(1986) 3 CLR 2281
[*2281] 1986 November 19
[LORIS, J.]
IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION
MATHEOS KYPRIANOU,
Applicant,
v.
THE REPUBLIC OF CYPRUS THROUGH
1.THE MINISTRY OF COMMERCE AND
INDUSTRY, AND
2.THE DIRECTOR OF LANDS AND SURVEYS
DEPARTMENT,
Respondents.
(Case No. 210/84).
Acts or decisions in the sense of Article 146 of the Constitution —Acts of execution—Not justiciable thereunder—Compulsory acquisition—Offer of compensation following publication of order of—An act of execution.
Time within which to file a recourse—Notice of compulsory acquisition published in May, 1981—Order of acquisition published in May, 1982—Knowledge of Order as early as 15.3.83—Offer of compensation made on 19.3.84—Recourse challenging said notice and any subsequent order filed on 30.4.84—Recourse out of time.
Part of applicant's property in Erghates village was compulsorily acquired. The relevant notice of acquisition was published in the Official Gazette on 29.5.81. The applicant objected, but his objection was dismissed. The order of acquisition was published in the Official Gazette on 28.5.82. A printing error in the description of applicant's property was corrected by publication in the Gazette on 23.12.82. The contents of a letter dated 15.3.83 sent by the applicant [*2282] to the Minister of Commerce and Industry prove that the applicant was aware at that time of the order of acquisition.
By letter dated 19.3.84 the Director of the Lands and Surveys Department offered to the applicant £900.- plus interest as provided by law as compensation for theproperty acquired.
On 30.4.84 the applicant filed the present recourse, seeking the annulment of: (a) The "decision" of the said Director communicated by the aforesaid letter of 19.3.84, and (b) The Notice of acquisition published on 29.5.81 and "any subsequent order of acquisition".
Held, dismissing the recourse: (1) The Offer of £900.-was made with a view to reaching, if possible, a private treaty with the applicant in respect of the compensation payable in respect of the acquisition (Section 8 of the Compulsory Acquisition Law 15/62). It was an act with a view to implementing the acquisition by arriving at a figure in connection with the compensation it was, therefore, an act of execution of the acquisition itself. Acts of execution are not executory acts and, therefore, they are non-justiciable under Article 146 of the Constitution.
(2) As regards the notice of acquisition and "any subsequent order of acquisition" it is clear that the recourse is out Of time. As it is obvious that the applicant knew of the order as early as 15.3.83, whilst this recourse was filed on 30.4.84, there is no heed to dwell with the issue, whether time begins from publication of the order or from the day when it came to the knowledge of the applicant.
Recourse dismissed.
No order as to costs.
Cases referred to:
Kblokassidesv.The Republic (1965) 3 C.L.R. 542;
HjiCostasv.The Republic (1974) 3 C.L.R. 1;
Spyros Colocassides Estate Ltd. v.The Republic (1977) 3 C. L.R. 205; [*2283]
Koupepav.The Municipal Corporation of Limassol (196!@@@ 3 C.L.R. 496;
Nicosia Race Club v.The Republic (1984) 3 C.L.R. 799
Recourse.
Recourse against the notice of acquisition published ii the Official Gazette under Not. 500 and any subsequent order of acquisition in respect of applicants property situated at Erghates village.
N. Cleridou (Mrs.), for the applicant.
St. loannides (Mrs.), for the respondent.
Cur.adv. vult.
LORIS J. read the following decision. The applicant by means of the present recourse prays (A) For a declaratory judgment that the so termed in the recourse "decision" of the respondent Director of Lands and Surveys, set out in his letter of 19.3.1984 addressed to the applicant, is null and void.
(B) For a declaratory judgment annulling the notice of acquisition published in the Official Gazette of the Republic on 29.5.81 under No. 500 and "any subsequent Order of acquisition" in respect of part of applicant's property situated at Erghates village covered by plot 103, Block D of sheet-plan XXX/33 E2.
The salient facts of the present case are very briefly as follows:
Upon approval by the Council of Ministers on 28.5.1981 of the creation of an Industrial Estate in the area of Erghates Village in the Nicosia District, a notice of acquisition was published in the official Gazette of the Republic oil 29.5.1981 under Not. 500 relating to the acquisition of privately owned immovable property at Erghates village; among the properties to be so acquired the whole plot 103, belonging to the applicant, was included. [*2284]
Objections against the intended acquisition were submitted by owners of properties affected by the proposed acquisition, to the respondent Ministry of Commerce and Industry through the District Officer Nicosia. The applicant was amongst those who submitted objections in respect of the proposed acquisition of their property.
The Council of Ministers examined the objections and on 28.5.82 an acquisition Order was published in the Official Gazette of the Republic under Not. 487; part of the aforesaid property of the applicant was included in the aforesaid Order of acquisition but due to a printing error the property of the applicant was described as "part of plot 33"' instead of "part of plot 103". At a subsequent time i.e. on 23.12.82 the error was corrected by a publication in the Official Gazette of the Republic under No. 1473.
Applicant by letter dated 13.5.83 (exhibit "Y" before me) addressed to the Minister of Commerce and Industry applied, for the exemption of the aforesaid part of his property from the acquisition in question.
In a subsequent letter of 23.8.83 (exhibit "Z" before me) addressed to the same Ministry, the applicant offered to grant gratis to the Republic portion coloured red on the plan (attached to ex. Z), which covers only a portion of the part of his property under acquisition, in consideration of the withdrawal of the acquisition Order for the remaining part of his property under acquisition; the part of plot 103 included in the Order of Acquisition is coloured yellow in exhibit "Γ" attached to the opposition.
The Ministry in a letter dated 4.10.1983 addressed to the applicant (exhibit "P" before me) turned down the aforesaid request of the applicant.
The Director of the Land Registration and Surveys acting on behalf of the Acquiring Authority addressed a letter to the applicant on 19.3.84 offering the amount of £900.-plus interest according to law as compensation for the property of the applicant compulsorily acquired.
The applicant filed the present recourse on 30.4.84 praying as per prayer. [*2285]
The respondents in their opposition raise three preliminary objections as follows:
1. The present recourse was filed out of time.
2. The decision impugned is not of an executory character within the ambit of Article 146 of the Constitution.
3. The applicant lacks an existing legitimate interest.
Learned counsel for the respondents applied that these preliminary issues be disposed of by the Court first; learned counsel for applicant consenting the case was fixed for hearing of the preliminary points first.
Counsel for the respondents elaborated at length viva voce on the preliminary objections and produced several documents in addition to those already attached to the opposition.
Counsel for applicant applied that she may file a written address in answer to the oral address on behalf of the respondents. Her application was granted and after repeated adjournments for reasons appearing on record, counsel for applicant filed a written address in answer to the preliminary objections advanced. Counsel for respondent, the counsel for applicant consenting, filed with the leave of the Court written address in reply.
To-day I am pronouncing on the preliminary objections raised; I shall confine myself in ruling on the preliminary objections under 1 and 2 above, as preliminary objection under 3 although raised in the opposition was not argued before me at all.
I hold the view that prayer "A" does not refer to an executory decision. It is obvious that the respondent Director in addressing the letter of 19.3.84 was acting on behalf of the acquiring authority with a view to negotiating in the first place the fixing of the compensation payable in respect of the compulsory acquisition in question. As envisaged by s. 8 of the Compulsory Acquisition of Property Law, 1962 (Law 15/62) "The acquiring authority may, at any time after the publication of a notice of acquisition [*2286] enter into negotiations for the acquisition of the property to which such notice relates by private treaty and the determination, by agreement, of the compensation payable therefore..." This is exactly what the respondent Director did; he offered to the applicant an amount with a view to reaching, if possible, a private treaty with the applicant as regards the compensation payable in respect of the acquisition in question.
In other words his offer was made in the course of assessment of the compensation payable in respect of the acquisition; it was an act with a view to implementing the acquisition by arriving at a figure in connection with the compensation payable in respect of the acquisition; it was therefore an act of execution of the acquisition itself.
It is well settled in administrative law that "acts of execution" are not "executory acts" and therefore non-justiciable under Article 146 of the Constitution (vide: Kolo-kassidesv. The Republic (1965) 3 C.L.R. 542, HjiCostasv. The Republic (1974) 3 C.L.R. 1, Spyros Colocassides Estate Ltd. v. The Republic (1977) 3 C.L.R. 205, Koupepav. The Municipal Corporation of Limassol (1968) 3 C.L.R. 496, Nicosia Race Club v. The Republic (1984) 3 C.L.R. 799. Vide also: Conclusions from the Jurisprudence of the Council of State in Greece 1929 -1959 at p. 240).
The preliminary objection on this point therefore succeeds and prayer under (A) is accordingly dismissed.
Turning now to the objection that the present recourse was filed out of time: Independently of the fact that the notice of acquisition was published on 29.5.81 and the fact that such notice came to the knowledge of the applicant ever since its publication, as he has raised an objection to it, it is clear that the Order of Acquisition was published on 28.5.82. I shall not dwell on the issue raised whether the publication came to the knowledge of the applicant or whether same ought to have been known by the applicants as early as its publication; I shall confine myself in saying that it is evident from the letter of 13.5.83 (exh. "Y") addressed by the applicant to the Minister that at least as early as that date the applicant was aware of the existence of the Order; on 23.8.83 he addresses another letter to [*2287] the Minister (exh. Z") and it is clear from this letter as well that he is aware of the existence of the Order which he attempts to vary by a succinct offer which is rejected by the Minister on 4.10.83 (exh. P.).
The present recourse was filed as late as the 30th April, 1984.
On any view the recourse was filed out of time; it was filed almost two years after the publication of the Order and almost a whole year after 13.5.83, the time we know for certain that same was within his knowledge.
The preliminary objection on this point succeeds as well, and Prayer under (B) is accordingly dismissed.
In the result the present recourse fails and is accordingly dismissed. Let there be no order as to its costs.
Recourse dismissed.
No order as to costs.
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