Supreme Court dismisses recourse against preparatory compensation offer as non-final act outside Article 146 jurisdiction.

[*923] 1968 August 24

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDRICTION

In the matter of article 146 of the Constitution

Kalliopi K. Koupepa,

Applicant,

and

1. The Municipal Committee of the

Municipal Corporation of Limassol

2. The Municipal Corporation of Limassol,

Respondents.

(Case No. 135/67).

Acquisition - Land - Compulsory acquisition of land – Step by Respondent Municipality offering compensation in respect of property compulsorily acquired - Step not a final administrative act or decision, of an executory nature - A preparatory step outside the ambit of the jurisdiction under Article.

Constitutional Law - Article 146 of the Constitution - Acts or decisions against which a recourse can be made under Article 146 - Executory and preparatory acts or decisions.

Administrative Law - Revisional jurisdiction - Assessment of compensation payable in respect of compulsorily acquired property - A matter within the jurisdiction of a civil Court, and not of a Court exercising revision jurisdiction.

Sir P. Cacoyannis, for the Applicant.

J. Potamitis, for the Respondents.

JUDGMENT

The following Judgment was delivered by: -

TRIANTAFYLLIDES, J.: On the 6th June, 1967, the Respondent Limassol Municipality addressed to the Applicant a letter (see exhibit 1) offering her compensation, at the [*924] rate of £900 per donum, in respect of her property in Limassol (plot 20/3, under registration 34216 of the 28th November, 1917) which had been compulsorily acquired on the 22nd September, 1961; the relevant Order had been published in the Official Gazette of that date (3rd Supplement, Not. 338).

Counsel acting for the Applicant replied on the 12th July, 1967 (see exhibit 2) stating that their client no longer recognized the compulsory acquisition in question as being in force; it was, further, stated that, in any case, the compensation offered was unreasonably low.

It is common ground that the said compulsory acquisition was not challenged by recourse when it was made, in September, 1961.

It would be too late to do so now, in view of the provisions of Article 146(3) which provides that a recourse should be made within seventy-five days of the publication of the act or decision challenged thereby.

This recourse was filed, on the 17th July, 1967 challenging the validity of the step taken, as aforesaid, by the Respondent Municipality, on the 6th June, 1967.

At the hearing of the Case the question of the competence of this Court to deal with the validity of the subject matter thereof has not been raised by either side. But, I have had to consider this aspect, just the same, because the competence under Article 146 of the Constitution is a matter of public law and it should not be exercised unless the conditions enabling its exercise do exist. [*925]

I had, therefore, to examine whether the step taken by the Respondent Municipality on the 6th June, 1967 - and which had been made by the Applicant the subject matter of this recourse - is an act or decision against which a recourse could be made under Article 146(1).

I have come to the conclusion that the said step is not, by any means, a final administrative act, or decision, of an executory nature; it is, merely, a preparatory step towards the assessment of the compensation payable to the Applicant in respect of her compulsorily acquired property, and as such it is outside the ambit of the jurisdiction under Article 146, and could not be attacked by recourse (see Papanicolaou and The Republic 1968 4 J.S.C. p. 496).

Moreover, the question of the assessment of the compensation payable to the Applicant, being a matter within the jurisdiction of a civil Court, and not of this Court, the step taken by the Respondent Municipality on the 6th June, 1967 would be, in any case, outside the competence of this Court under Article 146.

Even if one were to look at the letter of the Respondent Municipality of the 6th June, 1967 (exhibit 1.) from another angle - though I do not think that this would be the correct approach - as being a step taken in execution of the compulsory acquisition – in September, 1961 – of the Applicants property, again no recourse would lie against it, because an act of execution cannot be the subject matter of a recourse under Article 146 (see Kolokasides and The Republic 1965 6 J.S.C. 674; 1965 11 J.S.C. 1125). [*926]

For the foregoing reasons this recourse cannot he entertained and it is dismissed accordingly.

In my view, if the Applicant wishes to pursue the argument, advanced before me, that the 1961 compulsory acquisition of her property ceased to be of any effect after the ceasing to be in force of the Municipal Corporations Law, Cap. 2k0f a possible course might be by way of a preliminary objection to that effect in the proceedings of reference 15/67 (before the District Court of Limassol) which was filed in connection with the assessment of the compensation due to the Applicant in respect of the compulsory acquisition of her property concerned; she might argue that if the acquisition had lapsed then no question of assessing such compensation could arise. In any case I leave this issue entirely open, both from the procedural and the substantive point of view.

In the circumstances in which this recourse has failed I am not prepared to make any order as to costs.

Application dismissed.

No order as to costs.