Cypriot court holds registered owner guilty of unauthorized well sinking and water utilization despite claiming repair.

[*263] 1973 October 3

(BOYADJIS, S.D.J.)

IN THE DISTRICT COURT OF KYRENIA

District Officer, Kyrenia,

against

Charalambos Panayi Phyti,

Accused.

(Case No. 486/73).

Criminal Law - Well - Sinking Well without permit - Charge brought against registered owner - Who admitted that he had procured other persons to do the digging works for him - And who was in possession of the field whilst digging operations were being carried out - Registered owner can be charged with doing the act himself - Section 20 of the Criminal Code, Cap. 154.

Well - “Sinking” Well – “Cleaning” or “repairing” existing well - Digging well at spot where an old well once existed - Excavation works not amounting to “cleaning” or “repairing” within the meaning of section 15 of the Wells Law Cap. 351 (as am.-ended by Law 47 of 1961) but to “sinking” of a new well within the ambit of s. 3(1) of the Law.

Wells Law Cap. 351 section 15 (as amended by Law 47 of 1961) - Application of - Prerequisites - There must be a filling in and abandonment of an old existing well in favour of and/or in consideration of the sinking of a new well close to the old one - Sinking of a new well on spot where an old well once existed - Not covered by the said section 15.

Water - Wrongfully drawing off water from well - Sections 3, 28(3) and 28(6) of the Government Water Works Law, Cap.341 (as amended by Law 129 of 1968) - Ingredients of the offence.

Water - Taking measures to utilize water without permit Sections 3, 28(4) and 28(6) of the Government Water Works Law., Cap, 341 (as amended by Law 129 of 1968) – Sinking well without permit, installing therein water pump and drawing water to the surface and utilizing it

- Offence committed.

Gr.Theofanides, for the Prosecution.

A. Protopapas, for the Accused.

JUDGMENT

The following judgment was delivered by:

BOYADJIS. S.D.J.: The accused is charged [*264] on 3 counts.

In count 1 it is alleged that between 1.1.1973 and 30.3.1973 accused sank a well on plot 301/3 of Sheet/Plan XI/13 situated at locality “Kommatia” of Vasilia village, without first obtaining a permit from the District Officer of Kyrenia, contrary to sections 3(1) and 13(1)(2) of the Wells Law, Cap.351 , as amended by the Wells (Amendment) Laws Nos. 47/61 and 19/62.

Counts 2 and 3 allege offences under the Government Waterworks Law, Gap.341 as amended by Law 129/68.

The Prosecution called 4. witnesses, namely:-

P.W.1 Stelios Yiangou, of Kyrenia, who is the clerk of the local District Office, whose duties include the keeping of the Register of well permits granted in the District. He produced accused’s application to the District Officer for a well permit (Exh.1) and further stated that his records go as far as 1940 and that no permit for the sinking or construction of any well was ever granted to the accused as from 1940 onwards.

P.W.2 Michael Soullos, the rural constable of Vasilia who saw the well being sunk and spoke with the accused about it.

P.W.3 Ioannie Antoniou, of Asomatos, a technical assistant of the Water Development Department who testified about the practice and records of his Department and who reported the unlawful sinking of the well after having [*265] inspected it.

P.W.4 Eleftherios Karaolis, of Vasilia, also a rural constable.

On being called upon to make his defence accused elected to say nothing and called one defence witness, namely Charalambos Ellinas, of Vasilia, an old man, aged 90 years, who testified of the presence many years ago of an old well on the spot where the well, subject-matter of these proceedings, was sunk.

As far as credibility is concerned, I was left with the impression that all the above witnesses are truthful and I accept their evidence unreservedly, except for P.W.4 who gave me the impression of having tried slightly to help the accused.

I find the material facts of the case to be as follows:-

The accused is the registered owner of the field described in the charge-sheet since 1946. Until 1973 this field, 7 donums and 3 evleks in extent, had never been planted with any trees which needed irrigation. The field was of the arazi mirie category as it appears from the certificate of registration in the name of the accused which has been produced as part of Exh. 1.

On the 8th April, 1973, the accused submitted to the District Officer, Kyrenia, an application in writing on the prescribed form for the grant to him of a permit to sink or construct a well in his aforesaid field. The [*266] application was accompanied by the certificate of ownership of the land in question, a D.L.O. survey plan and the written consent of the Central Co-operative Bank Ltd., in whose favour the property stood mortgaged as security for a debt due by the accused. All the aforesaid documents have been produced in Court and were marked Exh.1. The accused stated in his said application that the water of the well was to be used for irrigation purposes and he added that there existed an old well sunk 50 years ago.

As early as 1911 there existed in this field an old well which is not covered by any registration and is not shown on the survey plan - Exh.1. The only use made of its water was the watering of their flocks of sheep by 2 shepherds. The water was being brought to the surface by means of a bucket tied on a piece of rope. The well was approximately 25-30 feet deep before it dried out. Water was being drawn from the well only until 1913. Although the well remained in existence after 1913, yet, it is not clear whether it had any water; even if it had some water no use was made of it by anybody. In any way, before the middle of the century, the well dried out completely; it fell in disuse, was abandoned and grass grew over it. There is no evidence whether it was destroyed and filled in by nature or whether the accused or his predecessor in title filled in the well. Be that as it may, during the last considerable number of fears very little, if any, remained at the place of the old well to suggest or remind of its existence in the distant past. [*267]

In early 1973 the rural constable P.W.2 saw one of accused’s sons, namely Nicolas, together with another person digging at the place where the old well existed; they had reached a depth of 8-10 feet and the “havara” type soil dug out was heaped round the hole. 15-20 days later the same witness saw the same men continuing the digging; they had by then reached at a depth of 50-55 feet; next day he saw the accused in the village and accused him of having employed men to sink a well. The accused in reply admitted that he had done so, i.e. had employed the men for the purpose, and added that they were cleaning an old well. By March, 1973, water was found in the well which reached a depth of about 60 feet, and a mechanically operated water pump was installed on the well and water was being drawn to the surface, which was used to irrigate lemon trees which had in the meantime been planted in the field. No permit was ever issued by the appropriate authority under Cap.351.

As it has already been stated, the accused gave no evidence at the trial and his only witness was called for the only purpose of establishing the existence of the old well at the place where the new digging operations were carried out. Yet, from the line of cross-examination and the address of his counsel at the conclusion of the trial, it has became clear that the following issues fall for consideration by the Court:-

(a) Whether there is any evidence connecting the accused with the aforesaid digging works or the measures to [*268] bring to the surface or utilise underground water.

(b) Whether the aforesaid digging works may be said to amount to “sinking a well” within the meaning of section 3

(1) of the Wells Law, Cap.351, or whether they only amount to “cleaning or repair of any well” within the meaning of section 15 of Cap. 351.

(c) Whether the provisions of section 15 of Cap.351 upon their correct construction operate in the circumstances of the present case so as to entitle the doing of what has actually been done in this case without the necessity of first obtaining a permit under section 3 of Cap. 351.

I intend to deal separately with each one of the above issues in the aforementioned order.

Issue (a)

In Ioanna_Papaprokopiou v. The District Officer, Nicosia and Kyrenia, 1964 C.L.R. 354 the appellant was convicted by the trial Court of drilling a borehole without a permit from the District Officer, contrary to the provisions of sections 3(1) and 13 of the Wells Law, Cap.351 as later amended. The only evidence adduced against her was the fact that she was the owner of the field in question. It was argued on appeal that such evidence was not sufficient to warrant a conviction as charged. The Supreme Court held that:-

“From the very wording of the proviso (to section 3(1) of Cap.351) it is apparent that the legislature [*269] envisages cases where a well may be sunk by a person who is not himself the owner of the land.”

“It is true that inferences may be drawn from primary of acts, but we do not think that from the facts as found by the trial judge, namely, that the appellant was the registered owner of the field, without any other evidence, the inference could legitimately be drawn in a criminal case ‘that the borehole was drilled by her or on her behalf’…..”

The conviction was set aside.

The facts of the case under consideration as I have found them are clearly distinguishable from the facts in the aforesaid Papaprokopiou case.

Apart from the evidence that the accused in this case is the registered owner of the field, the accused has further submitted or caused to be submitted to the District Officer after the digging operations were concluded the application for permit to sink this particular well and attached thereto the consent to that effect of his mortgagee. The accused is further connected with the works by the evidence regarding the conversation he had with the rural constable - P.W.2 when it was alleged to him that he had employed men to sink a well for him. His answer to that was not that he was not then in possession of the field or that he had nothing to do with the digging; instead, he admitted employing the men and added that they were in fact [*270] cleaning an old well.

In the circumstances of this case it can reasonably be inferred, in fact the accused has admitted to P.W.2, that he has procured other persons to do the digging works for him; he may, therefore, be charged with himself doing the act by virtue of the provisions of section 20 of the Criminal Code, Cap.154.

It is true that when in April, 1973, P.W.3 visited Vasilia village and asked for the owner of the field, the son of the accused, namely Antonis, appeared and alleged that he was in possession of the field. It is equally true that in cross-examination the rural constable - P.W.2 stated that he knows that today Panayis, the son of accused, is in possession of the field. Nevertheless, both P.W.2 and P.W.4 always spoke of the field and the well of the accused and it is the accused whom P.W.2 actually found and spoke about the illegal sinking of the well. P.W.2 as well as P.W.4 are the rural constables of the area and are deemed to know who is in possession of a field situated close to the public road. P.W.2 agreed that today (on the date of hearing) and not earlier the field was in the possession of accused’s son. There is no positive evidence as to who was in actual possession of the field when the digging operations began or before same were concluded and in all the circumstances of this case, including the silence of the accused in this respect, I consider it safe to infer that it is the accused and not anybody else who was in possession of the [*271] field whilst the digging operations were being carried out.

For the above reasons, this issue is determined against the accused.

Issue (b)

Section 3(1) of the Wells Law, Cap.351, as amended by section 2 of Law 47/61 reads:-

“No well shall be sunk or constructed in or upon any land unless the person proposing to sink or construct the well applies for, and obtains, a permit from the District in which such well is to be sunk or constructed:

Provided that……”.

Section 15 of Cap. 351 as amended by section 6 of Law 47/61 reads:-

“Nothing in this Law shall apply to the repair or cleaning of any well lawfully sunk or constructed, whether before or after the commencement of this Law, …….”

On the facts as I have found them, I had no difficulty at all to rule out from the start the allegations that the excavation works may be rightly described as “cleaning” or ‘‘repair” of any existing well, however wide meaning one might attach to there words. On 8.1.1973 when the digging had reached only a depth of 8-10 feet there was already a heap of ‘havara’ excavated and placed around the hole. This suggests that, when the digging [*272] started, if there was any hole at all on the ground from the old well, such hole was so shallow that it could hardly be noticed, The well finally reached the depth of 21, 22 metres with its water level at 17, 97 metres according to the evidence of the technical assistant of the Water Development Department. The depth of the old well, at the time when there was water in it, was about 25-30 feet. Although on the above facts I, unhesitatingly, dismissed the submission that accused simply cleaned his old well, yet I had difficulty in deciding whether, accused ‘sunk’ a new well or whether he had ‘deepened’ the old well.

Since the amendment of section 13(1) through the enactment of Law 47/61, a penalty has been provided for the acts of widening, deepening or otherwise extending an existing well contrary to section 5 of Cap 351, i.e. without the permit envisaged by section 3(1) of Cap.351.

I have traced and considered several cases which draw a distinction between ‘sinking’ a well and ‘deepening or extending’ an existing well. These cases are the following:-

1. Savvas K._ Christofides v. District Officer. Nicosia and Kyrenia, 1962 C.L.R.43 where the appellant was convicted by the trial Court on a charge of deepening a well contrary to sections 3(1), 5 and 13 of the Wells Law, Cap. 351. The offence was

alleged to have been [*273] committed prior to the amendment of section 13 through the enactment of Law 47/61 i.e. at a time when no penalty was provided for the infringement of section 5 of the act.

It was held on appeal that:-

“From page

45 of the report:- “It is our opinion that ………………….. the Court was dealing here with the deepening of an old and existing well. It was not the construction of a new well which, in our opinion, would come within the provisions of section 3(1) of the statute to which I have first referred.”

“It is our view that the trial proceeded upon the finding that the accused failed to comply with the provisions of section

5 of the statute which required a permit to be obtained for widening, deepening, or otherwise extending an existing well.”

“Section 3 on the other hand requires a permit to be granted for the sinking or construction of wells. The word ‘proposing’ seems to

relate to new wells and not to existing wells. Therefore the penalty was imposed for deepening the well”.

As no penalty was then provided

by the Law for the deepening of an existing well, none could be imposed and the conviction of the appellant was set aside on appeal.

2. Andreas Anastasi Costi v The District Officer. Famagusta, 1964 C.L.R. 432. This was an appeal from a [*274] conviction on a charge under section 28(4) and (6) of Cap. 341. It was said at page 444 of the report:-

“Learned counsel for the appellant has argued that because the well in question, which had existed since 1912, had originally been sunk or constructed lawfully, it was an existing ‘well’ within the definition contained in section 2 of Cap.351 and that it was thus covered by the permit of the kind envisaged by the proviso to section 3(1). Learned counsel submitted, in effect, that ‘once a well, always a well’.

“This may be so in the purely physical sense of the existence of a hole in the ground, but when a well dries up or water cannot be obtained at a given level it is quite clear from the provisions of Cap.351 that a new permit is required to deepen or widen an existing well and section 5 of Cap.351 , which was inserted in the Law by section 3 of Law/1951 ,of expressly provides that widening, deepening or otherwise extending any existing well shall be deemed to be an operation in respect of which a permit must be obtained under the provisions of Cap. 351. In this case the trial Court found that the drilling operation carried on by the appellant, ‘was not the clearing of an existing borehole, but the deepening of an existing dry well”. [*275]

3. Ayia Anastasia Church, Lapithos, and others v. Anastasia Indjeyiannis and others (1965) 1 C.L.R. 273:- On the issue of the correct meaning of the term ‘sinking a well’ in section 7 of the Wells Law, Cap, 351, it was held:-

“From page 288 of the report: “‘Sinking’ a well, in the grammatical and ordinary sense of the word, does net only mean sinking a new well from the surface of the ground. It may well include “also sinking a well into a further depth. Even prior to 1951, when the present section 5 was introduced into the statute, sinking an ordinary shepherd’s well from a depth of, say, 10 or 15 feet, where the shepherd had been drawing .water with the bucket to water his flock, down to a depth of, say, 30 to 40 feet or even much more, to get to water at that depth, for pumping up with an electric pump, for irrigation purposes, could well be described, we think, as ‘sinking’ the well”.

4. Paraskevi Yiannaki v. The Republic (1965) 3 C.L.R.

561 where the aforesaid Christofides case was considered. It was held, with reference to the meaning of the term ‘sinking a well’ in section, 4 of the Wells Law, that:-

“From page

568 of the report:-“As the well to be deepened was at the time a dry well what was really involved was a new effort to bring water [*276] to the surface by means of sinking a well in an already existing hole in the ground”.

In the light of the above authorities and in the light of the circumstances of the present case, what accused did was the sinking of a new well, within the ambit of section 3(1) of Cap. 351, at the spot where an old well once existed.

In view of the provisions of section

5 of the Wells Law, it might seem that there is in fact no difference whether the accused sank a new well contrary to section 3(1) or deepened an existing dry well contrary to section 3(7) and (I) of the Law, if he did either act without permit, since he might be found guilty for only deepening the well, if this is established by the evidence already adduced, under the provision of section 85(4) of the Criminal Procedure Law, Cap. 155. The reason for which I considered it necessary to determine whether the accused in fact did sink a well or did deepen his old well, is that, in the latter case he cannot possibly invoke the provision of section

15 of the Law.

Issue (C)

Section 15 of the Wells Law, as amended by Law 47/61 reads as follows:-

“Nothing in this Law shall apply to ……………. the sinking or construction of any new well sunk or constructed on the land of the owner or with such owner’s permission within a distance not exceeding twenty feet from another [*277] well belonging to the same person which has been abandoned and filled in.”

“Provided that ............

“Provided further .........”.

In the present case accused was the owner of an old well which, he must prove to be a lawful one:- See Christos Tarapoulouzis v. District Officer Nicosia, 1962 C.L.R., 91. Since it was in existence as early as 1911, i.e. before the enactment of the Construction of Buildings, streets and Wells on Arazi Mirié Land Law. 1927, which for the first time required (section 9(1) thereof) a permit for the sinking of a. well on land of the arazi mirié category, there can be no dispute that it was a lawful well. Furthermore, the accused, in this case, sank a new well in his plot on the very spot where the old well once existed.

Can the accused, in these circumstances, allege that he is exempted from the requirement to obtain a permit under section 3 of the Law?

I am of opinion that in construing section 15 we should have in mind that:

(i) all underground water for which no measures have hitherto been taken enabling such water to be brought to the surface, is the absolute property of the government: vide in this respect section 3(1) of Cap. 341 and article 23(1) of the Constitution; [*278]

(ii) the Wells Law, Cap. 351, controls the sinking of wells and thus indirectly preserves underground water;

(iii) the Wells Law is a Law of general application and section 15 thereof, being an exempting or saving section should not be construed widely; only what fits fully within the four corners of the exception to the general rule should be exempted.

Coming back to the facts of this case, there is no allegation that the accused gave the District Officer the notice required by the second proviso to section 15 which was added by section

6 of Law 47/61. In fact the accused treated his case as one of clearing his old well and not as sinking a new/well a distance of 20 feet from his old well. It is only at the hearing of the case that his counsel invoked the said exception.

Having given the matter my utmost consideration and in the absence of any direct authority on the point which I could trace, I am of opinion that section 15 is not applicable in the circumstances of this case and that accused, therefore, should have applied and obtain a permit for the well he has sunk. I think that for section 15 to apply there must be a filling in and abandonment of an old existing well in favour of and/or in consideration of the sinking of a new well close to the old one without any permit. The old well should be ‘existing’ in the sense that it should [*279] either have water in it or in case it is in a dry. state it should by no means be. in ruinous condition when its owner decides to give it up in favour of a new well. I, further, think that there must be a correlation as far as time factor is concerned between the filling in and abandonment of the old well and the sinking of the new well; there must be a relation between the two in the sense that one cannot say that he will today sink a well without permit and without conditions as to the use of the water to be raised to the surface, simply because himself or his predecessor had an old well whose existence only persons of 90 years old are able to remember and which was filled in somehow years ago for reasons completely unconnected with the present wish of its owner to sink a new one. I think it would have been unreasonable to allow such a wide construction on the provisos of’ sections 15 of Cap. 351.

For all the above reasons, I find accused guilty on Count 1.

COUNT 2.

It is herein alleged that the accused wrongfully drew off water from the well mentioned in count 1 without a permit from the District Officer first obtained contrary to sections 3, 28(3) and 28(6) of the Government Waterworks Law, Cap. 341 and Law 129/68.

Section 28(3) reads:- “Any person who steals or wrongfully takes or carries away or draws off or converts to his own use any water from any [*280] waterworks or any part thereof, shall, on conviction, he liable to imprisonment for a period not exceeding twelve months or to a fine not exceeding ten pounds, or to both such penalties”.

A necessary element of the offence under section 28(3) is that the water should be wrongfully drawn from any waterworks or any part thereof”.

“Waterworks” is by section 2 of the Law defined as follows:- “Waterworks include all wells, bores, reservoirs, dams, weirs, tanks, cisterns, tunnels, filter beds, conduits aqueducts, mains, pipes,

fountains, sluices, valves, pumps, channels, engines, and all other structures or appliances used or constructed for the

storage, conveyance, supply, distribution, measurement or regulation of water which are so used or have been constructed by or on behalf of the Government under the Law”.

The well sunk by the accused cannot under any circumstances be considered as being “any waterworks or any part thereof” within the meaning of the aforesaid section 2 and the amendment thereof by section 2(b) of Law 129/68 is of no help to the prosecution.

The accused is, therefore, acquitted and discharged on Count 2.

COUNT 3.

The offence alleged in Count 3 is the taking of measure by the accused to utilise water from the said [*281] well without first obtaining a permit from the District Officer, contrary to sections 3, 28(4) and 28(6) of the Government Waterworks Law, Cap. 341 and Law 129/68.

Section 28(4) reads:- “Any person who takes or carries away or utilizes or takes any measures to obtain or utilize any water without permission of the District Officer first obtained shall, on conviction, be liable to a fine not exceeding ten pounds”.

There is no doubt that measures were taken by sinking the well and installing therein a water pump and water was drawn to the surface and utilized. Nor is there any doubt that the water so drawn and utilized is water which by virtue of section 3 of the Law is the absolute property of the Government. I have already stated earlier in my judgment why I consider the accused connected with, and responsible for, the acts complained off by the prosecution, and I need not repeat them here. There is, furthermore, evidence that the accused is not the holder of a well permit under section 3 of the Wells Law in respect of the well from which the water was drawn, and, therefore, the proviso to section 3 of Cap. 341 cannot be invoked by the accused: Vide Andreas Anastasi Costi v. District Officer, Famagusta, 1924 C.L.R. 432.

Nevertheless, there is one point which was not raised by the defence, and which I had to examine; this point is the failure of the prosecution to adduce any direct evidence to the effect that

the accused was not issued with [*282] any permit under section 3(1) of Cap. 341. Do the circumstances, or primary facts

established in this case, allow the drawing of an inference that the accused was not granted the relevant permit? I would say that they do. The accused’s allegation, when told by P.W.2 that he would be reported for sinking the well, was that he was only cleaning his old well, i.e. that he need not get a permit for what he was doing. Furthermore, P.W.3 said that he had seen the well and measured its depth and noticed the water pump installed thereon and reported the matter because no permit was shown to him.

The burden of proof of each and every ingredient of an offence lies always on the prosecution. But the holding of a licence by an accused person to do something which, but for the licence, is otherwise illegal, is something within the peculiar knowledge of the accused, and although no direct evidence to that effect was adduced by the prosecution, yet, the shadow evidence which was led in is, in my opinion, enough prima-facie evidence to shift the onus of proving the actual existence of the licence on the accused, which he did not even endeavour to discharge. I have considered in this respect the following cases: 1) R. v. Oliver (1943) 2 All E.R.800; 2) R.v. Thomas Putland and Gladys Annie Sorrell

(1946) 1 All E.R.85; 3) Patel v. Willis (1951) 1 All E.R. 470; and 4) R. v. Cohen

(1951) 1 All E.R.203 (C.C.A.).

For the above reasons I find the accused guilty on Count 3 as well.

Accused found guilty on Counts 1 and 3.