Cylaw

COSTAS KALISPERAS AND ANOTHER ν. REPUBLIC (COUNCIL OF MINISTERS AND ANOTHER) (1973) 3 CLR 109 THE CYPRUS LAW REPORTS

(1973) 3 CLR 109

1973 March 2

[*109]

[L. LOIZOU, J.]

IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION

COSTAS KALISPERAS AND ANOTHER,

Applican’s,

and

THE REPUBLIC OF CYPRUS, THROUGH

THE COUNCIL OF MINISTERS AND ANOTHER,

Respondents.

(Case No. 375/69).

Compulsory acquisition of land-Rejection of applicants’ request for grant to them of hali land (government land), instead of cash, by way of compensation-Grant to a third person (the interested party) of hali land part of which had been previously refused to the applicants-Such grant being the result of a settlement of a recourse whereby the interested party had challenged the validity of compulsory acquisition of his land-It follows, that the case of applicants is not similar to that of interested party as aforesaid-The applicants having never challenged the compulsory acquisition of their land-Therefore the distinction made by the respondents between the two cases was In no way arbitrary---Consequently the principle of equality and non-discrimination, safeguarded under Articles 6 and 28 of the Constitution has not been violated in any way-See further infra.

Equality and non-discrimination-Principle of equality and non-discrimination-Articles 6 and 28 of the Constitution-Object of the provisions of the Constitution relating to equality of treatment-To safeguard against arbitrary distinctions, differentiations or discriminations-And only persons in similar circumstances are entitled to invoke said provisions-See also supra.

Constitutional Law-Principle of equality-Rule against discrimination-Articles 6 and 28 the Constitution- Effect and scope-See supra. [*110]

A piece of land owned by the applicants was compulsorily acquired by the Government of Cyprus. Soon after the publication of the relevant acquisition order, the applicants, who did not object to the acquisition of their property, started negotiations with the appropriate Government Department with a view to reaching an agreement on the value of the property acquired for compensation purposes. However, these negotiations were not pursued and nothing came out of them. Eventually the applicants applied to the Council of Ministers requesting that hali (Government) land be granted to them in exchange of their land compulsorily acquired as aforesaid. By letter dated September 16, 1968, the applicants were informed by the District Lands Officer that their said request for the grant to them of hail land (instead of cash, by way of compensation) had been rejected by the Council of Ministers, as it was, apparently, contrary to Government policy to accede to such requests.

But almost a year later, on September 13, 1969, the applicants came to know that hali land which had been refused to them by way of compensation for, the land compulsorily acquired from them had been given to the interested party, Mr. H.S., in exchange of land of his which was compulsorily acquired by the Government in 1967.

Hence this recourse whereby the applicants challenge the validity of such transfer of the hali land in question to Mr. H.S. (the interested party) on the ground that it contravenes the principle of equality and non-discrimination enshrined in Article 6 of the Constitution and/or as being in excess and abuse of powers.

It should be noted at once that the interested party challenged the validity of the said, compulsory acquisition of his land in 1967 by the recourse (under Article 146 of the Constitution) No. 340/68; and in the course of the hearing the case was settled the parties thereto agreeing that the hail land in question be ceded to the interested party in lieu of compensation for the land compulsorily acquired.

Dismissing the recourse, the learned Judge of the Supreme Court:-

Held, (1). The Conclusion to be drawn from the authorities is that the object of the provisions of the Constitution (Articles 6 and 28) relative to equality of treatment is to safeguard against arbitrary discrimination and that only persons in similar circumstances are entitled to equal treatment. (See The Republic v. Arakian and Others (1972) 3 C.L.R. 294, in which useful reference is made to a number of cases of this Court, including the case of Mikrommatis and The Republic, 2 R.S.C.C. 125, as well as to decisions of the Greek Council of State and numerous American cases).

(2) In the light of all the circumstances of this case, it cannot, in my view, be said that the case of the applicants was similar to that of the interested party (supra); or that the distinction made by the respondents between the two cases was in any way arbitrary. Consequently, the principle of equality of treatment was in no way violated by the decision complained of; and for this reason the recourse cannot succeed.

Recourse dismissed.

Costs not claimed.

No order as to costs.

Cases referred to:

Mikrommatis and The Republic, 2 R.S.C.C. 125;

Co-Operative Grocery of Vassilia Ltd. and Haralarnbos Ppirou, 4 R.S.C.C. 12;

In re-The Tax Collection Law No. 31 of 1962 and Hji Kyriacos and Sons Ltd., 5 R.S.C.C. 22;

The Republic v. Arakian and Others (1972) 3 C.L.R. 294 (Note: in which case a useful reference is made to a number of cases of this Court, as well as to decisions of the Greek Council of State and numerous American cases).

Recourse.

Recourse against the decision of the respondents to [*112] grant certain plots of hali land to the interested party instead of granting them to the applicants by way of compensation for land which had been compulsorily acquired from them.

G. Ladas, for the applicant.

V. Aristodemou, Counsel of the Republic, for the respondents.

Cur. adv. vult.

The following judgment was delivered by:-

L. LOIZOU.J: The history of the facts which led to the present proceedings dates back to 1957. During that year the Government of the then colony of Cyprus compulsorily acquired the property of the applicants described in paragraph 1 of the facts in support of the application. The order of acquisition was published in Supplement No. 3 to the Gazette of the 7th March, 1957, under Not No. 279.

The applicants did not object to the acquisition of their property and soon after the publication of the order of acquisition applicant 1, who is the husband of applicant 2, started negotiations with the appropriate Government Department with a view to reaching an agreement on the value of the property acquired for compensation purposes. It is the allegation of applicant 1 that it was hinted to him by one of the L.R.O. clerks that Government might be prepared to cede to them some hali land by way of compensation instead of cash. However that may be, the negotiations were not pursued in view, it would appear, of the then prevailing conditions and it was not until the 24th April, 1963, that the applicants applied to the District Lands Officer requesting, for the first time, that hali land be granted to them in exchange for their land compulsorily acquired. In reply they were informed by letter dated 1st June, 1963, (exhibit 2) that the District Lands Office was not prepared to accede to their request as it was contrary to Government policy and that if they wished to pursue the matter they would have to apply to the Council of Ministers or the District Officer. The applicants did apply to the District Officer by letter dated 7th June, 1963, (exhibit 3) and on the latter’s suggestion they again applied to the D.L.O. for a local enquiry before [*113] a preliminary examination of the case could be carried out. This was on the 30th November, 1963. Thereafternothing was done, presumably again due to the prevailing abnormal conditions at the time, until July, 1965, when the applicants wrote to the then Minister of the Interior in connection with the case. Eventually, after some more correspondence between the two sides, the applicants were informed by the District Lands Officer. by letter dated 16th September, 1968, (exhibit 9) that their request for the grant to them of hali land instead of cash by way of compensation for the compulsory acquisition of their land had been rejected by the Council of Ministers, it may be added that during these protracted exchanges the applicants did not always ask for the hali land which was eventually granted to the interested party but on various occasions they suggested different pieces. In any case, this decision of the Council of Ministers (Decision No. 8015) was not challenged by the applicants at the time because, as learned counsel for the applicants put it, “after all, it was Government property and it was up to Government to accept or refuse their proposal regarding the exchange of land”.

But almost a year later, on the 13th September, 1969 applicants came to know that hali land which had been refused to them by way of compensation for the land compulsorily acquired from them had been given to the interested party in exchange for land of his which was compulsorily acquired by Government , in 1967. Thereupon applicants sent a telegram of protest (exhibit ii) to the Minister of the Interior requesting him to intervene and stop the transfer. In reply the Director-General, of the Ministry by his letter dated 3rd November, 1969, (exhibit 12) reminded the applicants that the Council of Ministers had, in the past, examined their request and decided to reject it. As a result applicants filed the present recourse applying for the following relief:

“(1) The decision of the Director of the District Lands Office, Nicosia and/or the Council of Ministers to grant plots No. 330 (the whole) and 228 (part only) of sheet/plan XXI, 63.W.2 to a certain Mr. Hariton Stamatiou of Aeschylou St., Nicosia, after these plots were refused to the applicants, is null and void as being contrary, to Article 6 of the Consituation [*114] and/or as being in excess and/or in abuse of powers

(2) The decision of the respondents and/or of them to refuse the application of applicants to grant to them the said land which was improved and ameliorated by the applicants and to grant it instead to the above stated person is null and void as being contrary to Article 6 of the Constitution and being in excess and/or in abuse of powers.”

It may be stated , at this stage that in the course of the hearing learned counsel for the applicants conceded, quite rightly in my view, that the claim for relief in so far as, the refusal of the respondent to grant the hali land to the applicants is concerned is out of time. This is quite apparent both from the facts, in support of the application and from the record of proceedings. The decision of the Council of Ministers was in effect communicated to the applicants over a year prior to the filing of the recourse But learned counsel has pursued his case on the ground of discrimination and has argued that respondents’ decision to grant the land in question to the interested party after it was refused to the applicants is contrary to Articles 6 and 28 of the Constitution. In support of his case he cited the cases of Mikrommatis v. The Republic, 2 R.S.CC., p. 125, Co-Operative’ Grocery of Vassilia Ltd. v. Hara lambos Ppirou, 4 R.S.C.C., p. 12 and In re-The Tax Collection Law No. 31 of 1962 and Hji Kyriacos and Sons Ltd., 5 R.S.C.C. 22.

On the part of the respondents it was argued that in the light of all circumstances it was open to them to treat the two cases on a different basis as they did and that consequently there was no question of any discrimination; it was further argued that the applicants had no legitimate interest.

In order to consider the issue of discrimination it is pertinent to see under what circumstances the hali land in question was ceded to the interested party. As stated earlier on, property of his was compulsorily acquired by the Government for an undertaking of public utility and the interested party challenged the validity of such acquisition by recourse No. 340/68. In the course of the hearing the case was settled By the settlement in question it was [*115] agreed that hali land, including part of plot 228 and the whole of plot 330 be ceded to the interested party in exchange for the land compulsorily acquired from him and in lieu of compensation therefor. This settlement was reached on the 22nd April, 1969; it was recorded in the minutes of proceedings and thereupon applicant withdrew his recourse. On the 19th June, 1969, the Council of Ministers, in exercise of their powers under section 18 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap.224, by their decision No. 8842 approved the exchange as contained in the settlement. The said decision as well as the submission to the Council of Ministers and the notes of proceedings before the Court are exhibit 16 in the present case.

It will thus be seen that whereas in the case of the applicants there was no question of the validity of the acquisition and the only issue was the assessment of the compensation payable, in the case of the interested party the issue in the recourse was the validity of the acquisition itself. And it must be borne in mind that neither under the Land Acquisition Law, Cap. 226 (now repealed) nor under the Law now in force, the Compulsory Acquisition of Property Law, 1962, nor the relative Articles of the Constitution, is it envisaged that an expropriated owner is entitled to demand that he should be compensated otherwise than in cash or that the acquiring authority is bound to compensate by exchange of land.

One of the latest reported cases on the principle of equality is that of The Republic v. Arakian & Others (1972) 3 C.L.R. 294 in which useful reference is made to a number of cases of this Court, including the Mikrommatis case (supra) as well as to decisions of the Greek Council of State and numerous American cases.

The conclusion to be drawn from all the authorities is that the object of the provisions of the Constitution relating to equality of treatment is to safeguard against arbitrary discrimination and that only persons in similar circumstances are entitled to equal treatment.

In the light of all the circumstances of the present case, as explained above, it cannot, in my view, be said that the case of the applicants was similar to that of the interested party; or that the distinction made by the [*116] respondents between the two cases was in any way arbitrary. Consequently, in my judgment, the principle of equality of treatment was in no way violated by the decision complained, of and for this reason the recourse cannot succeed.

Having come to this conclusion I consider it unnecessary to deal with the question of legitimate interest raised by learned counsel for the respondents.

In the result this recourse fails and is dismissed.

Court: Mr. Aristodemou do you claim costs in this case?

Mr. Aristodemou: No Your Honour I claim no costs.

Court: As counsel for the respondents claims no costs there will be no order as to costs.

Application dismissed.

No order as to costs.

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