(1988)1988March 12 fLORIS,J.] :ONSTITUTIION. MAROULLAGEORGHIOU, Applicant, v. THEREPUBLIC OFCYPRUS,AND/OR 1.THE MINISTRY OF INTERIOR AND/OR
- THE COUNCIL OFMINISTERS AND/OR
- THE DISTRICT OFFICER PAPHOS, Respondents. (CaseNo. 596/86). Omission in the sense of Art. 146.1 of the Constitution—Annulment of an act—Failurefor a time to reconsider matter—Finally matter reconsidered—Once there hasbeen suchareconsideration;theomission couldnot beimpugned by this recourse. Competency—Amoniaaos and Others v.^4uniciplal Council of Paphos
(1985)3 CJLJi.1095 cited with approval. 5 Thesubjudice decision in thiscase,whereby applicant'sapplication for a newdwelling (theapplication wasbasedon adecision oftheCouncil of Ministers) was turned down, following reconsideration after an annulling decision of this Court, was annulled for lack of due inquiry leading to 10 misconception of fact. Subjudice decisionannulled. No orderasto costs. Casesreferredto: Goulielmos v. E.S.C.
(1983)3 C.L.R. 883; 446 15 3 C.L.R. Georghiou v.Republic Antoniades and Others v. The Municipal Council ofPaphos·
(1985)3 C.L.R.
- Recourse. Recourse against both theomission of the respondents tore5 examine applicant's application for new dwellings atthe locality Ambelitis wherethevillagesof Statosand AyiosPhotios wererelocated after landslites had occurred in such villages in 1969and thedecision of respondent 3 toturn down applicant's application for such new dwelling house. 10 A. S. Angelides, for the applicant. Chr.Ioannides, for therespondents. Cur. adv. vult. LORIS J. read the following judgment. Several applicants challenged by means of recourse No. 32/70 which was tried 15 together with recourses Nos. 333/69, and 33/70 the decision o£the respondents, not to provide to them new dwellings at the locality "Ambelitis", where the villages of Statos and Ayios Photios were relocated after landslides had occurred at such villagesin
- 20 The applicant inthepresent recourse wasoneof theapplicants inrecourseNo.32/70;shewasallegingtherein thatshehad atthe material time,a second dwelling house which wasdestined tobe given asdowry toanunmarried daughterof hersand thatshewas accordingly entitled pursuant to the provisions in a relevant 25 decision of the Council of Ministers dated the 15th May 1969 (No. 8737)—which isAppendix "A"attached totheopposition in thepresent recourse—toa second new dwelling. Theaforesaid applicationsof theapplicantsin thesaidrecourse for new dwellings, were refused by the respondent on the 30 ground that theapplicants did notcome within the ambit of para (m) in the aforesaid decision of the Council of Ministers which reads: 447 Loris J. Georghiou v. Republic
(1988)"(μ) εις περιπτώσεις καθ'ας οικογένεια τιςκατείχεν ετέραν οικίαν προοριζομένην δια την αποκατάστασιν ανύπανδρου θυγατρός αυτής, αυτή θα δικαιούται εις ετέραννέανκατοικίαν". EnglishTranslation: 5 "(m)incases inwhichafamily possessed another dwelling destined for theadvancementof anunmarrieddaughteritwill beentitledtoanothernew dwetfing". Theaforesaid recourses,whichweietriedtogetnerresultedin the annulmentof therelevant decisions (vide Michaelides and 10 Othersv. The Republic
(1984)3 C.L.R. 1522 where at page 1524 the following were stated verbatim: "... the sub judice administrative decisions havetobeannulledandtheapplications of theapplicantsfor newdwellings havetobere-examined.") Itseems thatinspiteof thefact thattheaforesaid judgmentwas 15 delivered on 18.2.84 noneof therespondents in the aforesaid cases re-examined the applications for new dwellings of the applicants including theapplicant in thepresent recourse upto 11.6.86, when the applicant in the present recourse moved the District Officer of Paphos by means of anew application dated 20 11.6.86 which was turned down by Respondent No. 3 (vide letterof theDistrict Officer of Paphosdated 15.7.86- appendix 'B'attachedtothe opposition). Hence the present recourse; the prayer in the recourse is twofold: Prayer No. 1refers tothedecision of RespondentNo.3 25 setoutinhis letterof 15.7.86(Appendix 'B')whilst prayer No.2 impugnes the alleged omission of all three Respondents tore examinetheapplicationoftheapplicant. Iholdtheview that prayer No.2should bedismissed, once the application was re-examined by RespondentNo.3inspiteof the 30 448 3 C.L.R. Georghiou v. Republic Loris J . fact that tnelatter acted belately and after being moved bytheapplication dated 11.6.86 submitted by the applicant. Once a reexamination of the application was carried out by Respondent No. 3 there can be no omission any more (Goulielmos v. E.S.C. 5
(1983)3 C.L.R. 883 at p.902);there simply exists a refusal of Respondent No.3after re-examining theapplication which isbeing impugned by virtue of prayer No. 1,which I shall now proceed toexamine. Manypoints havebeenraised bylearned counsel for applicant 10 in impugning the sub-judice decision of Respondent No. 3. I shall confine myself in examining the most important and substantial ones notably the question of competence of respondent No. 3 and the issue of due inquiry, as most of the remaining issues savourof academic interestonly. The issue of competence of an administrative organ has been dealt with, in a number of cases but I shall confine myself in referring to the recent case of Antoniades & Others v. The Municipal Council of Paphos
(1985)3 C.L.R. 1695 where my brother Judge Pikis summed up in an admirable and exhaustive way thetopicofcompetence,which Ifully endorse. In the case under consideration, I hold the view that Respondent No. 3 had competence in re-examining the application of the applicant, as he is the representative of Respondent No. 1 intheDistrict ofPaphos andany application to 25 Respondent No. 2 or Respondent No. 1 would have been referred toRespondent No.3for examination. In this connection wemustnotloose sightof thefact thattheapplicant herself chose to apply to Respondent No. 3 who was duty bound to reply pursuant to the provisions of Article 29 of the Constitution. In 30 this connection I should perhaps add, independently of the fact that Respondent No. 3 has competence in the matter, that the three respondents in the present recourse, as well as in the aforesaid recourses of 1969 and 1970, were joined in the alternative. 449 Loris J. Georghiou v.Republic
(1988)Having carefully examined the sub-judice decision of Respondent No. 3,1 hold theview thatRespondentNo. 3 failed to carry out due inquiry and as a result he acted under misconception as to material facts. Itis apparentfrom his letter dated 15.7.86, thattherefusal of therespondentis mainly based 5 on two grounds: (a)Onthea legation thattheapplicanthadnodaughterover 18 years of age as allegedly envisaged by para (m)of thedecision of the Councilof Ministers underNo. 8737 dated 15.5.
- (b)Theapplicanthadnoseconddwelling in theoldvillage. 10 Both above assertions of RespondentNo.3 areincorrect. Thedecision of theCouncilof Ministers underNo. 8737 dated 15.5.69 is set outin Appendix 'B'attachedtotheopposition;the relevant paragraph (m)which has already beenreferred toearlier on in thepresentjudgment does notmentionanything about the 15 age of "thedaughter"; it simply speaks of an unmarrieddaughter. As regards the 2nd ground it seems that Respondent No. 3 failed to heed the existence of a certificate emanating from the Chairman and members of the respective village Commission (vide Appandix Γ) dated 26.1.70 certifying totheeffect thatthe 20 applicantwas atall materialtimes theowner of asecond dwelling in thevillage under Registration No.5276 dated 8.4.42 covered by plot252 of Sheet/Plan46/10 within thevillageof Statos,which was, according totheaforesaid certification, habitable on 8.1.69 i.e. immediately prior to the occurrence of the devastating 25 landslides thatoccurred inthevillageof Statos,in
- In the result the recourse against the sub-judice decision of respondent No. 3 succeeds; and the sub-judice decision is accordingly annulled.Lettherebenoorderas tocosts. Sub judice decision annulled. 30 No order as to costs. 450