(1984) 3 CLR 966
[*966] 1984 July 17
[A. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
YIAKI ESTATES LTD.,
Applicants,
v.
1.THE IMPROVEMENT BOARD OF AY. NAPA,
2.THE DISTRICT OFFICER OF FAMAGUSTA,
NOW OF LARNACA,
Respondents.
(Case No. 265/81).
Constitutional Law—Equality—Discrimination—Article 28 of the Constitution—Reasonable differentiations permissible in view of the intrinsic nature of things and only arbitrary and unreasonable differentiations constitute impermissible discrimination and offend Article28of theConstitution.
Practice—Parties to a recourse—Improvement Boards—Recourse against decisions of—District Officer acting solely in his capacity as Chairman of the Board and taking no executory decision of his own—He could not be made a respondent.
The respondent Board refused applicants' application for a building permit for the construction of a block of flats on the ground that their property was outside the water supply area; and hence this recourse against the respondent Board and the DistrictOfficerFamagusta.
Counsel for the applicants mainly contended that the respondents acted in a discriminatory manner because they isued a building permit for the construction of touristic appartments to "Romulus Hotel Appartments Ltd." whose property was situated in the same area as theirs.
The intended buildings of the applicants were purely residential whereas those of the above company were for touristic development.[*967]
Held, that reasonable differentiations are permissible in view of the intrinsic nature of things and only arbitrary and unreasonable differentiations constitute impermissible discrimination and offend Article 28 of the Constitution which safeguards the principle of equality; that there was a fundamental reasonable differentiation in this case because the "Romulus" buildings were a touristic development project coming under the Hotels and Touristic Establishments Law of 1969, as amended, whereas the intended buildings of the applicant Company were a residential development lying outside the inhabited area of the village and the water supply thereof; accordingly the recourse must fail.
(2) Held, further, that the District Officer acted solely in his capacity as Chairman of the respondent Board and he took no executory decision of his own or confirmed any decision taken by the appropriate authority; that for all intents and purposes it would be enough in the circumstances to have made the Improvemend Board of Ayia Napa as the respondent in these proceedings, the District Officer of Famagusta as such having no locus standi in his said capacity in the present proceedings; and that, therefore, the recourse against him must be dismissed for thatreason.
Application dismissed.
Recourse.
Recourse against the refusal of the respondents to issue a building permit to applicants.
A. Karras, for the applicants.
Y. Panayi, for respondent 1.
A.Vladimirou, for respondent 2.
Cur. adv. vult.
A. LOIZOU J. read the following judgment. By the present recourse the applicants seek the annulment of the decision of the respondent Board contained in the letter of respondent No.2, dated 1st June, 1981, by which they refused to them a permit for the building of a block of flats in plot No. 59, Sheet/Plan 42/21 in Ayia Napa.
On the 4th November, 1978, an application for a building permit was submitted to the respondent Board by a certain [*968]
Anastasios A. Economou, acting as a duly authorized agent of a number of persons as per the Power of Attorney which can be found in the relevant file of the Administration (exhibit 'X' -Blue 22). Same was accompanied by the necessary architectural plans for the building of two five-storey blocks which would consist of 19 flats. The above said plot of land is within Zone C which has been defined as such in Regulatory Order under Notification 145/72, published in Supplement No@@@ Part I, to the official Gazette of the Republic of the 5th August, 1972. The buildings to be constructed were purely residential and not a touristic development and the plot of land in question was away from the inhabited area of the village, Zone ‘H’,and outside the Village Water Supply.
The Medical Services of Cyprus made it a condition that "each of the proposed buildings will be supplied by sufficient quantity of piped water stored in suitable water tanks for the normal functioning sanitary installations in case of interruption of the watersupply".
On the 19th May, 1979, the said application was refused on the ground that the property in question was situate outside the Water Supply Area. On the 7th September, 1979, the advocate of the applicants re-submitted the plans having been informed, as it is stated by him in his letter Appendix 'D', that his client had heard that similar applications were being reexamined. He referred, however, to the present applicants, a Company limited, which apparently are the successors of the previousapplicants.
On the 12th May, 1980, the respondent Board informed theapplicants that in order to proceed further with their application,it was necessary that there should be secured sufficient quantityof piped water for the needs of the proposed flats in accordancewith the special terms put by the Medical Department.
In the meantime, however, counsel for the applicants wrote to respondent 2, protesting at not having received a reply to his letter, pointing also out that as he hadinformation that application submitted Hater were being dealt with and granted.
By letter dated the 1st June 1981, respondent 2 replied3 to this letter of the applicants and informed them that their application [*969] could not be proceeded further on account of lack of drinking water. It is as against this decision so communicated that the applicants filedthepresentrecourse.
The only ground upon which the applicants rely is that of discrimination and they claim that the respondent Board issued a building permit for the construction of touristic apartments to "Romulus Hotel Apartments Ltd.", in respect of an application submitted during the second semester of 1979, that their property is situate in the same area as theirs and the building permit was in respect of more flats than those to be constructed by the applicants.
It was urged that this indicated inconsistency in the handling of all similar situations and showing arbitrariness in that some citizens were denied in an arbitrary manner advantages which were given to others as offending Article 28 of the Constitution.
It was further urged that the Administration exercised its discretionary powers in a self-contradictory manner undermining the confidence of the citizens to it, contrary to the demands of goodadministration.
It is the case for the respondent Board that at the material time of the submission of the application of the applicants, the water supply of Ayia Napa was in a very bad situation. The quantity of water through the Main Famagusta Supply, as Well as the additional quantity of 1,000c.m. per day approved by the Council of Ministers by its Decision No. 15.660 of the 3rd March, 1977, was intended to cover the water supply of the villages of Ayia Napa and Paralimni and partly the Touristic Development. On the other hand, the additional quantity of water of 1,200 c.m. daily, approved by the Council of Ministers by its Decision No. 16967 of the 8th June, 1978, was for the purpose of being disposed exclusively and only for purely touristic development.
It was pointed out that characteristic in this respect of the seriousness of the subject, was the letter of the Director-General of the Ministry of Agriculture under No. 23/59/490, dated; 21st March, 1970, addressed to the Director-General of the Cyprus Tourist Organization, in which he mentioned that the supply of additional quantity of water from the Famagusta Supply to make possible the issue of new building permits for [*970] the construction of hotel units was impossible, given that it was doubtful on the basis of the new factors regarding the Lofkara Dam whether the Ministry of Agriculture could respond even to the existing commitments which emanate from the said decisions of the Councilof Ministers.
In respect of the building permit granted to "Romulus" the following differentiations are pointed out by the respondent Board. In the first place, the building was on property away from the inhabited area of the village and the supply from the public water supply was not justified. Furthermore, in no case until that time had public water supply been given for residential development away from the inhabited area and outside residential zones. On the contrary, there had been given public water supply for purposes of Touristic Development as it is the case of the Romulus Hotel Apartments Ltd., where their application refers to the construction of an organized block of flats and the development included six two-storey buildings which in all, included 44 flats, one ground floor with a basement which included a discoteque and subsidiary areas and on the ground floor, reception area, cafe-bar, kitchen, one shop, office, sanitary conveniences and a swimming pool. The architectural plan of the said "Romulus" flats had been approved by the K.O.T. in accordance with the provisions of the Hotels and Touristic Establishments Law of 1969, whereas the architectural plans of the applicants, as they were intended for a mere residential development, had not been submitted at all and consequently hadnotbeen approvedbyK.O.T.
The refusal of the permit of the applicant Company was based on the express provisions of the Streets and Buildings Regulation Law, Cap. 96, as amended by Law No. 13 of 1974, which latter Law amended section 9 and it is provided by subsection 2, paragraph (c), which was added to the basic Law the following new provisions:
"9(3)(α) Όσάκις υποβάλλεται αίτηση·
(ι) δυνάμει της παραγράφου (α) ή (γ) του εδαφίου (1) του άρθρου 3 αναφορικώς προς οιανδήποτε γαίαν ή
(ιι) δυνάμει της παραγράφου (β) ή (δ) του έδαφίου (1) του άρθρου 3 αναφορικώς προς οιανδήποτε οικοδομήν, εξαιρουμένης μόνον της περιπτώσεως οικοδομής απο[*971]τελούσης μονοκατοικίαν και μη αποτελούσης τμήμα οικοδομής ή ομάδος οικοδομών ή κτιριακού συγκροτήματος ή ετέρας οικοδομής αναπτύξεως, κειμένην εκτός περιοχής υδατοπρομηθείας, η αρμόδια αρχή δεν θα χορηγή άδειαν αναφορικώς προς την εν λόγω γαίαν η οικοδομήν εκτός εάν αυτή, αφού λάβη την συμβουλήν του Διευθυντού του Τμήματος Αναπτύξεως Υδάτων του Υπουργείου Γεωργίας καί Φυσικών Πόρων (εν τοις εφεξής εν τω παρόντι εδαφίω καλουμένου "Ο ρηθείς Διευθυντής ικανοποιείται πλήρως ότι ο εν τη υποπαραγράφω (ιι) της παραγράφου (γ) του εδαφίου (1) του άρθρου 9 όρος αναφορικώς προς οιανδήποτε γαίαν ή, αναλόγως της περιπτώσεως, ο εν τη υποπαραγράφω (xi) της παραγράφου (β) του εδαφίου (1) του άρθρου 9 όρος αναφορικώς πρός οιανδήποτε οικοδομήν, πληρούται κατά τρόπον ικανοποιούντα ταύτην ή η πλήρωσις του διασφαλίζεται κατά τον ρηθέντα τρόπον:
Νοείται δτι εάν, εν οιαδήποτε συγκεκριμένη περιπτώσει, η αρμόδια αρχή διαφωνή προς τον ρηθέντα Διευθυντήν, αυτή δέον να παραπέμψη το ζήτημα αμελλητί εις τον Υπουργόν Εσωτερικών όστις αποφασίζει επ' αυτού το ταχύτερον και κοινοποιεί αμελλητί την απόφασιν αυτού εις πάντα ενδιαφερόμενον, και από της τοιαύτης κοινοποιήσεως η απόφασις του Υπουργού καθίσταται εκτελεστή."
In English it reads:
"9(3)(a) Whenever an application is submitted -
(i) By virtue of para. (a) or (c) of subsection (1) of section 3regardinganylandor
(ii) By virtue of para, (b) or (d) of subsection (1) of section 3 regarding any building, except only regarding the case of a building consisting of a single residence and not constituting part of a building or a group of buildings or a building complex or other building development, situate outside a water supply area, the appropriate authority shall not grant a permit with regard to the said land or building except if, after obtaining the advice of the Director of the Department [*972] of Water Development of the Ministry of Agriculture and Natural Resources (hereinafter in the present subsection referred to as "the said Director"), is fully satisfied that the condition in sub-paragraph (ii) of para. (c) of subsection 1 of section 9 regarding any land or as the case may be, the condition in subsection (xi) of para. (b) of subsection 1 of section 9 regarding any building is satisfied in a manner satisfying it or its complianceissecuredinthesaidmanner:
Provided that if in any particular ease the appropriate Authority disagrees with the said Director, it must refer the matter forthwith to the Minister of Interior who decides the soonest and communicates his decision immediately to every interested person and as from such communication the decision of the Minister becomes executory."
Before proceeding any further with the examination of the sole issue of discrimination raised in this recourse, I shall deal with the objection of respondent No. 2, who in the present case obviously acted in his capacity as Chairman of the respondent Improvement Board of Ayia Napa, that he should not have been joined as a party to the present proceedings as he acted solely in his said capacity and he took no executory decision of his own or confirmed any decision taken by the appropriate Authority other than having participated in the collective decision of the respondent Board which in accordance with the Streets and Buildings Regulation Law, Cap. 96, section 3(2), para, (b), is the appropriate Authority and as such the Authority to which the applicants applied for a building permit. I uphold the objection as by virtue of section 51 of the Villages (Administration and Improvement)Law,Cap.243:
"(1)In all legal proceedings the Board may sue and be sued in its name.
(2)A Board shall, for the purposes of this Law, bear thename'Improvement. Board of ____' (inserting thename of the improvement area)".
For all intents and purposes it would be enough in the circumstances to have made the improvement Board of Ayia Napa [*973] as the respondent in these proceedings, the District Officer of Famagusta as such having no locus standi in his said capacity in the present proceedings. The recourse, therefore, against him is dismissed for that reason.
As regards the ground of discrimination, it has been time and again said that reasonable differentiations are permissible in view of the intrinsic nature of things and only arbitral y and unreasonable differentiations constitute impermissible discrimination and offend Article 28 of the Constitution which safeguardsthe principle of equality. In the present case, as already seen, there was a fundamental reasonable differentiation. The "Romulus" buildings were a touristic development project coming under the Hotels and Touristic Establishment Law of 1969 as amended, whereas the intended buildings of the applicant Company were a residential development lying outside the inhabited area of the village and the water supply thereof.
For all the above reasons the recourse is dismissed, but in the circumstances there will be no order as to costs.
Recourse dismissed with no order as to costs.
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