(1989)19S9 June22 [KOURKIS.J.I INTHE MATTER 01- ARTICLE 146 01"THK CONSTITLTION STFLLA ΚΛΝ.ΥΛ MICHAEI.IDOL," AND OTHERS. -\ppliaints. THK RFPUHLIC 0 Γ CYL'RL S. T H R O I G I I THK MINISTER OV IYII-KIORA.NO OTHERS. Respondents. f O c A i ) 491/8*) Constitutional I.tiw — Right to property — Constitution. Art. 23 — Street Widening Scheme — When it amounts to deprnation and when it amounts to alestiiction or limitation ot the right to property — Question ot degree, by which the properties in question are nfleeted. liy means o! tins recourse theapplicant challenges aStreet Widening Scheme, wherein her property was atiected. In the light ot the lact that the degree, uherern applicants' properties have been allcctcd. ua-> not .such, as to amount to deprivation, the Court did not accept that the dceiMon complained ot was contrary to Art 21 ot the Constitution In the light ot alunhei nndmgb\ theComtthat in imposing the scheme the respondents had earned out a due inquiry, the piesenl recour.se was di.smissed Recourse dismissed ΛΌ order as to costs. Casesreferred to. Thymopoullos v. Municipal Committee ot Sieosni
(1967)3 C.I..R. 5SS. 3 C.L.R. Michaelidou ;ind Others v. Republic &Others The Holy See of Kitium v.Municipal Council of I.imassol.IR.S.C.C
- Recourse. Recourse against the validity οί the street widening scheme in respect of Dhimonikou.Knossou. Glafkou andChiou Streets in the town of Nicosia. E.Evrypidou. for the Applicants. CI.Theodoulou (Mrs). Senior Counsel of the Republic, for Respondent
- A. Yordxmlis for C. Indianos.for Respondent
- Cur. ndv. rule. KOURRIS.J.read thefollowing judgment. Applicants inthe present recourse challenge the validity of the decision of the respondents relating tothestreet widening scheme inrespect of Dhimonikou. Knossou. Glafkou and Chiou Streets in the town of Nicosia and claim: Λ declaration that the act or decision of the Minister of Interior dated 14.2.il)S5 by which the applicants1 objectionshierarchical recourses - to the street widening schemes of Dhimonikou. Knossou. Glafkou and Chiou Streets were rejected, is null and void and of nolegal effect whatsoever. At the hearing counsel for the applicant withdrew recourse against respondent No. 2 and the recourse was dismissed against him with no order for costs. By virtue of s.2 of the Streets and Buildings Regulation Law. Cap.
- a notice was published by the Nicosia Municipality in Supplement No. 3 to the Official Gazette of 4th May. l<iS4 under notification No. 1114 to the effect that plans have been prepared with the object of widening or straightening Dhimonikou. Knossou. Glafkou and Chiou Streets in Nicosia. As the said plans affected properties belonging to the applicants, they objected to them by letter and their objections were considered by the Minister of Interiorandfinally rejected 727 Kourris, J. Michaelidou and Others v.Republic &Others
(1989)asshown intheletters of the Director-General ofthe Ministry of interior dated 14.2.19S5whichreadasfollows:•4(i) 5
(2)The objections having been considered by the appropriate authority, were put before the Ministerof Interiorasprovidedbys.18 oftheStreetsandBuildings Regulation Law. Cap. 96. who. however, has rejected them as it was ascertained that the preparation of the 10 said plans was carried out after having taken into consideration thefuture roadtraffic requirementsofthe area, as well as the consequences to the present and future development oftheaffected plots". 15 Hencethepresent recourse. Counsel fortheapplicantschallengedthesubjudicedecision on thefollowinggrounds: 20 (
- i)it was taken contrary to Article 23of the Constitution inasmuchastheeffect ofthestreet wideningschemeis deprivation ofproperty andnolimitation orrestriction. (
- ii)it was taken contrary to s.12of Cap. 96 because it is 25 tantamount to a compulsory acquisition of property insteadof astreet wideningscheme; and fiii) itwastaken without asufficient or proper inquirv. 30 In the case of Thymopoulios v. The Municipal Committee ofNicosia
(1967)3C.L.R. 5SS.theCourtdecided that astreet wideningscheme mayaffect the property tosuch an extent as to render it totally unsuitable for ordinary, inthe panicular circumstances,use.And.thequestion whichfalls for 35 determination is whether the street widening scheme under examination imposed restrictions or limitations to the property in question or whether it amounts to deprivation of propertiesinwhichcaseitwouldbeobviouslvunconstitutional. 40 Whether astreet widening scheme results in restrictions or limitationsorwhetheritamountstodeprivation ofpropertyis 72S 3 C.L.R. 5 Michnelidouand Others Λ.Republic & Others Kourris, J. a question of degree affecting the properties. (See The Holy See of Kitium v. Municipal Council of Limnssol. 1 R.S.C.C. 15). In the present case it appears from exhibit I which is the relevant file of the Town Planning and HousingDepartment. that thearea of theproperties in question are affected between 3%and 10.97c. It appears from appendix "C" to the opposition which is pan of exhibit I. that plot 245 has an area of 9.125 sq. ft. 10 approximately and only 605 sq. ft. or 6.6% of the whole area will be ceded to the public road. Plot244 has an area of 14.125 sq. ft. approximately and only 950 sq. ft. or 6.7% of the whole area will be ceded to the public road. Plot 241 has an area of 7.705 sq. ft. approximately" and only an area of 270 sq. ft. 15 approximately or 3.5% of the whole area will be ceded to the public road. Plot 704 has anarea of 7.470sq. ft. approximately andonly 225 sq. ft. approximately or 3%.of the whole areawill be ceded to the public road. Plot 243 has an area of 7.740 sq. ft. approximately andonly anarea ol S45 sq. ft. approximately 20 or 10.9%of thewhole areawill be cededtothepublic road.Plot No. 164 has an area of 4.S30sq. It.approximately and only an area of 235 sq. ft. approximately or4.9% of the whole areawill be ceded to the public road. 25 Bearing in mind the degree to which the properties are aflected by thesub judice street widening scheme,theanswer is that the street widening scheme results only in the imposition of restrictions or limitations and it does not result in deprivation of property. 30 35 The fact that the area of the properties in question are affected to a small degree certainly is not tantamount to a compulsory acquisition of property contrary tos.12of Cap.96. Therefore, this point raised by learned counsel for the applicants cannotstand. The remaining issue is whether the sub judice decision was taken without a sufficient or proper inquiry. 40 From the material which was before the appropriate authority, and which is also before me. I have reached the conclusion that the sub judice decision was taken after a 729 Kourris. J. Michuulidouand Others v. Republic Λ Others
(1989)sufficient and careful inquiry. For all the above reasons, therecourse is dismissed but with no order for costs. Recourse dismissed. No orderus to costs. 730