adopted by Ayia NapaImprovementBoard subject to certain amendments which included the insertion in the principal byelaws of certain new bye-laws, thematerial oneof which for the purposes of this case is bye-law 181, the relevant part of which reads as follows: 30 198 3 C.L.R. 5 Economouv. Impr.Board Ay. Napa Loris J. "Κανονισμός 181.-
(1)Θαπληρώνεταικαθ' έκαστονέτος υφ' εκάστου ιδιοκτήτουοιουδήποτεοικήματος εντός της περιοχής βελτιώσεως, υπό ενοικίασιν ή εις την κατοχήν τουτοιούτου ιδιοκτήτου κατά την διάρκειαν τηςθερινής περιόδου ήμέρουςαυτής,καιτο οποίον χρησιμοποιείται ως ξενοδοχείον, οικοτροφείον,κατάλυμα, δικαίωμαεις αναλογίαν,ηοποία θαορίζεταιυπότουΣυμβουλίου από έτουςεις έτοςκαιηοποίαδενθαυπερβαίνητας £20.
(2)10 15 " English Translation: "Regulation 181.-
(1)There shall be paid in each year by theownerof anypremises within theimprovement area, under leaseor in theoccupation of such owner during theSummer period or any pan thereof, which is being used as an hotel, boarding house, lodging, a fee at a rate to be fixed by the Boardfrom year toyear notexceeding £20.
(2)20 25 30 " Regulation 181
(1)was amended on9.4.82 (vide Not. 108 in Supplement No. 3 of CG1770 -Κ.Δ.Π.108/82), by thedeletion therefrom of £20.- "and theinsertion of £500.-" in substitution thereof.Therespondent Board was thusauthorised toimposeon the owner of premises set out in Regulation 181
(1)a fee not exceeding £500.It is therefore clear from the above, that the "rent" fee (the nature of which will be examined hereinbelow) of £120.imposed on the applicant for the year 1984, was a fee under Regulation 181
(1)which was aregulation intravirestheenabling enactment i.e. s.24
(1)(d) of the Villages (Administration and Improvement)Law, Cap.243 as amended by s. 7(a)of Law31/ 69. Before proceeding toexamine theremainingcomplaintsofthe 199 Loris J. Economou v.Impr. Board Ay.Napa
(1988)applicant itisnecessary atthisstagetodeterminethenatureofthe "rent" fee imposed; is it a fee for services rendered or is it in substance and infact a"tax"; Having considered the nature of the fee under consideration and guided by the principles set out by the Full Bench of this 5 Court in the cases of Aleccos Constantinides v.E.A.C.
(1982)3 C.L.R. 798 and Apostolou andOthers v.The Republic
(1984)3 C.L.R. 509,1hold the view that the "rent"fee inquestion isatax in the wide sense of the term. It is akin to the "annual rate" provided for in s. 9
(1)(c) of the Public Health (Villages) Law JQ Cap. 259 as amended by Laws 81/63 and 5/83. (Vide in this connection Lami Groves Ltd v. Republic
(1986)3C.L.R. 2378). With regard to the issue of "double taxation" it may well be that the applicant is liable topayother forms of taxation duties or rates, as well as the particular fee which isthe subject-matter of 15 this recourse but I do not consider this to be a valid reason for declaring the imposition of the fee in question invalid on this ground. It has not been shown tothe satisfaction of theCourt that the fee in question is, having regard tothe other taxes,duties or rates payable by the applicant, "of a destructive or prohibitive 2 n nature", in the sense of paragraph 4 of Article 24 of the Constitution (vide thejudgment of Munir J. in Sophia Christou Aristidou v. The Improvement Board of Ayia Phyla
(1965)3 C.L.R. 686 at p. 700 which was reversed on appeal on another issue). In this connection it may be noted that aduty of 10%on the amount collected asadmission fee inacinema wasnot held tobe of a destructive or prohibitive nature" (vide Xydias v. The Republic
(1976)3 C.L.R. 303). Turning now tothequestion ofdiscrimination; theapplicant in ™ his written address maintains that the sub judice decision contravenes Art. 28.1 of the Constitution as on other occasions the respondent Board imposed a"rent" fee of £10.- or£15. - for each apartment whilst theapplicant inthepresent recourse "whilst 200 3 C.L.R. Economou v. Impr. Hoard Ay. Napa Loris J. substantially entitled to twoappartments according to his share" was assessed with a "rent" fee of £120.-. 5 10 15 20 25 -n In the first place it must be observed that although the applicant, inhiswritten address reserved his right tocall evidence in order to substantiate his allegation for discrimination as aforesaid, he failed to do so and there is no material whatever before me enabling this Court to determine this issue. Vague allegations in the written address that on other occasions the respondent Board imposed a "rent" fee of£10.-or£15.-for each apartment arenotenough. Independently of the fact that there is no material whatever before me to substantiate the issue of alleged discriminatory treatment of the applicant it must be borne in mind that the principle of equality "does not convey the notion of exact arithmetical equality but it safeguards only against arbitrary differentiations and does not exclude reasonable distinctions which have to be made in view of the intrinsic nature of things" (Micrommatis and The Republic, 2 R.S.C.C. 125- Republic v. NishanArakian &Others (l n 72) 3C.L.R. 294). "Furthermore, itmust not belost sightof that when taxation lawsareattacked on the ground that they infringe thedoctrine of equality, the Legislative descretion is permitted by the Judiciary great latitude, in view, especially, Of the inherent complexity of fiscal adjustment of diverse elements' and because 'the power of the Legislature to classify is of wide rangeandflexibility sothat itcan adjust itssystem of taxation in all proper and reasonable ways'" (Andreas Matsis v. The Republic
(1969)3C.L.R. 245 at p.259). For thereasons Ihave endeavoured to explain above, present recourse is doomed to failure on the merits as well, and it is accordingly dismissed. Applicant to pay £30.- against the,costs of the respondent Board. Recourse dismissed. Applicanttopay £30.- costs. 35 201

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