Supreme Court dismisses challenge to compulsory acquisition notice for non-publication of owner's name.

[*1124] 1966 November 5

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Charalambos Pissas,

Applicant,

and

The Electricity Authority of Cyprus,

Respondent.

(Case No. 16/66).

Immovable Property - Acquisition of Land - The Compulsory Acquisition of Property Law, 1962 (No.15 of 1962) - Compulsory acquisition of part of Applicant's property - Validity of the relevant Notice and Order of Acquisition

- Non-publication of the owner's name therein - Notice and Order published in due compliance with the relevant provisions of the Law (supra) - Respondent's

decision on the compulsory acquisition of Applicant's property not taken contrary to any of the well-established principles governing compulsory acquisitions.

Constitutional Law - Constitution of Cyprus, Article 23 - Acquisition of Land - Non-publication of the name of the owner in the relevant Notice and Order of acquisition - Notice and Order of acquisition, as published, not unconstitutional as being contrary to Article 23.

Acquisition of Land - Compulsory acquisition of land - Notice and Order of acquisition - Non-publication thereof of the name of the owner of the property compulsorily acquired - Not contravention of the relevant legislation - Though extremely desirable that such name should be mentioned in such Notice and Order.

C. Myrianthis, for the Applicant.

G. Cacoyannis with M. Ioannou, for the Respondent.

JUDGMENT

The following Judgment was delivered by:-

TRIANTAFYLLIDES, J. : In this recourse Applicant challenges the validity of the Notice of compulsory acquisition (Not. No.553 in Supplement No.3) to the Official Gazette of the 8th November, 1962) and of the subsequent [*1125] Order of compulsory acquisition (Not. No. 145 in Supplement No.3 to the official Gazette of the 21st March, 1963), by - virtue of which Respondent has acquired an area of 288 sq. feet at the hack of the property of Applicant at Ayios Dhometios (plot 219,block B, plan XXI.45.2) for the purpose of erecting a sub-station thereon.

The property of Applicant is coloured yellow on the relevant survey map (exhibit 1) and the part compulsorily acquired is coloured red; this part is at the corner of the backyard of the residence of Applicant, which is an old house built on his said property, plot 219. In the corner in question there exists a dilapidated outside lavatory, which has been out of use for some time, a small oven, part of the hencoop, and underneath there is a cesspit. On the material before me I am quite satisfied that whatever stands on, or is found under, the area compulsorily acquired can be moved elsewhere in the yard of Applicant's house without interfering at all with the use of such house as a residence; it is merely a question of expense.

An application for the assessment of the compensation payable to Applicant in respect of the compulsory acquisition has already been filed (No.51/55, before the District Court of Nicosia) and it is still pending.

By a Decision given on the 27th June, 1966*, it has been held that, in the circumstances of this Case (especially in view of the fact that the name of Applicant, as owner of the property compulsorily acquired, has not been stated either in the Notice of acquisition or in the Order of acquisition, and no other notice of the compulsory acquisition had been [*1126] given to him, until an application was made, as above, for the assessment of the compensation payable for the acquisition) this recourse is not out of time in the sense of Article 146(3] of the Constitution, though it has been filed nearly three years after the publication of the Order of acquisition.

It must be stated here, while on this point, that, at the time the said

Decision was given, the Court did not know what has come out during the subsequent hearing, namely that a representative of Respondent had approached Applicant with a view to purchasing from him by voluntary sale, if possible, the part of his property which was eventually compulsorily acquired and that, therefore, Applicant had notice that the said part was earmarked by Respondent for the purpose of erecting a sub-station thereon. But as, after the failure of the negotiations for a voluntary sale, no notice was given to Applicant of a compulsory acquisition being intended, nor notice of such acquisition was given to him directly when the Notice of acquisition or the Order of acquisition were published in the official Gazette, I must say that, even on the basis of the facts as now known, I would still be of the same view, regarding this recourse not being out of time, as the view expressed in the aforesaid Decision of the 27th June, 1966.*

Applicant, in this Case, attacks the validity of the compulsory acquisition in question on two main grounds: -

Firstly, that in the form in which the Notice of acquisition and Order of acquisition have been published - without specifically mentioning therein the name of the Applicant, as the owner of the property compulsorily acquired – [*1127] they are invalid as being contrary to both Article 23 of the Constitution and section 4 of the Compulsory Acquisition of Property Law, 1962 (Law 15/62). Secondly, that the property of Applicant was chosen for compulsory acquisition, with a view to erecting the sub–station thereon, without due enquiry by respondent in an effort to adopt the less onerous means of achieving the purpose of the compulsory acquisition in question; in this respect reliance has been placed on the relevant principles as expounded in the case of Chrysochou Bros. and CYTA, 1966 5 J.S.C. p. 671.

Regarding Article 23, counsel for Applicant has not relied on any specific provision therein, but he has argued that it is contrary to the spirit of such Article to interfere with the right of property safeguarded thereby by means of a Notice of acquisition and an Order of acquisition not specifying the name of the owner affected. So long as it is quite clear, as held also in the

Decision given in this Case on the 27th June, 1966,* that an owner such as Applicant, who has not come to know, within the 75 days specified under Article 146(3) of the Constitution, of the compulsory acquisition of his property (because his name has not been published in the relevant Notice and Order of acquisition) would

not be prevented thereafter from challenging the validity of the acquisition, when he actually comes to know of it, I fail to

see how the right of property safeguarded under Article 23 can be said to be prejudicially interfered with, in a manner contrary to the Constitution, by the non-publication of the name of the owner in the relevant Notice and Order of acquisition. I am, therefore, of the opinion that the sub judice Notice and Order of acquisition, as published, are not unconstitutional as being contrary to Article 23. [*1128]

I am, further, of the view that the said Notice and Order have been published in due compliance with the relevant provisions of Law 15/62, and particularly section 4 thereof. In this respect I agree with the view taken on such an issue in Venglie and The Electricity Authority of Cyprus, 1965, 5 J.S.C. p. 500. I am of the opinion that when the relevant legislation speaks of the "description" of the property compulsorily acquired it does not necessarily envisage the name of the registered owner thereof.

Of course, it would be extremely desirable,, and particularly with a view to enabling the time under Article 146(3) of the Constitution to begin to run, if either the name of the owner - and of any person whose proprietary rights are known to be affected by the compulsory acquisition concerned - is mentioned in the Notice and Order of acquisition, or notice of the acquisition is given to the owner - and such other person - directly, in addition to the publication of the Notice and Order of acquisition in the official Gazette in accordance with the provisions of law 15/62.

Coming now to the second complaint of the Applicant against the validity of the compulsory acquisition concerned, I am satisfied, having heard all the evidence adduced in this Case and having paid due regard to whatever has been alleged on behalf of the parties by learned counsel, that it was reasonably open, in the circumstances, to Respondent to choose to erect the sub-station in question in the particular corner of the property of Applicant and that such choice has been made, out of a limited number of prima facie suitable properties, after due enquiry and in the proper exercise of [*1129] the relevant discretion. I am satisfied that in deciding on the compulsory acquisition in question Respondent has not acted contrary to any of the well-established principles governing compulsory acquisitions (see Chrysochou Bros. and CYTA, supra).

The fact that the sub-station could, perhaps, be erected equally suitably on some other neighbouring property causing, on the whole, the same amount of hardship to the owner concerned, as Applicant is to suffer in view of the erection of the sub-station in his own backyard (and such a neighbouring property appears to be plot 222 on exhibit 1) cannot in my opinion lead to the conclusion that the decision to erect the sub-station on the property of Applicant has been taken in contravention of the relevant principles; such principles could only have been contravened if a less onerous means of achieving the purpose of the compulsory acquisition had been overlooked; and not merely because one out of equally onerous solutions lias been preferred, as in my opinion is the position in the present Case. It is not for this Court to exercise its own discretion, in substitution of the discretion of Respondent, regarding the choice among equally suitable properties, the acquisition of which entails more or less equal hardship.

In the circumstances, this recourse fails for the reasons given in this Judgment and it has to be dismissed accordingly. Regarding costs, I have reached the conclusion that it was not unwarranted at all, in a case of this nature, for Applicant to try and vindicate his rights in the matter, as seen by. him, by means of this recourse. [*1130] Though in the end he has failed to annul the sub judice Notice and Order of acquisition, I think that this is not a case where one could regard his making a recourse as frivolous. I, therefore, bearing in mind also that in these proceedings there arose some pertinent legal issues, which called to be resolved, have decided not to make an order for costs against Applicant and in favour of Respondent, and let each party bear its own costs.

Application dismissed.

Each party to bear its

own costs.

* Published in (1966) 6 J.S.C. 874.

* Published, in (1966) 6 J.S.C. 874.

* Published in (196b)

6 J.S.C. 874.