ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 243

1989 February 24

 

[DEMETRIADES, J.]

IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION

ANDREAS LOUKA.

Applicant,

v.

THE REPUBLIC OF CYPRUS, THROUGH THE

COUNCIL OF MINISTERS.

Respondent.

(Case No. 372/85)

Acts or decisions in the sense of Art. 146.1 of the Constitution - Management of private property of the State - Principles governing the question whether it is or it is not within the ambit of Art 146.1 of the Constitution - In respect of property owned by the Government as a private owner, it has to be shown that the relevant decision was taken in the exercise of a function in furtherance of a purpose of vital public interest - Otherwise, the decision is outside the ambit of Art. 146.1 of the Constitution.

Part of the property of the applicants in Paralimni was compulsorily acquired by the Improvement Board of Paralimni. The decision was impeached by a recourse. The recourse was withdrawn upon agreement that the respondents would recommend .to the Government to grant a lease of adjoining government property to the applicant for the purpose of building a hotel.

Following various administrative inquiries, the Council of Ministers finally rejected the application for the grant of the lease in question. Hence the present recourse.

Having analysed the authorities concerning the question when management of the private property of the state falls within the domain. of Public Law and having arrived at the conclusion that the property in question was not property of a public nature owned by the Government for public use purposes, but that it was property owned by the Government as a private owner, the Court dismissed the recourse on the ground that it had not been shown that the sub judice decision was taken in the exercise of a function in furtherance of a purpose of vital public interest. The Court was of the opinion that the grant of the particular lease would not have served a purpose of vital public importance, but only the private interest of the applicant, who wanted to build a hotel.

Recourse dismissed. No order for costs.

Cases Referred to:

Miliotis v. Republic (1968) 3 C.L.R. 477,

Chrysanthou and Another v. Republic (1968) 3 C.L.R. 519,

Asproftas v. Republic (1973) 3 C.L.R 366,

Poyiadjis v. Republic (1975) 3 C.L.R 378,

Charalambides v. Republic (1982) 3 C.L.R. 403,

Tekkis and Another v. Republic (1982) 3 C.L.R 680.

Recourse.

Recourse against the refusal of the respondents to grant to applicant the lease of Government land at Paralimni, adjoining his property.

L. Clerides, for the Applicant.

A. Vassiliades, Counsel of the Republic B, for the Respondent.

Cur. adv. vult.

DEMETRIADES, J. read the following judgment. The applicant challenges the decision of the respondents contained in their letter dated the 21st January, 1985, whereby they refused to grant to him the lease of Government land at Paralimni, adjoining his property.

The Applicant is the owner of plot No. 375/1, Sheet/Plan XLII/8 El.E2 at the locality of Protaras, at Paralimni village. The applicant, who is a displaced person living in London, intended to develop his property by building a small hotel thereon. On the 29th October, 1977, a notice of acquisition of part of applicant's property ways published in the Official Gazette of the Republic. The applicant objected but his objection was dismissed and an order of acquisition of part of his property by the Improvement Board of Paralimni, for the purpose of constructing a road, was finally published in the Official Gazette of the Republic, dated the 27th October, 1978. The result of the acquisition was that the property of the applicant was cut into two pieces separated by the road in a way that its full development was not possible.

The applicant filed Recourse No. 480/78 against the order of acquisition. The recourse was settled on the 14th March, 1980 on condition that the Improvement Board of Paralimni would recommend to the Council of Ministers the lease to the applicant of a piece of Government land adjacent to his property. As a result, the applicant withdrew his recourse.

In the meantime, the applicant had applied, in 1978, to the Department of Lands and Surveys, for the lease of the Government land in question. The lands and Surveys Department requested the views of various departments, one of which, the Cyprus Tourism Organization, objected to the lease on the ground that the Government land could be better utilized. As a result, the Ministry of Commerce and Industry informed the Department of Lands and Surveys, by letter dated the 17th May, 1982, that they did not intend to pursue the matter any further.

Following certain representations of the applicant to the Improvement Board of Paralimni and an undertaking of the latter to honour its part of the settlement in Case No. 480/78.the matter was reconsidered and the Cyprus Tourism Organization was requested to give its reasons for its objection to the lease in question and whether the objection continued to exist. The latter, after Obtaining the views of the Department of Town Planning and Housing, replied by letter dated the 10th April, 1984, that its Objection continued to exist for the following reasons:

(a) The hotel that the applicant intended to build could not be considered as viable.

(b) The hotels that could be build in the area should offer additional recreation and athletic facilities.

(c) The policy of the Government was not to lease in the future any government land for the erection of hotels.

(d) In view of the development of the area it was better if the government lands were left free for the creation of open and green spaces for use by the public.

By letter dated the 5th May, 1984, the Cyprus Tourism Organization informed the applicant that after obtaining the views of the Department of Town Planning and Housing, his application for the lease of the land was re-examined but it was decided not to be recommended. In the said letter, it is further stated that the piece of land consisted of a larger piece of government land which, in view of the development of the area, had to be turned into green spaces, pavements etc., for use by the public and that in the light of this, the Ministry of Commerce and Industry did not intend to pursue the matter any further.

The applicant protested by letter dated the 1st June, 1984, stating that the proper organ to decide on such matters was the Council of Ministers and requested a final decision by that organ. The matter was referred, as a result, to a Ministerial Committee, which, after considering it, referred it to the Council of Ministers for final decision, with the recommendation that it should be dismissed. The Council of Ministers, by its decision No. 25.300, dated the 22nd December, 1984, decided to dismiss the applicants application for the reasons stated in the submission, which are those contained in the letter of the Cyprus Tourism Organization dated the 10th April, 1984, reference to which has already been made. The applicant, who was informed accordingly by letter dated the 21st January, 1985, filed the   present recourse.

The matters which arise for consideration are first whether the sub judice decision can be entertained by a recourse, and, secondly, whether the sub judice decision was reasonably open to the respondents having regard to the circumstances of the case and especially the terms of settlement in Recourse No. 480/78.

Counsel for the respondents argued, in respect of the first ground, which he raised as a preliminary objection, that the subject matter of the recourse relates to the management of state land and as such it comes within the domain of private and not of public law.

Counsel for the applicant argued, in reply, that the sub judice decision is an executory one within the sphere of public law, since it emanates from a body exercising administrative authority and applying the touristic policy of the government, intended to serve a public purpose.

In Greece it has been accepted that acts in the management of the private property of the state do not fall within the domain of public law (see Kyriacopoulos on Greek Administrative Law, 4th ed. Vol. C pp. 13, 14, 102 - 103, and Case No. 1118/1956 of the Greek Council of State.

In Cyprus, the question whether acts done in the management of Government property come within the ambit of Article 146 of the Constitution or whether they are acts within the domain of private law, came before the Courts before. Thus, in the case of Miliotis v. The Republic (1968) 3 C.L.R. 477, where a hawker challenged a decision of the Minister of Communication and Works preventing him from entering the Famagusta Port area for the purpose of carrying on therein the trade of a hawker, it was held that the dispute was one within the ambit of Article 146 of the Constitution because the property concerned, as stated at p. 479 of the judgment "... is not what would be described as property owned by the Government in its capacity as a private owner; it is property of a public nature owned by the Government for public use purposes;"

In the case of Chrysanthou and Another v. The Republic (1968) 3 C.L.R. 519, which concerned the lease of government property for purposes of cultivation, it was held that although the property concerned was government property, the management of which could ordinarily fall outside the ambit of Article 146, in so far as it would be management such as that carried out by a private owner, in the particular circumstances of the case it was a matter within the sphere of public law. The Court took this view because the lease in question was made in furtherance of a purpose of public nature, that is agricultural reform in the public interest and the selection of the lessees was based upon certain criteria laid down by the Council of Ministers.

In Asproftas v. The Republic (1973) 3 C.L.R. 366, the refusal of the Director of the Department of Lands and Surveys to register in the name of the applicant a strip of land on the ground that it was registered as a public road, was held to be a decision in the sphere of private law.

In Poyiadjis v. The Republic (1975) 3 C.L.R. 378, the subject matter of the recourse, which concerned the transfer of interest in an encroachment on state land, was held to fall within the ambit of Article 146 of the Constitution. This conclusion, however, was reached by the Court in view of the fact that the property concerned was government forest land and the decision taken was "an expression of governmental action and policy in a matter of what may be described as vital public importance, namely the touristic development of Troodos and as such predominantly intended to serve a public purpose".

In the case of Charalambides v. The Republic (1982) 3 C.L.R. 403, the refusal of the Cyprus Tourism Organization to renew the lease of government land at Troodos to the applicants was held to be within the sphere of private law as it did not intend to serve an public purpose.

Lastly, in Tekkis and Another v. The Republic (1982) 3 C.L.R. 680, it was decided that the decision of the Council of Ministers concerning the sale or not of government properties privately owned was one within the sphere of private law, not amenable by a recourse under Article 146 of the Constitution, as they were not acts in furtherance of a purpose of vital public importance.

In the present case, there is no question that the government property concerned is not property of a public nature owned by the Government for public use purposes. It follows that it is property owned by the government as a private owner. As a result, for the sub judice decision to come within the ambit of Article 146 of the Constitution, it has to be shown that it was taken in the exercise of a function in furtherance of a purpose of vital public interest.

From the material before me, it seems that no purpose of vital public importance would have been served by the grant or not of the land in question to the applicant, but only the private interests of his. As a result, I find that, in the circumstances, the sub judice decision does not come within the ambit of Article 146 of the Constitution. The preliminary objection, therefore, succeeds and the recourse has to be dismissed.

Even if the sub judice decision came within the domain of public law and the sub judice decision was intended to serve a public purpose, I still feel that the recourse has to be dismissed on its merits as the respondent is vested with a very wide discretion, in matters of public policy. Moreover, the undertaking of the Improvement Board of Paralimni to recommend the grant of lease to the applicant is irrelevant as it does not bind in any way the Council of Ministers which was not a party to the action or the settlement.

In the result, this recourse fails and has to be dismissed but, in the circumstances, I make no order for costs.

Recourse dismissed No order as

to costs.

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