District Court dismissed trespass claim against Electricity Authority as an administrative act requiring Supreme Court review under Article 146.1 of the Constitution.

[*350] 1979 October 2

(PIRIS, P.D.C. AND CHRYSOSTOMIS, S.D.J.)

IN THE DISTRICT COURT OF FAMAGUSTA SITTING

AT LARNACA

Chrysostomos Th. Cosma,

Plaintiff,

v.

Electricity Authority of Cyprus,

Defendants.

(Action No. 501/78).

Administrative acts or decisions - Executory acts - Only executory acts can be made the subject of recourse under Article 146.1 of the Constitution - Placing of an electricity line over plaintiff's property - An act of executory character taken in the domain of public law - Validity thereof can only be tested by a recourse under the above Article.

A. Poetis, for the Plaintiff.

G. Arestis, for P. Cacoyiannis, for the Defendants.

JUDGMENT

The judgment of the Court was delivered by:-

PIKIS. P.D.C.:- The Electricity Authority of Cyprus is a public utility corporation answering to the description of a state agency for the generation and supply of electricity as well as the extension of the electricity network. Its powers are defined by law, including the Electricity Law, Cap. 170 that regulates matters relevant to the electrification of the country. [*351] Section 31, Cap. 170 empowers, inter alia, the defendants to place electric lines above, below and across any land other than land covered with buildings.

The plaintiff claims to be the person entitled to the use and enjoyment of a well over which the defendants placed an electricity line in the year 1976 allegedly interfering with the use and enjoyment of his property. This act of the defendants amounts, in the allegation of plaintiff, to trespass and damage is claimed therefrom for unlawful interference with the use and enjoyment of the well in question. The damage mainly consists of loss suffered owing to the inability of the plaintiff to irrigate a tree plantation from the aforementioned well. Alternatively the defendants are charged with negligence mainly consisting of, so far as we may gather from the particulars supplied in the statement, of claim, failure on the part of the defendants to guard, in establishing the line. against possible damage to plaintiff. The complain of the plaintiff ill sounds in negligence in the absence of any allegation that the defendants are guilty of any duty owed to the plaintiff arising under the common law or by virtue of any statute. We need not, we feel, probe the question of negligence further nor dwell at any great length on the definition of negligence except stress that there can be no negligence in the absence of a breach of common law or statutory duty. Given the

factual background of the plaintiff's case [*352] as elicited from his pleading it is impossible to discern a case for negligence or divorce his complaint from his principal cause which is an action for trespass, indeed a continuing trespass as averred in the statement of claim.

The defendants, in their defence, dispute the factual allegations of the plaintiff and raise objections to the jurisdiction of the Court to try the action, asserting that the District Court has no competence to adjudicate on the legality of the action of the defendants, an administrative act exclusively amenable to the revisional jurisdiction of the Supreme Court under article 146.1 of the Constitution (see also the Courts Of Justice Law 33/64). The point was appropriately set down for determination preliminary to the hearing of the case under the provisions of Order 27, r.1 of the Civil Procedure Rules because of the manifest repercussions that a favourable decision for the defendants would have on the action of plaintiffs.

1 Placing an Electricity Line - Whether an Administrative Act

Mr. Arestis, in a short but powerful address, submitted that the placement of an electricity line is an administrative act, the legality of which can only be tested before the Supreme Court under article 146.1 of the Constitution. In support of his submission he cited the decision of the Supreme Constitutional Court in Hussein Ramadan v. Electricity Authority of Cyprus and Another, 1 R.S.C.C. 49, where it was held that an act under s.31(3), [*353] Cap. 170, or an omission to act in the face of an application made under the provisions of s. 31(3), is an administrative act exclusively cognizable by an administrative Court. Section 31(3) provides machinery for the removal or alteration of an electricity line on the application of the owner of land over which a line has been established. And Mr. Arestis invited the Court to dismiss the action for lack of competence to try the complaint of the plaintiff.

Mr. Poetis, in an elaborate address, invited the Court to distinguish the case of Ramadan (supra) mainly on the ground that in the case of Ramadan, unlike the present case, there was a concrete decision whereas none is identifiable in the case of the plaintiff nor was such decision communicated to him at any time. Detailed reference was made to the characteristics of different types of administrative acts and the suggestion was made that the action of the defendants, even if it was of an administrative nature, was not of an executory character and therefore its legality and propriety could not be tested under article 146.1 of the Constitution. A number of decisions were cited where the Supreme Court discussed the ingredients of an executory act, notably the decisions in Antonakis Pappous And the Republic of Cyprus (1966) 3 C.L.R. 77 and Cyprus Flour Mills Co. Ltd. and Another and the Republic of Cyprus (1968) 3 C.L.R.12. Also reference was made to well known Greek text books on administrative law with particular reference to administrative acts of an executory character. Administrative executory acts were [*334] contrasted with administrative actions of a fiscal (iliki) content not amenable, unlike the former, to a review by an administrative Court. (See Dendias on Administrative Law, 2nd edition, volume C, pages 264 and 265 - Dendias on Administrative Law, 5th edition, volume I at pp. 19-21 - Stassinopoulos on Administrative Law, p.119 and Conclusions from decisions of the Greek Council of State, 1929-1959, at pp. 236-237). The submission of Mr. Poetis is, if we comprehended it correctly, twofold: Firstly, the act complained of, i.e. the placement of an electricity line over the property of the plaintiff, was not an administrative act of an executory character and secondly it was not a decision in the domain of public law. Therefore the legality of the actions of the defendants could not be made the subject matter of a recourse to the Supreme Court; in consequence the District Court has jurisdiction to adjudicate on the matter.

We have studied the rival submissions with great care and carried out ourselves considerable research in order to resolve the issues before vs. The nature and character of an administrative act

amenable to the exclusive jurisdiction of the Supreme Court under article 146.1 of the Constitution are discussed in

numerous decisions of the Supreme Court to an extent that entitles one to predicate that our case law gives an answer to most problems that may arise in this area.

2. Administrative Acts exclusively Amenable to the Revisional Jurisdiction of the Supreme Court

An act or omission of an organ of public administration is subject to review by an administrative Court under [*355] Article

146.1 if it has the following attributes and implications. Of course the act must, ipso facto, emanate from an organ of public administration charged with the enforcement of one or more laws under a duty to promote the objects of public administration:-

(a) The

decision must be of an executory character, that is, it must, in an immediate way, affect the rights or obligations of the citizen or citizens to whom it is addressed and be immediately enforceable. Executory decisions may be contrasted with preparatory, affirmative and informative acts, none, of which produce, in themselves, legal consequences. Even informative acts signifying the intention of the administration to act along certain directions are not liable to review for they do not, in themselves, re-define in law the relationship between the administration and the subject. Thus announcing plans for restrictions to the use and crossing of motor cars at Ledra street (Kathelen Andre HadjiPanayi and the Municipal Committee of Nicosia (1974) 3 C.L.R. 366), or merely expressing an intention to abolish a street (Republic of Cyprus v. Costas Demetriou and Others (1972) 3 C.L.R. 269), were held to be acts lacking executory character and, therefore, not liable to review.

(b) The

decision must be in the domain of public law, as opposed to that of private law. In other words the decision must be taken in an area where the public at large, or a section of it, has a direct interest in the proper administration of the law and administrative standards maintained thereby. [*356] The following cases afford examples of decisions taken in the domain of public law notwithstanding the fact that the acts in themselves had a limited purport and primarily affected the private rights of citizens:

(i) The fixing of a reserve price under the Immovable Property (Restriction of Sales) Law, Cap. 223, and the Immovable Property (Transfer and Mortgage) Law (1965). (See Said Galip v. Minister of Interior and Another (1974) 3 C.L.R. 94).

(ii) The termination of the employment of a teacher of a public school notwithstanding the fact that his employment was temporary and subject to contract. (Antigoni Paschalidou v. Republic of Cyprus (1969) 3 C.L.R. 297).

(iii) The fixing of the price of bread following negotiations with the Millers Association-Cyprus Flour Mills Co. Ltd. and Another v. The Republic of Cyprus (1970) 3 C.L.R. 48.

The above cases may be contrasted with the decision in Christakis Christodoulou v. The Republic of Cyprus (1970)

3 C.L.R. 377 and its fore-runner Valana and The Republic, 3 R.S.C.C. 91, where it was decided that matters relevant to the determination of boundary disputes and adjustments in the L.R.O. register are matters in the domain of private law. The ambit of the administrative decision was limited to the regulation of private rights. [*357]

Mr. Poetis, in his address, adverted to the attributes of a valid administrative act and pointed out that proper publication is a prerequisite to the validity of an administrative act. The gravamen of his address was that the absence of any discernible decision and lack of publication takes the acts of the defendants outside the realm of public law notwithstanding the nature of the act, and reduces it to an illegal act of the administration amounting to a tort. As to the need for a written record its presence is not a prerequisite of administrative action as mentioned in Stassinopoulos at p.237.

In our judgment the submission of Mr. Poetis is illfounded and does, with respect, confuse the issue. The enquiry whether an act is an administrative act exclusively cognizable by the administrative Court under Article 146, is limited to ascertaining the nature of the act itself and its outward characteristics. It does not extend to the validity of the act for both valid and invalid administrative acts of the description earlier referred to are likewise exclusively amenable to the jurisdiction of the Supreme Court. It may be mentioned that even unlawful administrative acts may, under certain circumstances, bring about a new legal situation and one can note that the administration is not under an absolute duty to revoke illegal administrative acts and it has a margin of discretion with regard to their revocation. (See Yangou and Another v. The Republic (1977), 7-8 J.S.C. 1301).

The act complained of in these proceedings, that is the placement of an electricity line was certainly the [*358] action of an administrative organ. The decision was of an executory character; in the allegation of the plaintiff it affected his proprietory rights in a most direct manner, causing him, as alleged, considerable loss. The act was certainly taken in the domain of public law for the public has a vital interest in the proper application of the sweeping provisions of s.33(1) of the Electricity Law and any doubt on the subject was, if I may say so with respect, authoritatively removed in the case of Ramadan (supra). One cannot bypass the provisions of Article 146.1 by attaching different labels to acts that are manifestly of an administrative nature cognizable only by the Supreme Court. The plaintiff cannot under the guise of trespass or negligence, test before the District Court the validity of an administrative act or question its wisdom. If the action was meant to compensate the plaintiff for loss suffered from the restriction imposed in the enjoyment of his private rights, or for that matter to compensate the plaintiff for damage suffered because of an abortive administrative act, duly annulled by a competent Court, then the District Court would be the proper forum for adjudication. But that is not the case here.

In the result, the preliminary point is decided in favour of the defendants and we find that the Court has no jurisdiction to try the action. In the result, the action is dismissed with costs in favour of defendants.

Action dismissed with costs in

favour of the defendants.