Judgement no. 95/2021/HC-PT dated january 21, 2021 regarding appeal against administrative decision on application response and administrative act of refusal to return the house

HIGH PEOPLE’S COURT IN DA NANG

JUDGEMENT NO. 95/2021/HC-PT DATED JANUARY 21, 2021 REGARDING APPEAL AGAINST ADMINISTRATIVE DECISION ON APPLICATION RESPONSE AND ADMINISTRATIVE ACT OF REFUSAL TO RETURN THE HOUSE

On January 21, 2021, at the headquarter of the High People’s Court in Da Nang, the appellate trial of the case No. 04/2020/TLPT-HC entertained on October 6, 2020, regarding “Appeal against the administrative decision on application response and administrative act of refusal to return the house” is open to the public.

Because of the fact that the preliminary ruling No. 11/2020/HC-ST dated August 4, 2020 of the People’s Court of Khanh Hoa province is appealed. 

According to the Decision to bring the case to trial No. 674/2021/HC-ST dated January 7, 2021 between litigants:

*Plaintiff: Mr. Ngo Quoc Tr, born in 1947; Residence address: CA 90403, USA. Passport No.: BA 572876 issued on October 3, 2013 in Gatineau, Canada by the Consulate General of the SRV in Vancouver, Canada.

Contact address: No. 27, street 8, quarter 4, ward A, district Y, Ho Chi Minh city;

Address for service: No. 207/22, street T, ward Y1, district Y2, Ho Chi Minh city.  Absent.

Authorized representative: Mr. Le Quang Tr1, born in 1959; address: No. 26, street H, ward Y3, district B, Ho Chi Minh city, and Mr. Nguyen Hong H1, born in 1961; Contact address: No. 207/22, street T, ward Y1, district Y2, Ho Chi Minh city (Power of attorney made on June 5, 2020 at the Consulate General of Vietnam in Vancouver, Canada).  Mr. Le Quang Tr1, present; Mr. Nguyen Hong H1, absent (Application for trial in absentia).

Defender of the plaintiff’s legitimate rights and interests: Attorney Pham Quang B1 – Law Office P, Ho Chi Minh city’s Bar Association. Present.

*Defendant: People’s Committee of Khanh Hoa province. Absent.

Defenders of legitimate rights and interests: Mr. Nguyen Xuan E – Administrative Assistant of the Department of Construction of Khanh Hoa province. Present.

* Persons with associated rights and obligations:

- Mrs. Ngo Le H2; Address: Switzerland. Absent.

- Mrs. Ngo Le B2; Address: Switzerland. Absent.

- Mr. Ngo Quoc L; Address: Switzerland. Absent.

- Mr. Ngo Quoc N; Address: Switzerland. Absent.

Authorized representatives of Mrs. H2, Mrs. B2, Mr. L and Mr. N:  Mr. Ngo Quoc Tr. Present.

CASE DETAILS

*Representative of the plaintiff – Mr. Ngo Quoc Tr – represents that:

His father, Mr. Ngo D (died in 1976); his mother, Mrs. Ta Kieu H3 (died in 2001) originally owned the house located at 89, street D1 (now street T1), city N, Khanh Hoa province. On February 7, 1977, Mrs. Ta Kieu H3 signed the "Deed of Covenant in lending the house" with the borrower, the People's Committee of town N. This document agreed that Mrs. H3 lent the People's Committee of N town the ground floor of the house at No. 89, street D1 for the 2-year term to accommodate a state agency’s office. Meanwhile, the upper floor was still in use by the family.

On April 20, 1977, Mrs. Ta Kieu H3 was sponsored by her daughter to the Switzerland for medical purposes.  Before leaving, Mrs. H3 made an application to put the house at No. 89, street D1 and some other real estate under the state custody. The ground floor of the house at 89, street D1 was borrowed by the People's Committee of town N as the industry chamber’s office while its upper two floors were sent to the People's Committee of town N to take care of them. So, the house should be returned by the state according to the regulations set forth in Article 1, Section II, Decision No. 111/CP in Viet Nam dated April 14, 1977; Circular No. 383/TT-BXD-DT dated October 5, 1991; Resolution No. 755/2005 dated April 2, 2005; Resolution No. 1037/NQ-QH dated July 27, 1996.

Mr. Tr has repeatedly made application for the return of the house and land at No. 89, street D1, but the People's Committee of Khanh Hoa province sent the reply, enclosing the following documents: No. 5952/UBND-XDND dated September 13, 2007, No. 1597/UBND-XDND dated February 28, 2017, No. 8784/UBND-XDND dated September 25, 2017 with the same content: do not accept the return of real estate at 89, street D1 (now street T1, city N).

Therefore, Mr. Tr filed a lawsuit to request the Court to pronounce the dismissal of the documents: No. 5952/UBND-XDND dated September 13, 2007; No. 1597/UBND-XDND dated February 28, 2017; No. 8784/UBND-XDND dated September 25, 2017 of the People’s Committee of Khanh Hoa province regarding: Application response. Concurrently, pronouncing the act of refusal to return the house is not correct.

* The defendant, the People’s Committee of Khanh Hoa province, represents that: The real property No. 89, street T1, city N was formerly under the management and use of Mr. Ngo D (died in 1976) and Mrs. Ta Kieu H3. In 1977, Mrs. Ta Kieu H3 immigrated and filed an application to leave all property under the state custody; The People's Committee of Phu Khanh province (now Khanh Hoa province) issued the Decision No. 2822/VP-CP dated December 17, 1979 on the direct management of housing for immigrants, including: Real property No. 89, street T1, gas station land plot next to the Buddhist temple of city N and 02 plots located at ward V, city N.

The State had the authorized custody of the above-mentioned house and land according to the policy on housing and land management prescribed in the Decision No. 111/CP dated April 14, 1977 of the Government Council (promulgating the policy on socialist-oriented management and correction of houses and land for rent in urban areas of the southern provinces) and the application dated April 20, 1977 filed by Mrs. Ta Kieu H3 to ask for the State custody of these houses and land before her immigration.

After being awarded the custody of the above-mentioned house and land, the provincial People's Committee arranged to use and assign agencies to build the petrol station and public works (market V) and, for housing and land at No.89, street T1, the People’s Committee of Khanh Hoa province allowed Khanh Hoa Nest Single-member Limited Liability Company to rent as a place to trade in bird's nest products.

Regarding response to the application submitted by Mr. Ngo Quoc Tr: Mr. Ngo Quoc Tr (Mrs. Ta Kieu H3’s son, currently living abroad), in 2007, 2016, 2017, sent an application to Khanh Hoa province’s People's Committee to request the return of real estate in N city that had been left for the state custody. The PC of Khanh Hoa province responded to Mr. Ngo Quoc Tr in the following documents: Document No. 5952/UBND-XDND dated September 13, 2007; Document No. 1597/UBND-XDND dated February 28, 2017; Document No. 8784/UBND- XDND dated September 25, 2017. Accordingly, the opinions of the Provincial People's Committee given in the above documents were as follows:

- Mrs. Ta Kieu H3's house and land are being managed by the State as a measure for implementation of the policy on management of houses and land without owners, houses and land of people going abroad; After taking over the land and house, the State has had them stably used since then.

- Pursuant to Article 2 of Resolution No. 755/2005/NQ-UBTVQH11 dated April 2, 2005 of the National Assembly’s Standing Committee; Article 1 of Resolution No. 23/2003/QH11 dated November 26, 2003 of the National Assembly on housing and land under the state custody and in use after being assigned by the State for use during the implementation of housing management policies and socialist-oriented correction policies before July 1, 1991: “The State shall not review the guidelines, policies and implementation of policies on housing and land management and socialist-oriented correction policies related to housing and land issued before July 1, 1991. The State shall not recognize the reclaiming of housing and land that the State puts under its custody and assigns for use in the process of implementing policies on housing and land management and socialist-oriented correction policies related to housing and land”, and clauses 4, 6 of Article 2 of Resolution No. 23/2003/QH11: “The State shall meet necessary legal requirements for public ownership of house and land that the State puts under its custody and assigns for use in the process of implementation of the following policies: …; 6. Management of housing and land of people who are displaced, moved to other regions or foreign countries”;

Therefore, Mr. Ngo Quoc Tr's reclaiming the real property at No. 89, street T1, city N is ungrounded; The provincial People's Committee responded to the application in accordance with the provisions of law. Because of this fact, the People’s Court of the province is requested to dismiss the petition to sue filed by Mr. Ngo Quoc Tri. According to the preliminary administrative ruling No. 11/2020/HC-ST dated August 4, 2020, the People’s Court of Khanh Hoa province made the following judgements: 

Pursuant to Article 2 of Resolution No. 755/2005/NQ-UBTVQH11 dated April 2, 2005 of the National Assembly‘s Standing Committee; Article 1; Clauses 4, 6, Article 2 of Resolution No. 23/2003/QH11 dated November 26, 2003 of the National Assembly on housing and land that the State puts under its custody and assigns for use during the process of implementation of housing management policies and socialist-oriented correction policies before July 1, 1991;

Pursuant to Clause 1, Article 157, Article 32, point a clause 2 of Article 193 in the Administrative Procedures Law; clause 1 Article 32 in the Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly’s Standing Committee, stipulating amounts, reduction in amounts of, collection, payment, management and use of court costs and fees.

Making the following pronouncements:

- Dismissing the entirety of Ngo Quoc Tr's petition to sue for cancellation of notices No. 5952/UBND-XDND dated September 13, 2007, No. 1597/UBND- XDND dated February 28, 2017, No. 8784/UBND-XDND dated September 25, 2017 of the People's Committee of Khanh Hoa Province.

- The People’s Committee’s refusal to return the house to Ngo Quoc Tr is licit.

In addition, the preliminary ruling includes the pronouncement on court costs and the right to appeal and enforcement of the judgement according to the law.

On August 4, 2020, the authorized representative of the plaintiff (Mr. Ngo Quoc Tr), Mr. Nguyen Hong H1, appealed the entire preliminary administrative judgment No. 11/2020/HC-ST dated August 4, 2020 of the People's Court of Khanh Hoa province.

In the court hearing, the representative of the High Procuracy in Da Nang expressed his/her opinion on the resolution of the case:

- Regarding compliance with legislation: At the court hearing, the Trial Panel, the Clerk and litigants strictly complied with the law on administrative legal proceedings.

- Regarding case contents:  Requesting the Trial Panel not to accept the appeal filed by Mr. Ngo Quoc Tr and uphold the preliminary ruling.

COURT’S JUDGEMENTS

After studying documents and evidence available in the case file which have been examined at the hearing; based on the arguments at the hearing and the opinions of the representative of the High Procuracy in Da Nang; considering that:

[1] In light of the appeal of Mr. Ngo Quoc Tr, realizing that:

The house at No. 89, street D1, city N, Khanh Hoa province is formerly owned by married couple, Mr. Ngo D (died in 1976) and Mrs. Ta Kieu H3 (died in 2001); On April 20, 1977, Mrs. Ta Kieu H3 submitted an application to assign the State to keep such property before she immigrated under the family reunification program. According to the application for transfer of property to the State for its custody, the People's Committee of town N (now city N) at that time signed to confirm the receipt of the property and the status of the property so that Mrs. H3 was eligible for immigration. On December 17, 1979, the People's Committee of Phu Khanh province (now Khanh Hoa province) issued the Decision No. 2822/VP-CP on "direct management of real estate for people allowed to immigrate", including: Housing and land at No. 89, street T1, city N, the land plot for the petrol station next to the Buddhist temple in city N and 02 plots of land in ward V, city N. Thus, the State decided to manage the property of Mrs. Ta Kieu H3 before leaving for family reunification; The property includes the house at No. 89, street D1, now street T1, 01 land plot near Phat Hoc pagoda, now Ma Vong gas station, 02 plots of land in ward V, which is now assigned to V market management board as V market. The above mentioned property are managed according to the policies on housing management prescribed in Decision No. 111/CP dated April 14, 1977 of the Government Council (promulgating the socialist-oriented management and correction policy for housing and land for rent in urban areas of the southern provinces) and the application dated April 20, 1977 by Mrs. Ta Kieu H3. After receipt of the Decision 2822/VP-CP dated December 17, 1979 of the People's Committee of Phu Khanh province, such property are assigned by the People's Committee of Phu Khanh province (Khanh Hoa province) for use as the petrol station and public works (market V). For real estate at No. 89 T1 Street, Khanh Hoa Provincial People's Committee, the state allows Khanh Hoa Bird’s Nest Limited Company to rent it as a place to trade in Khanh Hoa Bird's Nest products till now. This means that the State has managed the property by assigning agencies and organizations to directly manage and use the property.

Pursuant to Article 2 of Resolution No. 755/2005/NQ-UBTVQH11 dated April 2, 2005 of the National Assembly‘s Standing Committee; Article 1 of Resolution No. 23/2003/QH11 dated November 26, 2003 of the National Assembly on housing and land that the State puts under its custody and assigns for use during the process of implementation of housing management policies and socialist-oriented correction policies before July 1, 1991: “The State shall not reconsider guidelines, policies and the implementation of policies on housing management and socialist-oriented correction policies related to housing and land issued before July 1, 1991.

The State shall not recognize the reclaiming of housing and land that the State puts under its custody and assigns for use in the process of implementing policies on housing and land management and socialist-oriented correction policies related to housing and land”, and clauses 4, 6 of Article 2 of Resolution No. 23/2003/QH11: “The State shall meet necessary legal requirements for public ownership of house and land that the State puts under its custody and assigns for use in the process of implementation of the following policies: Management of housing and land of people that are displaced, moved to other regions or foreign countries”.

Thus, according to the current law, taking over the house at No. 89, street T1, city N by Khanh Hoa Provincial People's Committee from Mrs. Ta Kieu H3 who immigrated according to the family reunification program and voluntarily assigned the property to the State for its custody before leaving is completely compliant with laws.

On the other hand, in Clause 1, 2, Section IV of Circular No. 383/BXD-DT dated October 5, 1991 of the Minister of Construction guiding the implementation of the decision of the Chairman of the Council of Ministers on the settlement of disputes over housing: “Vietnamese citizens who are legally allowed to leave the country, except for the case specified in Clause 2, Article 5 of Decision 297-CT in Viet Nam dated October 2, 1991 of the Chairman of the Council of Ministers, may have the right to dispose of houses under their ownership. In case where, before leaving, they apply for the State’s authorized custody of their house, it shall be also accepted that, if the owner returns to settle in Vietnam, he/she will be entitled to reclaim the house after reimbursing the State for management and repair costs (if any). If the owner does not return (but is still a Vietnamese citizen), he/she is also allowed to transfer ownership or authorize management to other Vietnamese citizens living in Vietnam in accordance with the law.” And now, after Mrs. Ta Kieu H3 died in 2001, Mr. Ngo Quoc Tr, her son, is given the right to inherit the property by Mrs. Ta Kieu H3. Because he is now residing abroad as a Canadian citizen, not a Vietnamese citizen, and also does not settle, live and work in Vietnam, he does not meet necessary and sufficient conditions to reclaim the house managed by the State according to the above provisions.

Therefore, the preliminary ruling stating the dismissal of Mr. Ngo Quoc Tr's petition to sue is grounded and legitimate. Mr. Tr appealed but could not provide any new document or evidence that could change the contents of the case, the Trial Panel finds that there is no ground to accept Mr. Tr's appeal request; uphold the preliminary ruling.

[2] Regarding trial court costs: In the comment section of the preliminary administrative judgment No. 11/2020/HC-ST dated August 4, 2020, the People's Court of Khanh Hoa province’s stating that Mr. Ngo Quoc Tr had to pay VND 300,000 of the trial court cost, but did not declare this in the Decision section is erroneous. However, considering that this error does not seriously affect the rights and obligations of the litigants, the appellate court finds it unnecessary to dismiss the preliminary ruling for re-adjudication of the case while it can be remedied by the appellate court.

[3]. Regarding appellate court cost: Because the appeal is rejected, Mr. Tr shall not be liable for the cost of the administrative appellate court.

In light of the aforesaid statements;

Pursuant to clause 1 of Article 241 in the Administrative Legal Procedures Law in Viet Nam.

HEREBY DECIDES

1. Dismissing Mr. Ngo Quoc Tr’s appeal; upholding the preliminary ruling.

Pursuant to Article 2 of Resolution No. 755/2005/NQ-UBTVQH11 in Viet Nam dated April 2, 2005 of the National Assembly’s Standing Committee; Article 1; Clauses 4, 6, Article 2 of Resolution No. 23/2003/QH11 in Viet Nam dated November 26, 2003 of the National Assembly on housing and land that the State puts under its custody and assigns for use during the implementation of housing management and socialist-oriented correction policies before July 1, 1991; Clause 1, 2 Section IV of Circular No. 383/BXD-DT in Viet Nam dated October 5, 1991 of the Minister of Construction, guiding the implementation of the decision of the Chairman of the Council of Ministers on the settlement of a number of housing issues; Clause 1, Article 157, Article 32, Point a, Clause 2, Article 193 of the Law on Administrative Procedures; Clause 1, Article 32 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly’s Standing Committee, providing for amounts, exemption, reduction in amounts, collection, payment, management and use of court fees and fees ; pronouncing that:

- Dismissing the entirety of Ngo Quoc Tr's petition to sue for cancellation of notices No. 5952/UBND-XDND dated September 13, 2007, No. 1597/UBND- XDND dated February 28, 2017 and No. 8784/UBND-XDND dated September 25, 2017 of the People's Committee of Khanh Hoa province.

- The refusal of the People’s Committee of Khanh Hoa province to return the house and land to Ngo Quoc Tr is lawful.

2. Regarding court cost: Mr. Ngo Quoc Tr shall pay VND 300,000 of administrative trial court cost and VND 300,000 of administrative appellate court cost which have been paid in full according to the Receipt No. 0001104 of advance court cost paid on December 26, 2019 (Mr. Le Quang Tr1 has paid these sums on his behalf) and Receipt No. 0001300 dated August 14, 2020 (Mr. Nguyen Van Dai has paid these sums on his behalf) of the Civil Judgment Execution Sub-Department of Khanh Hoa province.

The Appellate Judgement shall enter into force from the pronouncement date.