3 C.L.R. 1989 February24 [DEMETRIADESJ.J INTHE MATTER OF.ARTICLE 146OFTHE CONSTITUTION ANDREAS LOUKA. Applicant, v. THE REPUBLIC OF CYPRUS.THROUGH THE COUNCILOFMINISTERS, Respondent. (Case No. 372/S5) 5 10 15 Acts or decisions in the sense of .Art. 146.1 of the Constitution — Management ofprivateproperty oftheState—Principles governingthe question whetherit isor it is not withintheambit ofArt. 146.1of the Constitution — In respect ofpropeny owned by the Government asa private owner,ithastobeshownthattherelevant decisionwas takenin ihe exercise of a function in furtheranceof a purpose of vital public interest — Otherwise,the decision isoutsidetheambit of Art. 146.1 of the Consiitution. Part of theproperty of theapplicants in Paralimni was compulsorily acquired by the Improvement Board of Paralimni. The decision was impeached by arecourse. Therecourse waswithdrawn upon agreement that the respondents would recommend to the Government to grant a leaseof adjoining government property to the applicant for the purpose of building ahotel. Following various administrative inquiries, the Council of Ministers finally rejected the application for the grant of the lease in question. Hencethe present recourse. 20 Having analysed the authorities concerning the question when management of the private propeny of thestate falls within the domain 243 Louka Λ.Republic (19891 of Public Law andhauns:armed atiheconclusion thai theproperu in question was not properu ofapublicnatureownedbvtheGo\emment for public use purposes but thai it was properu owned b\ the Go\emmentas apmate owner theCourtdismissedtherecourse on ihe ground thatithadnotbeen shown thai ihesubjudice decision wastaken 5 mthe exercise of afunction infurtherance ofapurpose of \ltal public interest TheCourt wasof theopinion thai ihe grant of the particular lease would not have served apurpose of \ital public importance but onlv theprivate inteiest ofiheapplicant who wanted tobuild a hotel 10 Recourse dismissed So orderforcosts Cases reterred10 15 MiIiotis\ Republic
(1968)3CLR 477 Chrysanthou andAnother\ Republic (196S) 3CLR519 Asproftas\ Republic
(1973)3CLR 366. 20 Poyiadjis\ Republic
(1975)3CLR37S Charalambides\ Republic
(1982)3CLR 403, Tekkis andAnother \ Republic
(1982)3 CLR 6S0 25 Recourse. Recourse against therefusal of the respondents tograntto applicant theleaseof Government landatParalimni.adjoining 30 his propem. L Clendes. forthe Applicant. A. Vassihades, Counsel of the Republic B. for the 35 Respondent. Cur. advvult DEMETRIADES, J read the following judgment. The 40 applicant challenges thedecision ofthe respondents contained intheirletterdatedthe21stJanuary. 1985,wherebythey refused 244 3 C.L.R. Louka v.Republic Demetriades, J. to grant to him the lease of Government land at Paralimni, adjoining his property. The Applicant is the owner of plot No. 375/
- Sheet/Plan 5 XLII/S E1.E2 at the locality of Protaras. at Paralimni village. The applicant, who is a displaced person living in London. intended to develop his propeny by building a small hotel thereon. On the 29th October. 1977.anotice of acquisition of part of applicant's property ways published in the Official 10 Gazette of the Republic. The applicant objected but his objection was dismissed and an order of acquisition of part of his propeny. bythe Improvement Board of Paralimni. for the purpose of constructing a road, was finally published in the Official Gazette oftheRepublic,datedthe27th October.
- 15 The result of the acquisition was that the propeny of the applicant was cut into two pieces separated by the road in a way that its full development wasnot possible. The applicant filed Recourse No.480/78 against the orderof 20 acquisition. The recourse was settled on the 14th March.
- on condition that the Improvement Board of Paralimni would recommend to the Council of Ministers the lease to the applicant of a piece of Government land adjacent to his propertv. Asaresult, theapplicant withdrew hisrecourse. 25 In the meantime, the applicant had applied, in 197S.to the Department of Lands and Surveys, for the lease of the Government land in question. The lands and Surveys Department requestedtheviewsof various departments,oneof 30 which,the Cyprus Tourism Organization, objected to the lease onthegroundthattheGovernment landcouldbebetter utilized. As a result, the Ministry of Commerce and Industry informed the Department of Lands and Surveys, by letter dated the 17th May. 1982.that they did not intend to pursue the matter any 35 further. Following cenain representations of the applicant to the Improvement Board of Paralimni and an undenaking of the lattertohonouritspanofthesettlement inCaseNo.4S0/78.the 40 matter was reconsidered and the CyprusTourism Organization wasrequested togive itsreasons for itsobjection to theleasein question and whether the objection continued to exist. The 245 Demetriades. J. Louka v. Republic
(1989)latter, after obtaining the views of the Depanment of Town Planning and Housing, replied by letter dated the 10th April. 1984. that its objection continued to exist for the following reasons: 5 (
- a)Thehotel thattheapplicant intendedtobuildcouldnotbe considered asviable. (b)The hotels that could be build in the area should offer additional recreation andathletic facilities. 10 (
- c)The policy of the Government was not to lease in the future anygovernment land for the erection of hotels. (
- d)In viewof thedevelopment oftheareaitwasbetter ifthe 15 government lands were left free for the creation of open andgreen spaces for usebythe public. By letter dated the 5th May. 1984. the Cyprus Tourism Organization informed the applicant that after obtaining the 20 views of the Depanment of Town Planning and Housing, his application for the lease of thelandwas re-examined but itwas decided not to be recommended. In the said letter, it is funher stated that the piece of land consisted of a larger piece of government landwhich,inviewofthedevelopment ofthearea. 25 had to be turned into green spaces, pavements etc.. for use by the publicandthat inthelightofthis,the Ministry of Commerce and Industry didnot intend to pursue the matter any further. The applicant protested by letter dated the 1st June. 19S4. 30 stating that the proper organ to decide on such matters wasthe Council of Ministers and requested a final decision by that organ. The matter was referred, as a result, to a Ministerial Committee,which,after consideringit.referred ittotheCouncil of Ministers for final decision, with the recommendation that it 35 should be dismissed. The Council of Ministers, by its decision No.25.300,dated the22nd December. 1984.decided to dismiss the applicant's application for the reasons stated in the submission, whicharethosecontained intheletter ofthe Cyprus Touiism Organization dated the 10th April, 1984.reference to 40 which has already been made.The applicant, who was informed accordingly by letter dated the 21st January, 1985. filed the 246 3 C.L.R. Louka v.Republic Demetriades, J. present recourse. The matters which arise for consideration are first whether the sub judice decision can be entertained by a recourse, and. 5 secondly, whether the sub judice decision was reasonably open to the respondents having regard to the circumstances of the case and especially the terms of settlement in Recourse No. 480/78. 10 Counsel for the respondents argued, in respect of the first ground, which he raised as a preliminary' objection, that the subject matter of the recourse relates to the management of state landandassuchitcomeswithin the domain ofprivate and not of publiclaw. 15 Counsel for the applicant argued, inreply,that the subjudice decision is an executory one within the sphere of public law. since it emanates from a body exercising administrative authority and applying the touristic policy of the government; 20 intended to serve apublic purpose. In Greece it hasbeen accepted that acts inthe management oftheprivate property ofthestate donotfall within the domain ofpubliclaw(seeKvriacopoulos onGreek Administrative Law. 25 4th ed.Vol.Cpp. 13.14. 102- 103. and CaseNo. 1118/1956of the Greek Council of State. In Cyprus, the question whether acts done in the management ofGovernment propeny comewithintheambitof 30 Article 146of the Constitution or whether they are acts within thedomain ofprivatelaw.camebefore theCourtsbefore. Thus. in the case of Miliotis v. The Republic
(1968)3 C.L.R.
- where a hawker challenged a decision of the Minister of Communication and Works preventing him from entering the 35 Famagusta Port areafor thepurpose of carrying on therein the trade ofahawker,itwasheldthat the disputewasonewithin the ambit of Article 146 of the Constitution because the property concerned, as stated at p.479 of the judgment " is not what wouldbedescribed asproperty ownedbytheGovernment inits 40 capacity as a private owner; it is propeny of a public nature owned bythe Government for publicuse purposes;" 247 Demetriadcs, J. Louka v. Republic (1989J In the case of Chrysanthou and Another v. The Republic (196S) 3 C.L.R.
- which concernedthelease of government property for purposes of cultivation, it was held that although the property concerned was government property, the management of which couldordinarily fall outside the ambit of 5 Article
- in so far as it would be management such as that carried out by a private owner, in the particular circumstances of thecase it was amatterwithin thesphere of public law. The Court took this view'because thelease in question was madein furtherance of a purpose of public nature, that is agricultural 10 reform in thepublic interest andthe selection of thelessees was based upon certain criteria laid down by the Council of Ministers. In Asproftas v. The Republic
(1973)3 C.L.R. 366. the 15 refusal of the Directorof the Departmentof Lands and Surveys to register in the name oi the applicant a strip of land on the ground that it was registered as a public road, was held to be a decision in thesphere of private law. 20 In Poviadjis v. The Republic
(1975)3 C.L.R. 37S. the subject matter of the recourse, which concernedthe transfer of interest in anencroachmentonstateland, was heldtofall within the ambit of Article 146 of the Constitution. This conclusion. however, was reached by the Coun in view of the fact that the 25 property concerned was government forest land and the decision taken was "an expression of governmental action and policy in a matter of what may be described as Λ-itaI public importance, namely the touristic development of Troodos and as such predominantly intendedto serve apublic purpose". 30 In the case of Charalambides v. The Republic (19S2) 3 C.L.R. 403, the refusal of the Cyprus Tourism Organization to renewtheleaseofgovernment landatTroodostotheapplicants was held to be within the sphere of private law as it did not 35 intend to serve any public purpose. Lastly, in Tekkis and Another v. The Republic
(1982)3 C.L.R. 680. it was decided that the decision of the Council of Ministers concerning thesale or not of government properties 40 privately owned was one within the sphere of private law. not amenable bv a recourse underArticle 146 of theConstitution. 3 C.L.R. Louka v.Republic Demetriades.J. as they werenot actsinfurtherance of apurpose of vital public importance. Inthepresent case,there isno question that the government 5 propeny concernedisnot propeny of apublicnature ownedby the Government for public use purposes. It follows that it is property owned by the government as a private owner. As a result, for the sub judice decision to come within the ambit of Article 146 of the Constitution, it has to be shown that it was 10 taken intheexercise ofafunction infurtherance ofapurposeof vital public interest. From the material before me. it seems that no purpose of vital public importance wouldhavebeen served bythegrant or 15 not of the land in question totheapplicant, but only the private interests ofhis. Asaresult. Ifindthat,inthe circumstances,the sub judice decision does not come within the ambit of Article 146of the Constitution. The preliminary objection, therefore, succeeds and the recourse hasto be dismissed. 20 Even if the sub judice decision came within the domain of public law and the sub judice decision was intended to serve a public purpose. I still feel that the recourse has to be dismissed on its merits as the respondent is vested with a very wide 25 discretion in matters of public policy. Moreover, the undertaking of the Improvement Board of Paralimni to recommend thegrant of leaseto the applicant isirrelevant asit doesnotbindinany waytheCouncil of Ministerswhichwasnot a partv to the action orthe settlement. 30 Intheresult,thisrecoursefails andhasto bedismissedbut.in the circumstances. Imake noorder for costs. 35 Recourse dismissed. No orderas tocosts. 249