DEMOSTHENOUS ν. MUNIC. OF LIMASSOL (1989) 3A CLR 495

Executory act - Omission to reply to applicant's letter as provided by Art.29 of the Constitution tantamounting in the circumstances to tacit rejection of it bringing the case within the ambit of Art.146 of the Constitution.

Streets and buildings - Building permit - The Streets and Buildings Regulation Law, Cap. 96- Street Widening Scheme - Refusal to grant the permit applied for on ground based on a Street Widening Scheme, existing on paper only - Ground of annulment.

The applicant applied for a building permit to erect 11 shops on his property in Ayia Phyla village. On 6 October 1987 the respondents informed the applicant that the proposed building did not comply with the Regulations and that, unless the applicant, modified his plans within a month, his application would be rejected. The letter ended by a statement that "... your property and the proposed building are affected by a street widening scheme". The applicant replied to the above letter on 27 October, 1987 alleging that the plans complied fully with the Law and Regulations and stating that he had no intention to modify them. The applicant requested the respondents to inform him within 10 days whether they intended to grant the permit in question or not.

Since no reply was sent by the respondents to the applicant withinone month as contemplated by the Constitution and in any event not till the 4th December, 1987, the applicant on 4 December 1987 filed the present recourse, challenging, inter alia, the decision not to grant the building permit in question.

The legal issues raised and determined by the Court sufficiently appear in the hereinabove Headnotes.

Sub judice decision annulled. No order as

to costs.

Cases referred to:

Simonis and Another v. Improvement Board of Latsia (1984) 3 C.L.R. 109,

Orphanides and Another v. Improvement Board of AyiosDhometios (1979) 3 C.L.R. 466,

Paphos Plantations v. Republic (1985) 3 C.L.R. 2745,

Smirli v. Municipality of Paphos (1986) 3 C.L.R. 729,

Sarkis v. Improvement Board of Paralimni (1986) 3 C.L.R. 2457,

Kyriakides v. Improvement Board of Aglandja (1979) 3 C.L.R. 86,

Kirzis v. Republic (1965) 3 C.L.R. 46,

The Holy See of Kitium v. Municipal Council of Limassol, 1 R.S.C.C. 15,

Thymopoulos v. Municipal Committee of Nicosia (1967) 3 C.L.R.588,

Araouzos and Others v. Republic (1968) 3 C.L.R. 287,

Sofroniou and Others v. Municipality of Nicosia and Others (1976) C.L.R. 124,

Municipality of Limassol v. AyiaKatholiki Church of Limassol and Others(1984)3 C.L.R. 1562.

Recourse.

Recourse against the refusal of the respondents to grant to applicant a building permit.

A. Demosthenous with P. Demosthenous,for the Applicant.

Y. Potamitis, for the Respondents.

Cur.adv. vult.

SAVVIDES, J. read the following judgment. By the present recourse, the applicant prays:

(a) For a declaration that the decision and/or act of the respondents not to examine or grant the application for a building permit applied for by the applicant unless the plans submitted by him were modified, is null and void and of no effect whatsoever as being contrary to law and/or in abuse of or in excess of power.

(b) For a declaration that the decision and/or act of the respondents not to grant the building permit applied for by the applicant, is null and void and of no legal effect whatsoever.

The facts of the case are briefly as follows:

The applicant is the registered owner of Plot No. 284Registration No. 26419, Sheet/Plan LIV/41 of a total extent of18,000sq.ft. atAyia Phyla-Limassol. The property is building land situated at the southern part of Ayia Phyla village and one mile from Limassol town. It has a large frontage on the main Ayia Phyla-Limassol road. The property is near the residential area of the village and is surrounded by many building sites which have been created through sub-division of land in the last years. New shops have been erected on building sites adjacent, near and opposite to the applicants property and which have a frontage on the main Ayia Phyla-Limassol road.

The respondents, hereinafter to be referred to as the "respondent Authority", are the appropriate Authority underthe Streets and Buildings Regulations Law for the issue of building permits.

On 30th May, 1987, the applicant applied to the respondent Authority for a building permit to erect 11 shops on his above mentioned property.

On 6th October, 1987, the respondent Authority wrote to the applicant informing him that the proposed building did not comply with the regulations of the Streets and Buildings Regulation Law and unless the applicant, modified his plans within one month, his application for a building permit would be rejected. The contents of such letter (exhibit A) read as follows:

"With reference to your application dated 30.5.87 by which you applied for a building permit on your immovable property which is situated at Ayia Phyla Quarter under Registration No. 26419, dated 12.3.82 Plot 284, we wish to inform you that in examining your application, it has been observed that the proposed building is not in accordance with the regulations under the Streets and Buildings Regulation Law, and you are requested, within one month from today, to modify your plans, otherwise your application will be rejected. Your property and the proposed building are affected by a street widening scheme". (The underlining is mine).

The applicant replied to the above letter through his counsel on 27th October, 1987 (exhibit B) alleging that the architectural plans submitted complied fully with the law and existing regulations and stated that he did not intend to modify his plans as mentioned in the respondents letter and also requested to be informed within ten days whether the respondent Authority intended to grant the permit in question.

No reply was sent by the respondent Authority to the aforesaid letter of the applicant within one month as contemplated by the Constitution and, in any event, not till the 4th December, 1987, the date on which the applicant filed the present recourse challenging the decision of the respondent Authority.

The legal grounds advanced in support of the applicantsprayer in this recourse are the following:

(a) The sub judice act and/or decision was taken in abuse and or in excess of power.

(b) The sub judice decision was taken in contravention of the Streets and Buildings Regulation law, Cap. 96 (as amended) and the regulations made thereunder.

(d) The sub judice act and/or decision amounts to a deprivation of the applicant of his property contrary to the provision of Articles 23.2 and 23.4 of the Constitution.

(e) The sub judice act and/or decision violates Article 23.2 of the Constitution.

(f) The respondents acted under a misconception of fact and law and

(g) The respondents failed to carry out a proper enquiry in the case.

The legal grounds expounded by counsel for applicant by his written address may be briefly summarised as follows:

(a) The reply of the respondent Authority to applicants application (exhibit A) informing him that the proposed building did not comply with the relevant law and Regulations and requiring him to modify his plans so that the proposed building would not encroach on a Street widening scheme of the area, amounts to a rejection of applicant's application as it stood. In any event the reply of applicant's counsel dated 27.10.87 (exhibit B) made in incumbent on the respondent Authority to decide on the application for a building permit as it stood, and the respondents silence can only be construed as a tacit rejection of it.

(b) The requirement for modification of the plans is not legallyfounded as the respondents had no right to require the applicant to comply with a Street widening scheme which had no actual legal force as having not been effected in accordance with the provisions of the Streets and Buildings Regulation Law, Cap.96, but it was only a scheme proposed on paper.

(c) Since the applicant's property was not affected by a street widening scheme with actual legal force the requirement on the part of the respondent Authority was one that it had no power to make under the law and thus it acted in abuse and or excess of its powers.

(d) Due to the magnitude of the adjustment sought to be made to the road network of the area and also to the fact that the property of the applicant is affected to a material extent the decision of the respondent Authority is contrary to the provisions of Article 23.2 and 4 of the Constitution because in effect it amounts to deprivation of his property and consequently the powers under Cap. 96 were resorted to in a manner which is unconstitutional. In the circumstances the deprivation of the applicant of his property in question could only have been effected by means of a compulsory acquisition under the provisions of the Compulsory Acquisition of Property Law, 1962, which is the general law for compulsory acquisition envisaged by Article 23.4(a) of the Constitution.

The arguments of counsel for the respondent Authority on the other hand, in support of the sub judice decision are briefly as follows:

(a) The property of the applicant is not in fact affected by a "street widening scheme" as was stated wrongly by the respondent Authority in its letter to the applicant dated 6.10.1987 but it is in fact affected by a plan for a primary distributor (σχέδιο κεντρικής αρτηρίας) of a length of more than 4 kilometres which forms part of the Limassol Local Plan (Τοπικό Σχέδιο Πολεοδομίας) which was approved by the Council for Town Planning and Housing and adopted by the Limassol Municipality on 4.6.1984 in accordance with section 9(1)(b)(xiii) of Cap.96.

(b) The respondent Authority acted all along in accordance with the provisions of s.9(1)(b)(xiii) which empowers the respondent to impose conditions necessary for the widening and/or construction of road networks.

(c) The condition required by the respondent Authority does not substantially or at all diminish the value of the applicant's property but on the contrary it will increase the value of the shops because they will abut on a wide avenue. In any event even if it is found that a diminution of the value of the rest of applicants property may occur this is not a question to lead to annulment of the sub judice decision but a question of compensation.

(d) In the same manner that s.9(1)(c) of cap.96 empowers the appropriate Authority to impose conditions with regard to the laying out or division of land for building purposes, s.9(1)(b)(xiii) empowers such Authority, in the case of applications for a building permit to impose conditions for the widening, continuation and construction of the street network in appropriate cases. In the light of the interpretation of the relevant provisions of Cap.96 for the division of land into building sites as explained in Simonis and Another v. Improvement Board of Latsia (1984) 3 C.L.R. 109, it is within the powers of the appropriate Authority to suggest alterations considered necessary for the creation of a satisfactory network of roads for the orderly development of an area and the creation of proper environmental conditions and the imposition of conditions for the development of land involving cession of land to the public for environmental purposes is not an act of deprivation.

(e) The power of the Authority to impose such conditions is independent of the provisions of s. 12 which provides that "notwithstanding anything contained in the law" the appropriate Authority may prepare plans for the widening or straightening of streets in the manner provided therein. In the present case, counsel submitted, the Authority did not invoke the provisions of s.12 but acted all along in the exercise of its powers under s.9 of Cap.96.

Before embarking on the legal issues before me I shall briefly deal with the contention raised in the opposition that the present recourse does not challenge an act or omission within the ambit of Article 146 of the constitution.

From the facts, as already narrated, the respondent Authority by its letter dated 6.10.87 (exhibit A) informed the applicant that if within one month he failed to modify his plans his application would be rejected. The applicant before the expiration of the month, brought to the notice of the respondent Authority that he did not intend to modify his plans as in his view the plans were in compliance with the law and requested to be informed within ten days whether the respondent Authority intended to grant the permit in question.

The applicants reply to the aforesaid letter made it incumbent on the respondent to decide on applicants application. Therefore even assuming that the respondents letter in question was not in itself an executory act, the failure of the respondent Authority to reply to applicants letter (exhibit B) within one month as provided by Article 29 of the constitution and its silence can only be construed as a tacit rejection of it bringing the case within the ambit of Article 146 of the Constitution. (See: Orphanides and Another v. Improvement Board of AyiosDhometios (1979) 3 C.L.R. 466, 475).

I come next to consider the relevant provisions in the Streets and Buildings Regulation Law, Cap.96, as amended by Laws 14/195 9 to 87/87 to which reference was made by both counsel.

Section 3 of Cap.96 regulates the right of submitting applications for, inter alia, building permits and the procedure for the granting of same.

Section 9 provides as follows:

"9.(1) In granting a permit under the provisions of section 3 of this Law, the appropriate authority shall have power, subject to any Regulations in force for the time being, to impose conditions as hereinafter, to be set out in the permit, that is to say -

(a) With regard to the laying out or the construction of a street, conditions as to -

(v) The widening of any street which adjoins the street to which the application relates.

(b) With regard to the erection of any new building or addition, alteration or repair to any existing building, conditions as to

(xiii)The widening, continuation and construction of the street network in appropriate cases;

(v) The Construction of streets, bridges, culverts, ditches, and pavements;

It should be noted here that though the powers contained in paragraphs (a)(v) and (c)(v) of sub-section (1) are in the same wording and no qualification is made in respect thereof, the power under paragraph (b)(xiii) is qualified to apply "in appropriate cases."

Sub paragraph (xiii) of paragraph (b) of sub-section. (1) of section 9 was introduced by Law 24/78 published in the official Gazette of the 8th May, 1978.

Section 12 of Cap.96 with the marginal note "special provisions relating to widening or straightening of streets" provides as follows:

"12(1) Notwithstanding anything contained in this Law, an appropriate authority may, with the object of widening or straightening any street, prepare or cause to be prepared plans showing the width of such street and the direction that it shall take.

(2) When any plans have been prepared under sub-section

(1), the appropriate authority shall deposit such plans in its office and shall also cause a notice to be published in the Gazette and in one or more local newspapers to the effect that such plans have been prepared and deposited in its office and are open to inspection by the public and such plans shall be open to the public for inspection, at all reasonable times, for a period of three months from the date of the publication of the notice in the Gazette.

(3) At the expiration of the period set out in sub-section (2), the plans shall, subject to any decision by the Council of Ministers on appeal as in section 18 of this Law provided, become binding on the appropriate authority and on all persons affected thereby arid no permit shall be issued by the appropriate authority save in accordance with such plans."

and s.13 reads as follows:

"13.(1) Where a permit is granted by an appropriate authority and such permit entails a new alignment for any street, in accordance with any plan which has become binding under section 12 of this Law, any space between such alignment and the old alignment, which is left over when a permit is granted, shall become part of such street without the payment by the appropriate authority of any compensation whatsoever:

Provided that, if it is established that hardship would be caused if no compensation were paid, the appropriate authority shall pay such compensation as may be reasonable having regard to all the circumstances of the case.

(2)...."

It has been contended by counsel for the respondents that the reason given in the decision of the respondent Authority for refusing to accept applicants application that "his property and the proposed building are affected by a street widening scheme" was wrong because there did not exist an approved and valid street widening scheme under the provisions of section 12. What in fact existed, according to counsel was a plan for a primary distributor (σχέδιο κεντρικής αρτηρίας) which wasapproved by the respondent Authority and adopted on 4.6.1984 under the provisions of s.9(1)(b)(xiii) of Cap.96.

The decision of the respondent Authority of 4.6.1984, to which reference has been made by its counsel, as it appears in the extract of the minutes of the meeting of the respondent Authority (Annex A) to the opposition reads as follows:

"3. Βασικές οδικές αρτηρίες στα βόρεια της Λεμεσού: Η Δημοτική Επιτροπή, αφού συνέχισε και συμπλήρωσε τη μελέτη κατασκευής των δύο οδικών αρτηριών που αναφέρονται στην επικεφαλίδα, δηλ. της κύριας αρτηρίας κυκλοφορίας βόρεια του νέου παρακαμπτηρίου δρόμου Λεμεσού και του παρακαμπτηρίου δρόμου Αγίας Φύλας, καθώς και της μερικής διεύρυνσης δρόμων δευτερεύουσας σημασίας, που συμβάλλουν με αυτές ως και του καθορισμού των συμβολών στους πιο κάτω κύριους δρόμους, σύμφωνα με τα σχέδια που εξεπόνησε και ετοίμασε το Τμήμα Πολεοδομίας και Οικήσεως με βάση τις πρόνοιες του προκαταρκτικού Τοπικού Σχεδίου Λεμεσού, και τα οποία σχέδια διεβιβάσθησαν με την επιστολή του Διευθυντή του πιο πάνω Τμήματος, με στοιχεία αναφοράς LL/L/3/(B), ημερομ. 20.1.1984, ομοφώνως απεφάσισε και ενέκρινε τα εν λόγω σχέδια ως και την τήρηση από μέρους του Δήμου όλων των υποχρεώσεων που απορρέουν από την εφαρμογή τους και ως διαλαμβάνονται και καθορίζονται στην πιό πάνω επιστολήν, με τις ακόλουθες δύο μικρές τροποποιήσεις.

What was the meaning and effect of such decision in accordance with the respondent Authority itself is clear as it appears from the contents of the letter of 6.10.87 communicated to the applicant that applicant's property was affected by a Street Widening Scheme, which was nothing more than the scheme mentioned in the decision of the respondent Authority of 4.6.1984. Notwithstanding the rejection of the existence of such plan by counsel for applicant the respondent Authority did not reply to the letter of applicants counsel advancing any reasons for its refusal other than that the property of the applicant and the proposed building were affected by "a street widening scheme".

The next thing I have to consider is whether the rejection of applicants application for the reasons stated in the letter of the respondents (exhibit A) is legally justified.

It is common ground in this case that no approved and valid street widening scheme was in existence at the material time. There is a line of authorities establishing that a building permit cannot be refused or a condition imposed requiring compliance with a street widening scheme which did not actually and legally come in force and was only a scheme on paper.

In Orphanides and Another v. Improvement Board of AyiosDhometios (supra) at p.475 it was held:

"In my judgment the appropriate authority has no right to require a person who applies for a permit to erect a building on land not affected by the street-widening scheme to do, in connection with that land, anything that is not required by a scheme having actual legal force, as distinct from a scheme existing only on paper; and since here the applicants property was not so affected, the requirement made in the letter exh.2 was one that the authority had no power to make."

The above dicta in Orphanides case were adopted in Paphos Plantations v. Republic (1985) 3 C.L.R. 2745, in which A. Loizou, J. (as he then was) made an elaborate exposition of our case law both in respect of conditions which may be imposed in cases of applications for permits to divide land into building sites and applications for building permits on existing building sites and drew the distinction between them. His conclusion regarding conditions imposed on a building permit allegedly in the exercise of powers tinder s.9(1)(b)(xiii) of Cap. 96 was as follows at p.2755:

"The condition imposed on the applicant Company cannot be justified by either of the provisions of the Law relied upon by the respondents. A building permit cannot be refused nor conditions imposed in anticipation of an acquisition order being made nor in anticipation of a street widening scheme. Without purporting to examine what is the full extent of the powers of the appropriate Authority under the said sections I have come to the conclusion that in the circumstances of this case they have both been applied in a manner which results in deprivation of in a way inconsistent with Article 23 of the Constitution that is otherwise than through compulsory acquisition or through the existence of a street widening scheme published under the provisions of section 12 of Law Cap.96."

To the same effect are the judgments in Smirli v. The Municipality of Paphos (1986) 3 C.L.R. 729 and Sarkis v. Improvement Board of Paralimni (1986.) 3 C.L.R. 2457. In the first case Kourris, J., in annulling the sub judice decision had this to say (at p.732): -

"In my opinion as the proposed street widening scheme of Aphroditi and Fellahoglou streets has not been published in the Official Gazette as provided by s.12 of the Streets and Buildings Regulation Law, Cap.96, the respondent Municipality could not refuse the building permit on the ground that the building encroached on the area of the proposed street widening scheme because it had no legal force as it was existing only on paper."

and after making reference to Orphanides case (supra) and adopting what was said in that case, went on as Follows at p.733:

".I am of the opinion that the respondent Municipality had no power to refuse to the applicant the building permit because the proposed street widening scheme had no actual legal force because it was not published in the Official Gazette as provided by s.12 of the Streets and Buildings Regulation Law, 96, and in these circumstances the respondent Authority acted contrary to the Law and in abuse and excess of powers."

In the second case A.Loizou, J. (as he then was) held at p.2463 that:

".an appropriate Authority has no right to require a person who applies for a building permit to do anything that is not required by a scheme having actual legal force as distinct from a scheme existing only on paper.

...the basic prerequisite of this section, namely the existence of a scheme that has become binding under section 12 of the Law in not satisfied in the present case and therefore Section 13 does not apply."

I adopt the dicta in the aforesaid cases and I find that in the circumstances of the present case once the alleged street widening scheme was not a scheme having actual legal force under the law as not having been effected in compliance with the provisions of s.12 of Cap.96 but it was a scheme existing only on paper, the respondent Authority could not refuse the building permit and the requirement contained in its letter Exhibit B was one that the Authority had no power to make. In these circumstances it acted contrary to the Law and in abuse and excess of powers.

Counsel for the respondents sought to rely on s.9(1)(b)(xiii) of the Streets and Buildings Regulation Law, Cap.96, either alone or read together with s.9(1)(a)(v) and 9(1)(c)(v). In support of his submission he referred to the dicta in Simonis and Another v. The Improvement Board of Latsia (1984) 3 C.L.R. 109. This was a case of an application for a permit to divide a plot of land into 14 building sites and the respondent authority intimated that they could approve the division of as many as eleven building sites but refused to approve the division of the land into any greater number of building sites, after the authority had made a series of suggestions for alteration or modification of the plans, in order to facilitate its approval, purporting to exercise its power under s.8 of Cap.96. Pikis, J., held that section 8 of Cap.96 empowers the appropriate Authority to make suggestions for alterations of the plans submitted in order to ensure proper communications and road improvement in the area and he referred in that respect to paragraphs (c) and (d) thereof.

Simonis case followed in fact the decisions of the Full Bench of the Supreme Court in Kyriakidesv. The Improvement Board of Aglandja (1979) 3 C.L.R. 86 in which it was held, at p.90 that:

"In our opinion paragraph (c) of section 8 Cap.96 does empower the appropriate authority in this case therespondents, to take into account in relation to the concept of 'communication ..in the area' the aspect of the access of the plot, in respect of which a division permit is being sought, to a public road.

We, therefore, find that it was within the proper exercise of the discretionary powers of the respondents to refuse the division permit applied for by the appellant."

That was a case where the appellant was refused a permit for division of land into building sites on the ground that the plot in question did not abut on a public road and the refusal was based on section 8 of Cap.96.

I agree with the opinion expressed by A. Loizou, J. (as he then was) in Paphos Plantations that the above decided cases turned on permits relating to the division of land and are distinguishable in any event. I share also the opinion expressed by him at p.2754, 2755 in the same case as follows:

"I have not been able to trace any authority turning on the construction of section 9(1)(b)(XIII) of Cap.96 and to my mind its provision empowering the appropriate Authority to impose conditions regarding the widening, continuation and construction of the street network in appropriate cases have to be applied in the light of Article 23 of the Constitution and cannot substitute the provisions contained in sections 12 and 13 of the Law relating to the widening or straightening of streets."

The last contention of counsel for applicant was that the material extent to which the property of the applicant is to be affected amounts to deprivation of his property within the ambit of Article 23.2 of the Constitution. As expounded by him, out of a total extent of 18.000 sq. feet which was the extent of applicants property he was required to cede to the public an area of 9,350 sq. feet, that is approximately 52% of his property for the widening of an existing road.

The provisions of paragraphs 2 and 4 of Article 23 of the Constitution came up for consideration for the first time in 1861 by the Supreme Constitutional Court in the case of The HolySee of Kitium v. The Municipal council of Limassol, 1 R.S.C.C.15. The following are stated in the judgment of the Court at pp.27-28:

".the Court, with a view to enabling the parties to avoid, a far as possible, the expense of further litigation, has decided to express. hereinunder in this: judgment its opinion on certain questions concerning the interpretation and effect of Articles 23 and 188 of the Constitution.

(a) The requirement of applying for a building permit under section 3 of CAP.96 is connected with the right of property safegaurded by paragraph. 1 of Article 23, which includes the right to possess and enjoy property.

(b) Paragraph 2 of Article 23 provides that no deprivation or restriction or limitation of any such right shall be made except as provided in the said Article and paragraph. 3 thereof provides:

'Restrictions or limitations which are absolutely necessary in the interest of the public safety or the publichealth or the public morals or the town and country planning or the development and utilization of any property to the promotion of the public benefit or for the protection of the rights of others may be imposed by law on the exercise of such right'.

(d) In each case where a building permit is applied for it is a question of fact and of degree, depending upon the circumstances of the particular case whether the decision of the appropriate authority thereon amounts to a deprivation (within the meaning of the above provisions and which can only be achieved under paragraph 4 ofArticle 23, or whether it amounts to 'restriction or limitation' (within the meaning of the above provisions which can only be imposed under paragraph 3 of the said Article, and in the particular case of an owner such as the Applicant, only under the proviso to paragraph 9 thereof."

The above decision was followed in a number of cases eversince. (See, inter alia: Kirzis v. The Republic(1965) 3 C.L.R. 46; Thymopoulos v The Municipal Committee of Nicosia(1967) 3 C.L.R. 588; Araouzos and Others v.The Republic (1968) 3 C.L.R. 287; Sofroniou and Others v.The Municipality of Nicosia and Others (1976) 3 C.L.R. 124; Municipality of Limassol v. AyiaKatholikiChurch of Limassol and Others (1984) 3 C.L.R. 1562; Smirliv. Paphos Municipality (supra)).

In The Municipality of Limassol v. AyiaKatholiki Church of Limassol and Other (supra) in the judgment of the Full Bench at p.566 Triantafyllides, P., had this to say:

"In the present instance where the respondents have sought a building permit in order to erect on the aforementioned property twelve hops and they were refused such permit absolutely and were then informed by the appellant Municipality that they could submit plans for underground shops, we have no difficulty in arriving at the conclusion that the sub judice refusal & the appellant amounts to a deprivation contrary to Article 23.4 of the Constitution, and, consequently, the powers under sections 8(c) and 3(1)(e) of Cap. 96 were resorted to in a manner which was unconstitutional."

In Smirliv The Municipality of Paphos (supra) Kourris, J. concluded his judgment as follows (at p.736):

"Having in mind the facts and Circumstances of this case I have also reached the conclusion that irrespective of the extent Of the powers under ss.8, 9, 12 and 13 of the Streets and "Buildings Regulation Law, Cap, 96, these cannot be applied in a manner which results in deprivation of the property in a way inconsistent with Article 23.4 of the Constitution that is otherwise than through a compulsory acquisition effected under the said Article 23.A and the Compulsory Acquisition of Property Law, 1962 (Law 15/62) and .therefore, it is unnecessary in this case to examine what is the full extent of the powers of the respondent Municipality under the aforesaid sections."

Notwithstanding the soundness of the argument by counsel for applicant I find it unnecessary to elaborate further on thisissue in view of the conclusion I have already reached that in the circumstances the respondent Authority acted contrary to the law and in abuse and excess of powers which is sufficient ground for the annulment of the sub judice decision.

In the result this recourse succeeds and the sub judice decision is annulled. In the circumstances I make no order for costs.

Sub judice decision annulled. No

order as to costs.

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