Court orders filling of illegal borehole and fines, applying strict discretion against enjoying spoils of illegality.

[*619] 1982 September 10

(KALLIS, AG.D.J. )

IN THE DISTRICT COURT OP NICOSIA

The District Officer of Nicosia,

v.

Solon Papamoiseos and Another,

Accused.

(Case No. 11601/82).

Wells

- Sinking a borehole without permit contrary to sections 2, 4, 5(1) and 10(2) of the Water Supply (Special Measures) Laws 1964-1975 - Punishment therefor - Order filling in the well or borehole - Section 10(2) of the Law - Discretion of the Court to make such an order to be exercised in the same way as the discretion to make a demolition order, under the Streets and Buildings Regulation Law, Cap. 96, is exercised.

K. Manoullos, for the Prosecution.

Chr. Taramountas for G.Korfiotis, for the accused.

JUDGMENT

The following judgment was delivered by:-

KALLIS. AG.D.J.: The accused [*620] pleaded guilty to a count of drilling a borehole without permit contrary to sections 2, 4, 5(1) and 10(2) of the Water Supply (Special Measures) Laws (Laws 32/64, 35/65 and 17/75).

The particulars of the offence were that on or about 18th June, 1982 they commenced the drilling of a borehole within plot 70/1/1 Sh.PI. 29/5 at Akaki village for the purpose of obtaining underground water, without a permit from the appropriate Authority that is the District Officer, Nicosia. In addition to the punishment of imprisonment and fine, provided by Law 32/64 section 10 (2) of this law provides that the Court trying an offence committed in contravention of this law may order the filling in or closing of the well or any other work in respect of which the offence has been committed or make an order as to the Court may appear proper in the circumstances.

Counsel for the prosecution stated that the bore-hole in question, is situated in an area which affects the water acquifer from which Nicosia and certain other areas are supplied with water and though the accused have applied for a .covering permit, such a permit wall not be issued to them and he applied for an order filling in the borehole. He further stated that the District Officer has already rejected the application but as it has to be also considered by the Water Development Department it has been referred to them before a final reply is given to the accused. Mr. Korfiotis for the defence submitted [*621] that accused proceeded to act as they did pressed by financial obligations.

As it appears from the wording of section 10(2) the power to order filling in or closing of a well is discretionary. Nov; what is the legal position regarding the exercise of the Court's power in this connection? In a most recent case - Vine Products Board v. Toutoulla (1982) 2 C.L.R.112 - which arose out of a contravention of the Vine Industry (Regulation and Control) Law, 1965 (Law 52/65) - A.Loizou

J. giving the judgment of the Court of Appeal stated the following at p.117:-

"This discretionary power given to Courts by subsection 2 hereof for making, upon conviction, an order of destruction by uprooting or otherwise of a vineyard or part thereof in respect of which an offence was committed, in addition to any other penalty provided by the section, is akin to the powers given to Courts under other laws as, for example, for the making of demolition orders under section 20(3) (A) of the Streets and Buildings Regulation Law, Cap.96 which have been held to amount to ‘punshments' within the meaning of Article 12, para. 3, of the Constitution, and the exercise of these powers came under consideration by the then Supreme Constitutional Court and this Court in a number of cases (see, inter alia, The District Officer of Nicosia.v. Georghios HadjiYiannis , of Akaki, Vol.I, R.S.C.C., p.79; Improvement Board of Kaimakli v. Pelopidas Sevastides (1967) 2 C.L.R. p.117; [*622] Golden Seaside Estate Co. Ltd. v. Municipal Corporation of Famagusta (1973)

2 C.L.R.58; Salamis Holdings Ltd, v. Municipality of Famagusta (1973) 2 C.L.R.239; The Municipality of Nicosia v. Pierides (1976) 2 C.L.R.1”.

And His Honour proceeded to state the following at page 118.

"Considering the very purpose of the aforesaid Vines Industry (Regulation and Control) Law and the identical nature of its subsection 2 of section 12(A), with other similar provisions, we hold the view that in the exercise of their discretion Courts when seized upon with the question whether a destroying order by uprooting or otherwise should be made or not, should be guided by the same principles expounded in the cases hereinabove set out and such discretion should be exercised in a manner which will not frustrate the very purpose for which this law exists, namely, the regulation and control of vineyards and for which the power to make such destroying orders is contained in it„ so that under no circumstances a would-be-offender or an offender should feel that he can, or can continue to , enjoy the spoils of his illegality by paying only the premium of a monetary sentence - or even of imprisonment - which in the present case was a fine of C£5."

The principles referred to the above mentioned passage were expounded in the case of Improvement Board of Kaimakli [*623] v. Sevastides (1967) 2 C.L.R.117 where Vassiliades P. stated the following at p. 121].:-

"…But this change (the 1963 amendment of section 20) cannot be understood or applied in a manner frustrating the very purpose for which the Law exists; and for which the provision about a demolition order is containted in the statute. There may be cases where a demolition order need not be made; where for instance some condition in the permit has not been complied with, or there occurred an infringement of minor importance."

The aforesaid quotation was cited with approval in the case of Golden Seaside Estated Ltd. v. Municipal Corporation of Famagusta, (1973) 2 C.L.R.239 and the case of Municipality of Nicosia v. Pierides (1976) 2 C.L.R, 1 at page 3.

Having considered the wording of the relevant section in this case, I hold that the discretionary power given to the Court thereunder is akin to the power given to the Court to make a demolition order under the Streets and Buildings Regulation Law, Cap.96; and with regard to the principles applicable in the exercise of the power given to the Court under the aforesaid section 10(2), I adopt with respect the approach of the Court of appeal in the Sevastides case (supra) and in the second passage above quoted in the Toutoulla's case. Considering the facts in this case I hold that the infringement in this case is not a trivial one but a serious one. After taking the facts and circumstances of this case into consideration [*624] together with what has been submitted by their counsel and having in mind the seriousness of the offence, I arrived at the conclusion to make an order filling in the borehole. Therefore, I hereby order that the borehole subject matter of the charge be filled in unless within two months accused obtain a covering permit. The accused to pay also a fine of £10,·- each.

Each accused to pay £5.- fine

and further ordered to fill in the

borehole.