Supreme Court dismisses application for provisional order against requisition orders citing no irreparable damage.

[*1223] 1971 August 20

(HADJIANASTASSIOU, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the

Constitution

Photini M. Papadopoullou and others,

Applicants,

and

The Republic of Cyprus, through

1. The Council of Ministers,

2. The Minister of Commerce and

Industry,

Respondents.

(Cases Nos.51/71,

52/71, 54/71, 55/71, 60/71,

62/71. & 63/71).

Provisional Order - Provisional

order suspending effect of an act or decision, subject-matter of a recourse

under Article 146 of the Constitution - Principles upon which it may be granted

- Recourse against validity of Acquisition and Requisition Orders - Application

for a provisional order restraining respondents from taking any steps in

furtherance of such orders until the final determination of the recourse - Rule

13 of the Supreme Constitutional Court Rules 1962 and section 17 of the

Administration of Justice (Miscellaneous Provisions) Law 1964. (law 33 of 1964)

- No irreparable damage - Applicants not residing themselves in the house, the

subject-matter of the requisition, are not going to suffer any hardship -

Recourse not bound to succeed - Applicants only desire to secure better terms

of compensation - Absolutely necessary for Respondents to proceed with project

and therefore the making of the provisional order would cause serious obstacles

to the proper functioning of the administration - Application dismissed - Pavlou

and another v. Republic (1971) 5 J.S.C. 586 followed.

Compulsory Acquisition of Property

Law, 1962 (Law 15 of 1962) section 10(a) - Not unconstitutional in relation to

Article 23 of the Constitution and Article 1 of the Protocol to the European

Convention for the Protection of Human Rights and Fundamental Freedoms. [*1224]

Compensation - Acquisition - Time of

payment - Article 23(4)(c) of

the Constitution - "Just and Equitable Compensation" in the said

Article - It means the full and perfect equivalent of the property taken.

Right to Property - Article 23.1 of

the Constitution.

Requisition - Land - Validity

thereof challenged as having being made contrary to the provisions of s.

4(2)(a) of the Requisition of Property Law 1962 (Law 21 of 1962) - Held to have

been validly made in view of section 3(l) of the Statutory Functions

(Conferment of Exercise) Law,

1962 (Law 23 of 1962).

Requisition - Land - Construction of

buildings on the Requisitioned Land - Whether it frustrates Applicants' rights

under Article 23(4) (c) of the Constitution.

Land - Acquisition - Requisition -

Distinction.

Statutory Functions (Conferment of

Exercise)Law, 1962 (Law 23 of

1962) section 3(l) - See under "Requisition".

J. Kaniklides, for the

Applicants.

L. Loucaides, Senior Counsel

of the Republic, for the Respondents.

JUDGMENT

The following judgment was delivered

by: -

HADJIANASTASSIOU. J.: Since I am now reading my reserved judgment on the merits of the

seven remaining [*1225] Golden

Sands cases (which have been heard together because they involve the same

factual and legal issues) I entertain some doubts whether I ought to have dealt

in this decision with the question of the provisional order in Case No.62/71. The

application for a provisional order proceeded and was heard by me because the

respondents refused (after a lot of negotiations) to agree to pay to the

applicants the same amount of compensation on the terms reached in a similar

case, No. 55/71 , after the delivery of my decision* on April 6, 1971. regarding

the value of a house and the part of land on which it stands.

1 . The application for a provisional

order:

On March 2, 1971, the applicants in

recourse No.62/71 simultaneously with the filing of this case, applied under

Rule 13 of the Supreme Constitutional Court Rules, 1962, and section 17 of the

Administration of Justice (Miscellaneous Provisions) Law 1964, for a

provisional order restraining the respondents from taking any steps in

furtherance of the acquisition of their property situate at Ayios Memnon or of

the requisition order affecting the same property until the final determination

of the case.

The facts relied upon in support of

the application for the provisional order appear in the sworn affidavit dated

February 26, of Mr. Koumis J. Hadjimichael of Famagauta.

"1. I am one of the registered owners in

undivided shares (1/3 share) of property Reg. 2138, plot 284, [*1226] plan/sheet

XXXIII. 21.5.IV. 6.Ill, 29.2.II 3.I. Ayios Memnon, Famagusta, of an extent of 1

donum 3 evleks and 184 sq. feet.

2. The remaining shares are registered in the

names of the other applicants in undivided shares.”

3.................................................................................................

4. A small part of the property mentioned in

para. 1 above is occupied by a house consisting of 4 rooms and all amenities.

5. I am advised that the hearing of this case

will not he concluded by the 9.3.71 the time limit set by a letter sent to me

and/or the other applicants that I should vacate and deliver the vacant

possession of the property.

6. I am advised and verily believe that I have a

good case on the merits.

7. Unless a provisional order is 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

the applicants shall suffer irreparable damage - by the demolition of the said

house and/or construction of new buildings which is the presumed and/or

declared intention of the Respondent/s - [*1227] whilst Respondent/s will

suffer no substantial harm by its granting with the consequential delay as all

the facts and history of the case clearly point to, i.e. the fact that the

order of acquisition was made on the 28. 3.69 and the order of requisition 23

months later on the 6.2.71.

3. …….".

It is to be observed that in all

seven cases in paragraphs 1 & 2 of the relief sought by all applicants, the

said properties are affected by an order of acquisition and an order of

requisition. The first order was published in supplement No. 3 to the Official

Gazette on March 28, 1969, under notification No. 202, and the second on

February 6, 1971, under notification 94. See exhibits 2 & 3 respectively. The

said order of requisition was made for a period of twelve months under the

provisions of section 4 of the Requisition of Property Law 1962 (No. 21 of

1962) for a purpose of public benefit viz., for the promotion or development of

tourism of an area known as Golden Sands in Famagusta, which purpose is

specially provided by section 3( 2) (f) of the said Law.

It is common ground that although no

compensation has been paid either in respect of the acquisition or of the

requisition, on February 9, 1971, a notice in writing was served on the

applicants to evacuate and deliver vacant [*1228] possession of their property because the requisitioning authority

intended to start work for the accomplishment of the said project as from March

1, 1971.

2. The motion for relief:

By the motion for relief in these

proceedings, all the applicants mainly seek a declaration that both the orders

of acquisition and requisition are null and void and of no effect whatsoever.

On April 28, 1971 , the opposition of

the respondent was filed, and the grounds of substance are (1) that the

recourse is out of time regarding the order of acquisition; (2) that both

orders of acquisition and requisition have been issued in accordance with the

law after all circumstances of substance have been taken into consideration;

(3) that in any event, an offer of compensation has been made to the applicants

in accordance with the provisions of section 10 of Law 15 of 1962 which are not

contrary to the Constitution or Law 39 of 1962.

In the meantime, (after taking the

list of all the cases which originally were dealt with by Mr. Justice

Triantafyllides as he then was) on May 12, 1971, (a date fixed for hearing

regarding the provisional order) counsel on behalf of the applicants withdrew

all other applications except those in cases Nos. 55/71 and 62/71 but regarding

the latter, he limited the effect of the withdrawal to the land only. [*1229]

Moreover, counsel made this statement: -

"In view of the fact that I have all my

clients today in Court, and we have agreed with my learned friend to renew our

efforts for an out of Court settlement, and because today the Court has been

dealing with the question of interim orders only and we have succeeded with

most of them being withdrawn, and as the Court is sitting at 11.30 at a meeting

of Judges, I would apply for an adjournment sometime in June, in order to

explore all the possibilities of an out of Court settlement".

The cases then were fixed for hearing

on the merits on May 26, and the applications for a provisional order on May

28. On May 26, during the hearing of these seven cases, counsel stated that the

application for a provisional order regarding case No. 55/71 was abandoned

because a settlement as to compensation was reached between the parties

regarding the house of the applicants and a piece of land of an area of 12,576

sq. ft. After concluding the hearing of those cases, judgment was reserved.

On May 28, the hearing of the

application in case No. 62/71 regarding the provisional order was also

concluded and counsel for the respondents, after adopting his previous argument

in case No. 55/71, further argued (a) that because [*1230] the order of acquisition has not been

challenged before this Court within the proper time provided by Article 146(3)

of the Constitution, the provisional order was not justified and (b) that the

persons now residing in the said house of the applicants have not been joined

in this case in any capacity and were not entitled to the protection of this

Court.

Having had the advantage of hearing

full argument by both counsel, and in the light of all documentary and other

material, as well as the evidence of Mr. Philippou which is before me, I would

state that in deciding whether to grant or refuse a provisional order, I have

in mind the principles governing this question which I have reiterated in my

decision*

of April 6, 1971, and which I would adopt and apply in this judgment. It is

perhaps convenient, however to add that in Greece a provisional order is

considered as a very exceptional measure to grant, because it prevents the

administration from carrying out effectively its administrative functions under

the law. See the well-known textbook by Kyriakopoullos on the Greek

Administrative Law, 4th edn., Volume ’I' , at pp. 146-148.

3. Conclusion on the provisional

order:

In the light of these principles, I

have reached the view that the justice of this case does not require the making

of a provisional order for the following reasons :-

(a) Because the applicants in my view

will not [*1231] suffer

irreparable damage, that is to say, harm which cannot be estimated adequately

later on in terms of money, even if their house would be demolished in due

course because of the order of requisition, particularly so, because their expert

Mr. Mavroudis has already completed the assessment of compensation regarding

the house in question; and indeed the trial Court in assessing the compensation

would not find any difficulty without viewing it.

(b) Since the applicants are not

residing themselves in the said house and they are not going to suffer any kind

of hardship. I would indeed at this stage express my surprise, because nothing

was mentioned in the affidavit about this particular fact. I would, further add

that, the way paragraph 5 of the affidavit was drafted, one would be inclined

to think that the affiant was in possession of the said house and that he had

difficulty to vacate it and deliver the possession of the said house to the

respondents; see also paragraph VII of the grounds of law referring to the said

house as a "family house".

(c) That all along during the

negotiations between the parties regarding compensation, the applicants in

Court gave me the impression that their only desire was to secure better terms

of compensation from the respondents for their property, particularly so on the

terms agreed upon in Case No. 55/71. Indeed, nothing was said or disclosed that

the said house was occupied by a gardener and his family, either as a [*1232] tenant or by the leave or licence of

their deceased relative (from whom they have inherited the said property),

until the last moment, because, apparently, they knew or were convinced that if

they did agree to a satisfactory amount of compensation they would have seen

that the gardener would have moved away from the said house. Moreover,

regrettable as it is, since the gardener and his family have not been joined as

parties, it is too late now for this Court (I repeat in their absence) to grant

them a relief.

(d) Because this recourse No. 62/71,

(as well as the rest of the recourses) regarding the acquisition of the

property is not bound to succeed in accordance with the principle formulated in

Kleanthis Georghiades v. The Republic, (1965) 3 C.L.R.392,

particularly so, because the applicants have not challenged the validity of the

order of acquisition and that, therefore, the recourse is out of time in view

of the provisions of Article 146.3 of the Constitution;

(e) In view of the evidence (given in

Case No. 5 5/71) it becomes absolutely necessary for the respondents to proceed

with the building of a hotel, bungalows, swimming pools etc., in compliance

with the needs of the public benefit project, and therefore, the making of a

provisional order would have caused serious obstacles to the proper functioning

of the administration.

(f) Finally, as I said earlier

(because the applicants have not challenged the validity of the order of

compulsory [*1233] acquisition)

when the compensation for the compulsory acquisition will be paid by the

respondents to them, they would have to give up their premises and that they

would not suffer irreparable harm even if the decision of the respondents is to

demolish their premises. I would, therefore, reiterate clearly that I cannot

accept the argument of counsel that they will suffer irreparable harm even if

the decision to demolish their premises taken consequent upon the requisition

is not prevented from taking effect before the final determination of the

present proceedings. Cf. Kouppas v. The Republic (Council of

Ministers) (1966) 9 J.S.C. 1037 at p. 1014. Γη view of all these reasons, I

would dismiss the application for a provisional order.

4 . The decision on the merits of

these recourses:-

Regarding the property rights of the

applicants, I take the view that, the property guaranteed by the Constitution

of the Republic of Cyprus, represents the individualistic concept of property

and the right of property is an individual prerogative and not a social

function imposing obligations towards society. Moreover, it has to be stressed

that the right of property is secure, and no deprivation of this right can be

effected except by the constitutional machinery of the compulsory acquisition

of property, provided it is done in compliance with the conditions and

guarantees laid down in the Constitution. Our Constitution, though in other

respects adopted the now prevailing views of the socialization of the [*1234] individual rights, in this respect lagged

behind following the provisions of the then Constitution of Greece which was

based on that of 1864, probably because of the realities existing also in

Cyprus regarding the property rights. Article 23(4) provides that any immovable

property may be compulsorily acquired by the Republic upon the payment in cash

and in advance of a "just and equitable compensation to be determined in

case of disagreement by a civil court". Section 10(l) of Law 15 of 1962

made pursuant to the provisions of Article 23 provides that the provisions of

paragraph (a) shall not affect the assessment of compensation for any other

matter not directly based on the value of the property acquired.

The matter of "just and

equitable compensation" came up for consideration by our Supreme Court in Moti

and Another v. The Republic, (1968) 3 J.S.C. 285. It was found that

such compensation means the full and perfect equivalent of the property taken.

Mr. Justice Josephides had this to say at p. 296:-

"Construing section 10(1) of our Law in the

light of the provisions of Article 23(4) of our Constitution, which provides

for the payment of just and equitable compensation’, we are of the view that

the owner of land is entitled to the payment of compensation for the loss

arising directly out of the delay in the sanctioning of the acquisition, such

as the delay which occurred [*1235] in the present case. As usual, the

enunciation of such a principle is easy enough, but its application to varying

facts is apt to be difficult".

There is no doubt that some of these

provisions, and especially the requirements of payment of compensation in

advance and in cash (excluding payment by bonds or by exchange for other

property) appears to be a handicap to many development programmes. In Cyprus,

save for the consent of the owner, no compensation otherwise than in cash can

be paid, although regarding this project some owners agreed to accept part

payment by receiving government land. In India, it seems to be settled that

under Article 31(2), compensation may be paid in bonds or in kind. See Basu at

p. 223.

Under the provisions of section 7(2)

of our Compulsory Acquisition of Property Law, 1962, formerly Rule 6 of section

2 of the English Acquisition of Land (Assessment of Compensation) Compensations

Act 1919, the acquiring authority had one year's grace within which to sanction

the acquisition or not, and under section 9, "if within one month of the

publication of the order of acquisition, no agreement as in section 8 has been

reached, the acquiring authority or any person interested may apply to the

Court for the determination of the compensation payable for the acquisition of

the property ..........". In my view, therefore, under the [*1236] provisions of our law, it was also open

to the applicants on April 27, 1969, to apply to a civil court to determine the

compensation payable to them. The mere fact that they have not exercised their

rights under the law means that they have themselves also to blame besides the

Republic for such a delay. Be that as it may, I am informed by counsel for the

respondents that the acquiring authority has applied to the District Court of

Famagusta on May 6, 1971, for the determination of the compensation of the

properties of the applicants.

Regarding the question of payment, I

am of the view that from the way paragraph 4 of Article 23 of our Constitution

is worded, viz., "any movable or immovable property or any right over or

interest in such property" it follows that such payment should be made not

only before the acquisition of the ownership, but also before taking possession

of the properties. I, therefore, find myself in agreement with counsel that the

respondents were not entitled to talos possession of the properties (if that

was the case) under the acquisition order unless the compensation was paid to

the owners in advance. Cf. Saripolos on the Greek Constitutional Law,

2nd edn. , vol. II at p. 488 et seq. regarding Article 17.

Regarding the further complaint of

counsel for the applicants (which is the crux of the whole matter) that the

provisions of section 10(a) of the Compulsory Acquisition Law, 1962, are unconstitutional

because they contravene both the provisions of Article 23 of the Constitution

and of the [*1237]

Convention for the Protection of

Human Rights and Fundamental Freedoms, I find myself with due respect to

counsel, unable to agree, because the Constitution leaves the determination of

compensation to the judicial authority to the exclusion of legislative and

administrative authorities, which according to Saripolos, op. cit. at

pp. 491-494 is a bigger guarantee for the protection of the right of property.

Cp. Basu on the Commentary of the Constitution of India, 5th edn.

, vol. II at p, 223. But, of course, there is nothing preventing the

legislature to provide for the general principles according to which

compensation is to be assessed. Cf. Saripolos on the System of

Constitutional Law of Greece, 4th edn., vol. III at p. 216 under note 1. See

also Syouritsa on the Constitutional Law, 1964, Vol. II at p. 176, under

note 2; also cp. the Constitution of India, Article 31(2) (as amended). Such

principles, as I said earlier, are now contained in section 10 of our law,

under which the republic apparently was negotiating with the applicants to pay

them compensation, but it was rejected by them.

Regarding the further argument, I am

in agreement with counsel for the applicants that, the right to property in the

Republic of Cyprus is also guaranteed by Article 1 of the Protocol to the

Convention for the Protection of Human Rights and Fundamental Freedoms. But,

with respect, I disagree that the provisions of section 10(a) of Law 15 of 1962

which deal with the general principles of assessment of [*1238] compensation that the value of the

property shall be the market value of such property on the date of the

publication of the relevant notice of acquisition, are contrary to the said

convention, because there is nothing in that convention which in any way

prevents the legislature to provide for the general principles according to

which compensation is to be assessed by a Civil Court. Article 1 of the

Protocol of the said Convention is in these terms:-

"Every natural or legal person is entitled

to the peaceful enjoyment of his possessions. No-one shall be deprived of his

possessions except in the public interest and subject to the provisions

provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in

any way impair the right of the State to enforce such laws as it deems

necessary to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions or

penalties".

This protocol was acceded to by the

Republic under a decision of the Council of Ministers, and was ratified by the

European Convention for the Protection of Human Rights (Ratification) Law, 1962,

and having been published in the official Gazette constitutes a part of our

law, and under Article 169(3) of our Constitution it has superior force to any

municipal law. [*1239]

In the light of these reasons, I have

reached the view that paragraph (a) of section 10 of Law 15 of 1962 is not

unconstitutional. Moreover, as I am of the opinion that the order of

acquisition is not contrary to our law, and for the reasons I have explained

earlier at length, I would

dismiss this contention of counsel.

5. Requisition:-

The next question which is posed is

whether the order of requisition is valid or not. The order of requisition was

published on February 6, 1971, and was made by the Council of Ministers, the

Republic being the requisitioning authority. The submission made appears in a

document (exhibit 5) and so far as relevant, is in these terms in Greek:-

*"2. Ωρισμέναι

ακίνητοι ιδιωτικαί ιδιοκτησίαι έχουν απαλλοτριωθή δυνάμει Διοικητικής Πράξεως

υπ' αρ. 202 του 1969 δια την τουριστικήν αξιοποίησιν της Χρυσής Αμμουδιάς (Golden Sands ) παρά την

Αμμόχωστον. Επειδή οι ιδιοκτήται των εν λόγω ιδιοκτησιών δεν απεδέχθησαν την προς αυτούς

προσφερθείσαν αποζημίωσιν υπό του Κτηματολογίου και επειδή αι διαδικασίαι

συμφώνως προς την κειμένην νομοθεσίαν θα απαιτήσουν αρκετόν χρόνον μέχρις ότου

εγγραφούν τα κτήματα επ' ονόματι της Κυβερνήσεως παρίσταται ανάγκη όπως εκδοθή

Διάταγμα Επιτάξεως δυνάμει του άρθρου 4 του περί Επιτάξεως Ιδιοκτησίας Νόμου

Αρ. 21 του 1962, ίνα [*1240] ούτω δυνηθή η

Δημοκρατία να επέμβη επί των εν λόγω κτημάτων, το ταχύτερον προς επίτευξιν του

σκοπού δι' ον απαλλοτριεί. Σημειωτέον ότι δυνάμει σχετικής συμφωνίας οι

Εργολάβοι οι οποίοι ανέλαβον την ανέγερσιν του έργου ωφείλουν να αρχίσουν

εργασίαν από της 1ης Μαρτίου, 1971".

Counsel for the applicants put

forward this proposition: That the order of requisition was illegal because the

Minister of Commerce and Industry acted under a misconception respecting the

factual position, viz., particularly with regard to a passage referred to in

exhibit 5 at p. 2 of the said submission. With due respect to counsel, after

reading the said submission, that proposition is not right because negotiations

were going on between the Government and the applicants regarding the amount of

compensation, but it is clear in my mind that the applicants were not willing

to accept the amount of compensation offered to them orally based on the value

of their lands as in 1968. However, I would go further and say, even if that

statement is not entirely or substantially correct, (see paragraph 10 of the

opposition) in the absence of any evidence before me, I have no doubt as to the

true meaning of that document, and I am not prepared to interfere by annulling

the order of requisition; because the real issue in these cases is that all

negotiations on the question of compensation failed because the applicants are

demanding to be paid the value of their lands [*1241] with

much bigger prices, because as they claim in their applications, the value of

their lands has increased by many thousands of pounds since the notice of

acquisition in the year 1968.

The second proposition was that, the

order of requisition was contrary to the provisions of section 4(2)(a) of Law

21 of 1962, because it was made by the Minister of Commerce and Industry and

not by the Council of Ministers. That proposition as right (if that was the

case) because when the requisitioning authority is the Republic, the Council of

Ministers is the appropriate organ to make such an order. However, it appears

that under the provisions of section 3(1) of Law 23 of

1962, the Council of Ministers was empowered to authorise the said Minister to

exercise such statutory functions on their behalf

subject to such conditions, exceptions and qualifications as the said Council

of Ministers may in such decision prescribe. In fact, on February 13, 1965, the

Council of Ministers exercising their powers under the aforesaid law, in its

decision No. 4401, conferred to the said Minister the making of an order of

requisition under section 6 of Law No. 15 of 1962. (See exhibit 1 which is a

circular No.34). In the light of this exhibit, I have reached the view that the

said order of requisition is not contrary to the provisions of section 4(2) (a)

of our law.

The third proposition was that, the

order of requisition is illegal because it intends to serve

____________________________

* An English translation of

this text appears at pp. 1253-54 post.

not a case of

[*1242] urgency and of a temporary nature, but of a permanent purpose,

viz., the erecting of buildings, which is incompatible with the noti on of

acquisition. He relies on Kyriakopoulos on the Greek Administrative Law, 4th

edn., Vol. III at pp.395 and 396. Having had the advantage of perusing a number

of Greek textbooks on the question of requisition, I shall proceed to examine

first this question in the light of our own Article 23 and law 21 of 1962 before

referring to the position prevailing in Greece on this issue. There is no doubt

that our Constitution differentiates between the compulsory acquisition of

property and the requisition of property with which it deals in paragraph 8 of

Article 23. Under this paragraph a requisition may be made for the same reasons

and under the same conditions as a compulsory acquisition, except that the

requisition cannot exceed three years, and the compensation to be paid need not

be paid in advance, but promptly. In Thymopoulos and Others v. The

Municipal Committee of Nicosia, (1967) 10 J.S.C. 1218 at p. 1229, the Court

dealing with the meaning of the expression "promptly" had this to say:-

".... I may deal shortly with a submission

made by counsel for applicants to the effect that in any case such scheme is

unconstitutional, even if it only imposes restrictions or limitations under

paragraph 3 of Article 23, because no compensation for such restrictions or

limitations has been paid in advance of its taking effect; it [*1243] has been

argued that this is what was required to be done by the terms 'promptly' in

paragraph 3 of Article 23.

I can find no merit in this argument; in my

opinion, the term ’promptly’ has to be given its ordinary meaning and cannot be

construed, especially if one compares the said paragraph 3 with paragraph 4 of

the same Article, as meaning 'in advance' of the taking of effect of the

relevant restriction or limitation".

In Hadiikyriakou and Others v.

The Council of Ministers and Another, (1968) 1 J.S.C. 21 at p.

26, the Court, dealing in a case of requisition of premises, had this to say

regarding the expression "prompt payment of compensation": -

"In this connection I have to comment, too,

on the fact that Respondents have not acted yet in a manner commensurate with

the constitutional obligation (under Article 23) to effect prompt payment of

compensation in respect of the order of requisition. It is correct that by

letters of the 16th November, 1967 (see exhibit 6) Respondent 2 called

upon all the five Applicants to negotiate regarding the compensation payable to

them; but nothing has as yet been agreed upon, nor have any references been

filed before the competent Court, either by the Applicants or by Respondents,

for the [*1244] assessment of such compensation. My

understanding of the obligation for prompt payment of compensation

is that when the exceptional measure of requisition is resorted to the

authority concerned should be then in a position to make an offer, at once, to

the person affected, and if such offer is not accepted then a reference to

Court should be made without delay. Procrastination in the matter on the part

of the person affected is no excuse for the authority concerned; the duty to

pay compensation is cast upon such authority and it has to be discharged by it promptly.

In all the present cases it does not appear that any formal offer of

compensation has been made to the Applicants till this day".

Moreover, the distinction between a

requisition and an acquisition is that under a requisition order only

possession of the property is taken, the ownership remaining in the owner,

whilst under an acquisition order the ownership is transferred. Cf. section 6

of the Requisition of Property Law, 1962. Under sub-section 2, when possession

of any property is taken by virtue of this law, such property may be used by

the requisitioning authority for which such possession is retained, or do in

relation to the same property anything which any person having an interest in

such property would be entitled to do by virtue of that interest. In my view,

[*1245] these concluding words are strong words, and could only be construed as

meaning that the requisitioning authority could step into the shoes of the

owner and carry out or do anything in connection with the public benefit

utility, including any kind of building or other erection on the requisitioned

land. Moreover, I think I am fortified in this view, from the wording of

section 8, which deals with the question of compensation payable to the owner

of the requisitioned property. Sub-section 1(c) reads as follows:-

"a sum equal to any diminution in the value

of such property resulting either from the presence on or in or over such

property of any building or other erection, structure or fixture erected, constructed

or affixed by the requisitioning authority, or from any damage occasioned to

such property during the period for which possession of the property is

retained by virtue of the order of requisition, no account being taken of fair

wear and tear or of any damage made good by the requisitioning authority".

The position, of course, in Greece is

different in my view, and the question of requisitions created - to use the

words of Prof. Kyriakopoulos - a lot of confusion regarding their legal nature

not only among the Greek textbook writers, but also of foreign authors on this

topic. The late Prof. N. Saripolos, who took the view that requisition of

property is [*1246] considered,

a compulsory acquisition for a public benefit purpose, within Article 17 of the

then Constitution of Greece 1864/1911, thus described the position in his

textbook on the System of Greek Constitutional Law, 1923, 4th edn. Vol. 3 at

pp. 225-228:-

*"Αι επιτάξεις

αποτελούσιν απαλλοτρίωσιν δια δημοσίαν ωφέλειαν· κατ' ακολουθίαν εφαφμόζονται

και εις ταύτας αι διατάξεις του άρθρου 17 του συντάγματος, αι αφορώσαι ιδίως

εις τον καθορισμόν της αποζημιώσεως δια της δικαστικής οδού και εις την

προηγουμένην αποζημίωσιν. Ουδ' είνε αληθές ότι η εφαρμογή την διατάξεων τούτων

είνε αδύνατος εν τοις πράγμασι προκειμένου περί επιτάξεων διότι αυτό το άρθρον

17 του συντάγματος ορίζει ότι εν περιπτώσει επειγούση η αποζημίωσις δύναται και

προσωρινώς να ορισθή δικαστικώς', υπό δικαστικής τίνος αρχής, π.χ. υπό του προέδρου των

πρωτοδικών, ή υπό του ειρηνοδίκου. Άλλως εν Γαλλία π.χ. και εν Βελγίω, εν

περιπτώσει ώρισμένων στρατιωτικών ή ναυτικών εποτάξεων (requisitions militaires), η αποζημίωσις,

ήτις αληθώς δεν είνε 'προηγουμέν', ορίζεται είτε υπό του ειρηνοδίκου (juge de paix ) είτε υπό του πρωτοδικείου (tribunal civil), αναλόγως του ποσού

της αποζημιώσεως. Αι επιτάξεις δια τας ανάγκας του στρατού της ξηράς ή της

θαλάσσης, αι στρατιωτικαί (εν τη γενική της λέξεως σημασία) επι- [*1247] τάξεις, και

ου μόνον αύται, αλλ' αι επιτάξεις εν γένει, υπάγονται εις τας διατάξεις του

άρθρου 17 του συντάγματος, ως ούσαι 'απολλοτριώσεις δια δημοσίαν ωφέλειαν',

καθόσον αποτελούσιν 'αφαίρεσιν ιδιοκτησίας', εν τη εννοία του όρου τούτου εν τω

άρθρω 17 του συντάγματος, δηλ. της κυριότητος (π.χ. ίππων, ημιόνων κ.λ.π.) ή

της χρήσεως και καρπώσεως (π.χ. πλοίων), δια 'δημοσίαν ωφέλειαν', προς

εξυπηρέτησιν αναγκών του στρατού της ξηράς και της θαλάσσης. Επειδή δ' αι επιτάξεις είνε 'αφαίρεσις

ιδιοκτησίας' κινητών ή ακινήτων πραγμάτων δια 'δημοσίαν ωφέλειαν', κατά την

επικρατούσαν και εν τη αλλοδαπή επιστήμη γνώμην, ην και ημείς εδιδάσκομεν εν

ταις προηγουμέναις ήδη εκδόσεσι του ανά χείρας έργου, ορθώς απεφήνατο το

πρωτοδικείον Αθηνών, δια των υπ' αριθ. 785 και 800 αποφάσεων αυτού της 20 και

21 Δεκεμβρίου, 1913, ότι δέον να ορίζηται η αποζημίωσις 'δια της δικαστικής οδού',

και ουχί δια 'διοικητικών δικαστηρίων', ως ώρισε, προκειμένου περί ναυτικών

επιτάξεων, παρά το άρθρον 17 του συντάγματος, ο ΔΡΟΒ' νόμος του 1913, ον δεν

εφήρμοσεν, αντισυνταγματικόν όντα, το πρωτοδικείον, απορρίψαν την περί

αναρμοδιότητος του δικαστηρίου ένστασιν του εναγομένου δημοσίου".

On the other hand, Prof.

Kyriakopoulos thus described the same position on the same topic in his

textbook op. cit. at pp. 394-396, including notes 10 and 11:- [*1248]

*"2.- Όσον αφορά

εις την νομικήν φύσιν των επιτάξεων, κρατεί μάλλον σύγχυσις. Μεταξύ των

συγγραφέων, όχι μόνον παρ' ημίν αλλά και αλλαχού, δεν επετεύχθη

_________________________

* An English

translation oh this text appears at pp. 1254-1256 post.

* An English

translation oh this text appears at pp. 1254-1260 post.

εισέτι ομοφωνία. Η

επίταξις, κατ' άλλους μεν, συνιστά θεσμόν ιδίας φύσεως, ξένον προς τον της

απαλλοτριώσεως. Εθεωρήθη δηλαδή ή δημόσιον βάρος ή αναγκαστική μίσθωσις ή

γενικώτερον μέτρον, το οποίον επιβάλλουσιν έκτακτοι ανάγκαι του κράτους, ιδία

εν καιρώ πολέμου. Και αι τρεις αύται εκδοχαί εύρον απήχησιν εν τη νομολογία. Κατ' άλλους, πάλιν, η εττίταξις είτε εμφανίζει μεγάλην

αναλογίαν προς την απαλλοτρίωσιν και δεν διαφέρει ταύτης ουσιωδώς, είτε είναι αυτόχρημα απαλλοτρίωσις,

υπαγομένη, δια τούτο, εις τας διατάξεις του άρθ. 17 του συντάγματος.

Η διαφωνία δεν έχει

απλώς θεωρητικήν σημασίαν, αλλά, κατ' εξοχήν, πρακτικήν σπουδαιότητα. Διότι, αν μεν η επίταξις εν γένει είναι απαλλοτρίωσις,

υπάγεται εις τας διατάξεις του αρθ. 17 παρ.1 του συντ. και, κατ' ακολουθίαν,

δεν χωρεί επίταξις άνευ δημοσίας ωφελείας και προηγουμένης

αποζημιώσεως, οριζομένης υπό των τακτικών δικαστηρίων· αντιθέτως δε, εάν η

επίταξις δεν είναι απαλλοτρίωσις, ουδαμώς τυγχάνουσιν αντισυνταγματικά τα κατά

τον νόμον περί επιτάξεων διοικητικά δικαστήρια, όπως καθορίζωσι την

οφειλομένην αποζημίωσιν. [*1249]

Την λύσιν του

ζητήματος επεζήτησεν ο συνταγματικός νομοθέτης του 1927 δια της προσθήκης εν

άρθ. 19 παρ. 3 ειδικής διατάξεως, ήτις επέτρεπε παρέκκλισιν από της αρχής του

'απαραβιάστου της ιδιοκτησίας'. Αλλ' ακριβώς η προσθήκη εκείνη επί μαρτυρεί

πόσον, και κατά τον συνταγματικόν νομοθέτην, η επίταξις ταυτίζεται, πολλάκις,

προς την απαλλοτρίωσιν, ώστε να παρίσταται ανάγκη ρητής εν τω συντάγματι

εξαιρέσεως εκ της γενικής αρχής του 'απαραβιάστου της ιδιοκτησίας'. Η περί ης ο λόγος διάταξις, ήτις δεν περιείχετο εις το άρθ. 17 του συντ.

1864/1911, περιελήφθη και εν τω ισχύοντι. Η παρ. 4 του άρθ. 17 ορίζει: Ειδικοί νόμοι ρυθμίζουσι τα

των επιτάξεων δια τας ανάγκας των ενόπλων δυνάμεων εις περίπτωσιν πολέμου ή

επιστρατεύσεως, ή προς θεραπείαν αμέσου κοινωνικής ανάγκης, δυναμένης να θέση

εις κίνδυνον την δημοσίαν τάξιν ή υγείαν".

"3.- Παρά την

έλλειψιν αναλόγου διατάξεως εκ του προΐσχύσαντος συντάγματος, τα δικαστήρια παρεδέχοντο ότι η

επίταξις ακινήτου, ως επιβάλλουσα υπό 'απλούν περιορισμόν', επιτρεπτόν κατά το

σύνταγμα, το επί του ακινήτου δικαίωμα κυριότητος εκ λόγω δημοσίου συμφέροντος,

και μη στερούσα 'τον κύριον των εκ της κυριότητος ωφελειών ειμή εν μέρει μόνον', δεν συνιστά

απαλλοτρίωσιν ούτε, επομένως, αντίκειται εις το άρθ. 17 του συντ. Αλλ' η

επίταξις υπαγορευομένη εκ λόγων εξαιρετικών δημοσίας ή κοινωνικής [*1250] ανάγκης,

δικαιολογείται μόνον εκ του προσωρινού αύτης χαρακτήρος· διο και δεν

δύναται να διατηρήται πέραν ευλόγου χρόνου, περί ου αποφαίνεται το δικαστήριον,

κρίνον κατά τας εκάστοτε συντρέχουσας περιστάσεις και εν συναρτήσει προς την

ανάγκην, ήτις υπηγόρευσε την επιβολήν της επιτάξεως. Η επί μακρόν χρόνον δηλαδή διάρκεια της επιτάξεως ακινήτου συνιστά έμμεσον

παραβίασιν της περί προστασίας της ιδιοκτησίας διατάξεως του συντάγμα τος.

Επίταξις ακινήτου δι' ανάγκην ουχί προσωρινήν και έκτακτον της δημοσίας

υπηρεσίας αλλά μόνιμον, δυναμένην, δια τούτο, να θεραπευθή δια μέτρου μονίμου

χαρακτήρος, ως είναι η απαλλοτρίωσις, δεν είναι συνταγματικώς επιτετραμμένη,

εφ' όσον διαρκεί πέραν ευλόγου χρόνου. Κατ' ακολουθίαν, δημιουργείται δια την

διοίκησιν υποχρέωσις, όπως προβή εις την άρσιν της επιτάξεως.

Το θεωρητικόν τούτο

επίτευγμα της νομολογίας, συνιστών λογικήν και αναμφισβητήτως ορθήν ερμηνείαν

των θεσμών της απαλλοτριώσεως και επιτάξεως, δέον να γίνη αποδεκτόν και υπό το

ισχύον σύνταγμα ως προς την εφαρμογήν των διατάξεων των παρ. 1 και 4 του άρθ.

17. Διότι, διάφορος εκδοχή ως προς την έννοιαν του θεσμού της επιτάξεως, θα

ωδήγει εις το άτοπον συμπέρασμα, ότι ο συνταγματικός νομοθέτης δια της παρ. 4,

απέβλεψεν εις την καταδολίευσιν της δια της παρ. 1 διασφαλισθείσης αρχής του

'απαραβιάστου της ιδιοκτησίας'". [*1251]

Regarding the distinction between a

permanent and a temporary requisition, provided by Law 4442/1929, see Kyriakopoulos Op. cit. at pp. 393-394 and under note 1 of the latter

page.

As I have said earlier in this

judgment, irrespective of the reasons given before me regarding the delay

(admittedly a long delay) between the order of acquisition and the order of

requisition, I am convinced that the latter order was made and is purported to

serve a case of urgency, in view of the magnitude of the project, which no

doubt would serve the economic goals of the industry of tourism to the benefit

of this country as a whole. In view, however, of the difference of our own law

regarding the question of requisition, I am of the opinion that the dispute in

Greece regarding the payment of compensation and whether it ought to be made

before the taking of the possession of the property, is of no practical

importance in Cyprus. I feel, therefore, that in order to decide the third

proposition of counsel I must do so in the light of our own law of requisition.

Having had the occasion to go through

the various sections of our law, I have reached the view that the construction

of buildings on the requisitioned land of the applicants does not in any way

conflict, nor is it incompatible with the notion of acquisition, because it is

not intended to be of a permanent nature, but only of a limited [*1252] period in

order to serve the needs of the requisitioning authority for such period which

is specified in the order of requisition and, in any event, not exceeding a

period of three years. That this view is correct and that the requisition order

will not frustrate the rights of the applicants under Article 23(4) of the

Constitution I find support from the decision of the Supreme Constitutional

Court in the case of Evridiki Aspri and The Republic,4 R.S.C.C.

57, in which case it was stated that the mere fact that the purpose for which

the 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 applicant under sub-paragraph (c) of paragraph

4, because the ownership continues to vest in the applicant in the meantime.

Cp. Hanolis Panteli Pavloc and Another, in (1971) 5 J.S.C. 586;

see also Vassiliades v. The Republic, (1966) 7-8 J.S.C. 967,

and Symplyroma Nomologias, (1935-1952)

of Zacharopoulou, vol. 1 at p. 367 paragraph 136. In any event, the net result in these cases is that the acquiring

authority have not exhibited an urgency to determine the just and equitable

amount of compensation payable to the applicants with regard to the acquisition

of their lands before taking possession under the Requisition of Property Law,

a fact for which I cannot but express my regret for such a delay to safeguard

the interest of a citizen. Regarding, however, the question of compensation,

under the provisions of section 8 of law 21 of 1962 for their requisitioned

land, section 11 is in these terms:- [*1253]

"If, within three months of the date on

which any compensation for requisition has accrued due, no agreement as in

section 10 has been reached, or if, notwithstanding that the said period of

three months has not elapsed, no such agreement can in the circumstances be

foreseen, the requisitioning authority or any person interested may apply to

the Court for the determination of such compensation".

For the reasons I have endeavoured to

explain at length, I have reached the conclusion that the third proposition of

counsel is not right, and in view of all the material before me, I am of the

opinion that the order of requisition made by the requisitioning authority is

neither contrary to any of the provisions of the Constitution or of any law,

nor was it made in excess or in abuse of powers vested in such organ. In view,

however, of the nature of these cases, particularly regarding the delay of the

acquiring authority, I would not make an order as to costs against the

applicants.

Applications dismissed. No

order as to costs.

TRANSLATION

This is an English translation of the

Greek text appearing at pp.1239-40 ante, as prepared by the Registry.

"2. Certain immovable private properties

have been acquired by virtue of Administrative Act No.202/1969 for the tourist

development of 'Golden Sands' near [*1254] Famagusta. As the owners of the said

immovable properties have not accepted the compensation which has been offered

to them by the lands Office and as the formalities for the registration of the

lands in the name of the Government would, according to existing legislation,

take considerable time to be completed it is considered necessary for an order

of requisition to be made under s.4 of the Requisition of Property law No. 21

of 1962, in order to enable the Republic to interfere with these lands at the

earliest so as to achieve the purpose of the acquisition. It should be noted

that by virtue of the relevant agreement the contractors who have undertaken

the erection of the project are bound to commence work with effect from the 1st

March, 1971".

TRANSLATION

This is an English translation of the

Greek text appearing at pp.

1246-1247, ante, as prepared by the Registry.

"Requisitions of property constitute

acquisition for a public benefit purpose; consequently the provisions of

Article 17 of the Constitution, particularly those relating to the assessment

of compensation by the Court and the payment in advance of compensation, apply

to these as well. [*1255] Nor is it true that the application of these

provisions is practically impossible in the case of requisitions; because this

Article 17 of the Constitution provides that 'in a case of an urgent nature

compensation may even provisionally he assessed by the Court' by a Judicial

Authority, e.g. by the President of the Court of First Instance or by a Justice

of the Peace. Otherwise in France, for example, and in Belgium, in the case of

certain military or naval requisitions ('requisitions militaires’), the

compensation, which in reality is not an 'advance compensation', is either

assessed by a Justice of the Peace (juge de paix) or by the Court of First

Instance (tribunal civil) in accordance with the amount of the Compensation.

Requisitions for the needs of the Land or Sea Army, the military (within the

general meaning of the word) requisitions, and not only these, but requisitions

in general, come within the provisions of Article 17 of the Constitution as

being 'acquisitions for a public benefit 'purpose'; because they amount to

'deprivation of 'property' , within' the meaning of this term as appears in

Article 17 of the Constitution, that is to say, of the οwnership (e.g. horses,

mules etc.) or the use and enjoyment (e.g. ships) for [*1256]

a public benefit’, in order to serve the needs of the Land and Sea Army. And

because requisitions amount to ’deprivation of property’ in movable or

immovable chattels for a ’public 'benefit’ , according to the current opinion

accepted in the jurisprudence in other countries, which theory we had been

expounding in the already published editions of this text book, a Court of

Athens of First Instance rightly decided in its judgments Nos. 785 and 800

dated the 20th and 21st December, 1913, that the

Compensation ought to be assessed by a 'Civil Court’, and not by

'Administrative Tribunals’, as was provided, in the case of naval requisitions,

and contrary to Article 17 of the Constitution, by a Law of 1 1913, which was

not applied, as being unconstitutional, by the Court of First Instance which

overruled the objection of the defendant public authority regarding the

competence of the Court".

TRANSLATION

This is an English translation of the

Greek text appearing at pp. 1248-50, ante, as prepared by the Registry.

"2. Regarding the legal nature of the

requisitions it does rather exist a confusion. Text book writers were not of

unanimous opinion, not only in [*1257] this country, but elsewhere. The

question of requisition according to other writers constitutes an institution

of its own nature unconnected with the acquisition. It was, in other words, considered

by them a public burden or compulsory lease or a measure of a general nature,

which is imposed by urgent needs of the state, particularly at war times. All

these three theories have been echoed in case-law. According to other text book

writers again, requisition either presents a great similarity with acquisition

and does not materially differ therefrom, or it is entirely in substance an

acquisition, falling, thus, within the provisions of Article 17 of the

Constitution.

The disagreement is not simply of a theoretical

meaning, but it is particularly of a practical importance. Because, if

requisition is generally considered as an acquisition, it falls within the

provisions of Article 17 paragraph 1 of the Constitution, and, consequently an

acquisition is not justified in the absence of a public benefit and advance

payment of compensation, assessed by the ordinary Courts; on the contrary,

however, if requisition does not amount to acquisition, the Administrative

Courts, set up under the [*1258] Requisition Law, to

assess the Compensation, should by no means be considered as being

unconstitutional.

The constitutional legislator of 1927 sought to

solve the problem by the addition of a special provision to Article 19

permitting a deviation from the principle of ’inviolability of property'. But

it is significant that this addition confirms how, according also to the

constitutional legislator, requisition is in many respects identical with

acquisition, so that an express provision exempting from the general principle

of the ’inviolability of property' was deemed necessary to be inserted in the

Constitution. The said provision which was not included in Article 17 of the

1864/l911 Constitution was included in the present Constitution. Paragraph 4 of

Article 17 of the Constitution provides 'Special Laws govern matters relating

to requisitions for the needs of the armed forces in case of war or

mobilisation, 'or for the remedy of a social need of an urgent 'nature, which

would endanger public order or health'.

3. In spite of the lack of a similar provision in

the pre-existing Constitution Courts accepted [*1259] that

the requisition of immovable property by imposing under a 'simple restriction’,

allowed by the Constitution, the right of ownership to the immovable property

on grounds of public interest, and thus not depriving ’the owner from the

benefits of ownership except in part 'only’ does not constitute an acquisition,

nor does it, therefore, contravene Article 17 of the Constitution. But a

requisition dictated by exceptional grounds of public or social necessity, is

justified only by virtue of its temporary nature; and it should not thus be

kept in force beyond a reasonable time, which is determined by the Court,

judging according to the circumstances prevailing from time to time and by

taking into consideration the needs which dictated the requisition. In other

words the long duration of the requisition of immovable property constitutes an

indirect contravention of the Constitutional provision concerning the protection

of the right to property. Requisition of immovable property for the needs of

the public service which are not temporary and extraordinary, but permanent,

being thus capable of being remedied by means of a permanent nature, such as

the acquisition, is not constitutionally permitted, so long as it lasts [*1260]

beyond a reasonable time. Consequently it creates an obligation on the

administration to abandon the requisition.

This theoretical achievement of case law which

commends a reasonable and no doubt a correct interpretation of the rules

relating to acquisition and requisition ought to be accepted by the existing

constitution regarding the application of paragraphs 1 and 4 of Article 17.

Because a different construction of the meaning of the law of requisition would

lead to the impertinent conclusion, that the Constitutional Legislator, by

paragraph 4, intended to defraud the principle of 'inviolability of property'

which was safeguarded by paragraph 1".

* published in (1971) 5 J.S.C. p.

586.

* Published in (1971) 5 J.S.C, p.

586.