Judgment No. 145/2017/HC-PT dated july 20, 2017 on lawsuit against administrative decision in land management sector

THE SUPERIOR PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 145/2017/HC-PT DATED July 20, 2017 ON LAWSUIT AGAINST ADMINISTRATIVE DECISION IN LAND MANAGEMENT SECTOR

On July 20, 2017, the appellate trial court was conducted at the office of Superior People’s Court of Ho Chi Minh City to hear the administrative case No. 08/2016/TLST-LD dated January 1, 2017 on “lawsuit against administrative decision in land management sector”, as the First Instance Administrative Judgment No. 17/2016/HC-ST dated December 5, 2017 of the People’s Court of Binh Thuan province was appealed.

According to the Decision to Bring the Case to Appellate Trial No. 205/201/QDXX-PT dated April 7, 2017, parties concerned include:

The petitioner: Mr. Luu Gia C, born in 1984.

Address: neighborhood L3, town L4, district T1, Binh Thuan province.

Authorized legal representative of petitioner: Mr. Nguyen Dang C1, born in 1972.

Address: street X, ward H, district T2, Ho Chi Minh City. (present).

Respondent: The President of People’s Committee of Binh Thuan province (with request for trial in absentia)

Address: street H1, city P, Binh Thuan province.

The protector of legitimate rights and interests of the aggrieved party:

1/. Mr. Vo Van L - Deputy Chief Inspector of Department of Natural Resources and Environment of Binh Thuan province. (present).

2/. Mr. Duong Quy B - Deputy Head of Natural Resources and Environment of district T1, Binh Thuan province. (present).

3/. Mrs. Nguyen Thi Tuyet T - Legal Advice Center of Lawyers’ Association of Binh Thuan province. (present).

Persons with relevant rights and obligations:

1/ The President of the People’s Committee of district T1 (with request for trial in absentia)

The protector of legitimate rights and interests: Mr. Duong Quy B - Deputy Head of Division of Natural Resources and Environment of district T1, Binh Thuan province. (present).

2/ Mrs. Luu Thi C2, born in 1947.

Address: neighborhood L3, town L4, district T1, Binh Thuan province. (present)

Authorized representative: Mr. Nguyen Xuan L2, born in 1952.

Address: village Y, commune D, district T1, Binh Thuan province. (present).

Appellant: Mrs. Luu Thi C2

THE CASE

Representation of the petitioner through Mr. Nguyen Dang C1:

Mrs. Nguyen Thi H2 (parental grandmother of Mr. Luu Gia C) was issued land use right certificate by the People’s Committee of district T1 associated with the land plot No. 72, of the map No. 48, of 365m2, located in neighborhood L5, town L4, district T1, Binh Thuan province on January 2, 2009. At the issuance time, the household of Mrs. H2 includes Mrs. H2, Mrs. Nguyen Thi Ngoc O, Mr. Luu Nguyen Hai D1, Mr. Luu Thanh H3 and Luu Thanh A.

On March 15, 2003, Mrs. Nguyen Thi H2 made a will appointing Mr. Luu Gia C and Mr. Luu Nguyen Hai D1 as her heirs to the above land plot and the house thereon after her death. On December 8, 2008, Mrs. Nguyen Thi H2 died, Mrs. Nguyen Thi Ngoc O, Mr. Luu Nguyen Hai D1 and Mr. Luu Thanh H3 made an affidavit of waiver of inheritance and concurred that Mr. Luu Gia C would be free to dispose of Mrs. H2's estate, including the land plot No. 72 of the map No. 48, of 356m2 and the house thereon located at 22 street N, neighborhood L5, commune L4, district T1, Binh Thuan province.

According to the will dated March 15, 2003 and the affidavit of waiver of inheritance dated October 1, 2009, on November 18, 2010, the legal representative of Mr. Luu Gia C, Mr. Nguyen Dang C1, applied for transfer of land use right and housing ownership right based on the legally effective will. After receiving such application, the People’s Committee of district T1, however, rejected it. Then, Mr. C1 filed a claim for rejection of the People’s Committee of district T1 to register transfer of land use right and housing ownership right for Mr. Luu Gia C.

On September 14, 2012, the President of the People’s Committee of district T1 issued the Decision No. 2387/QD-UBND not to accept the claim of Mr. C. Opposing such decision on claim handling of the President of the People’s Committee of district T1, Mr. Nguyen Dang C1 filed a claim to the President of the People’s Committee of Binh Thuan province.

On September 27, 2012, the President of the People’s Committee of Binh Thuan province issued the Decision No. 2318/QD-UBND not to accept the claim of Mr. C and sustain the Decision No. 2387/QD-UBND of the President of the People’s Committee of district T1.

Now, Mr. Luu Gia C files a lawsuit requesting the People’s Court of Binh Thuan province to reverse the Decision No. 2318/QD-UBND dated September 27, 2013 of the President of People’s Committee of Binh Thuan province and the Decision No. 2387/QD-UBND of the President of the People’s Committee of district T1.

Representation of the representative of the respondent, the People’s Committee of Binh Thuan province:

The land plot No. 72 of the map No. 48, of 356m2 and the house located in L5, town L4, district T1, Binh Thuan province were issued land use right certificate by the People’s Committee of district T1 in the name of Mrs. Nguyen Thi H2 were formed by Mrs. H2 and her husband after 1975. On March 15, 2003, Mrs. H2 made a will leaving such land and house to her grandchildren, Mr. Luu Gia C and Mr. Luu Nguyen Hai D1. At that time, the household register No. 1100404787 issued by the Police of town L4 included: Mr. Luu Gia C, Mrs. Nguyen Thi H2, Mrs. Nguyen Thi Ngoc O, Mr. Luu Nguyen Hai D1, Mr. Luu Thanh H3 and Luu Thanh A, however, this will bear no confirmation of the family members in line of succession.

On hearing the news that Mrs. Nguyen Thi H2 made a will leaving such land plot and house to her grandchildren, on December 21, 2008, Mrs. Luu Thi C2 (Mrs. H2’s daughter), on behalf of her siblings, filed a claim to the People’s Committee of town L4, requesting prevention of transfer of the land use right from Mrs. Nguyen Thi H2 to Mr. Luu Gia C. On January 23, 2009, Mrs. C2 continued filing another claim for non-acceptance that her nephew, Mr. Luu Gia C, applied for transfer of the entire land and property thereon to which she and her siblings have had contribution to him.

After Mrs. Nguyen Thi H2 died, the legal representative of Mr. Luu Gia C, Mr. Nguyen Dang C1, submitted an application for transfer of land use right based on Mrs. H2's will to enable the certificate of land use right, housing ownership and property on land to be issued to Mr. C. On November 18, 2010, the People’s Committee of town L4 sent a confirmation that “the land plot has no dispute over land and property on land" to the People’s Committee of district.

On December 1, 2010, Registration Office for Land Use Right of district T1 made the Official Dispatch No. 1213/VPDKQSDD, stating that: “The case involves dispute without handling result from competent authorities, thus, the Registration Office for Land Use Right has no valid ground for settlement as per the law”. On January 5, 2011, Mr. Nguyen Dang C1 filed a claim against the Official Dispatch No. 1213/VPDKQSDD dated December 1, 2010 of the Registration Office for Land Use Right of district T1, stating that he lodges a claim against Mr. Luu Gia C, permanently residing in neighborhood L5, town L4, district T1, Binh Thuan province. However, this Official Dispatch indicates that the address of Mr. C is at 1266, CARNELIAN DR, SANJOSE, CA 95122, USA. This was incorrect; the Division of Natural Resources and Environment of district T1 had no valid ground for stating that this land plot was in dispute and Mr. Luu Gia C is an overseas Vietnamese. On April 14, 2011, the People’s Committee of district T1 issued the Official Dispatch No. 361/UBND-NC in reply to the claim of Mr. C1 that it reserves determination in the Official Dispatch No. 1213/VPDKQSDD dated December 1, 2010 of the Registration Office for Land Use Right of district T1.

On September 14, 2011, Mr. Nguyen Dang C1 continued filing another claim against the Official Dispatch No. 361/UBND-NC dated April 14, 2011 of the People’s Committee of district T1; on November 14, 2011, the People’s Committee of district T1 issued the Official Dispatch No. 1318/UBND-NC in reply to the claim of Mr. Nguyen Dang C1, stating that the Official Dispatch No. 361/UBND-NC in reply to the claim of Mr. Nguyen Dang C1 was proper as per the law. Then, Mr. C1 filed a claim against the Official Dispatch No. 361/UBND-NC dated April 14, 20111 and the Official Dispatch No. 1318/UBND-NC dated November 14, 2011 of the People’s Committee of district T1.

Based on that, on September 17, 2012, the President of People’s Committee of district T1 issued the Decision No. 2378/QD-UBND on first handling of claim of Mr. Luu Gia C that refuse the claim of Mr. C since Mr. C is an overseas Vietnamese without any proof that he is permitted to reside in Vietnam for at least three months and the land plot and property thereon in dispute has not been settled by competent authorities”.

Opposing the decision on claim handling of the President of the People’s Committee of district T1, Mr. C1 kept filing a claim to the People’s Committee of Binh Thuan province. On September 27, 2012, the President of the People’s Committee of Binh Thuan province issued the Decision No. 2318/QD-UBND rejecting the claim of Mr. C and sustaining the Decision No. 2387/QD-UBND of the President of the People’s Committee of district T1.

The respondent claims that Decision No. 2318/QD-UBND dated September 27, 2013 of the People’s Committee of Binh Thuan province and Decision No. 2387/QD-UBND dated September 14, 2012 of the President of the People’s Committee of district T1 were made as per the law. So, request the court not to accept the lawsuit request of Mr. Luu Gia C.

Representation of authorized representative of the President of People’s Committee of district T1:

Concur with all statements of the respondent. Mr. Luu Gia C failed to prove that he is entitled to own a house on residential land as prescribed in Article 66 of Decree No. 71/ND-UBND, Article 126 of the Law on Housing and Article 121 of the Land Law. In addition, at the time when Mr. C submitted the application for issuance of certificate of land use right and housing ownership, the dispute over such area of land arose out between Mr. Luu Gia C and Mrs. Luu Thi C2. So, the President of the People’s Committee of district T1 issued the Decision No. 2387/QD-UBND dated September 14, 2012 on first claim handling of Mr. Luu Gia C and on September 27, 2013, the People’s Committee of Binh Thuan province issued the Decision No. 2318/QD-UBND rejecting the claim of Mr. C. These actions were well-grounded and legal. The lawsuit of Mr. Luu Gia C is ungrounded, so request the court to reject the lawsuit request of Mr. Luu Gia C.

Representation of Mrs. Luu Thi C2:

She concurs with all statements of the respondent. In 2008, 2009 and 2010, Mrs. C2 filed claims to competent authorities and the People’s Committee of town L4, district T conducted conciliation but failed. Pursuant to Article 129 of the Land Law 2003 in Viet Nam, the land in dispute may not be issued a certificate of land use right and housing ownership.

In the First Instance Administrative Judgment No. 17/2016/HC-ST dated December 5, 2016, the People’s Court of Binh Thuan province judged:

Pursuant to Article 30, Article 32, Point b Clause 2 Article 193 of the Law on Administrative Procedures in Viet Nam; the Land Law 2003; the Law on Housing 2005 in Viet Nam; the Law on the amendments to Article 126 of the Law on Housing in Viet Nam; Article 131 of the Land Law dated June 18, 2009; Government's Decree No. 71/2010/ND-CP in Viet Nam; the Land Law 2013 in Viet Nam; the Law on Housing 2014 in Viet Nam; Resolution No. 01/2015/NQ-HDTP in Viet Nam dated January 15, 2015 of the Council of Judges of the Supreme People’s Court; the Ordinance No. 10/2009/UBTVQH in Viet Nam of Standing Committee of the National Assembly on Court Fees and Charges.

Hereby judges:   Accept the entire lawsuit request of Mr. Luu Gia C.

Cancel the Decision No. 2318/QD-UBND dated September 27, 2013 of the President of People’s Committee of Binh Thuan province on “handling of claim of Mr. Luu Gia C against the Decision No. 2387/QD-UBND dated September 14, 2012 of the President of People’s Committee of district T1” and cancel the Decision No. 2387/QD-UBND dated September 14, 2012 of the President of People’s Committee of district T1 “on first handling of claim of Mr. Luu Gia C”.

In addition, the first instance court decided the court fee and announced the appeal right to litigants as per the law.

On December 21, 2016, the person with relevant rights and obligations, Mrs. Luu Thi C2, filed an appeal against the entire First Instance Judgment.

At appellate court hearing, the litigants raise opinions as follows:

The person with relevant rights and obligations, Mrs. Luu Thi C2 (represented by Mr. Nguyen Xuan L2), still upholds her appeal as the land and house has been in dispute with Mrs. C2, decisions on claim handling of the President of the People’s Committee of district T1 and the President of the People’s Committee of Binh Thuan province were made legally.

Mr. Nguyen Dang C1, representative of the petitioner, claims that the current property has not been in dispute, Mr. C is entitled to own a house in Vietnam through receipt of inheritance, the Court of First Instance settled the case as per the law.

Opinions of the representative of the Superior People’s Procuracy of Ho Chi Minh City: Mr. C was left a house under the will but he was not issued with certificate of ownership since the estate has been dispute and Mr. C is an overseas Vietnamese who is not entitled to own a house in Vietnam. Regarding dispute, Mrs. C2 lodged a lawsuit petition with the court but withdrew it thereafter. At the time when Mr. C submitted the application for issuance of the certificate, there was no dispute. Mr. C is entitled to own a house in Vietnam as prescribed in the applicable Law on Housing. The Court of First Instance resolved the case as per the law, request Trial Panel to reject the appeal of Mrs. Luu Thi C2 and uphold the First Instance Judgment.

JUDGEMENT OF THE COURT

[1] With reference to format: The appeal of Mrs. Luu Thi C2 was filed within the prescribed time limit, so it is valid to resolve the case under appellate procedures.

[2]- With reference to content:

After considering the case files assessed and the adversarial process at the court hearing, and opinions of the People’s Procuracy, the Trial Panel judges as follows:  On September 14, 2012, the President of People’s Committee of district T1 issued the Decision No. 2387/QD-UBND on first handling of the claim of Mr. Luu Gia C for non-issuance of certificate of land use right, housing ownership and property on land associated with the land plot No. 72 of the map No. 48, district T1, Binh Thuan province. Reason: Mr. Luu Gia C is an overseas Vietnamese without any proof that he is permitted by Vietnamese competent authority to reside in Vietnam for at least 3 months as prescribed in the Law on the amendments to the Law on Housing and Article 121 of the Land Law dated June 18, 2009 and the land plot with property thereon has been in dispute which has not been settled by the competent authority. Opposing the decision on claim handling of the President of People’s Committee of district T1, Mr. Nguyen Dang C1 (legal representative of Mr. Luu Gia c) filed a claim against this Decision to the President of People’s Committee of Binh Thuan province.

On September 27, 2013, the President of People’s Committee of Binh Thuan province issued the Decision No. 2318/QD-UBND on handling of Mr. Luu Gia C’s claim against the Decision No. 2387/QD-UBND dated September 14, 2012 of the President of People’s Committee of district T1 on first handling of the claim for issuance of land use right certificate to Mr. Luu Gia C with the following reason: The land and house has been in dispute, recognize that the Decision No. 2387/QD-UBND dated September 14, 2012 of the President of People’s Committee of district T1 on first handling of the claim for issuance of land use right certificate to Mr. Luu Gia C was made as per the law.

On April 14, 2015, Mr. Luu Gia C filed a lawsuit requesting reversion of the Decision No. 2318/QD-UBND dated September 27, 2013 of the President of People’s Committee of Binh Thuan province and the Decision No. 2387/QD-UBND of the President of the People’s Committee of district T1.

[3] Considering that the First Instance Administrative Judgment No. 17/2016/HC-ST dated December 5, 2016 of the People’s Committee of Binh Thuan province accepting the entire lawsuit request of Mr. Luu Gia C, reversing the Decision No. 2318/QD-UBND dated September 27, 2013 of the President of People’s Committee of Binh Thuan province and the Decision No. 2387/QD-UBND dated September 14, 2012 of the President of People’s Committee of district T1 have justifiable grounds, because:

Mr. Luu Gia C is a legal heir of land use right No. A008/2570 dated January 2, 2009 and the house on the land plot from Mrs. Nguyen Thi H2.

Pursuant to Decisions of the People’s Committee of district T1 and the People’s Committee of Binh Thuan province stating that Mr. C is not entitled to be issued with a certificate because he is an overseas Vietnamese without any proof that he is permitted to reside in Vietnam for at least three months and the land plot and property thereon in dispute has not been settled by competent authorities.

Pursuant to the Law on Housing 2014 which was legally effective from July 1, 2015, Mr. Luu Gia C is a foreigner who has not been prohibited from entry into Vietnam by competent authorities, so he is entitled to own a house in Vietnam through receipt of inheritance.

Mrs. C2, Mrs. H2’s daughter, has been in dispute with Mr. Luu Gia C over such land plot. Considering that Mrs. C2 has filed claims to the People’s Committee of town L4 since December 21, 2008 but the land and house has still been in dispute. Although competent authorities guided her to file a lawsuit with court, she still did not exercise this right and kept submitting claims to People’s Committee of district T1 to prevent the issuance of certificate to Mr. Luu Gia C. On August 11, 2015, she filed a lawsuit petition with the People’s Court of Binh Thuan province concerning the dispute over estate between her and Mr. Luu Gia C but withdrew it on September 9, 2016. Thus, she waived her right to file lawsuit against Mr. Luu Gia C and stop engaging in the dispute over estate with Mr. C but she has kept claiming and preventing the issuance of the certificate to Mr. Luu Gia C. Her action obstructs Mr. C in applying for issuance of land use right certificate as per the law and cause damage to him.

At today’s appellate court hearing, Mrs. C2 could not show any new evidence, so, there is no valid ground for accepting her appeal. Thus, the Trial Panel rejects her appeal and upholds the First Instance Judgment as proposed by the People’s Procuracy.

[4] Because the appeal is rejected, Mrs. Luu Thi C2 has to pay an appellate court fee.

[5] Other decisions of the First Instance Verdict which do not have any appeal will remain legally effective.

Pursuant to documents and evidence mentioned above;

HEREBY DECIDES

Pursuant to Clause 1 Article 241 of the Law on Administrative Procedures 2015, the Trial Panel does not accept the appeal of Mrs. Luu Thi C2.

Uphold the First Instance Judgment No. 17/2016/HC-ST dated December 5, 2016 of the People’s Court of Binh Thuan province on “lawsuit against administrative decision on land management".

Pursuant to Article 30, Article 32, Point b Clause 2 Article 193 of the Law on Administrative Procedures; the Land Law 2003; the Law on Housing 2005; the Law on the amendments to Article 126 of the Law on Housing; Article 131 of the Land Law dated June 18, 2009; Government's Decree No. 71/2010/ND-CP; the Land Law 2013; the Law on Housing 2014; Resolution No. 01/2015/NQ-HDTP dated January 15, 2015 of the Council of Judges of the Supreme People’s Court; the Ordinance No. 10/2009/UBTVQH of Standing Committee of the National Assembly on Court Fees and Charges.

Hereby judges:   Accept the entire lawsuit request of Mr. Luu Gia C.

Cancel the Decision No. 2318/QD-UBND dated September 27, 2013 of the President of People’s Committee of Binh Thuan province on “handling of claim of Mr. Luu Gia C against the Decision No. 2387/QD-UBND dated September 14, 2012 of the President of People’s Committee of district T1” and cancel the Decision No. 2387/QD-UBND dated September 14, 2012 of the President of People’s Committee of district T1 “on first handling of claim of Mr. Luu Gia C”.

Regarding appellate court fee: Mrs. Luu Thi C2 has to pay VND 200,000, which is subtracted from the paid court fee advance according to the receipt No. 0011997 dated January 4, 2017 of Department of Judgment Enforcement of Binh Thuan province.

Other decisions of the First Instance Verdict which do not have any appeal will remain legally effective from the expiry of time limit for the appeal.

The Appellate Judgment shall take legal effect from the date of pronouncement.