Court dismisses recourse against water payment demand as private law contract matter outside Article 146 competence.

[*821] 1966 June 15

(TRIANTAFYILIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Modestos Savva Pitsillos,

Applicant,

and

The Republic of Cyprus, through

1. The Minister of Agriculture and Natural Resources,

2. The Manager of the Water Board of Nicosia,

Respondents.

(Case No. 148/64).

Administrative Law - Constitution of Cyprus, Article 146 - Preliminary legal issues - Time and competence - Recourse against decision to demand from Applicant payment in relation to water supplied to him - Recourse filed within the time prescribed under Article 146.3 - Demand an action taken by Government under contract with citizen - A matter of private law outside the competence under Article 146.

Administrative Law - Competence, Article 146 of the Constitution - Action taken by Government under contracts with citizens are matters of private law - Not within a competence under Article 146.

Time, Article 146.3 of the Constitution - See under “Administrative Law” above.

A. Georghiades, for the Applicant.

L. Loucaides, Counsel of the Republic, for the Respondent No.1.

A, Triantafyllides, for the Respondent No.2.

DECISION

The following Decision was delivered by:-

TRIANTAFYLLIDES, J. : When this Case came up for hearing, counsel for Respondent 1 took two preliminary objections, viz. that this recourse as made against the decision to demand from Applicant payment of £44.200 mils, [*822] in relation to water supplied to him, is out of time, and, secondly, that, in any case, such

decision is not a matter within the ambit of the competence under Article 146 of the Constitution,

Regarding the first objection, the relevant notice demanding payment by Applicant of the aforesaid amount of £44.200 mils, is dated the 25th September, 1964, (see exhibit 4) and as this recourse was filed on the 8th December, 1964, it is not, therefore, out of time, under Article 146(3) of the Constitution; thus, the first preliminary objection of counsel for Respondent 1 fails.

Regarding, however, the second preliminary objection of counsel for Respondent 1 , I think that it should succeed, for the following reasons:-

Applicant has been supplied with water by virtue of an agreement dated 9th September, 1958, which is exhibit 1 in these proceedings; this agreement was entered into between Applicant and the Water Board of Nicosia, Respondent 2, on behalf of the then Colonial Government, which has now been succeeded by the Government of the Republic; it is under this agreement

that the demand, as per the notice, exhibit 4, for Applicant to pay £44.200 mils - and against which Applicant complains by means of this

recourse - was made.

The said demand was actually made by Respondent 2, but it was made on behalf of the Government, which, is in fact the supplier of water to Applicant, under the agreement, exhibit 1; Respondent 2 acted only as a collecting agent in this Case - (see the Opposition of Respondent 2), [*823]

Thus, we are faced here with the position that Applicant complains against action taken by virtue of an agreement with Government.

It is well settled in Administrative Law that matters arising out of action taken by Government under contracts with citizens, are matters of private law, and as such they do not fall within a competence relating to the remedy by way of recourse for annulment, such as the competence under Article

146 of the Constitution, (see Conclusions from the Jurisprudence of the Greek Council of State 1929-1959, p.233)·

It follows that this Court has no competence, under Article 146, to entertain the complaint of Applicant - made, in particular, by means of claim

(a) in the motion for relief - against the demand from him of the amount of £44.200 mils, as per exhibit 4: such claim (a) is, therefore, dismissed accordingly.

Regarding the remainder of the motion for relief in this Case I would like to hear counsel further before deciding on the fate thereof.

All costs to-date, unless otherwise specifically decided earlier, to be costs in cause; but the costs of Respondent 1 for the hearing of this Case at which the preliminary objection resulting in the dismissal of Applicant's claim

(a) was taken, and the costs of Respondent 1 for attending Court to-day to hear this Decision, are awarded to such Respondent, against Applicant, and are assessed at £10.

Order, and order as to costs,

as aforesaid.