|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1968) 3 CLR 63
1968 February 3
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
GEORGHIOS HADJIKYRIAKOU & OTHERS (No. 2),
Applicants,
and
1. THE COUNCIL OF MINISTERS
2. THE MUNICIPALITY OF NICOSIA,
Respondents.
(Cases Nos. 216/67, 220/67,
222/67, 252/67, 253/67).
Requisition—Order of requisition of premises in connection with the widening of certain street—Validity of such Order—Order of requisition annulled as being vitiated by material misconception—Misconception consisting in that it was erroneously assumed that the works for the widening of the said street had already commenced—Whereas this was not so—This consideration all the more material when one bears in mind that an Order of requisition is a measure to be resorted to only sparingly and in cases of urgency—Order of requisition annulled for an additional reason, in that Respondent 1, in making it, was not afforded an adequate opportunity of examining all material considerations—Namely, Respondent 1, was not informed of the tenancy rights and the particular circumstances of four of the Applicants in these proceedings—Had Respondent 1 known of these material factors it might have given effect to the said Order at such date in future, as it would deem fit, instead of making the Order with immediate effect upon its publication—Thus, Respondent 1 was led to exercise its relevant discretionary powers in a defective manner—And the resulting decision, being the product of such discretionary powers exercised in a defective manner, is contrary to law and in excess and abuse of powers.
Requisition—Order of requisition of private property—The Requisition of Property Law, 1962 (Law No. 21 of 1962)—Inter alia, sections 6 and 7(2)—Requisition is a measure to be resorted to only sparingly and in cases of urgency—See above.
Administrative Law—Decision taken upon a material misconception of fact—Decision so taken is vitiated by the aforesaid material misconception—Discretionary powers—Exercise of discretionary powers in a defective manner—In that material factors were not considered—As a result, the decision so taken, is contrary to law and in excess and abuse of powers— See, also, above.
Discretionary powers—Exercise thereof in a defective manner—Abuse and excess of powers—Decision taken contrary to law and in excess and abuse of powers—See above.
Misconception—Material misconception vitiating the decision complained of—See above.
Decision—Decision vitiated by a material misconception—Decision being the product of the exercise of the relevant discretionary powers in a defective manner, is a decision contrary to law and in excess and abuse of powers—See, also, above.
Abuse and excess of powers—See above.
Excess and abuse of powers—See above.
These five recourses have been heard together and one Judgment was given therein, as they involve a common issue viz. the validity of an Order of requisition made by the first Respondent and published on the 20th October, 1967, with immediate effect, in relation to premises occupied by the Applicants.
The aforesaid Order of requisition was made under the provisions of the Requisition of Property Law, 1962 (Law No. 21 of 1962) in connection with the widening of Ledra Street, near Metaxas Square, Nicosia. In the relevant submission of the Ministry of Interior to Respondent 1, dated the 26th September, 1967, it is stated, inter alia: "Because the works for the widening of the said street (the Ledra street) have already commenced it is necessary to requisition the affected properties for the execution of the whole project"
It is, however, not disputed that, at no material time any works relevant to the project concerned had, as have, yet commenced, in the sense of such project being actually put into execution. On the other hand, it appears that material considerations have been withheld from the Council of Ministers (Respondent 1); thus the latter was not informed of the tenancy rights and the particular circumstances of four of the Applicants, two of whom appear to be enjoying the specially protected status of statutory tenant.
In annulling the sub-judice Order of requisition, the Court:-
Held, (1). I have reached the conclusion that the sub judice Order of requisition has to be annulled as being vitiated by a material misconception, arising out of the contents of the submission of the Ministry of Interior to Respondent 1, dated the 26th September, 1967, (supra). It is common ground that, at no material time any works relevant to the project concerned had, or have, yet commenced.
(2) The inaccurate statement in the aforesaid submission to the effect that the works for the widening of the street (supra) had already commenced appear all the more material when one bears in mind that what had to be decided upon by Respondent 1 was whether or not an Order of requisition, which is a measure to be resorted to only sparingly and in cases of urgency (see Conclusions from the Jurisprudence of the Greek Council of State 1929-1959, P. 93).
(3)(a) Another reason for which I do find, in any case, that the Order of requisition in question has to be annulled is that the Respondent 1, in making it, was not afforded an adequate opportunity of examining all material considerations, and, thus, Respondent 1 has been led to exercise the relevant discretionary powers in a defective manner, resulting again in the Order being contrary to law and in abuse and excess of powers.
(b) Especially, Respondent 1 was not informed, inter alia, of the material facts concerning the tenancy rights and the particular circumstances of four of the Applicants, two of whom appear to be enjoying the specially protected status of statutory tenants.
(c) Had it known of these material factors, Respondent 1 might have fixed such a date, in future, for the Order to take effect, instead of making it with immediate effect upon its publication (see section 6 of the aforesaid Law No. 21 of 1962, supra).
Sub judice Order of requisition
annulled. No order as to costs.
Recourses against the validity of an order of requisition made by Respondent 1 in respect of premises possessed by Applicants and against the decision of Respondent 2 requiring the Applicants to vacate such premises by a certain date.
G. Constantinides with A. Triantafyllides, for the Applicants.
K. Talarides, Counsel of the Republic, for Respondent No. 1.
K. Michaelides, for Respondent No. 2.
Cur. adv. vult.
The following Judgment was delivered by:
TRIANTAFYLLIDES, J.: These five recourses have been heard together, as they involve common issues, and it is now proposed to give one judgment in respect of all of them.
In a Decision given on the 5th January, 1968, in relation to applications for Provisional Orders in these Cases, I have had occasion to refer to the reliefs claimed by the Applicants in these proceedings, as well as to the salient facts of the sub judice matters.
For the purposes of this judgment I need not repeat what I have stated in the said Decision, which has to be read together with this judgment, in all material respects.
One of the main issues in these proceedings has been the validity of the Order of requisition, published by Respondent 1, on the 20th October, 1967, in respect of premises occupied by the Applicants.
As the said premises, once they were requisitioned by Respondent 1, were made available to Respondent 2 under the provisions of section 7(2) of the Requisition of Property Law, 1962 (Law 21/62), it is quite clear that if the Order of requisition is invalid then Respondent 2 could not proceed to obtain, and utilize, possession of such premises on the strength of the Order of requisition and of the subsequent ceding of the premises to it by Respondent 1.
Having considered the validity of the Order of requisition—both on the basis of the material which was before the Court until my aforementioned Decision of the 5th January, 1968, as well as on the basis of the material which was placed before the Court at the further hearing of these Cases — I have reached the conclusion that such Order of requisition has to be annulled as being vitiated by a material misconception, arising out of the contents of the relevant submission of the Ministry of Interior to Respondent 1, dated the 26th September, 1967.
The said submission, which is part of exhibit 7 in these proceedings, reads, in its material part, as follows:-
«Διεύρυνσις της οδού Λήδρας
εν Λευκωσία
Η Δημοτική Επιτροπή Λευκωσίας προέβη εις την δημοσίευσιν σχετικού Διατάγματος Απαλλοτριώσεως υπ' αρ. 259 εν τω Τρίτω Παραρτήματι της επισήμου εφημερίδος της Δημοκρατίας της 30ης Μαρτίου, 1967, διά την εκτέλεσιν του ως άνω έργου. Επειδή αι εργασίαι διά την διεύρυνσιν της εν λόγω οδού ήρχισαν ήδη, παρίσταται δε ανάγκη επιτάξεως της επηρεαζομένης ιδιοκτησίας διά την εκτέλεσιν του όλου έργου η εν λόγω Δημοτική Επιτροπή αιτείται την έκδοσιν του σχετικού Διατάγματος Επιτάξεως δυνάμει του περί Επιτάξεως Ιδιοκτησίας Νόμου».
(" Widening of Ledra Street
in Nicosia
The Municipal Committee of Nicosia has published the relevant Order of compulsory acquisition under Not. 259 in the Third Supplement to the official Gazette of the Republic on the 30th March, 1967, for the execution of the aforementioned project. Because the works for the widening of the said street have already commenced and it is necessary to requisition the affected properties for the execution of the whole project, the said Municipal Committee requests the making of the relevant Order of requisition on the strength of the provisions of the Requisition of Property Law").
On the basis of this submission Respondent 1 has decided to make the Order of requisition in question (see, again, exhibit 7).
It is common ground that, at no material time, any works relevant to the project concerned had, or have, yet commenced, in the sense of such project being actually put into execution; what has happened is, only, that the relevant plans and calculations have been prepared.
In trying to ascertain how the relevant submission came to state that the works for the widening of Ledra Street had already commenced, the Court has had produced before it a letter, addressed to the District Officer of Nicosia, and dated the 26th August, 1967 (see exhibit 8), by means of which Respondent 2 requested that an Order of requisition be made in respect of the premises concerned; but there is nothing therein to the effect that the relevant works had already commenced.
As it appears from a letter dated the 31st August, 1967, (see exhibit 9), the District Officer forwarded to the Director-General of the Ministry of Interior the request of Respondent 2, and recommended the making of an Order of requisition; neither in this letter, of the District Officer, is there anything indicating that the relevant works had already commenced.
According to what counsel for Respondent 2 — who has been appearing since the 4th January, 1968, for both Respondents — has told the Court, the statement that the works had already commenced was inserted in the relevant submission by the Ministry of Interior, in view of the fact that the plans and calculations for the project were ready. This may well be so, and I have no doubt at all that those responsible, at the Ministry of Interior, have acted in all good faith; but the fact remains that the submission they prepared and placed before Respondent 1 was, as framed, quite incorrect on a most material point.
The statement therein to the effect that the works for the widening of the street had already commenced could not have been taken — objectively and in the natural meaning of its words — as only conveying that the relevant plans and calculations were ready; it must have been taken to mean that the actual execution of the project in question was already in progress.
Such a statement appears all the more material when one bears in mind that what had to be decided upon by Respondent 1 was whether or not to make an Order of requisition, which is a measure to be resorted to only sparingly and in cases of urgency (see Conclusions from the Jurisprudence of the Greek Council of State 1929-1959 p. 93).
In Cases such as the present ones it is neither proper nor possible for this Court to speculate about what Respondent 1 would or would not had done had it not been informed that the sub judice Order of requisition was necessary because the relevant works had already commenced.
The stark reality is that, as the submission of the Ministry of Interior was drafted, Respondent 1 was led to act in the matter on the basis of a material misconception of fact; thus, the Order of requisition, made in such circumstances, has to be annulled, as having been decided upon contrary to law (i.e. through the application of the relevant legislation erroneously inasmuch as it was not applied in the light of true facts, and through contravention of the relevant principles of Administrative Law) and as being, too, in excess and abuse of powers; it is open, of course, to Respondent 1 to reconsider the matter once again, in its true light, and decide thereon accordingly.
Another reason for which I do find, in any case, that the sub judice Order of requisition has to be annulled is that Respondent 1, in making it, was not afforded an adequate opportunity of examining all material considerations, and, thus, Respondent 1 has been led to exercise the relevant discretionary powers in a defective manner, resulting again in the said Order being contrary to law and in abuse and excess of powers; especially, Respondent 1 was not informed, inter alia, of the material facts concerning the tenancy rights and the particular circumstances of four of the Applicants in these proceedings, two of whom appear to be enjoying the specially protected status of statutory tenants. Had it known of these material factors Respondent 1 might have fixed such a date, in future, for the taking of effect of the Order of requisition, as it would deem fit, in the circumstances, instead of making the Order with immediate effect upon its publication (see section 6 of Law 21/62); for all we know, Respondent 1 may have acted, as it did, while being under the impression that no rights of tenants were at stake and that it was only a question of securing, earlier, possession from the owners of the premises, in respect of which an Order of compulsory acquisition had already been made; and it is all the more probable that Respondent 1 did act under such an impression once it was informed that the relevant works had already commenced.
For all the foregoing reasons the sub judice Order of requisition is hereby declared to be null and void and of no effect whatsoever.
In view of this it is not necessary to determine any of the other issues which have been raised in these proceedings. Nor is it necessary, in particular, to decide the issues in relation to the claim for relief against Respondent 2, because, as already indicated, the action initiated in the matter by Respondent 2, and complained of in these proceedings, has been deprived of all legal basis once the Order of requisition has been annulled.
Bearing in mind the fact that the Applicants will benefit greatly — in avoiding, for the present, to evacuate their premises — through the aforesaid errors in the relevant administrative process, I have decided to make no order as to costs.
Sub judice Order annulled.
No order as to costs.