Supreme Court grants partial provisional order suspending requisition effect pending recourse determination.

[*960] 1966 July 6

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Costas Clerides and Others,

Applicants,

and

The Republic, through

The Council of Ministers,

Respondent.

(Case No.1 21/65).

Immovable Property - Acquisition - Recourse against Order of requisition of spring - Application for a Provisional Order that Order of requisition, the subject matter of recourse, shall not be given effect to pending the determination of Case - Principles enunciated in Georghiades and the .Republic (1965) 6 J.S.C, 769, applied - Provisional Order made suspending in part the effect of the Order of requisition.

L. Clerides, for the Applicants.

K. C. Talarides, Counsel of the Republic, for the Respondent.

K. Michaelides, for the Interested Party (The Improvement

Board of Kalopanayiotis).

DECISION

The following Decision was delivered by:-

TRIANTAFYLIIDES. J.: In this Case counsel for Respondent, as well as counsel for the Interested Party, gave notice in writing (see exhibit 1) on the 20th June, 1966, to counsel for Applicants, informing him in accordance with the arrangement reached before the Court in the present Case on the 16th July, 1965, that it was

intended to convey to Kalopanayiotis as from the 27th June, 1966 25,000 gallons [*961] of water per day from the "Pikromiloudhi" spring, in conformity

with the Order of requisition which is the subject-matter of this recourse.

The aforesaid arrangement of the 16th July, 1965 amounts to certain statements which were made before the Court while it was dealing with an application that a provisional order be made in these proceedings restraining the carrying out of any excavations, or doing anything else, in relation to the aforesaid spring until the final determination of this recourse. It was stated then to the Court that the preliminary work necessary before any water could be conveyed from such spring to Kalopanayiotis would take some time, and that it was most unlikely that any water would actually be taken from the spring to Kalopanayiotis before the summer of 1966, In view of that counsel for Applicants did not insist any longer on the application for a provisional order and such application was dismissed, the Applicants being at liberty to file a new application for a provisional order on being notified in advance of the intention to start conveying water to Kalopanayiotis from the spring in question.

So, when exhibit 1, above, was written to Applicants, through their counsel, they filed a fresh application for a provisional order, on the 25th June, 1966, whereby it is sought that an order be made that no water shall be taken from the spring in question to Kalopanayiotis until the final determination of this recourse.

Prior to dealing with the present application for a provisional order the Court has had the benefit of hearing argument by counsel on certain preliminary legal issues arising [*962] in this recourse, and though the Decision thereon has been and still remains reserved, this has assisted the Court to look at the question, of the making or refusing the provisional order applied for, in its proper context.

There can be no doubt that there are serious legal issues to be resolved in this recourse, but, at present, I am not in a position to hold that on anyone of them the sub judice Order of requisition appears to be so flagrantly illegal as to necessitate the prevention of its taking effect at all.

I have duly borne in mind whatever has been sworn, on behalf of Applicants, in the affidavit of the 23rd June, 1966, and whatever has been submitted by counsel for the parties.

No evidence has been adduced by any party, though there are some factual issues which are in dispute; but such issues do not prevent the Court, at this stage, from evaluating sufficiently the relevant general aspects of this Case with a view to deciding the application for a provisional order.

What is being sought

by means of such application is that the Order of requisition, which is the subject-matter of this recourse, should not be given effect to

pending the determination of this Case.

Provisional orders are not granted as a matter of course in proceedings such as the present: the relevant principles have been set out in Georghiades and The Republic (1965, 6 J.S.C. p.769) and need not be reiterated again.

In the light of all the material before the Court and bearing in mind, inter alia, that, irrespective of any [*963] dispute as to exact figures, it does appear that the output of the spring concerned has been considerably increased, by means of recent works carried out by Respondent in relation to the Order of requisition: that once the said Order takes effect the Applicants will be entitled to compensation therefor (see Article 23(8)(d) of the Constitution and section 8 of the Requisition of Property Law, 1 962) ; that, on the other hand, as stated by counsel for Respondent, the minimum needs of Kalopanayiotis for the coming months can be met if a quantity of 15,000 gallons per day is taken from the aforesaid spring; that the water of such spring is used by Applicants for irrigation purposes; and that the effect of the Order of requisition in question is by its very nature a severable one, I have decided to grant a provisional order suspending in part the effect of the said Order of requisition by restraining Respondent, and anyone acting under its authority, including the Interested Party, from taking more than 15,000 gallons of water per day from the spring concerned until the future determination of these proceedings; and it is hereby ordered accordingly.

All parties shall be at liberty to apply at any time, on good ground being shown, for a variation of the provisional order made by this Decision.

Section 1.01 Order in terms.

Section 1.02