Supreme Court annuls building permit endorsement for exceeding authority and abuse of power under Article 146.

[*164] 1967 February 11

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Nemitsas Industries Ltd.,

Applicants,

And

1. The Municipal Corporation of Limassol,

2. The Municipal Commission of the

Municipal Corporation of Limassol,

Respondents.

(Case No. 141/65).

Streets and Buildings - Building Permits - Endorsement made by Respondents on a building permit granted to Applicants - Validity - The Streets and Buildings Regulation Law, Cap.96 - Endorsement annulled as made C without legal authority and in excess -and abuse of the relevant powers of Respondents

- No competence to decide validity of the 1955 street widening scheme in respect of Chiflikoudhia road - As scheme became a final administrative act before the 16th August, 1960.

Constitutional Law - Constitution of Cyprus, Article 146 - Competence - Competence under Article 146 - Not extending to acts or decisions finalized before the 16th August, 1960.

G. Cacoyannis, for the Applicants.

J. Potamitis, for the Respondents.

JUDGMENT

The following Judgment was delivered by: -

TRIANTAFYLLIDES. J.: In this Case the Applicants challenge, by claim (a) in the motion for relief, the validity of an endorsement made by Respondents on a building permit, dated the 11th June, 1965, (see exhibit 6), and granted to Applicants [*165] in connection with the erection of a factory on their property in the Chiflikoudhia (or Chiftlikoudhia) area in Limassol (see plots 159/1 and. 158 on the map, exhibit 1). The said endorsement is to the effect, inter alia, that the southern part of their property, which is shaded in red on a plan which was attached to the permit (see exhibit 6(a)), will be taken out of the ownership of the Applicants and will form part of a public street, in accordance with a street-widening scheme published in the official Gazette (under Not.322) on the 31st March, 1955, in respect of Chiflikoudhia road, which forms the southern boundary of the Applicants' said property.

The Applicants challenge, also, by claims (b) and (c) in the motion, for relief, the validity of the said scheme itself.

A further claim - claim (d) - of the Applicants, for just and equitable compensation, has been abandoned by them, at the hearing of this Case, as not being, within the competence of this Court under Article 146.

The history of relevant events appears, on the basis of the material before the Court, to be as follows: -

When the street-widening scheme in question was published in 1955, under the provisions of section 12 of the Streets and Buildings Regulation Law (then Cap. 165, and now Cap. 96, of the Laws of Cyprus) the affected property of the Applicants did not belong to them, but it belonged to another owner, a certain Azat Yoskeredjian, who on the 30th July, 1960, sold it to Nemitsas Ltd., a [*166] company which is an associate of the Applicants; then the said company gifted the property, in 1965, to the Applicants.

As it appears from, the material before the Court, Nemitsas Ltd. had applied in 1964 for the building permit in question; in the meantime, however, the property was transferred to the Applicants and they adopted such application and pursued the matter themselves.

On the 20th May, 1965, the Managing Director of the Applicants addressed a letter to the Respondents (see exhibit 2) alleging that the Respondents could not insist on the aforementioned southern part of Applicants' property being ceded to the public street, and requesting that the building permit applied for be issued without any condition to that effect.

The Chairman of the Municipal Commission of Limassol replied by letter dated the 1st June, 1965 (see exhibit 3) rejecting the above request of the Applicants.

On the 11th June, 1965, the building permit in question, with the endorsement complained of by Applicants, in relation to the southern part of the property of the Applicants-which is affected by the. 1965 street-widening, scheme for Chiflikoudhia road was issued.

On the 12th June, 1965, the Applicants wrote to Respondents accepting the building permit, but reserving their right to challenge in Court the validity of the decision of Respondents to insist on the cession to the public street of the said part of the Applicants' property (see exhibit 4) [*167]

By letter dated the 12th July, 1965, the Respondents rejected the contentions of Applicants (exhibit 5).

This recourse was filed on the 5th August, 1965.

It is convenient to deal first with claims (b) and (c) of the Applicants, which, as already stated, are aimed at the validity of the 1955 street-widening scheme in respect of Chiflikoudhia road; the validity of such scheme is challenged to the extent to which it affects the southern part of the property of the Applicants.

A street-widening scheme is an administrative, and not a legislative, act. (See Malliotis and the Municipality of Nicosia, 1965 2 J.S.C. p.171, at p.178).

It is not in dispute in the present Case that the scheme, in question became a final administrative act long before the 16th August, 1960, when the Constitution of the Republic came into operation.

As held in Mustafa and the Republic (1 R.S.C.C. p.44, at p. 47) and Kanlklides and the Republic (2 R.S.C.C. p.49, at p.53) the competence under Article 146 does not extend to acts or decisions which became final before the 16th August, 1960.

It follows, therefore, that this Court in the present recourse has no competence to decide on the validity of the aforesaid 1955 street-widening scheme as such.

Claims (b) and (c), of the Applicants cannot, therefore, succeed and are dismissed accordingly.

We come now to claim (a) of the Applicants which, as stated earlier, is aimed at the validity of the endorsement [*168] on the building permit dated 11th June, 1965, (exhibit 6) to the extent to which it refers to the street-widening scheme for Chiflikoudhia road.

I would like to make at this stage two preliminary observations: -

First, I am of the opinion that in dealing with the validity of such endorsement I am not entitled to examine the validity of the scheme itself - as being a factor decisive for the validity of the endorsement - because the scheme is not a legislative act, but an administrative one; only if it Were a legislative act could its invalidity have led to the invalidity of an act based C thereon (as in Christodoulou and The Republic, 1 R.S.C.C. p.1). Nor can it be said, in this respect, that the said scheme and the building permit in question form together a "composite administrative action" so that the invalidity of part of such action - such as the scheme r could lead to the invalidity of the culmination of such action - i.e. the building permit. The scheme and the. permit are act separate and independent of each other; though a scheme is a factor which, when it exists, restricts the exercise of the power to grant a building permit it is not a step taken in the administrative process or granting such a permit.

Secondly, the attempt made towards implementation of the 1965 street-widening scheme for Chiflikoudhia read, by means of the endorsement complained of, cannot, in any sense, be said to amount to a compulsory acquisition made after the 16th August, 1960 - so that Article - 23(4) could. [*169] be applicable to it - because as it is to be derived from Anastassiadou and The Municipal Commission of Nicosia (3 R.S.C.C. p.111, at p.116) a scheme which came into force in 1955 cannot, when relied upon by a Municipal Authority after the coming into operation of the Constitution on the 16th August, 1960, be held to amount to direct or indirect compulsory acquisition taking place after the coming into operation of the Constitution.

In attacking the validity of the endorsement complained of the Applicants have submitted that, because of a supervening in the meantime basic change in the nature of the use of their affected property, it amounts to restrictions or limitations which were constructively imposed when the building permit in question was issued, and, thus, such imposition may properly be made the subject-matter of this recourse. Reference in this respect has been made to the notion of constructive imposition of restrictions or limitations expounded in Ramadan and The Electricity Authority (1 R.S.C.C. p.49 at p.57). reliance has also been placed on the Anastassiadou case (supra, at p.116) as supporting the view that the implementation of the 1955 street-widening scheme after the 16th August, 1960, may result in the constructive imposition of restrictions or limitations.:

As pointed out in the said case of Ramadan (supra, at p.58) the issue of fact whether a constructive imposition of restrictions or limitations has taken place is a matter so closely related to the determination of the amount of any compensation payable in respect thereof, under paragraph 3 of Article 23, that it is within the jurisdiction of a [*170] civil court, under paragraph 11 of Article 23, and not of this Court, on a recourse under Article 146.

Nevertheless, during the hearing of this Case, considerable latitude was allowed to the parties in adducing their evidence, in relation to the issue of constructive imposition of restrictions or limitations on the property of the Applicants, so that the Court might have before it all factors possibly relevant to the determination of this recourse.

In the end, however, it was not found necessary to decide any issue of fact, because in examining the effect and validity of the endorsement complained of, as made on the building permit (exhibit 6). I have reached the conclusion that, in any case, it does not amount to administrative action which could bring about the constructive imposition, in 1965, of restrictions or limitations on the property of Applicants, simply because it does not amount to valid administrative action at all.

As at present advised, I am of the opinion that no Law, or Regulation, enables the making of an endorsement, such as the one complained of in this Case.

Under sub-section (3) of section 12 of Cap. 96 it is provided that when a street-widening scheme has come into force no permit shall be issued by an appropriate authority save in accordance with such scheme.

Section 13 of Cap. 96 provides that where a permit is granted by an appropriate authority and such permit entails a new alignment for any street, in accordance with any scheme which has become binding under section 12 of the [*171] Law, any space between such alignment and the old alignment, which is left over when a permit is granted, shall become part of the street. It is further provided that when such a permit is granted the District Lands Office shall, upon application by any interested party, cause the necessary amendments to the relative registrations to be effected.

The combined effect of sub-section (3) of section 12 and section 13 does not, in my opinion, authorize at all an appropriate authority - in this case the Limassol Municipality - to make an endorsement on a building permit, as complained of in this Case. Nor is such an endorsement among the possible conditions provided for, in relation to q building permits, by means of section

9 of Cap. 96.

In the present Case (unlike the case of Anastassiadou (supra) in which a building permit, as applied for, was refused because of the existence in force of a street-widening scheme) the building permit applied for by the Applicants has been granted and, therefore, it may be assumed that the said permit, as applied for, was not incompatible with the Chiflikoudhia road street-widening scheme. Once this was so, and there was no provision of law enabling or requiring the making of the endorsement in question in the said building permit, it was not open to Respondents to endorse such permit as they did, in an effort to further the implementation of the street-widening scheme concerned, by way of a condition in the said permit, and in a manner other than as, and not provided for, by law. All that -the Respondents could lawfully do, under section 13 of Cap.96, if

they were of the view that the requirements of the said section were [*172] satisfied, was to apply for the necessary amendments of the relevant Lands Office registrations, in completion

of the implementation of the street-widening scheme concerned.

I have reached, therefore, the conclusion that the aforesaid endorsement has been made without legal authority, and in excess and abuse of the relevant powers of the Respondents, and it should, therefore, be declared to be null and void and of no effect whatsoever; and it is so declared accordingly.

In examining the validity of the endorsement, which has just been found to be invalid, I have considered the possibility that it may have been only a mere "note" - as it appears to be prima facie - not intended to produce a new legal situation affecting the Applicants; in such a case it would not be of an executory nature, and not only it would not be capable of contributing to the constructive imposition of restrictions or limitations, but also it could not be made the subject-matter of a recourse, because only executory acts can be made the subject-matters of recourses under Article 146 of the Constitution, (see Kolocassides and The Republic, 1965 6 J.S.C. p.674; 1965 11 J.S.C. p.1128).

I have reached, however, the conclusion that the endorsement in question as made, in the context of the circumstances of this Case, was intended to be part of the executory act of the building permit (exhibit 6) and to amount to a condition relating to the grant of such building permit. I have, therefore, reached the conclusion that it could, properly, be made the subject-matter of the present [*173] recourse, and be annulled in the exercise of the competence under Article 146.

In the result this recourse succeeds as regards claim (a), to the extent stated in this Judgment, and it fails as regards the remaining claims of the Applicants.

I would like to conclude by pointing out that nothing in this Judgment may be taken as indicating that the Respondents are now any less entitled, than they would have been otherwise, to take such action as may be warranted under section 13 of Cap.96, in view of the granting of the relevant building permit (exhibit 6). What the nature and legal consequences of such action may be under the legislation in force, including, of course, the Constitution of the Republic, is a matter which I leave entirely open.

Regarding costs T have decided, in view of the fact that the Applicants have succeeded only in part in this recourse, to make no order as to costs.

Order in terms.

No order as to costs.