Constitutional time limit for recourse begins upon complete knowledge of decision content, not specific legal citation.

[*1471] 1971 December 23

(A. LOIZOU, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Anastasis Cariolou,

Applicant,

and

1. The Municipality of Kyrenia,

2. The Council of Ministers,

3. The Minister of the Interior,

Respondents.

(Case No. 15/71).

Constitutional Law - Article 146.3 of the Constitution - Time within which a recourse may be made - It begins to run from the date applicant acquires complete knowledge of the administrative decision - Non mention in the communication of the decision of the particular provision of the law relied upon for the decision, does not prevent the time from running.

Administrative Law - Administrative decisions - Communication and publication - Principles applicable .

Constitutional Law - Article 146.3 of the Constitution - Meaning of "knowledge" in the said article - Completeness of the knowledge - It does not emanate from what the act might contain but from what in fact it does contain.

Time - Article 146.3 of the Constitution - See under "Constitutional Law".

Administrative decisions - Communication and publication - Principles applicable.

A. Triantafyllides with E. Listsos, for the Applicant.

X. Clerides with A. Markides, for Respondent 1.

L. Loucaides, Senior Counsel of the Republic, for Respondents 2 & 3.

DECISION

The following decision was delivered by:

A. LOIZOU, J.: The applicant by his present [*1472] recourse claims: "(a) A declaration that the decision of respondent 1 not to grant applicant's application for a building permit, dated 8.5.1969, under reference No.31/69 and further correspondence bearing dates 29.5.70 and 16.11.70, for adding a further storey to his building Esperides Hotel, situated in Kyrenia, is null and void and of no effect whatsoever; and (b) a declaration that the regulations published under Notification 403 and 404 of the Cyprus Gazette No. 576, Supplement No. 3 dated 25.5.67, are null and void and of no effect whatsoever. "

When the case came up for directions on the 30th April, 1971, it was directed, by consent of the parties, that the issue that this recourse was filed out of time, raised in the opposition of respondent 1 - the appropriate authority for the town of Kyrenia under the Streets and Buildings Regulation Law, Cap. 96 - be dealt with as preliminary to the hearing of the case.

The applicant is the owner of the Hotel Esperides. On the 21st March, 1969, he applied to respondent 1 for a building permit for the addition of a sixth floor on his aforesaid hotel as per the plans submitted in 1961. These plans were executed by stages, for financial reasons. The said application, exhibit 9, was considered by respondent 1, at their meeting of the 29th April, 1969; copy of the minutes of the said meeting has been produced, (exhibit 8). They read as follows. [*1473]

"Application by Hotel Esperides Ltd. No. 3l/69 for a permit to add 5th and 6th floor to their hotel. The Municipal Committee is unable to approve same because of the existing legislation that is to say the height is more than 47 feet and the floors more than four."

This in effect is the sub judice

decision which has been communicated to the applicant by letter dated 8th May, 1969, (exhibit 1). It is important that this communication should be quoted here verbatim as the preliminary issue turns to a considerable extent on its contents. It reads as follows:

"I have been instructed to refer to your application No. 31/69 dated 21.3.69 for a building permit for a sixth floor to your hotel and inform you that the Municipal Committee, in accordance with existing Legislation, and after Government advice, is unable to grant a permit for a building when the height is more than 47 feet or when it is more than four floors. You may, however, if you wish ask the Council of Ministers to allow the relaxation of the said law."

It appears that the administrative act and its communication coincide, except, as far as the present proceedings are concerned, for the addition off the words "Government advice" which were added in the communication after the words "existing legislation" and the concluding paragraph in the communication whereby it is intimated to the applicant that [*1474] he may apply to the Council of Ministers for relaxation. On the 16th July, 1969, through his advocates, the applicant applied to the Council of Ministers, (exhibit 2), requesting that he be permitted to erect another floor on his hotel, with copy of the communication, (exhibit 1), attached thereto. On the 12th March, 1970, the applicant received a reply to his aforesaid application from the Director of Town Planning and Housing Department (exhibit 3). Reference is made in this reply to exhibit 2 as being an application for relaxation under Regulation 66 of the Building Regulations and it is pointed out that it should have been submitted to him and not to the Council of Ministers; in conclusion the applicant is informed that the relaxation applied for cannot be approved as it was not considered in the public interest to do so.

On the 26th May, 1970, obviously after exhibit 3 was received by applicant, his advocates wrote to the Town Clerk of Kyrenia Municipality exhibit 4, whereby they referred to their letter of the 8th May, 1969, (exhibit 1), requesting that it be clarified whether the negative reply was relating to the height or to the number of storeys of the building of their clients. On the 29th May, 1970, the Town Clerk replied, (exhibit 5), informing them that the refusal "in accordance with the law to issue a permit covered both the height and the number of floors." On the 9th November, 1970, the applicant, through his advocates wrote to the Town Clerk (exhibit 6) whereby he requests that he be informed of the relevant law

on which the refusal of the 8th May, 1969, was based. In reply [*1475] thereto exhibit 7 was sent, dated 16th November, 1970, by which the

applicant's advocates are informed that the refusal to grant a building permit for a sixth floor was based on notification No. 403 published in the 3rd Supplement of the official Gazette of the 25th May, 1967·

It has been argued by learned counsel for the applicant that exhibit 1, the communication of the sub judice decision, was not complete. There was missing therefrom the reasoning which was contained in exhibit 7, in which reference is made to the specific provision of the law upon which the respondents relied for their decision. In support of this argument counsel pointed out para. 3 of the facts in the opposition of respondents 1, where it is stated that the "letter of the 16.11.1970 simply informs the applicant of the reasoning of their refusal to grant a permit." This statement, however, must be read in conjunction with para. 3

of the grounds of law of the same opposition where it is claimed that this letter "simply confirms the issue of, the

administrative act refusing the permit for a sixth floor and/or simply repeats the reasoning of the refusal contained in the letter of the 8th May, 1969, etc...." It cannot be said therefore that there is, or that it can amount to, an admission; and particularly so when regarding questions of computation of time, it has been said that these are matters of public interest and therefore cannot be waived by a party.

The first question, therefore, for determination is whether, by the communication (exhibit 1), through which the [*1476] applicant came to know of the sub judice decision, the applicant acquired complete knowledge of the said

decision so that the time, provided for by Article 146.3 of the Constitution, started running, I have just referred to the "complete knowledge" as being the essential element that sets in motion the running of the time. This proposition is supported by the following passage from "The Recourse for Annulment to the Council of State" by Professor Tsatsos, 2nd Ed. p. 55 para. 31, which reads:

"It is the complete knowledge which is required to set in motion the running of the time even when it goes to acts published or communicated. But in the case of acts published or communicated there is irrebuttable presumption of the knowledge of their published or communicated content, as well as the time of such knowledge. This irrebuttable presumption is not proof of complete knowledge."

The aforesaid passage also bears out the view that legal principles relating to the contents of publication are helpful in examining when the resulting knowledge is complete or not. Regarding the completeness or not of the communication it has been said by Professor Tsatsos in his 'Recourse for Annulment etc.' (supra) at p. 54 that -

"Complete is the knowledge of the act from the time that the interested party becomes aware of those elements generally indispensable and [1477] specifically on the point, capable of being used to base thereon an application for annulment."

It may be useful to refer, whilst on this point, to the decision of the then Supreme. Constitutional Court of Cyprus in the case of John Morran v. The Republic, 1 R.S.C.C. p. 10 at p. 13, where it is said:-

"Knowledge in the context of Article 146 of the Constitution means knowledge of the decision, act, or omission giving rise to the rights of a recourse and not knowledge of evidential matters necessary to substantiate before a Court an allegation of unconstitutionality, illegality, or excess or abuse of power."

Relevant, also, are the principles relating to communication, as in the present case it is common ground that the knowledge of the applicant about the sub judice act - complete or not - emanates from such communication. Professor Kyriakopoulos in his textbook "Administrative Law" 3rd Ed., Vol. 3, at p. 121 deals with the matter as follows:-

"But the communication must be full, complete, because, if the interested person does not become aware of the whole of the contents of the act, he cannot judge and decide about the exercise or not of the recourse. Communication, therefore, [*1478] of only the operative part without the reasoning for the act is not complete and therefore the time does not run."

It may also be relevant to consider a passage from the judgment of Triantafyllides J., as he then was, in the case of Charalambos Pissas v. The Electricity Authority of Cyprus,

(1966) 6 J.S.C. p. 874, where at page 877 he says the following regarding the word "publication" appearing in Article 146.3 of our Constitution:-

"Publication for the purpose of setting in motion the time within which a recourse may be filed, has to be such publication as would state in full and clearly the contents of the act or

decision concerned. This principle has been adopted in Greece (see Conclusions from the Jurisprudence of the Greek Council of State, 1929-1959s p. 251) and is, in my opinion, equally applicable in Cyprus because the relevant Greek and Cyprus provisions are, in this respect, in pari materia, and such principle is a widely accepted principle of Administrative law in relation to computing the time within which a recourse, such as the present one, may be made after publication."

In both the aforesaid passages the underlining is mine.

It appears that there is a concensus that the communication and the publication are complete when they [*1479] contain the whole of the contents of the act as they both denote in their own way full knowledge of the

decision. In fact, according to the decision of the Greek Council of State 2321/53 referred to in "The Conclusions from the Jurisprudence of the Greek Council of State," 1929-1959 at p. 253 "knowledge is considered the one referring to the contents of the act without requiring the complete knowledge of the grounds of annulment." In the present case exhibit 1, the communication of the decision to the applicant, contained everything that was in the decision, a fact obvious from a comparison between exhibits 1 and 8.

From the aforesaid exposition of the principles of Administrative Law, one may safely arrive at the conclusion that the argument, that the non-mention in the communication of the particular provision of the law relied upon for the decision, prevents the time from running, cannot be accepted as a valid one. The knowledge of the applicant was a complete one as far as the contents of the act are concerned. The completeness of the knowledge does not emanate from what the act might contain but from what in fact it does contain.

The decision as reasoned was communicated to the applicant. It is not a case of incomplete communication in the sense that the reasons appearing in the decision were not included in the communication. But if I were, however, to hold that the non-mention of the particular provision of the law, relied upon by the appropriate organ, amounted to [1480] lack of reasoning, as claimed by applicant, which reasoning was given in the letter (exhibit 7), I would again hold that the time started running as from the communication, exhibit 1, since lack of reasoning is in itself a ground for annulment. As stated by Professor Tsatsos, (supra, p.57, para. 33) "if from the non omitted and from the known elements of the act, the interested party may ascertain the existence of even one ground of annulment, the time for the filing of the recourse for annulment starts running...".

For the above reasons I have come to the conclusion that the applicant cannot succeed on the first argument.

The second argument was that the inclusion in exhibit 1 of the words "after Government advice", coupled with the intimation in the last paragraph that he might apply, for relaxation under the law, to the Council of Ministers, misled the applicant and made him follow the wrong course, instead of going to Court. I am afraid I cannot accept the validity of this argument, inasmuch as there is, under the Streets and Buildings Regulation Law, Cap. 96, and regulations made thereunder, power to grant relaxation in cases where it is in the public interest to do so. The reference to such law amounted to nothing more than a reminder of its existence. But even if I were to accept - which I do not - that this did in fact lead the applicant astray, to use counsel's expression, the wanderings of the applicant came to an end and he should have found his course upon receiving exhibit 3, whereby he was informed that the relaxation applied for could not be approved as it was not [*1481] considered in the public interest. But the case does not stop at that. He inquired, (exhibit 4), with the Town Clerk, asking whether the refusal to grant him a permit was relating to the height or to the number of storeys of the buildings and he received a reply (exhibit 5) informing

him that the refusal referred to both height and number of floors. The decision, therefore, was clarified by the 29th

May, 1970, for all intents and purposes, if there was any doubt at all before that, which, as I said, I do not for a moment accept.

It is for all the above reasons that I do not consider that the letter of the 16th November, 1970, (exhibit 7), whereby the applicant was informed of the particular provision of the law upon which the decision was based, has any legal effect whatsoever in favour of the applicant's claim that his application is not out of time.

In the result the application having been filed out of time cannot proceed and is hereby dismissed, with no order as to costs.

Application dismissed.

No order as to costs.