Improvement Board's partial rate imposition violates law and constitutes abuse of power.

[1396] 1965 December 23

(ZEKIA, P., VASSILIADES, TRIANTAFYLLIDES, JOSEPHIDES, JJ.)

APPELLATE JURISDICTION

Sofia Christou Aristidou,

Applicant-Appellant,

and

The Improvement Board of Ay. Phyla,

Respondent.

(Revisional Jurisdiction Appeal No.3)

Fees and Rates - Villages (Administration and Improvement) Ayia Phyla Bye-laws, 1962, made under section 24 of the Villages (Administration and Improvement) Law, Cap.243 - Appeal from dismissal of recourse against Respondent for the imposition on Appellant of a rate under bye-law 180 thereof - Taxing a part of the persons liable to pay the rate in question under the said bye-law and refraining from taxing a class of such persons, amounts to contravention of the law by the Respondent and to abuse or excess of its powers - Appellant ought to have succeeded in her recourse on such ground - Appeal allowed.

Villages (Administration and Improvement) Law, Cap.243 - Villages (Administration and Improvement) Ayia Phyla Bye-laws 1962, bye-law 180-Improvement Board acting contrary to law - Abuse or excess of powers by Improvement Board.

Administrative Law - Villages (Administration and Improvement) Law, Cap.243, section 24 - Villages (Administration and Improvement) Ayia Phyla Bye-laws 1962, bye-law 180-Improvement Board failing to assess all owners of premises - Act contrary to law - Abuse or excess of powers.

Chr. Demetriades, for the Applicant-Appellant.

G. Cacoyannis, for the Respondent.

JUDGMENT

ZEKIA, P. : The judgment of this Court will be delivered by Mr. Justice Vassiliades and Mr. Justice Josephides with which Mr. Justice Triantafyllides and I agree.

VASSILIADES, J.: This is an appeal to the Court under section 11 (2) of the Administration of Justice (Miscellaneous Provisions) Law, 1964, from the decision* of [*1397] one of the Judges of the Supreme Court, exercising the Court's revisional jurisdiction, in a recourse under Article 146 of the Constitution.

The appellant (hereinafter referred to also as the rate-payer) an inhabitant of the village of Ayia Phyla, now almost a suburb of the town of Limassol, filed a recourse on July 8, 1963, against the Improvement Board of Ayia Phyla a statutory body under the provisions of the Villages (Administration and Improvement) Law, Cap. 243, (hereinafter referred to as the Board) for a declaration that the decision of the Board to impose on the rate-payer the payment of a fee of £7.200 mils under bye-law 180 of the Villages (Administration and Improvement) Bye-Laws of Ayia Phyla, in respect of the year 1962, is null and void.

The grounds upon which the recourse was based, were two: (a) that the imposition of such a fee was made with retrospective effect, and was, therefore, "contrary to the provisions of Article 242 and

243 of the Constitution;" and (b) that "the imposition of such a fee, only to a portion of those who, under the aforesaid bye-law, were required to pay such a fee, is contrary to the provisions of Article 24.1, and 28.1 and

28.2 of the Constitution, being discriminatory; and/or otherwise".

The recourse was opposed by the Board on several grounds, to which we need not specifically refer for the purposes of this judgment, excepting for ground 4 in schedule "A" of the Opposition, which states that "the imposition of the fee complained of is not discriminatory against" the [*1398] applicant. "The fact that certain persons" - the statement proceeds - "may, for some reason or other, have escaped the imposition of such a fee, does not mean that the applicant was discriminated against".

We have referred to this particular ground of the Opposition, because it raises the only issue upon which, in our opinion, this appeal falls to be decided, at this stage: namely whether the rate or fee complained of, was imposed by the Board upon the appellant rate-payer, in the proper exercise of their statutory powers under the bye-law in question. All other issues raised in the proceedings, were thoroughly considered, and duly disposed of, by the learned trial Judge in his careful and lucid judgment, in a manner which makes it unnecessary for the Court to deal further with them.

The material facts of the case, as pointed out by the trial Judge in the first part of his judgment, "are quite simple, and are not in dispute". We find it unnecessary to re-state them here. We have already made it clear in the course of the argument before us, and particularly in the last stages of the appeal, that, in the opinion of this Court, the only question which requires further consideration in the present recourse is the legality and proper exercise of their powers by the Board, as far as the appellant ratepayer is concerned.

Dealing with the submission made on behalf of the rate-payer, the learned trial Judge classified them under four heads:- (P.28 of the record).

(i) Retrospectivity;

(ii) Double taxation; [*1399]

(iii) Discrimination; and

(iv) Excess or abuse of power.

He dealt separately with each of them in his well considered judgment; and decided them all in favour of the Board. As already intimated, after hearing learned counsel on both sides in this appeal, we are unanimously of the opinion that the trial Judge's decision on the first three headings, has not been successfully challenged. There remains the question of "excess or abuse of power".

"On this issue" - the trial Judge says, at the end of p. 9 of his judgment, p. 32 of the record - "in which I think there is more aubstance that the other issues raised by counsel for Applicant, I agree with counsel for Applicant that the strict wording of bye-law 180 requires that the fee in question shall be paid by all persons who come within the scope of the bye-law. The Board's understandable wish to confine the operation of bye-law 180 only to the Kapsalos area of the Improvement Area, could best have been achieved by involing the proviso to sub-section (l) of section 24 of Cap. 243 which has apparently been designed for this very purpose and which provides that 'the Board may, by notice signed by its Chairman and posted in a conspicuous place within the improvement area limit the application of such bye-laws to such part of the improvement area as may be specified in the notices'. Such action has not however been taken by the Board, and I, [1400] therefore, have to consider whether the failure of the Board to require the payment of the fee in question from owners of premises in the village of Ayia Phyla (in the absence of an appropriate notice under the proviso to section 24(1) of Cap.243) invalidates the imposition and collection of the fee in question from the Applicant".

This, we think, is a very well balanced statement of the position, and a clear picture of the Judge's mind on the issue in question. Earlier in his judgment (at p. 31 of the record) the learned Judge, when dealing with the number of premises in the village which had been let by their owners, refers to a list (exhibit 6) and says that "there were only a very few and negligible number of such premises in the village".

Upon this footing he proceeds to make his

decision, which, on the issue of excess or abuse of power, is expressed in the terms:- (at p.33)

"(d) having regard to the fact that the legislature, by the proviso to section 24(1) of Cap.243 had intended to enable the Board to apply its bye-laws, at its discretion, to certain parts only of the Improvement Area (by complying, of course, with the procedure laid down in the said proviso), the omission or failure of the Board to collect the fee from the few owners of rented premises in the village of Ayia Phyla, cannot, and should not, be allowed [*1401] to invalidate the imposition of the fee in question on the Applicant".

At the hearing of the appeal before us, however, it was contended that, roughly speaking, about one third of the persons liable to pay this rate, had not been taxed. It appears that some 250 owners-occupiers living at Ayia Phyla, and owners-occupiers living at Kapsalos, were not taxed.

With commendable frankness, learned counsel for the respondents, did not dispute that an appreciable number of persons liable to pay this rate, had thus been excluded from taxation by the Board.

It appears, from the text of the judgment that this was not the factual basis upon which the trial Judge founded his decision on the point. And that, if this were the picture before him, his decision on the issue in question would have been different. We take the view that by adopting the policy of taxing a part of the persons liable to pay the rate in question under this bye-law (even if it be by far the larger part) and refraining from taxing a class of such persons (which, in this particular case, formed an appreciable part of the total number of tax payers) amounts to contravention of bye-law 1 80 on the part of the Board, and also to abuse or excess of their powers, sufficient to entitle, the appellant rate-payer in the circumstances of this case, to succeed in her recourse; there can be little doubt that had all been taxed then necessarily the amount imposed on applicant would have been reduced proportionately. [*1402]

We, therefore, allow the appeal; and hold that the appellant - (applicant in the recourse under consideration) - is entitled to a declaration that the decision of the Respondent Board to impose upon the applicant, in the circumstances of this case, the payment of a rate of £7.200 mils under bye-law 180 of the Villages (Administration and Improvement) Bye-laws of Ayia Phylaxis in respect of the year 1962, is null and void.

It is, perhaps, superfluous to add that this

decision determines the rights and liabilities of the parties, in the subject-matter of the recourse; and does not affect the liability of other tax-payers to pay the rates imposed upon them by the Board under the same list, in respect of the year in question and who have not made a recourse to this Court.

As regards costs, we think that the appellant is entitled to her costs in the appeal and to £20.- against her costs in the trial Court. And we make order accordingly.

JOSEPHIDES, J.: I think that this appeal really turns on a very short point, that is, whether the Respondent Improvement Board acted within their statutory powers or contrary to law.

The material statutory provision with which we are concerned is bye-law 180(1) of the Villages (Administration and Improvement) Ayia Phyla Bye-laws, 1962, made under section 24 of the Villages (Administration and Improvement) Law, Cap.243 (see Official Gazette of 6th December, 1962, Supplement No.3, Notification 619, page 860). The agreed English translation reads as follows: [*1403]

"180.-(1) There shall he paid in each year by the owner of any premises within the improvement area, which are actually let or are in the occupation of such owner or some other person with the owner's consent or permission (with or without the payment of rent or other consideration) during such year or any part thereof, a fee at a rate to be fixed in that year by the Board not exceeding five per centum of the annual value of such premises as estimated by the Board in respect of that particular year".

The boundaries of the Improvement Area over which the Respondent Improvement Board (to which in this judgment I shall refer as "the Board") exercises jurisdiction under Cap. 243, is a large area comprising not only the actual village proper of Ayia Phyla (from which the Board derives its name) but also a large developing area known as the "Kapsalos" area which has now virtually become a suburb of the town of Limassol. The Board acting under bye-law 180 prepared and exhibited on the 20th December, 1962, a list of persons who own premises within the Improvement Area of Ayia Phyla and who had let them out for rent, showing on such list the amount of fee with which each person was liable to pay under the provisions of the said bye-law in respect of the year 1962. The Board pursuant to the provisions of the said bye-law fixed the fee for the year 1962 at the rate of 3 per centum on the annual value of the premises.

All the premises appearing on the list were in fact situated in the "Kapsalos" area, and the fee in question was only imposed in respect of those premises which had actually been let by their owners during the year 1962, that is, it was imposed on 522 owners of premises in the "Kapsalos" area, but it was not imposed on 250 owners of premises who occupied [*1404] their own premises in the Ayia Phyla area, on a few rented premises at Ayia Phyla (the Board admitted 7 such cases) and on a few owner-occupied premises in the "Kapsalos" area.

The appellant is the owner of a house in the "Kapsalos" area within the Improvement Area and during the year 1962 her house was let at a rent of £20 per month. She was duly assessed as being liable to pay in respect of the year 1962 3 per centum of the annual value of £240, that is, a fee of £7.200 mils.

The learned Judge based his judgment on the fact that the failure to collect the fee was only in respect of a few owners of rented premises in the village of Ayia Phyla (admitted by the Board to be 7 persons), and on this basis he was of the view that such failure did not invalidate the imposition of the fee in question made on the appellant under the provisions of section 24 of Cap.243 and bye-law 180, and that the Board had not acted "in excess or abuse" of its powers in imposing such fee on the appellant.

It would seem that the learned Judge failed to take into consideration (a) that 250 owners-occupiers in the Ayia Phyla area, that is, about one-third of the assessable owners were not assessed, and (b) that the owners-occupiers of premises in the "Kapsalos" area were not assessed.

Considering the wording of bye-law 180 (which was made under the provisions of Cap.243) to the effect that "there shall be paid in each year by the owner of any premises within the improvement area, which are actually let or are in [*1405] the occupation of such owner...", and considering that about one-third of the owners of premises in the Ayia Phyla area (250 persons) and a few in the "Kapsalos" area, who were liable to pay this fee were not assessed, the only irresistible conclusion is that the Board acted contrary to the provisions of the law and the appeal should therefore, be allowed, and a declaration made that the Board's decision is null and void.

Appeal allowed.

Decision complained of

declared null and void.

Appellant awarded her costs

in the appeal and £20.-

against her costs in the trial

Court.

* Decision published in (1965) 3 J.S.C, p. 235.