Supreme Court dismisses constitutional challenges to property requisition renewal and compensation delay.

[*289] 1973 March.31

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Koumis Yianni HjiMichael & Others,

Applicants,

and

The Republic of Cyprus, through

1. The Council of Ministers,

2. The Minister of Commerce and Industry,

Respondents.

(Case Nos.68/72, 69/72, 70/72 & 71/72).

Requisition of property - Order of requisition - Renewal - It can take place even after the expiration of a previous requisition order - Section 4(3) (b) of the Requisition of Property Law, 1962 (Law No. 21 of 1962).

Requisition of property - Prompt payment of compensation - Article 23.8 of the Constitution - Delay - Due to, inter alia, negotiations for a settlement and to proceedings against validity of requisition order - Cannot, in the light of such circumstances, be considered as rendering the sub-judice requisition order contrary to the said Article.

Constitutional Law - Article 23.8 of the Constitution

- Requisition of property - Payment of compensation - Delay - See, also, under “Requisition of property”.

Requisition order - Renewal - See, also, under “Requisition of property".

J. Kaniklides, for the Applicants.

L. Loucaides, Senior Counsel of the Republic, for the Respondents.

JUDGMENT

The following judgment was delivered by: -

A. LOIZOU, J: - These four recourses have, [*290] by direction of the Court, been heard together, as they present the sane factual and legal issues, and I propose to give one judgment for all of them.

The applicants are the registered owners of immovable properties situated at Ayios Memnon quarter Famagusta. These properties together with other properties have been affected by an order of acquisition published in Supplement No. 3 to the official Gazette of March 28, 1969, under Notification No. 202, for a purpose of public interest, viz. the promotion or development of tourism of the area known as "Golden Sands" in Famagusta, which purpose is specifically provided for by section 3(2) (f) of the Compulsory Acquisition of Property Law, 1962 (No. 13 of 1962). The properties comprising the said area in which the applicants’ properties are included, were urgently required for the commencement of the project, and for that reason, an order of requisition for a period of 12 months was made under the provisions of section A of the Requisition of Property Law, 1962 (No. 21 of 1962), under Notification No. 94, in Supplement No. 3 to the official Gazette of the 6th February, 1971.

The aforesaid orders of acquisition and requisition were the subject of recourses before a judge of this Court and the judgment on them, as well as on an application for a provisional order to stay the execution of the said administrative acts, was delivered in August, 1971, reported as Panadopoullos & Others v. The Republic (1971) 9 J.S.C. p.1224, and they were all dismissed on the grounds stated there in, [*291] This judgment was the subject of an appeal to the Pull Bench of the Supreme Court. The appeal against the finding of the learned trial judge that the recourses against the acquisition order were out of time, was withdrawn. So, the compulsory acquisition of the properties v/as an inevitable eventuality, and the requisition order was a clearly temporary measure, enabling entry in the meantime upon the properties acquired. The appeal in relation to the said requisition order was dismissed for the reasons to be found in the judgment of the Court reported as Kournis Hjj Michaelob Others v. The Republic, etc. (1973) 1 J.S.C. p. 19. In the meantime proceedings for the determination of the compensation payable in respect of the aforesaid acquisitions and requisitions were instituted before the District Court of Famagusta. Since the conclusion of the hearing of this recourse, the judgment thereon assessing the compensation, was delivered on the 28th February, 1973.

After the expiration of the aforesaid requisition order, the said properties of the applicants were requisitioned for a further period of 12 months, by order published under Notification No.93 in Supplement No. 3 (Fart II) to the official Gazette of the 25th February, 1972. The said order was made by the Minister of Commerce and Industry, exercising the powers under section 4 of the Requisition of Property Law, 196.2, as amended by Law 50 of 1966. The said Notification is framed, as if it was the first of its kind to be published, unlike other Notifications, such as [*292] Notifications No. 91 and No, 92 published in the same Gazette, whereby an order is made for the extension of the period of other orders of requisition under section 4(3) of the aforesaid Laws. It is the aforesaid requisition order as published in Notification No.93 that is the subject of these recourses. Its validity is attached on the following grounds of law;

“(a) The order of requisition complained of is against the provisions of Article 23(8) of the Constitution.

(b) The order of requisition complained of is against the provisions of the Requisition of Property Law, 21 of 1962 in general and especially section 4(3) (b).

(c) The order for requisition complained of is against the provisions of Article 23 of the Constitution and/or in excess or abuse of power and/or against the general principles of Administrative Law.

(d) The respondents or either of them acted under a misconception respecting the factual or legal position,”

The aforesaid grounds of law were grouped by learned counsel into two main arguments.

The first one is that the said order is contrary to the provisions of the Requisition of Property Law of 1962, [*293] section 4(3) (b), in the sense that there could not be a renewal of a requisition order after the expiration of a previous one.

Counsel for the respondent has not disputed this proposition, hut has maintained that the sub judice order is not in law a renewal of the previous one, but an independent new order for requisition, and that same could he made independently of the previous requisition order, so long as the period of requisition concerning the same property does not exceed the maximum of three years provided by the Constitution, when made for the same purpose.

It is not in dispute that these properties are still required for the project of public benefit for which they were acquired and requisitioned. Although in my judgment a renewal of an order must take place before its expiration, there is nothing in the said Law to prevent the Requisitioning Authority from making a new order for requisition, after the expiration of the previous one, if the other prerequisites under the Law and the Constitution for the making of such requisition order exist. These prerequisites have not been contested and in accordance with the established principles of Administrative Law there exists a presumption that an administrative decision is reached after a correct ascertainment of relevant facts, though such a presumption can he rebutted if a litigant succeeds in establishing that there exists at least a probability that a misconception has led to the decision complained of. (See Stasinopoulos, The Law [*294] of Administrative Acts, 1951 Edition, page 304, et seq. adopted by the Pull Bench in Koumis H.ji Michael supra).

A. question of doubt cannot arise in this case, as in no way the applicants-have disputed the circumstances that led to the making of this requisition order, but they have confined themselves to the technicality of whether a renewal of requisition order could be made after the expiration of the period of the original one.

This ground, therefore, in my view, fails, inasmuch as the very wording of the order suggests that

it was an independent order made after the expiration of the previous one. If any limitation could be imposed to the

making of such successive independent orders, same will arise in cases that the three-year maximum period of requisition of a property is exceeded. In such cases, it will have to be decided depending on the circumstances whether they amount to an effort to bypass the restriction as to time provided for by the Constitution.

The second submission of learned counsel for the applicants is that the said requisition order is unconstitutional, as offending Article 23(8) of the Constitution and in particular paragraph (d) thereof, which provides for "the prompt payment in cash of a just and equitable compensation to be determined in case of disagreement by a civil court”.

It is not in dispute that no compensation has been paid. It is, however, a common ground, that an offer [*295] for compensation was made during the period the previous order was in force which was turned down by the applicants as Being too low. In the meantime, proceedings were commenced by the applicants, which led to the judgments hereinabove referred to, and the proceedings in the District Court of Famagusta, where the applicants filed References on the 30th September, 1972, for the assessment of the compensation payable for the requisition of their property. It should be mentioned also that in the course of the hearing of the appeals before the Pull Bench, negotiations were made for an overall settlement of these matters, but they did not materialize, as offers and counter-offers were made but not accepted.

This delay, in the light of the aforesaid circumstances, cannot be considered as rendering the sub judice requisition order unconstitutional. This ground, therefore, also fails.

Before concluding, I would like to say that the rights of the applicants for the period of 20 days during which there was no legal authorization for the use or occupation of the properties in question by the respondents, should not be considered as being affected by this judgment. In fact, it has been conceded that that period might have been the subject of civil proceedings in another Court. I understand, however, that the overall period of occupation has been considered in the assessment of compensation by the District Court of Famagusta. [*296]

For all the above reasons, all four recourses are dismissed, but in the circumstances I make no order as to costs.

Applications dismissed;

no order as to costs.