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GEORGE LORDOS AND OTHERS ν. THE ATTORNEY-GENERAL (1963) 2 CLR 189

(1963) 2 CLR 189

1963 February 8

[*189]

 

(WILSON, P., ZEKIA, VASSILIADES AND JOSEPHIDES, JJ.)

GEORGE LORDOS AND OTHERS,

Appellants-Plaintiffs,

v.

THE ATTORNEY-GENERAL,

Respondent-Defendant.

(Civil Appeal No. 4398).

Compulsory Acquisition of Land-The Land Acquisition Law, Cap. 233 (1949 ed.) and Cap. 226 (1959 ed.), sections 3, 5, 6, 7 and 8-Section 7 did not authorise the Governor to sanction acquisition of a lesser part of the property for which the previous notice to treat under section 6 was given-Therefore, any such sanction is ultra vires the Governor and null and void- Proper procedure would have been to withdraw the original notice under section 6 and issue a new such notice covering the lesser part only.

Statutes-Construction of-Strict interpretation of statutes encroaching upon the common law rights of the subject-Strict interpretation and against the expropriating Authority of the Land Acquisition Law (supra).

Compulsory Acquisition-Although there is nothing in the statute to require the Governor to act promptly, undue delay, however, may, in a proper case, vitiate the proceedings of compulsory acquisition.

Constitutional Law-The Governor of Cyprus was not a representative of the Sovereign.

The three appellants owned in undivided shares a plot of land of about 72 donums in extent, under plot 182, Block C, at Ayios Loukas Quarter, Famagusta. On the 25th November, 1954, Notice No. 665 was published in the Cyprus Gazette under the provisions of section 3 of the Land Acquisition Law, Cap.233 (1949 ed.) Le. Cap. 226(1959 ed.) in which it was stated, inter alia that, in exercise of the powers vested in him under the aforesaid section, the Governor had declared the development of the Famagusta port to be an undertaking of public utility under the statute and authorized the carrying out of that undertaking. [*190]

In the same issue of the Cyprus Gazette of the 25th November, 1954, the District Commissioner of Famagusta caused to be published under Notification No. 67 the so-called notice to treat under section. 6 of the Statute, in which it was stated that the carrying out of the aforesaid undertaking involved the compulsory acquisition of, inter alia, appellants’ aforesaid plot of land of 72 donums, as above, aid invited those who had any right or interest in the said land to send to the Commissioner within six weeks, a statement of their right or interest. The appellants on the 20th December, 1954, submitted to the Commissioner their objection to the acquisition of the aforesaid plot, praying that the whole plot be exempted and, if this was found to be absolutely Impossible, that the demarcation line should follow a straight line from Salamis Road on to Karaolos Road, so that a portion of the land approximately 1/4 of the whole) be left to the appellants so that they might develop it.

The District Commissioner has forwarded to the Governor under section 5 of the Statute his recommendations plans and particulars together with the objections made, and eventually the Governor, acting under section 7 of the statute, caused to be published in the ‘Cyprus Gazette of the 22nd November, 1956, under Notification No. 1119 his sanction whereby he approved the plan and particulars submitted but sanctioned the acqusition of part only viz. 15 1/2 donums of the appellants aforesaid land of about 72 donums in extent. Before the Governor’s said sanction, however, no fresh notice under section 6 was published in respect of the appellants property or other affected property.

As the parties did not agree on the amount of compensation reference was made under the statute to the compensation Assessment Tribunal for the assessment of compensation but Whilst those proceedings were-pending, the appellants, having obtained the Governor’s fiat on 18th July, 1958, instituted proceedings against the Attorney General in the District; Court of Famagusta by action No. 368/59 claiming that the acquisition of their afore-mentioned land was ultra vires and illegal and that the original “notice to treat“ of The 25th November 1954, was vitiated and rendered ineffective through the Acquiring Authority’s laches and/or irregularitie. The District Court delivered judgment on the 10th October, 1962, dismissing the plaintiffs’ (appellants’) claim. [*191]

Under, the provisions of section 3 of the statute, where any land was needed for any undertaking: of public utility, if the Governor was empowered; by notification in the Gazette, to authorize the carrying out to the undertaking under. the provisions of the law; and, from and after the publication of the aforesaid notification the Director of Public Works or other officer entrusted by the Governor with the supervision of any undertaking so authorized might recommend that any land be acquired for the purpose of carrying out the undertaking It was further provided that on any such recommendation the officer by whom it was made should forward to the District Commissioner a copy of the recommendation together with a plan or particulars of the land to be acquired (section 5)

Under the provisions of section 6, the District Commissioner, before submitting the recommendations and plans- or particulars for the consideration of the Governor had to cause public notice to be published in the Gazette and also to be posted at convenient places on or near the land to be acquired. The form of the notice was given in the schedule to the law. inter alia it stated that any person claiming to have any right or interest in the land to he acquired, who objected to the acquisition, was required within six weeks from the date of the notice to send to the District Commissioner a statement of his right and interest and of the evidence-thereof, and of any claim made by him in respect of such right and interest. The notice further stated that the Governor was willing to treat for the acquisition of the said land and that a plan snowing the land acquired was available for inspection at a place to be stated. Section 6 further provided that at the expiration of the period set out in the notice the Commissioner shall forward to the Governor the recommendations and plans or particulars together with the objections made if any”.

Section 7 (1) of the Statute, reads as follows:- “If the Governor approves the plan or particulars, submitted and considers it expedient, having, regard to all the circumstances of the case, that the land in question shall be acquired, he may by notification in the Gazette sanction the acquisition of the land; and thereupon the land may be acquired and compensation, may be awarded for its acquisition in manner hereinafter provided.”

On the other hand, under the provisions of section 8 “when the Governor has notified his sanction to the acquisition of any land, the land shall thereupon vest absolutely in the [*192] Government or other Authority; and the notification of such sanction “shall be sufficient authority to the Director of Land Registration to cause amendments of registration to be effected in accordance with the plan and particulars so approved by the Governor”.

The plaintiffs appealed against the aforementioned judgment of the District Court dismissing their claim. It was argued on appeal on their behalf that as notice was given, under section 6 that the appellants’ plot, 72 donums in extent, would be acquired and that eventually only a portion of it (15 1/2 donums) was acquired, this was beyond the Governor’s power under section 7 of the Law. In the appellants’ submission, the Governor could either approve the acquisition of the whole plot or nothing, and he had no power to sanction a partial acquisition of the plot. If it was the Governor’s intention to acquire portion of the original plot then a fresh notice under section 6 ought to have been given to the land-owners, and as this was not done, it has been submitted that the acquisition was illegal and of no effect. It was further argued on behalf of the appellants that the delay of about two years from the date of the publication of the “notice to treat” under section 6 (November, 1954, supra) to the date of the publication of the Governor’s sanction under section 7 (November, 1956, supra) is such as to vitiate the original “notice to treat” and, therefore, the whole proceedings.

The High Court in allowing the appeal (ZEKIA and JOSEPHIDES, JJ. dissenting):-

Held, 1 per WILSON, P.

(1) The Governor was not a general representative of the Sovereign. Therefore, he could only exercise such powers as given to him by the Land Acquisition Law, Cap. 233 (1949 ed.) and Cap. 226 (1959 ed.).

(2) The general approach to the interpretation of this statute is that it should be strictly construed against the expropriating authority because it encroaches upon the subject’s Common Law right of ownership. (Maxwell on Interpretation of Statutes, 10th Edition, pp. 285 and 286).

The statement of general principle, has been referred to in Cyprus. Although perhaps not strictly necessary in arriving at the Court’s decision in Attorney-General for Canada and Another v. Hallet and Carey Limited (decided in the Privy Council-Times Law Reports (1952) Part 1 page 1408) it [*193] was quoted by Zekia J. in “In the matter of an Application by Vassos Papadopoulos and Others v. The Commissioner of Limassol” (1956) 21 C.L.R. 193 at p. 199 et. seq. (per Lord Radcliffe) “It is fair to say that there is a well-known general principle that statutes which encroach upon the rights of the subject, whether as regards person or property, are subject to a strict construction. Most statutes can be shown to achieve such an encroachment in some form or another, and the general principle means no more than that, where the import of some enactment is inconclusive or ambiguous, the Court may properly lean in favour of an interpretation that leaves private rights undisturbed”.

(3) A strict interpretation of the Land Acquisition Law is even more necessary because the land owner has no right to serve a counter notice and the Governor was not required to act promptly. The latter might, as he did in this case, delay for a long period in ascertaining how much land would be required. The fact that the owner will probably profit from such delay is, in my opinion, not relevant. He might have suffered a loss. As stated by Mr. Justice Josephides (post) expropriating authorities should act promptly.

(4) In England under the Lands Clauses Consolidation Act (1845) 8 Vict. C. 11 and amending Acts there was “nothing to prevent the promoters giving to the same owner more than one notice to treat for lands required by them; but any lands comprised in a notice to treat are so far bound, and unless such notice is validly, withdrawn no subsequent notice can, in respect of such lands, have any effect on the relationship between the promoters and the owner which such first notice to treat has created. A subsequent notice to treat may increase, but may not diminish the quantity of lands proposed to be taken”. (Cripps Compulsory Acquisition of Land 10th ed. 2-031).

In Tawney v. The Lynn and Ely Railway Company (1847) 1,6 L.J. Ch. 282 a case where the railway company had served a second notice requiring less land than was required under the preceding notice, it was held at p. 283 “… it appears to me that they had no power to give up that notice (the first): the consequence would be, that from month to month the Company, acting under the influence of this principle, might choose to vary their plans, and give varying notices, so that the owner of the land could never know what to do with his property”. [*194]

(5) I come now to consider our Land Acquisition Law. It is important to note that in all the relevant sections no express power is given to the Governor to confirm either with or without modification, the recommendation of the Director of Public Works (s. 5) or the recommendation of the Commissioner (s. 6). It would seem reasonable that he should have power but the scheme of the Act as I read it and the language used, do not give him such authority. It will be noted that once he has authorized, under section 3, the carrying out of an undertaking, by section 4, he is authorized to pay for all damage done during the preliminary investigation of the site. If any changes in the area to be acquired are to be made it is at this stage that the decision must be made. After the investigation has been completed, the Director of Public Works, or other officer entrusted by the Governor with the supervision of the undertaking and so authorized, is required to recommend land actually to be acquired. He then forwards his recommendations to the Commissioner together with a plan or particulars of the land to be acquired. The Commissioner in turn publishes a notice in the Gazette, in the prescribed form, and posts such notices at convenient places on or near the land to be acquired (s. 6). In the notices is given a description of the lands to be taken and there is also a provision that the Governor is willing to treat for their acquisition. (This latter method of acquiring property is not relevant to the present action). The notices required persons having objections to forward them to the Commissioner who is required to forward to the Governor the recommendations of the Director of Public Works and any plans or particulars together with the objections made, if any. The next important section is s. 7 which requires the Governor if he approves “the plan” or particulars submitted and considers it expedient having regard to all the circumstances of the case that “the land” in question shall be acquired, he may by notification in the Gazette sanction the acquisition of “the land” and thereupon “the land” is acquired and compensation is to be awarded.

(6) Under section 8 after the Governor has notified his sanction to the acquisition of any land the land shall thereupon vest absolutely in the Government, or Government agency. The word “any” does not modify my conclusions.

That the construction I have placed upon the statute is the correct one is reinforced by the provisions of s. 19 which authorises the sale and disposition “of any land which is found [*195] to be in excess of the extent actually required or to be no longer required for the purposes for which it has been acquired…”

(7) In the present case the notice of sanction under section 7, says: “and whereas the Governor has approved the plan and particulars submitted, and has considered it expedient, having regard to all the circumstances of the case, that only that part of the lands described in the schedule hereto shall be acquired. Now, therefore, in the exercise of the powers vested in him by section 7 of the Land Acquisition Law, the Governor hereby sanctions that part of the lands described in the schedule hereto.”

The real difficulty is that the statute did not give him power to take only part of the lands shown on the plan. He was limited to approving “the plan” submitted to him or rejecting it.

(8) I respectfully agree with the decision in Stockton and Darlington Railway Co. v. Brown (1860) 9 H.L.C. 246 but in my view it decides only that the expropriating authority is the judge, within reason, of the quantity of land to be acquired. As applied to the present case it decides the expropriating authority is to determine how much land is to be acquired before the notice of intention to acquire is given, but having reached this conclusion it must act in accordance with the terms of the statute. The proper procedure, cumbersome and perhaps expensive, would have been to withdraw “the plan” and begin again with the publication of a new notice of intention to acquire lands.

(9) Therefore, the appeal should be allowed.

Held, II per VASSILIADES, J.:

(1) The case, in my opinion, turns on the question whether the Governor, in making the acquisition order, published on the 22nd November, 1956, was acting within the powers vested in him by section 7 of the Land Acquisition Law or he was acting ultra vires as claimed by the plaintiffs.

(2) We have it as a fact in this case, that the Governor sanctioned under section 7 the acquisition of a part of 15 1/2 donums and 2,500 sq. ft. out of a total of 72 donums and 3,000 sq. ft. of land affected by the notice published under section 6 in November, 1954.

(3) I approach the question whether the order expropriating the plaintiffs from their property was “intra” or “ultra” the powers of the Governor under section 7, starting from the premises that property-rights in this country, are legal rights, [*196] the importance of which I need not emphasize here. They rest under our law upon statutory provisions, which codified long-existing and deep-rooted principles; and they are entitled to full legal protection. No violation or interference with such rights should be attempted or permitted, in my view, unless clearly and expressly authorised by Law. And in this case I think, it is obvious that the Governor would not have made the order complained of, unless he was advised that he was authorised and empowered to do so by section 7 of the Land Acquisition Law as in force at the time.

(4) But section 7 must be read and applied as part of the whole statute in which it is found. When the section provides that “the land in question shall be acquired”, it clearly and unequivocably refers to the land to which sections 3 and 4 had been applied property entered upon and surveyed by the appropriate officers of the Acquiring Authority, in order to make sure that the “land is needed for the particular under taking of public utility;” property in respect of which “the Director of Public Works or other person entrusted by the Governor with the supervision” of the undertaking, has made his recommendations under section 5 by virtue of which the Commissioner was required to publish the notice under section 6, usually described as a notice to treat.

(5) The provisions of section 8, 9 and 13 of the Statute point, in my opinion, to the direction that section 7 was not intended to give to the Governor the power to do what was done under that section in the present case. But in any case, as I said earlier in this judgment, I am inclined to the view that in the present state of our law, nothing short of clearly expressed statutory provisions, authorising any interference with property-rights, should be considered sufficient to override an owner’s legal right to his property ; especially so when the interference comes from the State on which the citizen relies for the protection of his legal rights.

(6) In 1962 when the action was tried and determined, Article 23 of the Constitution was part of the “supreme Law” of the Republic (Article 179) which its Courts had to consider and apply accordingly. It provides that “every person... has the right to acquire, own, possess, enjoy or dispose of any... immovable property and has the right to respect for such right”. This article is found in Part II of the Constitution dealing with “Fundamental Rights and [*197] Liberties”, and must be considered as such. Article 188 in the Part containing the transitional provisions of the Constitution, requires that Laws such as the statute under consideration (Cap. 226) preserved in force in the Republic, “shall... be construed and applied with such modification as may be necessary to bring them into conformity” with the Constitution Section 7 of the Land Acquisition Law does not seem te require any such modification when applied to the facts of this case; but must, in my opinion, be construed and enforced strictly, with full regard to the onwer’s rights.

(7) Applying strictly the provisions of section 7, as I think the Court must do having regard to the nature of the statute, I would not be inclined to read in the section powers which are not clearly and expressly there, such as the power in the Governor to sanction the compulsory acquisition of part of the property only (which may well be only a small part of the whole) and thus effect an expropriation substantially different from that originally decided upon and dealt with under the previous sections.

(8) In my judgment the acquisition order made on the 22nd November, 1956, was made ultra vires. 1 would allow the appeal and grant the plaintiffs a declaration as claimed in Part (a) of the claim, which sufficiently disposes of the whole action.

Held, III per JOSEPHIDES, J. in his dissenting judgment, ZEKIA, J. concurring:

(1) It is, I think, clear that a notice under section 6 of our Law does not correspond to, or have the same effect as, the “notice to treat” under the English Lands Clauses Consolidation Act, 1845. Consequently, the provisions of the English Act on this point and the case of Tawney v. The Lynn and Ely Railway Company (1847), 16 L.J. Ch. 282, cited in support of the appellants’ argument, are inapplicable to the present case.

(2) In dealing with the question of the construction to be put on legislative powers of compulsory acquisition Lord Cranworth in Stockton and Darlington Ry. to., v. Brown (1860) 9 H.L. Cas. 246, at page 256 (cited by Vaughan Williams, L.J. in London and North Western Railway v. Westminster Corporation (1904 1 Ch. 759 at p. 766) said:

“Some general propositions admit of no doubt. In the first place, I think it clear that when the Legislature authorizes railway directors to take, for the purposes of their undertaking, [*198] any lands specially described in their Act, it constitutes them the sole judges as to whether they will or will not take those lands: provided only that they take them bona fide with the object of using them for the purposes authorized by the Legislature, and not for any sinister or collateral purpose. This is the construction to be put on all such legislative powers, whether the language of the Act is that the company may take so much of the lands as is necessary for the undertaking, or so much as is required or is expedient to be taken, or simply (as in this case) that the company may take lands for the purposes of the undertaking. In such cases the Legislature, having provided what it considers sufficient means for securing adequate compensation to the owners of the land, leaves it to those interested in the undertaking to say to what extent it will be useful to them to exercise their statutable powers.”

(3) Naturally, Lord Cranworth in laying down those general propositions had in mind the language of the English Acts, but his opinion is, I think, helpful in a general way in construing legislative powers of compulsory acquisition. In the present case we are concerned with the construction of section 7 (1) of the Land Acquisition Law, Cap. 233 (supra) having regard to the object of the legislature in enacting that statute. In interpreting that section it should be borne in mind (though that would not be conclusive) that that Law was enacted over sixty years ago (in 1899), and that in the past the Governor had sanctioned a partial acquisition of a plot originally included in the notice under section 6: see e.g. the Governor’s sanction for the Famagusta Cantonment in August, 1955 (Not. 507 in the Gazette of 30th August, 1955,page 499) and the sanction for Trunk Road “A” Nicosia, in June, 1956 (Not. 475 in the Gazette of 7th June, 1956, page 424); and so far as I am aware this is the first time that the Governor’s power to sanction a partial acquisition has been challenged.

(4) Having regard to the general scheme of Cap. 233 (supra) on reading section 7 (1) it seems to me that, so long as adequate compensation is secured to the landowner, the Governor is intended to be the judge of how much of the land, originally included in the notice under section 6, should be taken. I am of the view that the power conferred on the Governor to sanction the acquisition of “the land in question” is a power not only to approve the acquisition of the whole plot or plots originally included in the notice under section 6, but also [*199] to approve the acquisition of a portion of such plot or plots, namely, to approve the original plans, with or without modifications, “having regard to all the circumstances of the case” that is after, inter alia, considering the objections made by the owners along with the recommendations and plans or particulars submitted by the District Commissioner; and that there is no necessity to give a fresh notice under section 6.

(5) It seems to me that in this particular case the Governor took into serious consideration the appellants’ objections and, instead of exempting from the acquisition about one fourth of their property as requested by them he exempted from the acquisition about four-fifths of the property and followed more or less their proposal with regard to the continuation of the road as stated in their objection. In the result the Governor, at the appellants’ request, made concession to them which was to their advantage and not to their prejudice.

(6) In the circumstances of this case I do not think that the acquisition is either ultra vires or illegal. On the contrary I consider that the acquisition is a valid one made in accordance with the provisions of the Law and to the benefit of the appellants, having regard to their proposals.

(7) As regards the appellants’ second claim, that is to say, the delay of about two years from the date of the publication of the notice under section 6 (November 25th 1954) to the date of the notification of the Governor’s sanction under section 7 (November, 22nd, 1956), there is nothing in the Law to support the appellants’ argument that this vitiates the original notice under section 6. It is true that it is the duty of the authority concerned to proceed within a reasonable time with the sanctioning of the acquisition, as the value of the land is assessed to be the market value as on the date of the notice under section 6 of the Law; and, normally, a period of two years (November, 1954-November, 1956) would prima fade appear to be an unduly long time. But those were not normal times in Cyprus because it is now a matter of history that the struggle for the independence of Cyprus began on the 1st April, 1955, i.e. four months after the publication of the notice under section 6.

(8) An acquiring authority has a duty to proceed to acquire the land within a reasonable time, which is a question of fact in each case ; and mere delay might defeat their right to enforce the notice. But the delay attributable to the authority in [*200] this case is insufficient to deprive them of their legal rights. It was recently held in England that, in the absence of any challenge to the bona fides of the authority’s intention to acquire the land for the stated purpose under the Law there was no equitable right to relief and the Court had no jurisdiction to interfere with the legal right to enforce the notice on the ground of changed circumstances (Hendon Corporation v. Simpson’s Motor Sales (London) Ltd. (1963) Ch. 57, C.A. upheld on appeal to the House of Lords: “The Times” 1963, May 7th). In the circumstances of this case I would not be prepared to hold that the notice under section 6 has been vitiated or rendered ineffective by reason of laches or otherwise.

In any event, this question will not arise in future cases as, fortunately, the legislature has now made express provision in the new Compulsory Acquisition of Property Law (15 of 1962) enacted in March, 1962.

For these reasons I would dismiss the appeal with costs.

Appeal allowed and a declaration

granted that the acquisition of the

property is ultra vires with costs

throughout.

Cases referred to:

Tawney v. The Lynn and Ely Railway Company (1847) 16 L.J. Ch. 282;

Attorney-General for Canada and Another v. Hallet and Carey Limited (decided in the Privy Council-Times Law Reports (1952) Part 1 page 1408);

In the matter of an Application by Vassos Papadopoulos and Others v. The Commissioner of Limassol (1956) 21 C.L.R. 193, at p. 199;

Stockton and Darlington Railway Co. v. Brown (1860) 9 H.L.C. 246;

London and North Western Railway v. Westminster Corpora- lion (1904) 1 Ch. 759 at p. 766);

Hendon Corporation v. Simpson’s Motor Sales (London) Ltd. (1963) Ch. 57, C.A., upheld on appeal to the House of Lords : “The Times” May 7th, 1963. [*201]

Appeal.

Appeal against the judgment of the District Court of Famagusta (Attalides P.D.C. and Loizou D.J.) dated the 10.10.62 (Action No. 368/59) dismissing plaintiffs’ claim for a declaration that the acquisition of their property situated at Karaolos, Ayios Loucas Quarter, Famagusta, Block “C” plot 182 is ultra vires and illegal.

J. Kaniklides for the appellants.

A. E. Munir, for the respondent.

Cur. adv. vult.

The facts sufficiently appear in the judgments which follow.

WILSON, P.: I concur in the decision arrived at by Mr. Justice Vassiliades but for different reasons.

I will consider briefly the powers of the Governor, the general principle to be applied in interpreting the Law, the general scheme of the Land Acquisition Law. Counsel for the Attorney-General did not submit any authorities in support of his argument that the expropriation was valid. There was no evidence with respect to the powers of the Governor. I conclude, therefore, that he was not a general representative of the Sovereign (Craies on Statute Law, 5th ed. (1952) p. 390), and that he could only exercise such powers as were given to him by the Land Acquisition Law.

The general approach to the interpretation of this statute is that it should be strictly construed against the expropriating authority because it encroaches upon the subject’s Common Law right of ownership. Maxwell on Interpretation, of Statutes, 10th edition, pages 285 and 286.

In England under ‘the Lands Clauses Consolidation Act (1845) 8 Vict. C.11 and amending Acts there was “nothing to prevent the promoters giving to the same owner more than one notice to treat for lands required by them; but any lands comprised in a notice to treat are so far bound, and unless such notice is validly withdrawn no subsequent notice can, in respect of such’ lands, have any effect on the relationship between the promoters and the owner which such first notice to treat has created. A subsequent notice to treat may increase, but may not diminish the quantity of lands proposed to be taken.” Cripps Compulsory [*202] Acquisition of Land 10th ed. 2-031. In Tawney v. The Lynn and Ely Railway Company (1847) 16 L.J. Ch. 282 a case where the railway compnay had served a second notice requiring less land than was required under the preceding notice, it was held at p. 283 “… it appears to me that they had no power to give up that notice (the first): the consequence would be, that from month to month the Company, acting under the influence of this principle, might choose to vary their plans, and give varying notices, so that the owner of the land could never know what to do with his property.”

The statement of general principle, has been referred to in Cyprus. Although perhaps not strictly necessary in arriving at the Court’s decision in Attorney-General for Canada and Another v. Hallet and Carey Limited (decided in the Privy Council-Times Law Reports (1952) Part 1 page 1408) it was quoted by Zekia, J. in “In the matter of an Application by Vassos Papadopoulos and Others v. The Commissioner of Limassol” (1956) 21 C.L.R. 193 at p. 199 et seq. (per Lord Radcliffe) “It is fair to say that there is a well-known general principle that statutes which encroach upon the rights of the subject, whether as regards person or property, are subject to a strict construction. Most statutes can be shown to achieve such an encroachment in some form or another, and the general principle means no more than that, where the import of some enactment is inconclusive or ambiguous, the Court may properly lean in favour of an interpretation that leaves private rights undisturbed.”

A strict interpretation of the Land Acquisition Law is even more necessary because the land owner has no right to serve a counter notice and the Governor was not required to act promptly. The latter might, as he did in this case, delay for a long period in ascertaining how much land would be required. The fact that the owner will probably profit from such delay is, in. my opinion, not relevant. He might have suffered a loss. As stated by Mr. Justice Josephides expropriating authorities should act promptly.

I come now to consider the Land Acquisition Law.

It is important to note that in all the relevant sections no express power is given to the Governor to confirm either with or without modification, the recommendation of the Director of Public Works (s.5) or the recommendation of the Commissioner (s.6.). It would seem reasonable that he should have power but the scheme of the Act as I read it and the language used, do not give him such Authority. [*203] It will be noted that once he has authorised, under section 3, the carrying out of an undertaking, by section 4, he is authorized to pay for all damage done during the preliminary investigation of the site. If any changes in the area to be acquired are to be made it is at this stage that the decision must be made. After the investigation has been completed, the Director of Public Works, or other officer entrusted by the Governor with the supervision of the undertaking and so authorized, is required to recommend land actuall) to be acquired. He then forwards his recommendations to the Commissioner together with a plan or. particulars of the land to be acquired. The Commissioner in turn publishes a notice in the Gazette, in the prescribed form, and posts such notices at convenient places on or near the land to be acquired (s.6). In the notices is given a description of the lands to be taken and there is also a provision that the Governor is willing to treat for their acquisition. (This latter method of acquiring property is not relevant to the present action). The notices required persons having objections to forward them to the Commissioner, who is required to forward to the Governor the recommendations of the Director of Public Works and any plans or particulars together with the objections made, if any. The next important section is s. 7, which requires the Governor if he approves “the plan” or particulars submitted and considers it expedient having regard to all the, circumstances of the case that “the land” in question shall be acquired, he may by notification in the Gazette sanction the acquisition of “the land”; and thereupon “the land” is acquired and compensation is to be awarded.

Under s 8 after the Governor has notified his sanction to the acquisition of any land the land shall thereupon vest absolutely in the Government, or Government agency, s. 5 Law 26 of 1952. The word “any” does not modify my conclusions.

That the construction I have placed upon the statute is the correct one is reinforced by the provisions of section 19 (s.10 Law 26, 1952) which authorises the sale and disposition of any land which is found to be in excess of the extent actually required or to be no longer required for purposes for which it has been acquired....”

In the present case the notice of sanction clearly excludes a finding there was an agreement between the Governor and the appellants. [*204]

Notice of sanction as set out in the judgment of Mr. Justice Josephides says “and whereas the Governor has approved the plan and particulars submitted, and has considered it expedient, having regard to all the circumstances of the case, that only that part of the lands described in the schedule hereto shall be acquired:

Now, therefore, in the exercise of the powers vested in him by section 7 of the Land Acquisition Law, the Governor hereby sanctions that part of the lands described in the schedule hereto.”

The real difficulty is that the Law did not give him power to take only part of the lands shown on the plan. He was limited to approving “the plan” submitted to him or rejecting it.

I respectfully agree with the decision in Stockton and Darlington Railway Co. v. Brown (1860) 9 H.L.C. 246 but in my view it decides only that the expropriating authority in the Judge, within reason, of the quantity of land to be acquired. As applied to the present case it decides the expropriating authority is to determine how much land is to be acquired before the notice of intention to acquire is given, but having reached this conclusion it must act in accordance with the terms of the statute. The proper procedure, cumbersome and perhaps expensive, would have been to withdraw “the plan” and begin again with the publication of a new notice of intention to acquire lands.

I would allow the appeal and grant the plaintiffs the declaration claimed in part (a) of the claim.

They should have their costs throughout.

ZEKIA, J: I am in agreement with the judgment to be delivered by Mr. Justice Josephides.

VASSILIADES, J: The appellants in this case, took proceedings in the form of an action, in the District Court of Famagusta, in March, 1959, against the Colonial Government of Cyprus through the Attorney-General, for a judicial declaration that the compulsory acquisition of certain land belonging to the appellants in the vicinity of Famagusta harbour, was ultra vires and illegal. The required fiat, signed by the Governor, in July 1958, was duly endorsed on the writ, at the foot of which, the value of the property affected, was stated to be £38,000. [*205]

The action was presumably the result of failure to reach agreement between Government and the appellants, regarding the acquisition in question, commenced in 1954 and purporting to have bee affected in 1956, which had not yet been brought to a finality in March, 1959, when the action was filed. Discussions appear to have continued even after action; the statement of claim was not filed until June, 1959, and the defence until the following October.

About a year later, on 23rd December, 1960, matters were still being discussed between the parties, as counsel for the defendant obtained an adjournment of the trial, with the other side’s consent, in order “to ask the Chief Land & Survey Officer what offer should be made with a view to settlement”.

In the meantime, on 16th August 1960, Cyprus became an Independent Republic with a written Constitution, which became its supreme Law (Art. 179) to the provisions and requirements of which, all other law had to be adapted as required by Article 188, when it came to be construed and applied by the Courts. Moreover the Court before which appellants’ proceedings were pending, preserved in existence until the 16th of December, 1960 (Article 190) was replaced by the corresponding Court of the Republic, under the new Courts of Justice Law, 1960. And the proceeding itself was kept in life under Article 191, with the Republic and its corresponding officer substituted as a party.

It was in these circumstances that the action came on for hearing in March, 1962, when counsel for the defendant again applied for “an adjournment with a view to settlement” granted-(with costs for the other side, on this occasion)-until the 25th May, 1962, when the action was eventually tried.

I made reference to this history of the proceedings, in order to show that during all these years, there was an outstanding dispute between the parties, of considerable value, which called for a settlement or a judicial decision. It was not the case of a frivolous or an unreasonable claim.

In the course of the trial, and while one of the appellants was giving evidence, certain admissions were made by counsel for the defendant, followed by the other side, with a view to shortening the proceedings and confining the dispute upon its legal issue. As recorded in the judgment of the trial Court, the part of the admissions on behalf of the defendant covered the substantial part of the statement of [*206] claim, and “what was left to be decided, were the legal points raised”. But in stating the legal points in the way they did, I am afraid, the trial Court missed the essence of the claim.

The main point, they say in their judgment at p. 19 of the record, was whether-

“the sanction of the acquisition of a lesser part of the property for which a notice to treat was published in Notification No. 675 in the official Gazette, dated 25.11.1954 was, rendered void by the fact that the sanction was not in respect of the whole property mentioned in the notice to treat.”

While the main part of the claim, as endorsed on the writ, and as put in the prayer at the end of the statement of claim is for:-

“(a) a declaration that the acquisition of the property... is ultra vires and/or illegal.”

(b) a declaration that the original (25th November, 1954) notice to treat, Notification No. 675, is vitiated and rendered ineffective through the Acquiring Authority’s laches and/or irregularities.”

A mere comparison of the two will show that the claim covers a much wider scope than the point stated in the judgment. And, moreover that the latter confined in the allegations in paragraphs 2 and 3 of the statement of claim, ignores the rest of appellants’ pleading, substantially admitted, which sets out additional irregularities or reasons for which the declarations in the statement of claim are being sought by the action.

“We agree with the learned counsel for the plaintiffs, (the trial Court say in their judgment), that a notice to treat is binding on the acquiring Authority and cannot be withdrawn nor can it be rescinded by them in order to give another applying to a smaller quantity of the same land, see Cripps on Compulsory Acquisition of Land, 10th Ed. paras. 2-060 page 2051, but in the present case no such effort has been made by the acquiring Authority; what happened was that the Governor under section 7 of Cap. 226, sanctioned the acquisition of that part only which in his opinion was considered by him expedient to approve.

………………………………………………………………………………………[*207]

We cannot hold as correct the view that powers of the Governor under section 7 were limited to either approve or dismiss the acquisition of the whole property described in the notice to treat.

For the above reasons we dismiss the action and we make no order as to costs.”

Thus deciding in the negative the main legal point as they framed it in their judgment, the District Court dismissed the claim.

Against this judgment, the appellants took the present appeal upon a number of grounds to which I need not specifically refer. They may be summed up in three:-

1. That the trial Court did not correctly construe or apply the Land Acquisition Law;

2. That they acted against the weight of evidence, and the agreed facts; and

3. That they failed to deal with the whole of the claim in the action.

Learned counsel for the Government on the other hand, submitted that the case turned on the question whether the Governor in 1956, could sanction under section 7 of the Land Acquisition Law, the acquisition of part only of the property described in the notice to treat published under section 6. And in this connection, counsel submitted that under our Law, a notice to treat does not stand in the same position, and does not have the same effect, as a notice to treat under the parallel English statute. The Governor’s sanction under section 7 is nearer, counsel submitted, to the English notice to treat; and English cases should be considered in that light. Although the Cyprus statute does not expressly give power to the Governor to sanction the acquisition of part of the property in the notice, such power must be implied, counsel argued.

The case, in my opinion, turns on the question whether the Governor, in making the acquisition order of the 19th November, 1956, published under No. 1119 in Supplement No. 3 of the official Gazette No. 4000 of the 22nd November, 1956, was acting within the powers vested in him by section 7 of the Land Acquisition Law (Cap. 226) or he was acting ultra vires as claimed by the plaintiffs. [*208]

The order itself, after making reference to the notice published two years earlier under section 6 (describing the property affected by that notice) declares that-

“whereas the Governor has approved the plan and particulars submitted, and has considered it expedient, having regard to all the circumstances of the case, that only that part of the lands described in the schedule hereto, should be acquired, proceeds to sanction the acquisition of such part only in exercise of the powers vested in him by section 7...”

We have it as a fact in this case, that that was a part of 15½ donums and 2,500 sq. ft. out of a total of 72 donums and 3,000 sq. ft. of land affected by the notice published under section 6 in November 1954.

I approach the question whether the Order expropriating the plaintiffs from their property was “intra” or “ultra” the powers of the Governor under section 7, starting from the premises that property rights in this country, are legal rights, the importance of which I need not emphasise here. They rest under our law upon statutory provisions, which codified long-existing and deep-rooted principles and they are entitled to full legal protection. No violation or interference with such rights should be attempted or permitted, in my view, unless clearly and expressly authorised by law. And in this case, I think, it is obvious that the Governor would not have made the Order complained of, unless he was advised that he was authorised and empowered to do so by section 7 of the Land Acquisition Law as in force at the time.

But section 7 must, be read and applied as part of the whole statute in which it is found. When the section provides that “ the land in question shall be acquired”, it clearly and unequivocably refers to the land to which sections 3 and 4 had been applied: property entered upon and surveyed by the appropriate officers of the Acquiring Authority, in order to make sure that the “land is needed” for the particular “undertaking of public utility;” property in respect of which “the Director of Public Works or other person entrusted “by the Governor with the supervision” of the undertaking, has made his recommendations under section 5, by virtue of which the Commissioner was required to publish the notice under section 6, usually described as a notice to treat; [*209]

In this case an official notice under. sections 2, 3 and 5 dated the 24th November, 1954, was published in the Gazette of the following day (25th November) No. 3792 under notification No. 665; and a further notice was published in Gazette 3793 under notification No. 675 as a notice under section 6 which, making reference to the previous notice, went on to say that the whole of the land of the plaintiffs, described therein, was “required by the Governor for the undertaking of public utility” in question. All these were undoubtedly steps taken to satisfy the requirements of the statute regarding the legality of the proposed acquisition.

Any person claiming to have any right or interest in the said lands, was required by the latter notice to send to the Commissioner evidence of such right or interest within six weeks. And was further informed that “the Governor is willing to treat for the acquisition of the said lands.” A plan showing the property was made available and apparently negotiations and discussions followed between the plaintiffs and the Government for the next two years, without resulting to a conclusion.

It was in these circumstances, according to the pleadings and the admissions made in the course of the trial, that the Governor made and published the acquisition order in November, 1956, covering about 15 out of the original 72 or so, donums of land, without informing the plaintiffs of his intention to do so, and without affording to them the opportunity to discuss or “treat” with him on the altered plans.

The provisions of sections 8, 9 and 13 of the Statute point, in my opinion, to the direction that section 7 was not intended to give to the Governor the power to do what was done under that section in the present case. But in any case, as I said earlier in this judgment, I am inclined to the view that in the present state of our law, nothing short of clearly expressed statutory provisions, authorising any interference with property-rights, should be considered sufficient to override an onwer’s legal right to his property especially so when the interference comes from the State on which the citizen relies for the protection of his legal rights.

The plaintiffs in this case filed their action in March, 1959. It was pending before the appropriate Court in August, 1960, when the Republic was established under its written constitution, to the relevant provisions of which I have already referred in the first part of this judgment. [*210]

In 1962 when the action was tried and determined, Art. 23 of the Constitution was part, of the “supreme law” of the Republic (Art. 179) which its Courts had to consider and apply accordingly. It provides that “every person… has the right to acquire, own, possess, enjoy or dispose of any.... immovable property and has the right to respect for such right”. This article is found in Part II of ‘the Constitution dealing with “Fundamental Rights and Liberties”, and must be considered as such. Article 188 in the Part containing the transitional provisions of the Constitution, requires that Laws such as the statute under consideration (Cap. 226) preserved in force in the Republic, “shall be construed and applied with such modification as may be necessary to bring them into conformity” with the Constitution. Section 7 of the Land Acquisition Law does not seem to require any such modification when applied to the facts of this case; but must, in my opinion, be construed and enforced strictly, with full regard to the owner’s rights.

Applying strictly the provisions of section 7, as I think the Court must do having regard to the nature of the statute, I would not be inclined to read in the section powers which are not clearly and expressly there, such as the power in the Governor to sanction the compulsory acquisition of part of the property only (which may well be only a small part of the whole) and thus effect an expropriation substantially different from that originally decided upon and dealt with under the previous sections.

In my judgment the acquisition order made on the 22nd November; 1956, was made ultra vires. I would allow the appeal and grant the plaintiffs a declaration as claimed in part (a) of the claim, which sufficiently disposes of the whole action.

JOSEPHIDES, J.: The appellants in this validity of the compulsory acquisition of the Governor of Cyprus in 1956. case challenge the their land made by the Governor of Cyprus in 1956.

On the 25th November, 1954, a notice was published in the Cyprus. Gazette (Notice No. 665) under the provisions of sections 2, 3 and 5 of the Land Acquisition Law (Cap. 233 and Law 26 of 1952). In that notice it was stated that it had been represented to the Governor that it was desirable in the public interest to carry out extensions and improvements of the Famagusta Port and to provide for the development thereof; and that in exercise of the powers vested [*211] in him, under the aforesaid sections, the Governor declared the carrying out of the improvement and development of the Famagusta Port to be an undertaking of public utility and authorised the carrying out of the said undertaking and entrusted its supervision and effectuation to the Director of Public Works.

In the same issue of the Gazette a notice under section 6 of the above Law was published by the Commissioner of Famagusta (Notification No. 675), in which it was stated that the lands required by the Government for the aforesaid undertaking of public utitiliy were “all the privately-owned lands situated within the area represented by the area edged red on the Government Survey Plan signed by the Director of Public Works and dated the 25th November, 1954, which area is situated within the limits of Famagusta town and is bounded approximately by the Karaolos Camp to the north, the sea to the east, the ancient monument, known as the ‘Glacis’, to the south and the Famagusta-Salamis road to the west”. It was further stated in the notice that any person claiming to have any right or interest in the said lands who objected to the acquisition was required, within six weeks form the date of the publication of the notice, to send to the Commissioner of Famagusta a statement of his right and interest and of the evidence thereof, and of any claim made by him in respect of such right or interest. Finally, it was stated that the Governor was willing to treat for the acquisition of the said lands and that a plan showing the lands described in the notice was available for inspection at the Commissioner’s Office.

The aforesaid plan, dated the 25th November, 1954, included a plot of land, 72 donums and 3,000 square feet in extent, under plot 182, Block C, Ayios Loukas Quarter, Famagusta, owned by the three appellants in undivided shares.

The appellants submitted to the District Commissioner their objection to the acquisition of the aforesaid plot on the 20th December, 1954 (copy of which was put in. evidence as exhibit 2). In their objection the appellants, who stated that they were land developers and that they were making arrangements to have the land divided into building plots, complained that “although the straight line along” the main road to Karaolos which “is the natural demarcation line is followed, when the line approaches our property it is, in our opinion, most unnecessarily strayed off the straight line thus making a bend purposely in [*212] order to cover the whole of our property and to exclude Mrs. Young’s property which is adjoining our own”. They further stated, that as considerable other land belonging to them was being acquired they felt justified in asking that the whole plot in question should be exempted and they prayed that, if this were found absolutely impossible, for the sake of justice and so that they should not be thrown out of business and run into debt by the acquisition, “the demarcation line should be as in accordance with the attached plan, thus following a straight line from Salamis’ road on to Karaolos’ road up to the seashore so that we are left with at least a portion of this most valuable property for us”. And their objection concluded as follows: “We earnestly believe, however, that you will see your way to drawing a straight line along Karaolos road, as was most natural to be done and leave one part of our property, if not all, for our own use. We hope that you will take our above suggestions into serious consideration and accede to our request”.

It is very unfortunate that the plan referred to in the objection was not put in, evidence at the trial and that it could not be traced either in the records’ of the District officer or the Ministry of Communications and Works, although considerable time was given by this Court to counsel for the Attorney-General to produce it.

In the absence of such a plan before me I have tried by the description in the appellants’ objection to ascertain, a far as it was possible in the circumstances, the portion of the land which the appellants requested the Commissioner to exclude from the land proposed to be acquired. What they asked was that a straight line should be drawn from Salamis road on to Karaolos road up to the seashore. If one does draw that line the result is that about one-fourth of the original 72 donums of the plot would be left to the appellants, i.e. excluded from the acquisition.

The District Commissioner forwarded to the Governor the required recommendations, plan and particulars, together with the objections made, and on the 22nd November, 1956, a notice under section 7 of the Land Acquisition Law (Cap. 233 and Laws 26 of 1952 and 22 of 1956) was published in the Gazette under Notification No. 1-119. In the notice reference was made to the two previous notifications made in 1954 (Nos. 665 and 675), and to the [*213] submission by the Commissioner of the aforesaid recommendations, plan, particulars and objections, and it was then stated:-

“And whereas the Governor has approved the plan and particulars submitted, and has considered it expedient, having regard to all the circumstances of the case, that only that part of the lands described in the Schedule hereto shall be acquired:

Now, therefore, in exercise of the powers vested in him by section 7 of the Land Acquisition Law, the Governor hereby sanctions the acquisition of that part of the lands described in the Schedule hereto.”

The Schedule to the notice reads as follows:

“All those areas of privately owned lands, with everything standing thereon, situated at Ayios Loucas Quarter, Famagusta Town, comprising 142 donums, two evleks and 1,200 square feet or thereabouts, and including parts of plots Nos. 182, 30, 685, 54, 53, 51, 50, 49 ‘and 55 and the whole of plots Nos. 34, 35, 36, 231 and 353 of Block C, more particularly defined as the areas coloured red and green on the plan marked ‘Improvement of Famagusta Port’ and dated the 17th November, 1956, deposited in the office of the Commissioner of Famagusta.”

It will be noticed that the total area of the land acquired is 142 donums, two evleks, and 1,200 square feet and that it consists of parts of 9 plots and the whole of another 5 plots. Part of plot No. 182 is the appellants’ property in question.

Before the Governor’s sanction under section 7 was published in the Gazette, no fresh notice under section 6 was published in respect of the part of the appellants’ property acquired, or indeed of any other part of the other 8 plots partially acquired, apart from the original notice under section 6 published in 1954.

As the parties did not agree on the amount of compensation payable, a reference was filed with the Compensation Assessment Tribunal for the assessment of the compensation. While those proceedings were pending the appellants applied to the Governor and obtained his fiat on the 18th [*214] July, 1958, to institute the present proceedings against the Attorney-General claiming a declaration-

“(a) that the acquisition of their property situate in Karaolos District, Ayios Loucas Quarter, Block C, Plot 182 (now 719 and 720) is ultra vires and illegal; and

(b) that the original (23rd November, 1954) notice to treat, notification No. 675, is vitiated and rendered ineffective through the Acquiring Authority’s laches and/or irregularities.”

This action was filed with the District Court of Famagusta eight months later, i.e. or the 19th March, 1959. The statement of claim was filed on the 11th June, 1959, and the statement of defence on the 1st October, 1959.

By their statement of claim the appellants extended their claim and included a prayer for a declaration “that on the true construction of the first proviso to paragraph (b) of section 11 of the Land Acquisition Law, Cap. 233 and under the special circumstances of this case, the value of the land purported to have been acquired should be estimated at the value prevailing on the date of sanctioning, i. e. the 22nd November, 1956.” There was also a claim for £3,400 damages in the alternative which was abandoned at the hearing.

The pleadings were closed in October, 1959, but the case was first fixed for hearing after Independence Day, i.e. in December, 1960. At the request of the parties the case was adjourned twice in view of settlement, and it was eventually heard by the Full District Court of Famagusta on the 25th May, 1962, and judgment, dismissing the appellants’ claim, was delivered on the 10th October, 1962.

As already stated the area of the appellants’ plot was 72 donums and 3,000 square ft. and what was eventually acquired was 15 donums, 2 evleks and 2,500 square feet, that is, a little more than one-fifth of the property was acquired, and the remaining 56½ donums left to the appellants.

On appeal before us it was argued that the acquisition was ultra vires and illegal because only part of the original property included in the notice under section 6 was acquired and that there was a failure on the part of the acquiring authority to give a new notice under section 6 in respect [*215] of the portion acquired. It was further argued that the original notice under section 6 was vitiated through the acquiring authority’s unreasonable delay in sanctioning the acquisition, that is to say, a delay of about two years. It was stressed that although there was no express provision in the Law as to the time within which the Governor’s sanction should be published, it was implied in the law itself that there should be no delay in view of the provisions of section 11(b) of the Land Acquisition Law, Cap. 233, whereby the compensation payable is based on the market value of the property acquired as at the date of the publication of the notice under section 6 of the Law.

In order to consider whether the Governor’s sanction was a valid one or not it is necessary to examine what were the provisions of the Land Acquisition Law, Cap. 233 (1949 edition-as amended in 1952 and 1956) which was in force at the time when the notice under section 6 and the Governor’s sanction, under section 7, were published.

Under the provisions of section 3 of the Law, where any land was needed for any undertaking of public utility, the Governor was empowered, by notification in the Gazette, to authorize the carrying out of the undertaking under the provisions of the Law; and, from and after the publication of the aforesaid notification the Director of Public Works or other officer entrusted by the Governor with the supervision of any undertaking so authorised might recommend that any land be acquired for the purpose of carrying out the undertaking. It was further provided that on any such recommendation the officer by whom it was made should forward to the District Commissioner a copy of the recommendation together with a plan or particulars of the land to be acquired. (section 5).

Under the provisions of section 6, the Commissioner, before. submitting the recommendations and plans or particulars for the consideration of the Governor had to cause a public notice to be published in the Gazette and also to be posted at convenient places on or near the land to be acquired. The form of the notice was given in the Schedule to the Law. Inter alia it stated that any, person claiming to have any right or interest in the land to be acquired, who objected to the acquisition, was required within six weeks from the date of the notice to send to the District Commissioner a statement of his right and interest and of the evidence thereof, and of any claim made by him in respect of such right and interest. The notice [*216] further stated that the Governor was willing to treat for the acquisition of the said land and that a plan showing the land acquired was available for inspection at a place to be stated. Section 6 further provided that at the expiration of the period set out in the notice the Commissioner shall forward to the Governor “the recommendations and plans or particulars, together with the objections made, if any”.

Section 7 (1) reads as follows:

“If the Governor approves the plan or particulars submitted and considers it expedient, having regard to all the circumstances of the case, that the land in question shall be acquired, he may by notification in the Gazette sanction the acquisition of the land and thereupon the land may be acquired and compensation… may be awarded for its acquisition in manner hereinafter provided.”

Under the provisions of section 8 “when the Governor has notified his sanction to the acquisition of any land, the land shall thereupon vest absolutely” in the Government or other Authority; and the notification of such sanction “shall be sufficient authority to the Director of Land Registration to cause amendments of registration to be affected in accordance with the plan and particulars so approved by the Governor”.

The appellants’ argument is that as notice was given under section 6 that the appellants’ plot, 72 donums in extent, would be acquired and that eventually only a portion of it (15 1/2 donums) was acquired, this was beyond the Governor’s power under section 7 of the Law. The appellants’ submission is that the Governor could either approve the acquisition of the whole plot or nothing and that he had no power to sanction a partial acquisition of the plot If it was the Governor’s intention to acquire portion of the original plot then a fresh notice under section 6 ought to have been given to the land-owners, and as this was not done, it is submitted that the acquisition is illegal.

In this case it seems from the appellants’ objection to the District Commissioner that they asked that about one-fourth of their property should be exempted from the acquisition. In fact, the Governor exempted about four-fifths of their property and it seems that lie accepted their objection with regard to the space of land which they required [*217] to be exempted, i.e. the north part of their plot. As copies of the plans put in as exhibits show, what was acquired was a strip of land along the seashore and a narrow strip leading from the Karaolos road on the northwest side of the plot to the seashore. This latter narrow strip has since been made into a public road, on the north side of which the appellants have now developed part of their land into 34 building sites abutting on the road; and these sites are only one-third of the property left to them. This shows that the appellants have been benefited, and not prejudiced, by the partial acquisition of their plot because the strip of land, which has been turned into a wide public road by the acquiring authority, has given the opportunity to the appellants to develop their property. In the result it seems that the acquiring authority acquired much less land than originally proposed by the appellants themselves in their objection.

As to the question of the shape of the remaining part of the plot which has not been acquired, if the appellants are in any way prejudiced by such shape there is provision in the Law empowering the competent Court to award additional compensation in respect of damage, if any, sustained by the appellants by reason of the severance of the land acquired from other land belonging to them or other injurious effect on such other land (section 11(f) of the Land Acquisition Law, Cap. 233).

It is, I think, clear that a notice under section 6 of our Law (Cap. 233) does not correspond to, or have the same effect as, the “notice to treat” under the English Lands Clauses Consolidation Act, 1845. Consequently, the provisions of the English Act on this point and the case of Tawney v. The Lynn and Ely Railway Company (1847), 16 L.J.Ch. 282, cited in support of the appellants’ argument, are inapplicable to the present case.

In dealing with the question of the construction to be put on legislative powers of compulsory acquisition Lord Cranworth in Stockton and Darlington Ry. Co. v. Brown (1860) 9 H.L. Cas. 246, at page 256 (cited by Vaugham Williams, L.J. in London and North Western Railway v. Westminster Corporation (1904 1 Ch. 759 at p. 766) said:

“Some general propositions admit of no doubt. In the first place, I think it clear that when the Legislature authorizes railway directors to take, for the purposes of their undertaking, any lands specially described in their Act, it constitutes them the sole judges as [*218] to whether they will or will not take those lands provided only that they take them bona fide with the object of using them for the purposes authorized by the Legislature, and not for any sinister or collateral purpose. This is the construction to be put on all such legislative powers, whether the language of the Act is that the company may take so much of the lands as is necessary for the undertaking, or so much as is required or is expedient to be taken, or simply (as in this case) that the company may take lands for the purposes of the undertaking. In such cases the Legislature, having provided what it considers sufficient means for securing adequate compensation to the owners of the land, leaves it to those interested in the undertaking to say to what extent it will be useful to them to exercise their statutable powers.”

Naturally, Lord Cranworth in laying down those general propositions had in mind the language of the English Acts, but his opinion is, I think, helpful in a general way in construing legislative powers of compulsory acquisition. In the present case we are concerned with the construction of section 7 (1) of the Land Acquisition Law, Cap. 233 (already quoted), having regard to the object of the legislature in enacting that statute. In interpreting that section it should be borne in mind (though that would not be conclusive) that that Law was enacted over sixty years ago (in 1899), and that in the past the Governor had sanctioned a partial acquisition of a plot originally included in the notice under section 6: see e.g. the Governor’s sanction for, the Famagusta Cantonment in August, 1955 (Not. 507 in the Gazette of 30th August, 1955, page 499) and the sanction for Trunk Road “A”, Nicosia, in June 1956 (Not. 475 in the Gazette of 7th June, 1956, page 424); and so far as I am aware this is the first time that the Governor’s power to sanction a partial acquisition has been challenged.

Having regard to the general scheme of Cap. 233, on reading section 7 (1) it seems to me that, so long as adequate compensation is secured to the landowner, the Governor is intended to be the judge of how much of the land, originally included in the notice under section 6, should be taken. I am of the view that the power conferred on the Governor to sanction the acquisition of “the land in question” is a power not only to approve the acquisition of the whole plot or plots originally included in the notice under section 6, but also to approve the acquisition of a’ portion of such plot or plots, namely, to approve the original [*219] plans, with or without modifications, having regard to all the circumstances of the case“, that is after, inter alia, considering the, objections made by the owners along with the recommendations and plans or particulars submitted by the District Commissioner and that there is no necessity to give a fresh notice under section 6.

It seems to me that in this particular case the Governor took into serious consideration the appellants’ objections and, instead of exempting from the acquisition about one-fourth of their property as requested by them he exempted from the acquisition about four-fifths of the property and followed more or less their proposal with regard to the continuation of the road as stated in their objection. In the result the Governor, at the appellants’ request, made a concession to them which was to their advantage and not to their prejudice.

In the circumstances of this case I do not think that the acquisition is either ultra vires or illegal. On the contrary I consider that the acquisition is a valid one made in accordance with the provisions of the Law and to the benefit of the appellants, having regard to their proposals.

As regards the appellants’ second claim, that is to say, the delay of about two years from the date of the publication of the notice under section 6 (November 25th, 1954) to the date of the notification of the Governor’s, sanction under section 7 (November 22nd, 1956), there is nothing in the Law to support the appellants’ argument that this vitiates the original notice under section 6. It is true that it is the duty of the authority concerned to proceed within a reasonable time with the sanctioning of the acquisition, as the value of the land is assessed to be the market value as on the date of the notice under section 6 of the Law; and, normally, a period of two years (November 1954-November 1956) would prima fade appear to be an unduly long time. But those were not normal times in Cyprus because it is now a matter of history that the struggle for the independence of Cyprus began on the 1st April, 1955, i.e. four months after the publication of the notice under section 6.

An acquiring authority has a duty to proceed to acquire the land within a reasonable time, which is a question of fact in each case; and mere delay might defeat their right to enforce the notice. But the delay attributable to the authority in this case is insufficient to deprive them [*220] of their legal rights. It was recently held in England that, in the absence of any challenge to the bona fides of the authority’s intention to acquire the land for the stated purpose under the Law, there was no equitable right to relief and the Court had no jurisdiction to interfere, with the legal right to enforce the notice on the ground of changed circumstances (Hendon Corporation v. Simpson’s Motor Sales (London) Ltd. (1963) Ch. 57, C.A., upheld on appeal to the House of Lords: “The Times“ (1963) May 7th). In the circumstances of this case I would not be prepared to hold that the notice under section 6 has been vitiated rendered ineffective by reason of laches or otherwise.

In any event, this question will not arise in future cases as, fortunately, the legislature has now made express provision in the new Compulsory Acquisition of Property Law (15 of 1962) enacted in March, 1962.

Finally, with regard to the appellants’ claim that on the true construction of the first proviso to paragraph (b) of section 11 of the Land Acquisition Law, Cap. 233, and under the special circumstances of this case, the value of the land acquired should be estimated at the value prevailing on the date of the sanctioning (November, 1956), and not on the date of the notice under section 6 (November,’ 1954), I am in agreement with the trial Court that the question of the assessment of the compensation and any matter arising there from is a matter to be decided by the tribunal which is to assess the amount of compensation payable to the appellants, in this case, the District Court of Famagusta, in accordance with the rules of assessment provided in the Land Acquisition Law in force at the time when the acquisition was made (see Law 15 of 1962).

For these reasons I would dismiss the appeal with costs.

WILSON, P. : In the result the appeal is allowed with costs throughout ; plaintiffs granted a declaration as claimed in part (a) of the statement of claim.

Appeal allowed.

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