Mosta land expropriation declared null and void

A court yesterday declared null and void the expropriation of a piece of land in Mosta by the Commissioner of Lands because the land owners had not been granted a hearing.

The land had been expropriated from Giovanni, Joseph, Pacifiku and Agnes Fenech and from Maryann Saliba.

The co-owners filed a writ in the First Hall of the Civil Court against the Commissioner of Lands claiming that by means of a Presidential Declaration issued on July 14, 2000, a portion of land measuring 98 square metres in Mosta had been expropriated on the grounds that it was required for a public purpose.

However, the land had been taken in order to be awarded to a third party and they had been deprived of the right to a hearing, the co-owners claimed.

They therefore requested the court to declare that the expropriation was null and void and to order the commissioner to make good the damages they had sustained.

Mr Justice Tonio Mallia noted the expropriation had taken place without their being given the opportunity of a fair haring in violation of their fundamental human rights and the principles of natural justice.

However, the owners had not produced any evidence in support of their claim that the land had been expropriated for use by a third party. On the contrary it resulted that the land had been expropriated for the development of a road in the area in accordance with a development scheme issued by the Malta Environment and Planning Authority.

Although the development of the road had been of benefit to third parties who had land in the vicinity, the expropriation had also taken place to further urban development and the opening of new roads. This could not be considered as being contrary to the public interest, said the court.

Mr Justice Mallia added that the plaintiffs were not attacking the constitutionality or otherwise of the law regulating expropriation, nor of any part of the law. This law did not provide for the owners of the land to be heard prior to the expropriation of the land.

Once the law itself was not being attacked, then one could not say that the procedure contemplated in the law was contrary to the constitution. Plaintiffs were alleging that the expropriation of their property without their being given the opportunity to be heard constituted a violation of their fundamental human rights.

The court noted that the European Convention of Human Rights provided for the right to a fair hearing in cases involving the determination of civil rights or criminal charges. The right to ownership of property was a right recognised under the law but was not an unlimited right, for a land owner could be deprived of his property when this was required for a public purpose and against indemnification.

The property owner, said the court, was entitled to contest the purpose for which his land had been expropriated and could demand just compensation. However, he could not contest the expropriation in itself.

In this case the owners were basing their claim against the commissioner on the basis that they had been deprived of the principles of natural justice, which included the right to a hearing. The courts were therefore being requested to exercise their jurisdiction to examine the validity of an administrative act when a public authority failed to observe the principles of natural justice.

Mr Justice Mallia pointed out that the principle of entitlement to a hearing had to be scrupulously observed and any violation of this principle entitled the courts to review an administrative act. The decision on the part of the authorities to expropriate private property was obviously a decision that affected the interests of the property owner. It was therefore a principle of natural justice that the property owner was entitled to a hearing prior to the expropriation.

The court therefore ruled that the expropriation of plaintiffs' land by the Commissioner of Lands was null and void as their right to be heard had been violated.