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(1984) 1 CLR 333

1984 April 16

 

[HADJIANASTASSIOU, DEMETRIADES, SAVVIDES, JJ.]

SILENTSIA FARMS LTD.,

Appellants-Plaintiffs,

v.

ANNA FRIXOU KOULERMOU,

Respondent-Defendant.

(Civil Appeal No. 6533).

Immovable Property—Access—Grant of—Determination of route of access—Section 11(A) of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 (as amended by Law 10/66)—Local inquiry by Lands Office—Notice to interested parties of date of, sent by registered post—A valid notice—And once it was sent burden shifted on appellants to establish that such notice was never received—Regulation 5 of the Immovable Property (Tenure Registration and Valuation) Regulations, 1967—Proper inquiry carried out in accordance with above Regulations—All possible alternative routes considered—And decision of Director of Lands and Surveys a duly reasoned one.

The respondents who were owners of a piece of land at Episkopio village, which was enclaved by other- properties in such a way as to be lacking the necessary access to the public road, applied to the Director of Lands and Surveys for such access through the property of the appellants the western boundary of which was adjoining all along a public road.

The Director of Lands and Surveys in the exercise of his powers under section 11(A) of Cap.224, as amended by section 3 of Law 10/66, decided to grant to the respondent access to the public road for their plot and determined the route of such access through the property of the appellants and at the same time he determined the compensation payable by the respondent to the appellants for such access in the sum of £596.

The appellants appealed against the decision of the Director of Lands and Surveys under the provisions of sections 80 and81 of Cap.224. The District Court after hearing evidence and considering the arguments advanced by both parties and the reasoned decision of the Director of Lands and Surveys dismissed the appeal of the appellants; hence the present appeal.

Counsel for the appellant mainly contended:

(a) That the Director failed to comply with the provisions of regulation 5 of the Immovable Property (Tenure, Registration and Valuation) Regulations, 1967 in that he failed to notify the appellants as to the date and time when the local inquiry was to be carried out.

(b) That the findings of fact of the trial Court that the Lands Officer duly weighed, everything in favour or against the application and that his decision was such as to cause the least embarrassment to the owners of the properties, were wrong.

(c) That the trial Court failed to examine the question as to whether the decision of the Director was duly reasoned.

Regarding (a) the trial Court, on the evidence before it, found that a registered letter had been sent to the appellant by the Lands Office regarding the local inquiry and that the appellant received the notice; and that even if he did not receive the notice the fact that the notice was sent was sufficient for the purpose of the Law and the Regulations.

Held, that the duty of the Director of Lands and Surveys under regulation 5 was to give even days notice to the interested parties about the date of the local inquiry; that the fact that the Director has sent such notices is amply warranted by the evidence before the Court and has not been seriously, contested; that the Director in sending such notices adopted one of the most appropriate modes that of registered letters addressed to the parties; that, therefore, once the Director has proved compliance with the Regulations the burden shifted on the appellants to establish that such letter was never received; that the appellants failed to discharge such burden and the trial Court rightly came to the conclusion that the appellants were duly notified about the time and place of the local inquiry: accordingly contention (a) must fail.

(2) That the findings of fact made by the trial Court were wart anted by the evidence on record: accordingly contention (b) must fail.

(3) That a proper inquiry had been carried out in accordance with the procedure set out in the Regulations and that all possible alternative routes had been considered with the result that the access determined was found to be the only suitable one and the least harmful, inconvenient or burdensome; that the reasons of the decision of the Director are explicitly et out in his reasoned decision and ha e been sufficiently explained before the trial Court as to leave no doubt in the mind of the trial Court; accordingly contention (c) must fail.

Appeal dismissed.

Cases referred to:

Georghiou v. HjiPhessa (1970) 1 C.L.R. 58.

Appeal.

Appeal by applicants against the judgment of the District Court of Nicosia (loannides, D.J.) dated the 19th February, 1983 (Appl. No. 43/80) whereby their application by way of an appeal against the decision of the Director of Lands and Surveys for a right of passage compulsorily imposed by the Director of Lands and Surveys through applicants' property in favour of the respondents' property was dismissed.

G. Triantafyllides, for the appellants.

I. Typographos, for the respondent.

Cur.adv. vult.

HADJIANASTASSIOU J.: The judgment of the Court will be delivered by Mr. Justice Savvides.

SAVVIDES J.: The present appeal is against the decision of a Judge of the District Court of Nicosia, whereby the application of the appellants by way of appeal against the decision of the Director of Lands and Surveys for a right of passage compulsorily imposed by the Director of Lands and Surveys through the property of the appellants and in favour of the property of the respondent and whereby the compensation payable by the respondent was also fixed under the provisions of section11(A) of the Immovable Property (Temure, Registration and Valuation) Law, Cap. 224 as amended by section 3 of Law 10/66, was dismissed.

The material part of that section reads as follows:

"Obligation to provide access.11 A. (1) Notwithstanding the provisions of this Law if my immovable property is for any reason in such a way enclaved as to be lacking the necessary access to a public road, or if the existing access is inadequate for its proper use, development or utilization, the owner of such immovable property shall be entitled to claim an access over the adjacent immovable properties on payment of a reasonable compensation.

.................................

(2) The route of the access and the extent of the right to the use thereof, as well as the compensation payable shall be determined by the Director after previous notice to all interested parties.

(3) There shall be no obligation of the neighbours to provide an access if the communication of the immovable property to the public road has ceased through a voluntary act or omission of the owner thereof.

.................................

(6) An access granted under this section shall be deemed to be a right, casement or advantage acquired under the provisions of section 11 of this Law, and the provisions of this Law shall apply to any such access.

(7) The Council of Ministers may take regulations regulating any matter requiring to be regulated for the better application of this section and, in particular the procedure to be followed for the purposes thereof.

Regulation 5 of the regulations made under section 11A(7) of the Law (see the official Gazette of the Republic of 1967, Supplement No. 3 page 282) reads as follows:

"5. Προ της εξετάσεως της αιτήσεως του αποκτώντος μέρους ο Διευθυντής δίδει ουχί βραχυτέραν των επτά ημερών ειδοποίησιν εις τα ενδιαφερόμενα μέρη κοινοποιών εις αυτούς την ημερομηνίαν καθ' ηv προτίθεται να επιθεώρηση τα ως είρηται ακίνητα".

("5. Before the examination of the application of the acquiring party the Director gives not less than seven days notice to the interested parties notifying to them the date on which he intend to inspect the said immovables".)

Regulation 6 provides for the procedure to be followed by the Director for determining the route of the access and reads as follows:-

«6.-(1) Ο Διευθυντής, κατόπιν επιτοπίου ερεύνης και μελέτης πάντων των σχετικών στοιχείων και γεγονότων, καθορίζει την κατεύθυνσιν της διόδου, την έκτασιν του προς χρήσιν αυτής δικαιώματος του αποκτώντος μέρους και την υπ' αυτού καταβλητέαν αποζημίωσιν, και γνωστοποιεί τον υπ.' αυτού καθορισμόν τών θεμάτων τούτων προς πάντα τα ενδιαφερόμενα μέρη.

(2) Έν περιπτώσει υπάρξεως και άλλων ακινήτων πλην του δουλεύοντος ακινήτου τα όποια κατά την γνώμην του Διευθυντού είναι κατάλληλα δια την δημιουργίαν διόδου έπ' αυτών,, Ο Διευθυντής δύναται να αναβάλη τον καθορισμόν της αιτουμένης διόδου και να ζητήση παρά του αποκτώντος μέρους όπως, εντός εξήκοντα ή μερών από της εκφράσεως της τοιαύτης γνώμης υπό του Διευθυντού περί της υπάρξεως και άλλων καταλλήλων ακινήτων δια την δημιουργίαν διόδου έπ' αυτών, επιδώση εις τον ιδιοκτήτην ή τους ιδιοκτήτας των τοιούτων ακινήτων την εν τώ Κανονισμώ 3 προνοουμένην ειδοποίησιν, και επί τη συμμορφώσει του αποκτώντος μέρους προς τας προνοίας του Κανονισμού 4 καν του Διευθυντού προς τας προνοίας του Κανονισμού 5, ο Διευθυντής κατόπιν νέας επιτοπίου ερεύνης και μελέτης πάντων των σχετικών στοιχείων και γεγονότων και επί τω σκοπώ όπως προκληθή ή μικροτέρα δυνατή ζημία, οχληρία ή ταλαιπωρία αποφασίζει επί ποίου ή, ποίων ακινήτων θα παραχωρηθή ή δίοδος και καθορίζει την κατεύθυνσιν της διόδου, την έκτασιν του προς χρήσιν αυτής δικαιώματος του αποκτώντος μέρους και την υπ.' αυτού καταβλητέαν αποζημίωσιν, και γνωστοποιεί τον υπ.'αυτού καθορισμόν των θεμάτων τούτων προς πάντα τα ενδιαφερόμενα μέρη".

("6(1) The Director after a local enquiry and consideration of all the relevant material and facts, fixes the route of the access, the extent of the right to the use thereof by the acquiring party as well as the compensation payable by him and notifies all interested parties of the determination by him of these matters.

(2) In the case of the existence of another or other immovable properties other than the servient tenements which in the opinion of the Director are suitable for the certain of an access on them, the Director may postpone the determination of the applied for access and to request from the acquiring party, within sixty days from the expression of such opinion by the Director as to the existence of other suitable movable properties for the creation of access on them, to serve on the owner or owners of such immovable properties the notice required by rule 3 and on the acquiring party complying with the provisions of rule 4 and the Director with the provision of rule, 5 the Director after a new local inquiry and consideration of all the relevant material and facts and with the intention of causing the least possible damage, nuisance of hardship determines on which of the immovable properties will the access be granted and fixes the route of the access, the extent of the right to the use thereof by the acquiring party and the compensation payable by him, and notifies all interested parties of the determination by him of these matters".)

Regulation 6(2) comes into play where there are other plots of land which in the opinion of the Director are suitable for the creation of access over them".

The appellants are the registered owners of a piece of land under Registration 3779, Plot 215 at Episkopio village. The respondent is the owner of an adjoining piece of land underRegistration 3522, Plot 222. The western boundary of appellants' said property, is adjoining all along a public road, whereas respondent' property is enclaved by other properties in such a way as to be lacking the necessary access to the public road. Lacking such access, respondent applied to the Director of Lands and Surveys for such access through the property of the appellants.

The Director of Lands and Surveys in the exercise of his powers under section I 1(A) o CAP. 224, as amended by section 3 of Law 10/66 decided to grant to the respondent access to the public road for Plot 222, and determined the route of such access through the property of the appellants under Plot 215 and at the same time he determined, the compensation payable by the respondent to the appellants for such access in the sum of £596.

The appellants appealed against the decision of the Director of Lands and Surveys by filing an application to the District Court of Nicosia under No. 43/80.under the provisions of sections 60 and 81 of CAP. 224. The District Court after hearing evidence and considering the arguments advanced by both parties and the reasoned decision of the Director of Lands and Survey dismissed the appeal of the appellants; hence the present appeal was filed.

It should be noted that both before the trial Court and in this appeal the amount of compensation determined by the Director of Lands as payable by the respondent for the acquisition of such access has not been disputed and no evidence was called by the appellants or any arguments advanced that such compensation is inadequate. What was challenged before the trial Court was the validity of the decision of the Director of Lands and Surveys and the prayer of the appellants was for a declaration that the decision of the Director to grant the subject matter passage was null and void as taken in contravention of the law and/or in excess or abuse of powers and/or under a misconception of fact.

The grounds of appeal arc as follows:

(1) The judgment of the trial Court to confirm the decision of the Lands Office is wrong.

(2) The finding of the trial Court that the decision of the Director of Lands was duly reasoned was wrong.

(3) The finding of the trial Court that the competent Lands Officer gave proper notice to the, appellants to express their views before taking his decision is wrong.

(4) The finding of the trial Court that the Lands Officer duly weighed everything in favour or against the application and that his decision was such as to cause the least embarrassment to the owners of the properties, is wrong.

(5) The trial Court failed to examine the question as to whether the decision of the Director was duly reasoned.

It was the contention of counsel for the appellants, when arguing this appeal. that the procedure which led to the decision of the Director of Lands was irregular in that there was no compliance with the provisions of regulations 5 and 6 of, the immovable Property (Tenure, Registration and Valuation) Regulations, 1967 in that the appellants were not notified to c present at the local inquiry carried out by the Lands Officer, and that the Lands Officer who carried out the local inquiry limited to take into consideration all the relevant facts and circumstances in determining the route of the access so as to cause the least possible inconvenience or hardship to the owners of the servient tenement. Also that he failed to consider alternative routes through other properties which would have been less onerous.

We shall deal first with the contention of counsel for the appellants that the Director of Lands failed, to comply with the provisions of regulation 5 in that he failed to notify the appellants as to the date and time when the local inquiry was to be carried out.

The learned trial Judge in dealing with this issue said.

According to what witness Kilaras said in his evidence.he sent a notice by registered letter about his intended inspection, and such letter was not returned.

In the present appeal no evidence has been given by the appellant company that such letter was not received by them except only a reference by witness Kilaras that at a later stage and after the local inquiry was carried out the appellant company complained that the notice was not received. Therefore, there is no sworn evidence of the appellant that the notice was not received and we do not know why it did not receive the notice, as it would have been possible that the notice reached its destination and the appellant did not collect it or that it received it and did not read it or that it read it and showed no interest and later complained that it did not receive it. So long as no responsible person came before the Court to give evidence and be cross-examined on this point, the Court cannot accept and find that the appellant did not receive the notice and that they were not notified but on the contrary, I find that the appellant had received the letter and was notified.

But even if I had reached a conclusion that the respondent did not receive the letter and as a result the notice did not come to its knowledge, the fact that the notice was sent is sufficient for the purposes of the law and the regulations.

It is clear from the evidence of R.W. I Kilaras before the trial Court that both appellants and respondent were notified by registered letters tinder Nos 7340 and 7379 respectively on 16.6.1980 informing them as to the time and place of the local inquiry and none of these letters was returned by the Post Office as not collected. Neither the person in charge of the affairs of the appellants nor any other responsible officer attended the Court to give evidence that such letter was never received. Whatever was mentioned by their valuer in his evidence in this respect, is hearsay evidence and rightly the trial Court ignored it. The duty of the Director of Lands and Surveys under regulation 5 was to give seven days notice to the interested parties about the date of the local inquiry. The fact that theDirector has sent such notices is amply warranted by the evidence before the Court and has not been seriously contested. The Director in sending such notices adopted one of the most appropriate modes that of registered letters addressed to the parties. There fore once the Director has proved compliance with the Regulations the burden shifted on the appellants to, establish that such letter was never received. The, appellants failed to discharge such bin den and the trial Court rightly came to the conclusion that the appellants were duly notified about the time and place of the local inquiry. Therefore, ground 3 of this appeal fails.

With regard to grounds I and 4 of this appeal and the findings of fact of the trial Court, we are satisfied, that such findings are warranted by the evidence on record. The Court after summing up the evidence adduced on both sides concluded as follows:

"Going through what was mentioned by witness Kilaras in his evidence, I have not the least difficulty in finding and I do find that his decision was the most suitable one in the circumstances of the case and constitutes the least possible harm, inconvenience or burden. 1 find that the solution mentioned by witness Kimonis that 6 ft. could he taken from Plot 220 and 6 ft. from Plot 215 would have destroyed trees which are g owing on Plot 220 and, furthermore, other trees on PIot 221 had to be destroyed, whereas no trees will be destroyed by, the solution considered by witness Kilaras. Concerning the alteration of the route of the path which is in Plot 220, such solution would have created other problems such as the alteration of the route of the path through other adjoining properties as well as the uprooting of trees. Furthermore, for such alteration, the decision of the Council of Ministers would have been necessitated, as the path is considered as a public road according to the definition of public roads in Cap. 224

For the aforesaid reasons, I find that by the approved access, the least possible harm, inconvenience or hardship is caused".

There is no doubt that the task of the Lands Clerk to comply with the provisions of section 6(2) is not an easy one. I@@@Georghiou v. HjiPhessa (1970) 1 C.L.R. 58, Josephides. J. i@@@ dealing with such task had this to say at pages 64, 65:

"We would observe that the Land Registry Clerk who is acting on behalf of the Director, in the capacity of an arbitrator in a quasi-judicial capacity under the law, find@@@ himself in a very difficult position in trying to comply with the provisions of rule 6(2). He find himself between Schylla and Charybdis. If e makes a full comparison of the various possible routes, then there may be a complaint that he made that comparison and he reached him conclusion without giving notice to the interested person as regards the alternative routes and that he, consequently failed to comply with rule 6(2), and his decision is vitiated If, on the other hand, he fails to make any comparison a all, or to give any consideration to the alternative route@@@suggested by the owner of the servienttonement, then h@@@ may be faced with the complaint that, without considerin@@@ the matter at all, he came to the conclusion that there wa@@@ no other suitable property or properties for the creation of access over them, as envisaged in the opening word of rule 6(2). We must say that the Director finds himself in an unenviable situation".

Once the appellants failed to satisfy this Court that the findings of the trial Court were wrong or not warranted by the evidence before it, grounds 1 and 4 of the appeal fail.

We find no substance in ground 2 and 5 of the appeal. 1 is clear both from the Contents of the reasoned decision o@@@ the Director of Lands and Surveys dated 4th October, 198@@@ which was filed in the action and forms part of the record and also, the evidence of the Lands Officers who carried out the local inquiry that a proper inquiry had been carried out in accordance with the procedure set out in the Regulations and that all possible alternative routes had been considered with the result that the access determined was found to be the only suitable one and the last harmful, inconvenient or burdensome. The reasons of the decision of the Director are explicitly set out in hisreasoned decision and have been sufficiently explained before the trial Court as to leave no doubt in the mind of the trial Court in reaching its conclusions.

In the result, the appeal fails and is hereby dismissed with costs in favour of the respondent.

Appeal dismissed with costs.

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