(1988)1988March15 [A.LOIZOUJ.j INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION 1.ANTONIS MAVROUDESASTREASUREROFTHE IRRIGATION DIVISION OF KALOPANAYIOTIS-IKOS, 2.ANTONIS MAVROUDES, 3. ANDREAS HADJISAVVAS, Applicants, v. THEREPUBLIC OFCYPRUS,THROUGH 1.THE MINISTER OF ARGICULTURE, 2.THE DIRECTOR OFWATER DEVELOPMENT DEPARTMENT, 3.THE DISTRICT OFFICER, NICOSIA, Respondents. (CaseNo.549186). Legitimate interest—irrigation Divisionandmembers of—Sinkingofborehole atshort distancefrom thedivision'sspring—Whetherand inwhat circumstances theDivision and its memberspossess alegitimateinterest tochallengethedecision inrespectofthe sinkingoftheborehole. Legitimate interest—Theissuemay beraisedbyCourtexproprio motu. The Irrigation Division of Kalopanayiolis-Ikos, through its treasurer, and applicants 2 and 3, who are members of such division, challenge by meansof thisrecoursethedecisions tosinkand tograntapermittoaboreholeatadistanceof lessthan 600feet from "Antonas Spring".Thewaterof this spring is used for the irrigation of thegardens of the members of the saiddivision. The applicants challenge,also,theomission of respondent 2 toallow them totakelegalproceedingsagainstthe respondent. Thequestion thatarose fordetermination isapplicants'legitimate inter- 522 3 C.L.R. Mavroudes and Others v. Republic est. Held,dismissing therecourse:
(1)Though Dcmelriou v.The Republic
(1971)3C.L.R. 1 wasreversed onappeal onanother ground, itsapproach wascorrect. 5 10
(2)Applicants'legitimate interestcanonly bebasedon section
(4)ofihc WellsLaw,Cap. 351. Theapplicants should establish that asaresultofthe sinking ofthe borehole inquestion (a)theyield oftheir spring has diminished, or(b)isunavoidably bound todiminish. The evidence inthis case did notestablish these facts. Recourse dismissed. No orderastocosts. Casesreferredto: Christofides v. CTiA
(1979)3C.L.R.99; Demetriou v. TheRepublic
(1971)3C.L.R.1; TheRepublic v.Demetriou
(1971)3C.L.R.271; Constantinides v.TheRepublic
(1974)3C.L.R. 416. Recourse. 2Q Recourse against the decision of respondent 2 to grant a permit torespondents 1(
- a)and 1(
- b)to sink a borehole at MoudouUas at a distance of less than 600 feet from "Antona Spring" which belongs to Kalopanayiotis - Icos Irrigation Division. A. Pandelides, for the applicants. C. Kyriakides, Counsel of the Republic, for the respondents. Cur. adv. vult. 25 A .LOIZOU, / . r e a d the following judgment. Applicant 2, Antonis Mavroudes, is the treasurer of the Irrigation Division of Kalopanayiotis - Ikos. He is the owner of a garden of one donum in 523 A. Loizou J. Mavroudes and Others v. Republic
(1988)extent, which is irrigated from "Antonas Spring". He instituted thepresent proceegings both in hispersonal capacity andastreasurer -as applicant 1 -of thesaid Irrigation Division. Applicant 3is theownerof agarden ofone half donums inextent which is irrigated from the above spring. The above Irriga- 5 tion Division was established in 1933and applicants 2and 3 are amongst its members. In 1933theabove spring wasceded tothe said Irrigation Division andsincethen its waterisbeing used for theirrigation of the gardens of itsmembers, including applicants 2 and 3.The said spring issituated on the left bank of "Antonas JQ Stream". On or about the 28th August 1986, the employees of the respondent started the sinking of a borehole at a distance of less than six-hundred feet from the above spring. According to the facts in support of the recourse there is a great risk and/or it is 15 likely for the waterof thespring tobeaffected and/or affected its yield in water todiminish andapplicants tobeprejudicially affected in theirrigation of theirgardens.On the27th August 1986,the Committee of the said Division decided to seek recourse to the Courts against the sinking of the borehole and to obtain in this *n connection theconsentof theDistrict Officer. Inpursuanceof this purpose itaddressed alettertotheDistrict Officer dated 27th August 1986, but the District Inspector orally declined to give his consent. On the 30th August 1986,the applicants filed the present re- ~<course whereby they prayed for thefollowing relief: (
- a)"Thatthedecision and/or actof therespondents and/oreach oneof them toproceed with thesinkingof aboreholeat Moutoullas village, locality Paou, (Koufou stream) near "Antona Spring" ("Antona Stream") which belongstotheKalopanayiotis -Icosirigation Division and whose water theKalopanayiotis -Icos irrigation Division and the remaining applicants areentitled to use, be declared null and void and/or of noeffect whatsoever, because the borehole is being sinked atadistance less than 600 feet from 524 ^ 3 C.L.R. Mavroudes and Others v. Republic A. Loizoii J. applicants spring and their spring will be substantially affected and/or because it isprobable that theyield in water of the spring will substantially diminish. 5 10 15 20 (b)That the decision of respondents 2 to grant a permit torespondents 1(
- a)and (
- b)to sink a borehole ata distance less than 600feet from theaboveexisting spring bedeclared nullandvoid and of noeffect whatsoever and/orastaken inbreachof section 7 of Cap.351and/orastakeninexcess and/orabuseof power. (c)That'theomission of theDistrict Officer togivehisconsent toapplicant 1,and/ortoKalopanayiotis-IkosIrrigation Division for thetaking of legal proceedings against them.in respect of the sinking of the above borehole, be declared null and void and/or thattheDistrictofficer Nicosiaoughttohavegivenhisconsent. Learned counsel'for the respondent raised the following preliminary objections: .· 1.That neither the Minister of Agriculture nor theDirector of the Department of Water Development decided the sinking of a· borehole at the village of Moutoullas near the spring known as Spring of Antona or Stream of Antona sothat their decision and/ or actmay bechallengeable byrecourse andcontend that thisrecoursecannot proceed againstthem and pray for itsdismissal. 2. Respondents 2 never issued a permit to sink the borehole complained of or.any other borehole under section 3
(1)of the WellsLaw Cap.351andLaws47/61,19/62 and 88/84 and heallegesthatthisrecourseshouldbedismissed against himalso. 25 30 3.Alltherespondents allege thatapplicants havenolegitimate interest under Article 146because the waterof theSpringof Antona orthe Stream of Antona doesnotconstitute their own property but this water under section 3
(1)of the Government Waterworks law Cap.341and Laws 129/68,51/62 and 1/77 as well as byArticle 23
(1)of theConstitution belongs totheGovernmentof the Republic ofCyprus. " 525 A. Loizou J. Mavroudes and Others v. Republic
(1988)4.However, it is anacknowledged fact thatthe Government of theRepublicof Cyprusinitsattempt tohelpoutthelandown erstoexploit theirlandstothemaximumpossible heightnotonly helpsoutintheadministrationof theformationof suchIrrigation Divisions butalso finances themby contributing2/3 towards the 5 costs of the works of such Irrigation Division and grants long termloansfor the 1/3portionof thecontribution which theIrriga tionDivision undertakestopay. 5.Itis anadmittedfact thattheGovernmentformed theIrriga tionDivision of Kalopanayiotis andIcosundertheIrrigationDi- JQ vision (Villages)Law, Cap.342 andallowed themtousethewa ter of the "Spring of Antona" or "Streamof Antona" toirrigate their land.Thisdoes notentail thatthesaid Irrigation Divisions haveacquired anylegalrightsonthesaidwaterofthespring beyongtherighttousesuch water. ,<6. Respondentscontendthateven if they concedethatappli cantshaveany beneficial interestunderSection8
(1)of theWells law, Cap. 351 andLaws 47/61, 19/62, and 88/84, which they deny, this interest is for compensationonly andfor nothingelse andthisrightcanonly be soughtthroughthefilingof acourtac- 20 tioninDistrict Courts." Itisestablished by case-law thatlegitimateinterestmustexist both atthetimeoffilingandthehearingof arecourse;and that these requirements aresatisfied where such interest thoughnot yet actually adversely anddirecdy affected is unavoidably bound to be so affected eventually (seeChristofides v.CYTA)
(1979)3 C.L.R. 99). In the case of Demetriou v. Republic
(1971)3 C.L.R. 1inwhich theapplicantchallenged thedecisionof there spondenttograntapermitfor thedeepeningof anexistingwell Stavrinides J.,said thefollowing atpp.6-7: "A person applying to this Court under Art. 146 of the Constitutionmustestablish thatsome'subsistinglegitimatein terest' of his 'is injuriously affected inadirectmanner bythe decision, act or omission' complainedof. What is theappli526 2 ς 3 C.L.R. Mavroudes and Others v. Republic A. Loi/ou J. cant's 'legitimate interest" here? Itcanonly be aninterest based on sub-sec.
(4)of Cap. 351.Thus inorder tosucceed hemust establish (
- a)that the pumping of water from Mr.Theocleous' wellreducedtheyieldof his own well and (b)thatsuch affec tion is due to work covered by the subject permit. Clearly if the injurious affection, though due towork carried out inMr. Theocleous' land, is not due to work covered by the subject permit,itis of noconsequence totheseproceeding. ΙΟ 15 20 25 Itfollows that,in order to succeed, theapplicant must estab lish injurious affection tohis well caused by work on Mr. The• ocleous's well other than tunnelling. But this he has entirely failed to establish.:" Though theabove decision was reversed on appeal and retrial was ordered,-see p.231 of the same report - on the ground that the existence or notof legitimate interest was closely connected with factual issuesregarding which nofindings were made by the trialJudge therewas noquarrel with hisapproach onthequestion of legitimateinterest. Now,what is theapplicants' legitimate interest in thiscase?In my opinin for the applicants to possess legitimate interest they must establish that as a result of the sinking of the borehole in question (a)theyield of their spring has diminished or (
- b)isuna voidably boundtodiminish eventually. Inorder toresolve issues (
- a)and (b)above both affidavit and oralevidence were adduced.Having carefully gone intosuchevi dence Ifindthatitis notestablished thereby,even on thebalance of probabilities thatas aresult of the sinking of theborehole, (a)theyieldof applicants'spring hasdiminished,or 30 (b)is unavoidably boundtodiminish eventually. Therefore applicants lack the requisite legitimate interest to 527 A. Loizou J. Mavroudes and Others v. Republic
(1988)pursue thisrecourse which,for this reason, must fail. It should be stressed that the Court can enquire ex proprio motu into thepresence of legitimate interest (seeConstandinides v. The Republic
(1974)3 C.L.R. 416), and it is for this reason that the Court -felt free toenquireinto thepresenceor notof le- 5 gitimate interest on grounds other than those relied upon in the relevant preliminary objection of therespondents. Having concluded as above Ineed notdeal with theremaining issuesraised intherecourseand theopposition. In the result the recourse fails and is hereby dismissed but in thecircumstances there willbe noorder as tocosts. 1' Recourse dismissed. No orderas tocosts. 528