Supreme Court allows recourse under Article 146 for refusal based on public security concerns.

[*69] 1973 January.27

(TRIATAFYILIDES, P.)

RETVTSIGNAL JURISDICTION

In the matter of Article 146 of the Constitution

Djemal Moulla Moustafa,

Applicant,

and

The Republic of Cyprus, through

1. The Minister of Interior,

2. The Director of Lands and Surveys,

Respondents.

(Case No. 366/69).

Constitutional Law - Article 146.1 of the Constitution – “Act” or “decision” within the said Article – Refusal of Director of Lands and Surveys Department to allow transfer to applicant of immovable property – Because transfer will affect adversely public security – An action in the domain of public Law intended to serve primarily a public purpose - And therefore a decision within Article 146.1.

“Act” or “Decision” - In the sense of Article 146.1 of the Constitution – See, also, under "Constitutional Law".

P. Frakalas, for the Applicant.

K. Talarides, (at the time Senior Counsel of the Republic), for the Respondents.

DECISION

The following decision was delivered by:-

TRIANTAPYLLIDES. P.: By this recourse [*70] the applicant complains against the refusal of the respondent Director of the Lands and Surveys Department to allow the transfer to the applicant of immovable property - a field, under registration No. C140 of the 6th December, 1957 – at Trahonas.

As it appears from the facts stated in the recourse this property was sold to the applicant by its owner by an agreement in writing dated the 17th October, 1969, for ￡9.000, out of which the applicant paid on that date on account ￡500. By a letter dated the 18th October, 1969, permission was requested for the transfer to the applicant, and registration in his name, of the property, but, as already stated, the respondent Director refused such permission.

In the Opposition which was filed in the proceedings by counsel for the respondents it is stated that the relevant

decision of the Director was lawful in view of the special circumstances of the case; and by particulars given, by counsel for the respondents, it was explained that the special circumstances were that in view of the situation created in Cyprus since December 1963, and of the area where the property in question is situated, its transfer might affect adversely public security.

Moreover, counsel for the respondents has objected that this recourse could not be made under Article 146 of the Constitution because the sub judice decision did not come within the ambit of the jurisdiction under such Article.

As this objection concerns the jurisdiction of this [*71] Court to deal with this case it has to be decided as a preliminary issue:

Counsel for the respondents has stated that the legislation under which the respondent Director has acted are sections 5, 13 and 14 of the Immovable Property (Transfer and Mortgage) Law, 1965, (9/65), and has argued that in applying such legislation the administration does not exercise State authority in the domain of public law but it renders only a public service in the domain of private law; counsel has, in this respect, relied in particular on the case of Charalambides and The Republic, 4 R.S.C.C. 24, in which it was held that no recourse could be made under Article 146 against the refusal of a Principal Land Registry Officer to alter the date fixed for the sale of mortgaged property, because such refusal did not involve the exercise of a power having as its primary object the promotion of any public purpose but only concerned civil law rights.

Counsel for the applicant has argued that in the present case the respondent Director acted in the domain of public law, in view of the nature of his sub judice decision.

It appears to be well settled by means of our case-law that in so far as a public officer is vested with competence to take action in connection with civil law rights in immovable property and the primary object of this action is not the promotion of a public purpose but the regulation of civil law rights, then such action on his part is a matter within the domain of private law and does not amount to an [*72] act or decision in the sense of Article 146 (1) of the Constitution, which relates only to acts or decisions in the domain of public law; see, inter alia, Hadjikyriacou and Hadjiapostolou, 3 R.S.C.C. 89, Valana and The Republic,

3 R.S.C.C. 91, Charalambides, supra, and Cyprus Industrial and Mining Co. Ltd. and The Republic, (1966) 3 C.L.R. 467; in the last mentioned case it was held that administrative action taken in relation to the fixing of the reserve price in respect of the sale by auction of mortgaged property was, in the light of the circumstances of that case and of the provisions of the relevant legislation, action primarily intended to serve a public purpose and therefore a recourse could be made under Article 146.

The corresponding approach of French administrative law - which has been referred to by counsel for the respondents

- is analogous to that adopted here in Cyprus; see, inter alia, Odent's Contentieux Administratif, 1970-1971, p. 363 and p. 370.

In the light of the principle of law applicable and of the particular circumstances of this case, including especially the already stated reasons for which the respondent Director refused to allow the transfer of the property concerned to the applicant, I have no doubt that the sub judice decision amounts to action taken by a public officer in the domain of public law in order to serve primarily a public purpose, namely public security, and, therefore, such decision is within Article 146(1); so this recourse could be made thereunder. [*73]

There remains to be examined, in the further course of these proceedings, the validity of the sub judice decision.

I reserve the question of the costs of the proceedings regarding the preliminary issue hereby decided.

Order in terms.