Court grants provisional order restraining requisition steps until compensation is determined and paid.

[*967] 1966 July 26

(VASSILIADES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Christakis Vassiliades,

Applicant,

and

The Republic of Cyprus, through

the Council of Ministers,

Respondent.

(Case No.171/66),

Immovable Property - Acquisition of land – Compulsory acquisition of Applicant's property - Application for a Provisional Order restraining Respondent from taking any steps in furtherance of the requisition of such property - Substance of what the Court has to be concerned with in an application for a provisional order in a case of this nature - Constitution of Cyprus, Article 23.4 and 8 and the Requisition of Property Law, 1962 (No. 21 of 1962).

Lellos Demetriades, for the Applicant.

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

DECISION

The following Decision was delivered by:-

VASSILIAPES, J.: The requisition proceedings in this case are apparently taken in order to enable the acquiring Authority under an acquisition order, to exercise such of the rights attaching to the ownership of property, as are conferred upon them by the requisition order, pending completion of the acquisition of the property required by the Authority.

Apparently this course has been followed in a number of previous cases; and the legal aspect of the matter before me, [*968] is governed by decisions and judicial pronouncements in such cases. The Judgment in Evrydiki Aspri v. The Republic (k R.S.C.C. p. 57) a case very similar to the case in hand, governs, I think, most of the legal aspects of the present proceeding.

The substance of what the Court has to be concerned with, in an application for a provisional order in a case of this nature, is, I think, to preserve and protect, as far as possible, subject to the public interest, the expropriated owner's legal rights to compensation, as provided in the relative statute; in the present case, the Applicant's rights to compensation for the loss of the use and enjoyment of his property in Plot 252 (described in the recourse) as such use and enjoyment may be affected by the requisition order, and the eventual loss he may suffer as a result of the acquisition of that particular part of his plot. In my opinion, in a case of this nature, where the requisition order is made as a corollary to and for the purposes of the acquisition of the property the whole transaction should be treated as one in substance, notwithstanding that in form it results from two separate orders, under two different statutes.

Provision for such compensation, both for the requisition and the eventual acquisition of his property, is made in the relative legislation; and is guaranteed by the Constitution. Nevertheless in the present case, where the acquisition of Applicant's property has been decided as early as April last, if not before, no steps appear to have been taken by the acquiring Authority to have the compensation provided by the statute duly determined and paid to the expropriated owner. The Authority are, apparently, in a hurry [*969] to get the property, presumably for sufficient reason; but they do not seem to be in a hurry to have the compensation determined and promptly paid, as required by the statute. They do not seem to connect the question of the compensation with the ousting of the owner from his rights. That is not my understanding, as at present advised, of the relative legislative provisions, read and applied with due regard to the property– rights of the Applicant, as guaranteed by the Constitution.

My attention has been drawn to the difference between the provisions in para. 4 of Article 23, and those in para. 8 of the same Article; particularly as to the payment of compensation. This matter is discussed and considered in the decision in Aspri v. The Republic (supra) where at p.

60 G of the report, one reads:

"The Court is of the opinion that the notion of requisition in para. 8 of Article 23 and law 21/62 made thereunder, should be construed in a manner consistent with the whole context of Article 23·By comparing the provisions of paras, 4 and 8 of such Article it will be seen that they follow the same pattern and are designed to achieve similar objects, except that under para. 8 no acquisition of property takes place, as under para. 4. This is the reason why the compensation under para. 4 is payable in advance whereas under para. 8 it is payable promptly only".

And further down at p. 61 D the report reads:

"The mere fact that the purpose for which a compulsory acquisition has been decided upon is being pursued pro tempore by means of requisition, upon payment of compensation, cannot reasonably be said to frustrate the said rights of the Applicant under sub-para, (c) of para, b, because the ownership continues to vest in the Applicant in the meantime". [*970]

Bearing in mind, however, that the substance of property–rights rests mainly in the right of possession and enjoyment; and that in this particular case, such rights were being exercised, by the owner personally, I take the view that ousting the owner from his right of possession, and leaving him vested with his night of ownership without possession, amounts practically to very grave interference with his ownership–rights if it does not amount to their frustration. And that being so, the steps to oust his from his rights of possession and enjoyment, under a requisition order, should be taken together and at the same time with the appropriate steps for the determination and prompt payment of the compensation for the loss of his property; to give him the feeling and assurance that "prompt payment in cash of a just and equitable compensation", only waits to be determined according to law, the necessary steps for such determination having already been taken, and an appropriate deposit having been made.

In this particular case, I have it from counsel for the Applicant that his client's loss for the use and enjoyment of that particular part of his plot, amounts in the owner's estimation to a £1 00 per month. On the other hand, I have it that the expropriating Authority's figure for such loss, is in the region of £1 2 for the whole year. Apparently there is a very material difference in the two valuations; and in the circumstances of this case, I think that the higher figure should be taken as measure for the deposit. With this approach, I propose making a provisional order which shall sufficiently connect the rights conferred on the Respondents by the acquisition and requisition orders in their combined effect, with their (the Respondents) corresponding obligations to pay [*971] to the owner of the property, appropriate compensation promptly in cash, as provided by law. And at the same time, to protect practically the owner's legal rights to such compensation. By understanding of the relative legislation, as at present advised, is not that the owner must give up his property and chase after the compensation payable to him; but that, failing agreement at the time of the taking of the property, the Authority concerned must promptly and at the same time proceed with the steps prescribed by the law, for the determination of "just and equitable compensation", and the due payment thereof.

Provisional Order made restraining the Respondents from taking any steps in furtherance of the acquisition of the property in question, or of the requisition order affecting the same property, for a period of 14 days from today. On payment of deposit of the sum of £1 ,200, at any time within the said period of 14 days, the Provisional Order to be discharged, and the requisitioning Authority to be at liberty to proceed with the requisition order. In default of such payment or deposit within the said period of 14 days, the Provisional Order to continue in force, pending the hearing and final determination of the acquisition proceedings, or until further order of this Court.

Costs in cause.

Section 1.01 Provisional Order in terms.

Section 1.02 Costs in cause.

Section 1.03