JUDGEMENT
of dismissal

DECISION

Dushanbe
Case no.2-90/07
11 December 2007

Economic court of Dushanbe consisting of Tabarov N.A., judges: Sobirov T.M., Mirmahsumov I.M., Secretary Karimov F., interpreters: Safarov K., Benazirova N. having considered the case on session of the court at the suit of Administration of Education of Dushanbe city, third party submitting independent demand – Executive body of state power of Dushanbe in regard to Committee on management of state-owned property of Dushanbe, co-defendant - Mission Center “Grace Sunmin” on invalidation of contract of purchase of undeveloped site dated 02.07.1997, license for right of ownership dated 21.07.1998 and official act for right of acquisition of state-owned property by labor collective dated 25.07.1997 with participation of representative of plaintiff Abdurahmonov F. – lawyer, with attorney no.321-1/321 dated 03.05.2007, representative of third party Sharipov S. – main specialist of administrative-legal department of chairman of Dushanbe office, with attorney no.24/7/11 dated 08.12.2007 , representative of defendant Davlatov A., with attorney no.565 dated 10.12.2007 , representatives of co-defendant Choy Yun Sop – chairman, Abduloev A. – lawyer, authorization no.144 dated 04.04.2007.

Defines:

Administration of Education of Dushanbe city appealed to Economic Court of Dushanbe with petition regarding Committee on management of state-owned property of Dushanbe, co-defendant - Mission Center “Grace Sunmin” on invalidation of contract of purchase of undeveloped site dated 02.07.1997, license for right of ownership dated 21.07.1998 and official act for right of acquisition of state-owned property by labor collective in specified period dated 25.07.1997

Defendant – Committee on management of state-owned property of Dushanbe did not express its opinion regarding the complaint.

Co-defendant having expressed its opinion regarding petition stated that Administration of Education of Dushanbe is not adequate plaintiff on present dispute and it should be replaced with proper plaintiff – Executive body of state power of Dushanbe.

Administration of Education of Dushanbe did not agree to replacement by adequate plaintiff – Executive body of state power of Dushanbe.

Therefore the Court by its order dated 29.11.2007 had informed Executive body of state power of Dushanbe about that in according with the article 36 of Economic procedural code of Republic of Tajikistan it cannot be included into the case as third party applying independent demand.

Executive body of local state power of Dushanbe was included into the case as third party applying independent demand and had provided participation of its representative on session of the court.

On session of the court representative of Administration of Education of Dushanbe Abdurahmonov F., chairman of third party of Executive body of local state power of Dushanbe city Sharipov S. having supported the petition asked the court to sustain the claim.

On session of the court the representative of defendant – Committee on management of state-owned property of Dushanbe, Davlatov A., representative of co-defendant Choy Yun Sop and Abduloev A. did not acknowledge the claim and requested the court to terminate proceedings of the case.

Having studied the case papers, listened to evidences of parties, the court had defined the following: based on the decision of Executive Committee of Council of people's deputies of Dushanbe city Dushanbe no.562/b dated 03.11.1987 permission to design the school in Bofanda quarter was granted to Administration of central construction of Dushanbe.

According to cost estimation of undeveloped school situated in Bofanda quarter dated 01.07.1996 the estimation was performed by the Commission consisting of deputy director of Republican Center on appraisal of state-owned property, deputy chief accountant of Administration of central construction of Dushanbe Government.

List of sites offered for sale is approved by decision of Chairman of Dushanbe city no.53 dated 24.03.1997, where disputable site is included.

According to contract of purchase municipal property dated 2 July 1997 disputable site was sold by Committee on management of state-owned property of Dushanbe to co-defendant - Mission Center “Grace Sunmin”.

According to official act for right of acquisition of state-owned property dated 25.07.1197 disputable site after payment of its amount to special settlement account of Financial Administration of Dushanbe city is the foundation to receipt of the act signed by deputy Chairman of Dushanbe and Chairman of Committee on management of state-owned property of Dushanbe Government.

According to the license for right of ownership dated 21.07.1998 it was given to co-defendant by Committee on management of state-owned property of Dushanbe Government.

Having examined these documents the Court had come to conclusion that disputable object is municipal property and belongs to Executive body of state power of Dushanbe.

Administration of Education of Dushanbe having applied present plaint note to the Court, did not prove satisfactorily that it is the owner of the object not in its plaint note nor at court session.

According to the article 11 of Civil Code of Republic of Tajikistan defense of violated civic rights or civic rights at issue is carried out by court, economic court or arbitration court according to materials of case determined by procedural law.

In the article 12 of Civil Code of Republic of Tajikistan methods of defense of civic rights are named.

In given dispute Administration of Education of Dushanbe cannot be party to legal relations of economic disputes, since right to defense does not belong to it. It follows that party to legal dispute relations is Executive body of state power of Dushanbe but not Administration of Education of Dushanbe which is operational unit of Executive body of state power of Dushanbe and is financed by Executive body of state power of Dushanbe and Administration of Education of Dushanbe does not have any other source of funds. As well as disputable site never was asset of Administration of Education.

Accordingly the Court had considers Administration of Education inadequate party to given dispute.

According to above mentioned documents it is proved satisfactorily on the session of the court that disputable object for the moment of privatization was municipal property of Executive body of state power of Dushanbe.

According to the article 19 of Constitutional Law of Republic of Tajikistan “On bodies of local government” execution of decrees adopted by Chairman of Dushanbe city within his authority is mandatory within relevant territorial administrative borders.

According to the article 20 of mentioned Law Chairman of Dushanbe manages municipal property of city within his authority.

List of sites offered for sale is approved by decision of Chairman of Dushanbe city no.53 dated 24.03.1997, where disputable site is included.

In execution of present decision Committee on management of state-owned property of Dushanbe had offered the object for sale, sold it to co-defendantу and funds are put into budget of Dushanbe.

Execution of Chairman’s decision was mandatory and had legal force at that moment.

According to the article 85 paragraph 2 of Economic procedural code of Republic of Tajikistan the Economic court stops proceedings if there is decision of trial court of general jurisdiction, economic court on dispute between same parties, for the same object and on the same foundation.

According to the decision of Economic court dated 27.05.2004 included into case papers claim in favor of Government of Dushanbe city regarding Committee on management of state-owned property of Dushanbe and co-defendant - Mission Center “Grace Sunmin” on invalidation of contract of purchase of undeveloped site dated 02.07.1997, license for right of ownership dated 21.07.1998 and official act for right of acquisition of state-owned property by labor collective dated 25.07.1997 in specified period is ignored by deputy prosecutor of Dushanbe city.

Concerning this decision Prosecutor's office of Dushanbe and Government of Dushanbe did not appeal cassation, nor petition in the exercise of supervisory powers to Supreme Economic Court of Republic of Tajikistan, so decision remains lawful till now.

Entertaining of action put in by Administration of Education of Dushanbe city, which is acknowledged by the court as inadequate plaintiff and Executive body of state power of Dushanbe which is included into the case as third party and applying independent demand, is the dispute between the same parties, on the same object-matter and on the same foundation and there is decision regarding it that has legal force.

Decision of the Chairman of Dushanbe no.53 dated 24.03.2007 “On approval of list of objects offered for next sale” concerning privatization of public service establishments with excluding undeveloped site of secondary school situated in Bofanda quarter, Dushanbe, based on Appendix 5 of decision of the Chairman of Dushanbe no.372 dated 06.06.1997, was adopted upon the expiry of 10 years after sale of disputable object and decision of Economic Court of Dushanbe dated 27 May 2004 regarding given dispute has legal force.

The Court having considered the issue of court costs had charged them on plaintiff.

Following articles 85 paragraph 2, 86, and 140 of Procedural Code of Republic of Tajikistan the Court had

Adjudged:

Proceedings at the suit of Administration of Education of Dushanbe city, third party having independent demand for the object of dispute – Executive body of state power of Dushanbe city, regarding defendant – Committee on management of state-owned property of Dushanbe, co-defendant - Mission Center “Grace Sunmin” on invalidation of contract of purchase of undeveloped site dated 02.07.1997, license for right of ownership dated 21.07.1998 and official act for right of acquisition of state-owned property by labor collective in specified period of time dated 25.07.1997 – to be discontinued.

Decision can be appealed within 1 month in appeals instance of Supreme Economic Court of Republic of Tajikistan.

Presiding: Tabarov N.A.
Members of judicial body: Sobirov T.M.
Mirmahsumov I.M.