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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1971) 3 CLR 120
1971 April 6
[HADJIANASTASSIOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
MANOLIS PANTELI PAVLOU AND ANOTHER,
Applicants,
and
THE REPUBLIC OF CYPRUS, THROUGH
1. THE COUNCIL OF MINISTERS,
2. THE MINISTER OF COMMERCE AND INDUSTRY,
Respondents.
(Case No. 55/71).
Provisional order-Rule 13 of the Supreme Constitutional Court Rules, 1962 and section 17 of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law No. 33 of 1964)-Compulsory acquisition order as well as a requisition order affecting the same property-Application for a provisional order suspending, inter alia, effect of the requisition order pending final determination of the recourse-Refused on the ground, inter alia, that the applicants in the circumstances of this case will suffer no irreparable harm due to such order remaining in force-Cf The Compulsory Acquisition of Property Law, 1962 (Law No.15 of 1962) and The Requisition of Property Law 1962 (Law No.21 of 1962)-Cf Article 23.4 and 8 of the Constitution.
Provisional order-Provisional order suspending provisionally an administrative decision pending determination of the main recourse directed against such decision under Article 146 of the Constitution-Principles governing the matter-Factors to be taken into consideration-The degree of harm to the applicant which may be caused by the refusal of such provisional order-The strength of the applicant's case regarding the main recourse-The degree of urgency of the administrative action concerned-The notion of irreparable harm.
Provisional order-Powers of the Court-The Court may, if the justice of the case requires such a course, issue a provisional order, even ex proprio motu, suspending either in toto or partly the effect of the administrative decision subject matter of the main recourse.
Requisition and compulsory acquisition-The fact that the property concerned constitutes the subject matter of an order (or notice) of compulsory acquisition does not necessarily render illegal (or unconstitutional) the issue of a requisition order affecting the same property-Rights of the owner under Article 23.4(c) of the Constitution (i.e. to be compensated in cash and in advance) not frustrated in the circumstances of this case by the requisition order tin question.
By this recourse filed on February 27, 1971, the applicants seek to challenge the validity of a compulsory acquisition order affecting their property Plot 286, Block C, situate at Ayios Memnon, Famagusta, as well as the validity of a requisition order affecting the same property. This property is a piece of land of an extent of about three and half donums, a small part of which is occupied by a house consisting of five rooms where the applicants live with their children. Simultaneously with the filing of the recourse the applicants applied, under Rule 13 of the Supreme Constitutional Court Rules, 1962, for a provisional order suspending, inter alia, the aforesaid requisition order pending final determination of the recourse. It is to be noted that in the course of these proceedings the respondents gave an undertaking not to interfere pending final determination of the recourse with this part of the land in question on which the dwelling of the applicants is standing (supra), including a space of fifteen feet surrounding the house.
It was argued by counsel on behalf of the applicants that the refusal to make the provisional order would cause to the applicants irreparable harm, all the more so that their recourse is well founded and bound to succeed. Counsel relied in this respect on the authority of HadjiKyriakou and Others v. The Council of Ministers (1968) 3 C.L.R.1, at pp. 7-9. Counsel further submitted that the requisition order would frustrate the rights of the Applicants under Article 23.4 of the Constitution whereby a person shall not be deprived of his property prior to the payment of just compensation in cash and in advance.
Held,(1). I am in agreement with counsel that where the claim of the applicant is so glaring and his chances to succeed are so obvious, this would have been a strong factor in favour of the making of the provisional order. But having considered the material before me and having heard counsel for the Republic, I would be inclined to take the view that the applicants have only an arguable case before me, and not a case where their claim is clearly bound to succeed.
(2) Regarding the question of irreparable harm, I am satisfied that the applicants will not suffer such harm because of the order of requisition ; particularly so, in view of the fact that the respondents are now seeking to interfere with a small part of plot 286 only (supra) leaving apart the dwelling of the applicants, including a space of 15 feet surrounding the house.
(3) With regard to the submission of counsel for the applicants that the requisition order would frustrate their rights under Article 23.4 of the Constitution, I think that there is ample authority covering this question. The mere fact that the purpose for which a compulsory acquisition has been decided upon is being pursued, as in this case, pro tempore by means of a requisition, upon prompt payment of compensation, cannot reasonably be said to frustrate the rights of the applicants under sub-paragraph (c) of paragraph 4 of Article 23 of the Constitution (providing that no person shall be deprived of his rights of ownership without payment in cash and in advance of just compensation), because the ownership continues to vest in the applicants in the meantime (Evrydiki Aspri and The Republic, 4 R.S.C.C. 57, at pp. 61 and 62, applied).
(4)(a) For the above reasons and having in mind the undertaking given by the respondents that they will not interfere with this part of the land on which the dwelling of the applicants is standing, including a space of 15 feet surrounding the house, I have decided not to make the provisional order applied for until the 26th April, 1971, when counsel would be reporting to this Court as to the progress of the work carried out, and whether or not there would be an immediate urgency as to the requirements of the piece of land on which the said house of the applicants is standing.
(b) I think, however, that I ought to make it quite clear that had it not been for the stand taken by counsel for the respondents (i.e. the undertaking referred to above), I would have been prepared, in the light of the material before me, to grant a provisional order until the determination of the whole case on its merits, particularly so, because the question of compensation has not yet been settled.
Application for provisional
order refused.
Per curiam : Even if I would have arrived at the conclusion that the applicants would have suffered irreparable harm because of the interference of the respondents with the small part of applicants' property referred to in (2) hereabove, I would have still been prepared to refuse the provisional order, because, in view of the importance of the project, the personal interest of the applicants would have to be subjected to the general interest of the public.
Per curiam: Counsel for the applicants submitted that once the administrative act is one and indivisible act, the Court cannot refuse to grant a provisional order as to part of the land in question and grant it as to the rest. He relies on the well-known text book of Kyriacopoulos on The Greek Administrative Law, 4th ed. Vol. B at pp. 364-365. This argument is untenable because the powers of this Court under Rule 13 of the Supreme Constitutional Court Rules, 1962; are much wider, and if the justice of the case so requires, it may even ex proprio motu make a provisional order suspending in toto or partly the effect of the order of requisition until the determination of the recourse.
Cases referred to:
HadjiKyriakou and Others v. The Council of Ministers (1968) 3 C.L.R. 1, at pp. 7-9;
Evlogimenos and two Others and The Republic, 2 R.S.C.C. 139, at p. 142;
Aspri and The Republic, 4 R.S.C.C.57, at pp. 61 and 62.
Chimonides v. Manglis (1967) 1 C.L.R. 125 at p. 143.
Application.
Application for a provisional order restraining the respondents from taking any steps in furtherance of the acquisition of certain property belonging to the applicants or in furtherance of the requisition affecting the same property, pending the final determination of a recourse against the validity of the said acquisition and requisition.
J. Kaniklides, for the applicants.
L. Loucaides, Senior Counsel of the Republic, for the respondents.
Cur. adv. vult.
The following judgment was delivered by:
HADJIANASTASSIOU, J.: On February 27, 1971, the applicants simultaneously, with the filing of this recourse, applied (a) "for a provisional order restraining the respondents from taking any step in furtherance of the acquisition of the property in question i.e. plot 286, Block C, Ayios Memnon, Famagusta, or of the requisition order affecting the same property until the final determination of this case ; and (b) consequential provisional orders preventing the respondents, their servants, agents and anybody acting on their instructions or their behalf from interfering in any way whatsoever with the property concerned so long as provisional order/s, suspending the effect of the orders complained of are in force".
The application is based both on Rule 13 of the Supreme Constitutional Court Rules, 1962, and on the provisions of section 17 of the Administration of Justice (Miscellaneous Provisions) Law, 1964.
On February 25, 1971, applicant No. 1 in his affidavit in support of the application for a provisional order had this to say :-
"1. I am the registered owner in undivided shares (½) of property Reg. No. 2140, plot 286, plan/sheet XXXIII.2.5.IV, 6.III, 29.2.11, Block C, Ayios Memnon, Famagusta, of an extent of 3 donums, 1 evlek and 928 sq. feet.
2. The other half share of the property is registered in the name of applicant No. 2 who is my wife and by whom I am specially authorized to swear the present affidavit.
3. A small part of the property mentioned in para. 1 above is occupied by a house consisting of 5 rooms where I live with my wife and two children who are aged 13 and 15 and attend secondary school.
4. I am advised that the hearing of this case will not be concluded in the immediate future, whilst we will have to vacate and deliver the vacant possession of the said property immediately pursuant to the order of requisition made on the 6.2.71.
5. It is virtually impossible to secure proper accommodation for my family and myself within my means at such short notice.
6. I am advised and verily believe that I have a good case on the merits.
7. Unless a provisional order is made restraining the respondents from taking any steps in furtherance of the acquisition of the property in question or of the requisition order affecting the same property, my family will suffer irreparable damage-by, interalia, the demolition which is the presumed and/or declared intention of the respondent/s-whilst respondent/s will suffer no substantial harm by its granting with the consequential delay as all the facts and history of the case clearly point to, i.e. the fact that the order of acquisition was made on the 28.3.69 and the order of requisition 23 months later on the 6.2.71."
It is to be observed that the properties in question are affected (a) by an order of acquisition published under Notification No. 202 in Supplement No. 3 to the Official Gazette dated December 6, 1968; and (b) by an order of requisition published under Notification No. 94 in Supplement No. 3 to the Official Gazette on February 6, 1971. This latter order was made for a period of twelve months under the provisions of section 4 of the Requisition of Property Law, 1962 (Law 21/62), and the reasons given in the said order are that the properties referred to therein are required for the development of tourism of the locality known as Golden Sands in Famagusta. There is no doubt that this order was made for a purpose of public benefit, which is specially included under section 3 (2) (f) of Law 21/62.
On February 9, 1971, apparently because no agreement was reached with regard to the amount of compensation payable to the applicants, a notice in writing was given to the applicants to evacuate and deliver the possession of their properties to the acquiring authorities because the authority intended to start the works for the development of the area as from the 1st March, 1971. (See exhibit 6).
By the motion for relief in the recourse, the applicants seek a declaration that both the order of the compulsory acquisition and the order for the requisition are null and void and of no effect whatsoever.
In the grounds of law, the applicants attack both orders as being unconstitutional and illegal, on the grounds that-
I. There is no question of urgency of implementation of the project justifying the order of requisition to be resorted to, bearing in mind, inter alia, that the notice of acquisition and the order of acquisition were made 26 months respectively, before the order of requisition.
II. Respondents or either of them failed to enquire fully and properly into the relevant facts before issuing the order of requisition and/or they acted under a misconception respecting the factual or legal position.
III. The requisition order is made as a corollary to, and for the purposes of the acquisition of the property, the whole transaction being one in substance; and therefore the unconstitutionality or illegality of the order of acquisition renders unconstitutional or illegal the order of requisition too.
IV. Respondents or either of them acted (or omitted to act) contrary to the provisions of Article 23 para. 4 (c) of the Constitution which safeguards payment of a just and equitable compensation to the appropriated owner.
V. A house, all the more so the family house, cannot be the object of requisition if it is intended, as in this case to be demolished by the requisitioning authority.
The application for a provisional order, as the record of the Court reads, was fixed on the 11th March, 1971 ; but on that date in view of the continuing negotiations between the parties, all the cases were fixed for mention on the 16th March, 1971, before Triantafyllides, J., as he then was. The record of the Court reads as follows:-
"In view of the agreement by the parties about not interfering with the properties concerned, I do not think that it is necessary for me at this stage to make any formal order to that effect."
On the 16th March, 1971, the applications for provisional orders were fixed for hearing on the 18th March, 1971. On this date all the cases came before me, and because some cases were settled (withdrawn) counsel for the respondent made this statement:
"It is correct that we have arranged with Mr. Kaniklides for a meeting next Saturday with a view to discussing an out of Court settlement of applicants' claims in respect of their properties, the subject matter of the requisition and acquisition attacked by the recourses on the same lines which we have followed in the successful settlement of these cases. Moreover, we undertake not to interfere in any way with the applicants' properties until the 3rd April, 1971."
The rest of the cases were fixed for mention on the 3rd April, 1971, to enable the parties to continue with their negotiations.
However, on March 27, 1971, counsel for the Republic made an application to the Registrar of this Court requesting an early hearing of Recourse No. 55/71; the application reads, inter alia, as follows :-
"However, in the meantime it was discovered that the project in question entails immediate interference with a small part of applicant's property. Any delay in effecting such interference will result in postponement of the whole project with consequential serious prejudice to the public interest and huge damages at the expense of the Republic."
On April 6, 1971, I have only dealt with recourse No. 55/71, because both counsel appearing before me agreed that for the rest of the cases there was no urgency to deal with them.
Before dealing with the submissions of both counsel, I think I ought to reiterate the principles with regard to the making of a provisional order in an administrative recourse. It is clear from the trend of the authorities both in Greece and in Cyprus, that it is a cardinal principle of administrative law that the Court in a proper case, must consider whether the refusal to make a provisional order will cause irreparable damage to an applicant, and at the same time whether the making of such order will also cause serious obstacles to the proper functioning of the administration in effecting a purpose of public benefit, then if it is found to be so, the personal interest of the applicant has to be subjected to the general interest of the public.
The question posed is whether the refusal to make the provisional order would cause to the applicants irreparable damage. Counsel on behalf of the applicants has contended today that the Court is justified in granting the provisional order restraining the respondent in effecting the proposed entry on the lands of the applicants, because the recourse is bound to succeed ; and that irreparable harm would be caused to the applicants. He relies on the authority of HadjiKyriakou & Others v. The Council of Ministers (1968) 3 C.L.R. 1 at pp. 7-9.
I am in agreement with counsel that in a case where the claim of the applicant is so glaring and where his chances to succeed are so obvious, this would have been a strong factor in favour of the making of the provisional order applied for. Having considered the material before me and having heard counsel for the Republic, I would be inclined to take the view, irrespective of the fact claimed by the other side that the recourse is out of time, that the applicants have only an arguable case before me, and not a case where their claim is clearly bound to succeed.
Regarding the question of irreparable harm, I am satisfied from the material before me, that the applicants will not suffer irreparable harm because of the order of the requisition ; particularly so, because the respondents are now seeking to interfere with a small part of plot 286 only, which is of an area of 6,000 sq. ft., and is situated at the north-western part of this plot. This part is surrounded by a fence made out of bushes, and the only damage to be done is the destruction of part of it to enable the contractors to enter on this piece of land in order to carry out a survey, because the main building of the hotel is going to be built round that area. However, I would make it quite clear that even if I would have arrived at the opposite conclusion, and that the applicants would have suffered irreparable harm because of the intervention of the respondents, I would have still been prepared to refuse to giant the provisional order with regard to this particular piece of land, because in view of the importance of the project, the personal interest of the applicants would have to be subjected to the general interest of the public.
The next contention of counsel was that the requisition order made would frustrate the rights of the applicants safeguarded under Article 23.4 of the Constitution, because no payment was made by the respondents in cash and in advance of a just and equitable compensation.
The right of property in our State is guaranteed by Article 23 of the Constitution, and paragraph 1 is in these terms:-
"Every person alone or jointly with others, has the right to acquire, possess, enjoy or dispose of any movable or immovable property, and has the right to respect for such right.
The right of the Republic to underground water, minerals and antiquities is reserved."
The Constitution itself does not define the right guaranteed under that paragraph, but as has been pointed out in the judgment of the Supreme Constitutional Court, in the case of Stelios E. Evlogimenos & 2 Others and The Republic, 2 R.S.C.C. 139 at p. 142 :-
"Further, the Court in examining the provisions of Article 23 of the Constitution has proceeded on the well settled principle that the right to property safe-guarded by an Article such as this is not a right in abstracto, but a right as defined and regulated by the law relating to civil law rights to property, and the word 'property' in paragraph 1 of Article 23 has to be understood and interpreted in this sense."
This decision was affirmed by the Full Bench of the Supreme Court in the case of Chimonides v. Manglis (1967) 1 C.L.R. 125 at p. 143.
It would be observed that the decision in Evlogimenos case (supra) is in accordance with the principles adopted by other constitutions, and gives guidance to the legislator as to the criteria to be adopted in respect of the definition of the right to property. But although the Constitution of Cyprus does not define the right guaranteed under paragraph 1 of Article 23, nevertheless, it appears that on proper construction of that paragraph that the right should be defined in the law in such a way as to render the guarantee provided by the Constitution operative and not to frustrate the Constitutional protection by undue restriction of the contents or extent of the right. Of course, it would have been better had the Constitution by an express provision indicated clearly what kind of property and as to what extent it was intended to protect it.
With regard to the question of compulsory acquisition, Article 23, paragraph 4, of the Constitution reads as follows:-
"Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic or by a municipal corporation or by a Communal Chamber for the educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only from the persons belonging to its respective community or by a public corporation or a public utility body on which such right has been conferred by law, and only-
(a) for a purpose which is to the public benefit and shall be specially provided by a general law for compulsory acquisition which shall be enacted within a year from the date of the coming into operation of this Constitution; and
(b) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition; and
(c) upon the payment in cash and in advance of a just and equitable compensation to be determined in case of disagreement by a civil Court."
In accordance with section 3(2) of the Compulsory Acquisition of Property Law, 1962, the purposes which are to the public benefit for which property may be compulsorily acquired are specified.
I then turn to paragraph 8 of Article 23 of the Constitution which reads as follows:-
"Any movable or immovable property may be requisitioned by the Republic or by a Communal Chamber for the purposes of the educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only where the owner and the person entitled to possession of such property belong to the respective Community, and only-
(a) for a purpose which is to the public benefit and shall be specially provided by a general law for requisitioning which shall be enacted within a year from the date of the coming into operation of this Constitution; and
(b) when such purpose is established by a decision of the requisitioning authority and made under the provisions of such law stating clearly the reasons for such requisitioning; and
(c) for a period not exceeding three years; and
(d) upon the prompt payment in cash of a just and equitable compensation to be determined in case of disagreement by a civil Court."
In accordance with section 3 (2) of the Requisition of Property Law, 1962, the same purposes to the public benefit are specified as those for the compulsory acquisition.
It is to be observed that a requisition differs from an acquisition of property, since under a requisition order only possession of the property is taken, the ownership remaining in the owner's name, whilst under an acquisition order the ownership is transferred. See s. 6 of the Requisition of Property Law, 1962. Furthermore, compensation need not be paid in advance, but promptly.
With regard to the second submission of counsel, that the requisition order made would frustrate the rights of the applicants under Article 23.4 of the Constitution, I think that there is ample authority covering this question. I would, therefore, quote and apply the judgment of the Supreme Constitutional Court in the case of Evrydiki Aspri and The Republic, 4 R.S.C.C. 57. Forsthoff, P., delivering the judgment of the Court had this to say at p. 61:-
"The Court, further, cannot accept that the making of the order of requisition would frustrate whatever rights may have been safeguarded for applicant under sub-paragraph (c) of paragraph 4, concerning the payment in cash and in advance of compensation in respect of the compulsory acquisition. The sole purpose, in the opinion of the Court, of such sub-paragraph (c), when viewed in the context of Article 23, is to ensure that a person shall not be permanently deprived of the ownership of property, or of any right over or interest in property, prior to the payment of compensation in cash and in advance, and this is also the effect of section 13 of Law 15/62. The mere fact that the purpose for which a compulsory acquisition has been decided upon is being pursued protempore by means of requisition, upon payment of compensation, cannot reasonably be said to frustrate the said rights of applicant under sub-paragraph (c) of paragraph 4, because the ownership continues to vest in the applicant in the meantime."
Later on, he said at p. 62:-
"In the light of the above and in the circumstances of this Case, the Court is satisfied that the constitutional rights of applicant are not being invaded nor is the order of requisition contrary to Law 21/62 and, therefore, the justice of the Case does not require the making of a Provisional Order. In any case, no irreparable damage would be caused because, should, for any reason, the compulsory acquisition of applicant's property not materialize eventually, there appears to exist sufficient provision, both in paragraph 8 of Article 23 and also in Law 21/62, for applicant to be compensated in respect of anything to be done under the said order of requisition, including the cost of restoring the original status quo of the property. The risk of having to pay compensation to that extent is clearly involved in the concurrent resort to both media, i.e. of a compulsory acquisition and of a requisition, for the achievement of one and the same purpose of public benefit."
In the light of the reasoning behind the judgment of the Court, which I would adopt in this case, I have reached the view that the rights of the applicants with regard to the piece of land to which I have referred to earlier in this judgment, are not frustrated and I would, therefore, dismiss this contention of counsel. Moreover, since the applicants have failed to show to this Court that they would suffer irreparable damage, I have reached the conclusion to refuse to grant the provisional order suspending the order of requisition sought in this application, because any damage which the applicants would suffer can easily be estimated and compensated by the respondents in terms of money later on. Needless to say, realising the anxiety of the applicants as it appears from paragraph 4 of the affidavit, I have given this case priority and I have fixed it for hearing on the 11th and 12th May, 1971.
Finally, counsel submitted that once the administrative act is one indivisible act, the Court cannot refuse to grant a provisional order as to the part of the land in question and grant it as to the rest. He relies on the well-known textbook of Kyriacopoullos on the Greek Administrative Law, 4th edn. Vol. 'B' at pp. 364-365.
Having considered carefully the contention of counsel, I have reached the view that the argument is untenable because the powers of this Court under Rule 13 of the Supreme Constitutional Court Rules, 1962, are much wider, and if the justice of the case so requires, may even ex proprio motu make a provisional order suspending the effect of the order of requisition until the determination of the proceedings either in toto or partially.
Indeed, it would defeat the very purpose for which the provisional order is sought if I would have been inclined to follow the argument of counsel for the applicants. However, in view of the fact that counsel for the respondent has given an undertaking that the Republic will not interfere with the land on which the dwelling of the applicants is standing, including a space of 15 feet surrounding the house, I have decided under these circumstances not to make an order restraining the respondent and/or its servants or its contractors, until the 26th April, 1971, when counsel would be reporting to this Court as to the progress of the work carried out, and whether or not there would be an immediate urgency as to the requirements of the piece of land on which the said house of the applicants is standing. I think, however, that I ought to make it quite clear that had it not been for this stand taken by counsel for the respondent, I would have been prepared, in the light of the material before me, to grant a provisional order in favour of the applicants until the determination of the whole case on its merits, particularly so, because the question of compensation has not yet been settled.
For the reasons I have endeavoured to explain, I would adjourn this application to the 26th April, 1971, at 10.00 a.m. Under the circumstances, I am not prepared to make an order for costs.
Application for provisional
order refused.