DECISION
of appeals instance on monitoring of legality and sufficiency
of economic court's decision not acknowledged as legitimate

Dushanbe
4 February 2008
Case no.2-90/07
A-38/08

Board of appeals of Supreme Economic Court of Dushanbe consisting of chairman Shirinjonova M.M., judges Fayazova M.M., Nozilov F.K. having considered plaint note of Executive body of state power of Dushanbe dated 11.12.2007 on the basis of claim of Administration of Education of Dushanbe, third party applying independent demand – Executive body of state power of Dushanbe in regards to Committee on management of state property of Dushanbe, codefendant - Mission Center “Grace Sonmin” on invalidation of contract of purchase dated 02.07.1997 of undeveloped site of secondary school situated in Bofanda quarter, Dushanbe; license for right of ownership dated 21.07.1998; official act for right of acquisition of state-owned property by installments by labor collective dated 25.07.1997 with participation of representatives of Executive body of state power of Dushanbe Sharipov S., Nuymonov K. – representative of Administration of Education of Dushanbe, Abdurahmonov F. – representative of Agency of state property management of Dushanbe, Jamilova Z. – representatives of Mission Center “Grace Sonmin”, Kim V.D., Choy Yun, lawyer – Abdulloev A., interpreters: Benazirova N., Barotova Z.

Adjudged:

Administration of Education of Dushanbe appealed to Economic Court of Dushanbe with claim against Committee on management of state property of Dushanbe, codefendant - Mission Center “Grace Sonmin” on invalidation of contract of purchase of undeveloped site of secondary school 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 prescribed term dated 25.07.1997.

By decision of Economic Court of Dushanbe dated 11.12.2007 proceedings are ceased.

Executive body of local state power of Dushanbe, included into the case by the decision of Economic Court of Dushanbe as third party having independent demand, having not agreed with the decision of Economic Court of Dushanbe, appealed claim to court of cassation of Supreme Economic Court of Republic of Tajikistan, where it shows that decision of Economic Court of Dushanbe is unjustified and contrary to law, and it should be avoided on following basis. Economic Court of Dushanbe justifies discontinuance of proceedings based on that by decision of Economic Court of Dushanbe dated 27.05.2004 demand of prosecutor of Dushanbe in favor of Government of Dushanbe city regarding codefendant Mission Center “Grace Sonmin” 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 prescribed term dated 25.07.1997, is ignored, and court opinion that specified claim is also dispute between the same parties, and for the same subject matter and on the same foundation, are unjustified, since rationale for invalidation of contract of purchase, parties to claim and demand on restoration of actional period are different. Dushanbe Administration having found about violation of its rights now had taken action on violation of students’ rights of present quarter.

Court ruling identified decision of Chairman of Dushanbe city in 1997 and evaluated on the basis of Constitutional law of Republic of Tajikistan “On local state authorities», that was not adopted at the moment of making decision and came into effect from 17.05.2004. In addition the court did not take into consideration change of circumstances that by decision of Chairman of Dushanbe city no.372 dated 06.06.2007 there was alteration in decision of Chairman of Dushanbe no.53 dated 24.03.1997 and undeveloped site of secondary school was excluded from list of object offered for sale. While the court had recognized decision of Chairman of Dushanbe no.53 dated 24.03.1997 as justified, decision of Chairman of Dushanbe city no.372 dated 06.06.2007 abated as unjustified.

Although subject of suit is the same as of suit considered in 2004, rationales for invalidation of contract of purchase and parties are different and with making decision of Chairman of Dushanbe dated 06.07.2007 no.372, relationship between agencies regarding privatization and utilization of undeveloped sites for their intended use had undergone changes. As well as plaintiff specifying rationale in his petition for appeal request to abate court order of Economic Court of Dushanbe regarding present claim and expedite the cause to new trial to court of first instance with different consistency.

Representatives of Executive body of state power of Dushanbe Sharipov S., Nuymonov K. had retained claim on session of the court of appeals instance and requested to sustain the claim.

Representative of Administration of Education of Dushanbe Abdurahmonov F. had retained application for appeal on session of the court and requested to sustain the claim.

Representative of Committee of state property management of Dushanbe Jamilova Z. having recognized application for appeal on session of the court requested to sustain the claim.

Representatives of Mission Center “Grace Sonmin”, Kim V.D., lawyer Abdulloev A. and the Chairman of the Center Choy Yun having not acknowledged application for appeal on session of the court declared that privatization performed in 1997 in period of applicable legislation of Republic of Tajikistan on privatization of the sire. Mission Center “Grace Sonmin” acts according to paragraphs of purchase contract. In addition they had stated that present dispute is already considered with participation of the same parties, on the same subject matter and with the same rationale in Economic court of Dushanbe in 27.05.2004 and legitimate solution is was accepted and there is no need for new trial, and so the Center requested the Court to leave decision of Economic Court of Dushanbe without changes and not to sustain the claim.

 

Body of appeals instance of Supreme Economic Court of Republic of Tajikistan having considered case papers, listened to evidences of parties, came to following conclusion:

In accordance with the article 155 of Economic procedural Code of Republic of Tajikistan appeals instance does not takes only arguments brought in the claim as basis but fully examines legitimateness and sufficiency of the decision.

On the basis of decision of Executive Committee of Council of people's deputies of Dushanbe city dated 03 November 1987 permission was given to Chief Administration on Construction in Dushanbe to design disputable facility – school building.

By the decision of the Chairman of Dushanbe dated 24.03.1997 no.53 list of objects offered for sale was approved and disputable site was included into the list.

According to state decree “On right of acquisition of state property in specified period” dated 25.07.1997 it was determined that after transfer of amount sum for disputable site to settlement account of Finance Department of Dushanbe which appraisal was done by Commission established by Government of Dushanbe dated 05.10.1995 no.533, and is rationale for Mission Center “Grace Sonmin” to receive it.

According to license for right of ownership dated 21 July 1998 the disputable site is handed over to codefendant - Mission Center “Grace Sonmin” by Committee on management of state property.

Given circumstances testify on that the disputable site was in undeveloped condition and belonged to municipal property.

Although Administration of Education of Dushanbe had laid plaint note pertaining to disputable site, but not on the court of first instance nor on the court of appeals instance it failed to prove satisfactorily that it was owner of disputable objective. Therefore Administration of Education of Dushanbe does not have right for possession of site with construction in progress and in the dispute cannot be party to legal relations of economic dispute.

According to presented materials it was found that the site during denationalization was considered as municipal property of Executive body of local state power of Dushanbe.

The list of objects offered for sale was approved by decision of the Chairman of Dushanbe dated 24.03.1997 no.53 and disputable site was included into the list. So Committee on management of state property of Dushanbe had put up the site for sale on the basis of the decision.

According to factual circumstances of present claim it follows that Executive body of local state power of Dushanbe is legal relations party.

Therefore Board of appeals of Supreme Economic Court of Republic of Tajikistan considers decision of court of first instance on including Executive body of local state power of Dushanbe into the case as third party having independent demand correct and Administration of Education of Dushanbe was acknowledged as inadequate party to present claim.

According to article 85 paragraph 2 of Economic procedural Code of Republic of Tajikistan Economic court terminates proceedings if previous court decision regarding to dispute between the same parties, for the same object and on the same basis has legal act.

According to decision of Economic Court of Dushanbe dated 27.05.2004 on claim of deputy prosecutor of Dushanbe in favor of Executive body of local state power of Dushanbe regarding defendant - Committee on management of state property of Dushanbe, and codefendant - Mission Center “Grace Sonmin”, on invalidation of contract of purchase of undeveloped site of secondary school 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 term dated 25.07.1997 it is determined that this claim is considered by Economic Court on merits and appropriate decision is made. Court decision regarding mentioned claim was not cancelled and has legal force.

The Court having considered Administration of Education of Dushanbe as inadequate party to case in point, although it commenced suit, the Court had included third party to the suit - Executive body of local state power of Dushanbe. The claim is already considered about the same object and on the same basis and legitimate decision is made.

Appendix 5 to the decision of the Chairman of Dushanbe no.53 dated 24.03.1997 “On approval of list of sites offered for next sale regarding privatization of public service establishment” on excluding undeveloped site of secondary school situated in Bofanda quarter, Dushanbe, was adopted after 10 years of sale of disputable object by decision of the Chairman of Dushanbe dated 06.06.2007 no.372, and regarding said decision there is legal decision.

Arguments of the plaintiff that foundation for contract of purchase are different are not correct since parties to claim, object of dispute and their rationale are not different materially from claim considered by Economic court of Dushanbe that had made decision.

Another argument of the plaintiff that restoration of actional period of given dispute is another demand, is also wrong, since actional period of given dispute is considered on merits, conclusion made and legal decision adopted, so there is no need for second trial.

Another argument of the plaintiff regarding the claim was discussed and was fully judged by court decision dated 27.04.2004

In this respect Board of appeals considers that arguments of application for appeal are unjustified in the aggregate.

Board of appeals came to conclusion that the court of first instance had considered the claim wholly and without prejudice and legal decision made.

According to article 157 paragraph 1 of Economic procedural Code of Republic of Tajikistan while considering case in appeals instance Supreme Economic Court of Republic of Tajikistan has right to leave court decision without change and not to sustain claim.

Taking into account abovementioned circumstances, Body of appeals instance of Supreme Economic Court of Republic of Tajikistan considers it necessary to leave court ruling of first instance on given claim without changes and not to sustain the application claim.

Following articles 157 paragraphs 1 and 159 of Economic procedural Code of Republic of Tajikistan, Board of appeals –

Decided:

The decision of Economic court of Dushanbe dated 11.12.2007 regarding claim of Administration of Education of Dushanbe, third party having independent demand against object of dispute – Executive body of local state power of Dushanbe, in regard to defendant – Committee on management of state property of Dushanbe, codefendant - Mission Center “Grace Sonmin” on invalidation of contract of purchase of undeveloped site of secondary school 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 set term dated 25.07.1997 is to be left without changes and application is not be sustained.

The decision enters into effect from the moment of adoption but can be appealed.

Chairman: Shirinjonova M.M.
Judges: Fayazova M.M.
Nozilov F.K.