Court allows appeal where Gazette publication failed to notify owner, delaying the 75-day constitutional deadline.

[*74] 1969 January 9

(VASSILIADES, P., TRIANTAFYILIDES, JOSEPHIDES,

STAVRINIDES, LOIZOU, JJ.)

APPELLATE JURISDICTION

Melpomeni Constanti Antoni Bakkaliaou,

Appellant,

v.

The Municipality of Famagusta,

Respondent.

(Revisional Jurisdiction Appeal No.40).

Acquisition - Land - Compulsory acquisition - Property owner invited to submit reasons for objection (if any) - Property owner’s written objection thereto - Subsequent publication in official Gazette of order of acquisition cannot be treated as a reply to owner’s written objection - Nor is it sufficient for setting into motion the provisions of Article 146.3 of the Constitution.

Time - Article 146.3 of the Constitution.

Constitutional Law - Article 29 of the Constitution – Expropriated owner’s right to a reply from the public authority to her proposal.

Constitutional Law - Article 146.3 of the Constitution - Time.

Observations by the Court regarding the desirability of giving personal notice to property owners of the steps taken by public authorities for the compulsory acquisition of their property.

A. Triantafyllides, for the Appellant.

S. Marathovouniotis, for the Respondent.

JUDGMENT

The Judgment of the Court was delivered by:

VASSILIADES, P.: This is an appeal from the

decision of a single Judge of this Court that a recourse [*75] under Article 146 of the Constitution, challenging an administrative decision for the expropriation of property,cannot proceed and should be dismissed, as having been filed out of time; that is to say, after the lapse of the 75 days’ period prescribed in paragraph 3 of Article 146.

The recourse was filed on August 17, 1967, by the registered owner of the property, the appellant herein, for -

“a declaration that the decision of the respondents (the Municipality of Famagusta) to acquire compulsorily applicant’s property, plot 181 .......... in the town of Famagusta, is null and void and of no effect whatsoever.”

Some five months after the filing of the recourse, and while the proceedings therein were taking their usual course, the advocate of the expropriating authority (the respondent herein) gave notice to the Registrar and the other party concerned, that he intended to take, by way of a preliminary objection, the point that the recourse was filed out of time and could not therefore proceed. Both sides agreed that the question thus raised, be tried first; and as a result of such hearing, the learned trial Judge upheld the objection and made the order challenged by this appeal.

The relevant facts constitute common ground; and are set out in the first part of the Judgment in question. They are shortly as follows:

On April 28, 1966, the Municipal Corporation of Famagusta caused to be published in the official Gazette of the Republic, a notice of acquisition under the provisions of the Compulsory Acquisition of Property Law, 1962 (No. 15/62). [*76]

Some two months later, on June 19, 1966, the Municipal Council “acting, no doubt, on sound administrative policy” - as the learned trial Judge described

their action in his Judgment - decided to inform personally the owner, of the

intended compulsory acquisition of her property, and wrote a letter to her on that date, (19.6.66, Exhibit 1),informing

her of the publication of the notice and of the intended expropriation; and invited her, in case she had any objection to the intended action, to submit her reasons for such objection, within 15 days.

Within the period of time so set by the expropriating authority viz.: on June 30, 1966, the appellant replied to the authority’s letter, stating her reasons for objecting to the proposed expropriation and making at the same time a proposal for an arrangement under which, in her view, the public purpose of the expropriation would be served, while at the same time part of her property would be saved for her. The owner concluded her letter with a statement that she trusted that the Municipal Corporation would consider her proposal and give her their reply. This letter is exhibit 2 on the record.

It is part of the common ground that the public authority never gave a reply to this letter. But some four months later, on October 13, 1966, they caused an acquisition order to be published in the official Gazette, under the relevant statutory provisions.

Several months later, while presumably the appellant was still expecting a reply to her proposal, she was served [*77] on June 8, 1967, with a notice of the proceedings taken by the Corporation for the determination of the compensation payable in respect of her property, compulsorily acquired by the publication of the said order. She consulted her lawyer; and failing any agreement with the Corporation, she filed on August 17, 1967, a recourse challenging the validity of the acquisition.

The learned trial Judge accepting the submission that the publication of the acquisition order in the official Gazette in October 1966, should be treated as a reply to the owner’s proposal of June 30, 1966; and that, in any case, the publication of the order set in motion the period of 75 days prescribed in Article 146.3 for the filing of an administrative recourse, held that on expiry of the said period, the owner’s constitutional right to challenge the administrative decision in question, lapsed.

We find ourselves unable to accept that view. The provision setting down a period of time within which an administrative decision can be challenged by a recourse under Article 146, is obviously intended to give on the one hand the opportunity to the citizen affected by the decision to exercise his right of challenging its validity, and on the other hand to give finality, in the public interest, to the position created by administrative decisions. This matter was considered by the Supreme Constitutional Court in February 1961, in John Moran v. The Republic (1, R.S.C.C. p. 13).

In the circumstances of this case, we are of the opinion that the expropriated owner was entitled under Article 29 of the Constitution to expect, in the course of the original [*78] administrative action adopted by the public authority, a reply to her proposal; she had no reason to anticipate that the public authority would circumvent her rights by the publishing of an acquisition order, before giving her a reply. We have no reason to think that the respondents acted in this manner with a sinister motive. In fact, it was considerable time after the filing of the recourse and their opposition thereto, that it dawned on their lawyer that his client could defeat the recourse by relying on the Constitutional provisions which were intended to protect it.

It was this citizen’s legal right to own her property; it was her constitutional right to challenge any decision for expropriation; it was her constitutional right to expect a reply from the public authority to her proposal in a matter as vital as property rights; and it is not, in our opinion, a proper application of the provisions in Article 146.3 to tell her now that her recourse has, in the circumstances of this case, been prescribed.

In Pissas v. The Electricity Authority of Cyprus (1966) (6, J.S.C. p.874) the learned trial Judge in dealing with precisely the same objection on the part of the expropriating authority, felt bound by the previous decisions referred to in his Judgment (at p. 875) to the effect that the provisions in Article 146.3 are mandatory; and that once there has been publication of the administrative act, time begins to run for the purposes of the provisions in question, from such publication. But apparently under the force of the circumstances and merits of the case before him, the learned Judge felt compelled to go beyond the bare fact of publication [*79] and to enquire whether the publication in question was a “sufficient” publication. After giving his reasons for taking this course, he said: - (p. 877, F).

“We have, therefore, to see whether in the present case the publication in the official Gazette of the order of acquisition was such as to amount to sufficient publication for the purpose of the time prescribed under Article 146.3 commencing to run.”

The Judge found the publication in that case insufficient because it did not give the name of the owner together with the description of the property and he held that time did not begin to run under Article 146.3 until the applicant “came actually to know of the compulsory acquisition in question” by the service of notice of the proceedings instituted by the expropriating authority for the determination of the compensation.

In the present case, the publication is not attacked as defective in itself. It is challenged as lacking “sufficiency” (for the purposes of Article 146.3) in the circumstances in which it was made; it is attacked as a step taken in the course of an expropriation, in respect of which the authority concerned chose to take the proper administrative action (contemplated by practice in such cases) of approaching personally and directly the owner of the property before taking other steps in furtherance of the decision to acquire the property. Having taken that course, and having led the owner into it, - counsel argued - the public authority could not abandon the owner there and take a different course (that of compulsory acquisition by official publication) without informing her of the [*80] change; and without replying to the owner’s letter that her proposal was not acceptable and that it was, therefore, intended to take statutory action for compulsory acquisition.

Such change of course having in fact resulted, or having at least contributed to the expropriated owner’s actual ignorance of the true position and the consequential loss of her rights, leads us without hesitation, to the

conclusion that, in the circumstances, the publication of the acquisition order was not sufficient for the purpose of setting into motion the provisions of Article 146.3; and that the period of 75 days provided therein, did not begin to run until the true position came to the knowledge of the appellant by the service upon her on June 8, 1966, of the notice of the proceedings for determination of the compensation, as in the Pissas case (supra).

We, therefore, allow this appeal and set aside the order dismissing the recourse, so that the Court may now proceed to deal with the substance of the matter and the validity of the expropriation in question.

Before concluding, we wish to draw attention to the practical insufficiency, as seen in some of these cases, of the statutory publication in the official Gazette, to bring to the notice of property-owners and other interested parties, the steps taken by public authorities for the compulsory acquisition of their property. Where personal notice is possible, it is apparently desirable that it should be so given, as required by expropriation laws in other countries.

Appeal allowed.