Plaintiff: Education administration of Dushanbe city has applied claim to economic court regarding Committee on management of state-owned property of Dushanbe city, 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

It is marked in the plaint not that privatization of undeveloped site i.e. building of secondary school located in Bofanda quarter of Dushanbe city, is realized on 02.07.1997 against applicable legislation and thus brought material-social harm to state and social interests.

In result of privatization of specified site meant for secondary school consisting of 33 classrooms, there was harm to field of education in Dushanbe regarding provision of new, modern comprehensive school to students of neighboring district, and there was harm to municipal services. Executive body of government of Dushanbe city does not have financial possibility to build such building for the amount of privatized building.

The goal of privatization according to Statute of «Commission on undeveloped buildings» is full completion of construction by new owners and thus reduce the amount of undeveloped buildings, rise of competition between safekeeping and utilization of premises, industrial competition of enterprises. But after sale of undeveloped site the goal of completion of construction, improvement of building and its intended use is not accomplished till now.

In Dushanbe city there are 121 comprehensive schools functioning, total number of students in these schools are 157.807 people. Potential capacity of building of comprehensive schools in Dushanbe is envisaged for 92.581 students. At the moment there are 152.800 students studying in these comprehensive schools, and this exceeds standard set for their capacity for 65.216 people.

In result of not completing of construction work and not using the building of comprehensive school according with intended use, and its building was planned in Bofanda district, rights and interests of students residing in the district are flagrantly violated.

Near the comprehensive school there are 2 more comprehensive schools in specified district, secondary school no. 28 and 51. Where through the building, consisting of 33 classrooms, was not commissioned, number of students studying in mentioned schools exceeds the limit. Students study in 3 shifts, and do not have opportunity to have out-of-class lessons and exercises. Potential capacity of secondary school no.28 is envisaged for 880 students, but currently there are 12067 students studying there, which exceeds the limit for 1187 students. There are 395 students studying in 3rd shift. Potential capacity of secondary school no.51 is envisaged for 960 students, but currently there are 2932 students studying there. It exceeds the limit by 1972 students, there are 232 students studying in 3rd shift. Evidently these constraints adversely impact the quality of education for these students.

Study of documents defines that design and construction of the site is done based on decision of Executive Committee of Council of people's deputies of Dushanbe city dated 3 November 1987 no. 562/b “on giving permission to Central administration of Dushanbe city to design school in Bofanda quarter and prepare project by Design Institute “Tajik Giprostroy”. In accordance with design the building should consist of 3 floors and 33 classrooms, as well as other facilities. With public investment during the period of 1989-1993 main construction work is completed, including: research work, geodesy and designing, excavation, wall construction, roofing for total amount of 25.988.800 rubles, remaining part of construction is not completed. Despite of substantial volume of work performed, value of undeveloped building was lessened and sold for total amount of 18.192.200 rubles.

Given that there was no possibility to continue construction of the site, permission for privatization of undeveloped building was given based on letter of central administration of construction of Dushanbe city dated 10 August 1996 no.8 and appeal of Mission center “Grace Sunmin” dated 25 June 1997 no.17 on giving permission for privatization of undeveloped site and formalized documents on privatization. On the basis of aforementioned documents decision was made by the Chairman of Dushanbe city no.53 dated 24 March 1997 “On approving the list of sites proposed for next auction”, list of sites proposed for privatization was approved.

Despite the mentioned decision was made according with part 1.3 of Order of privatization of state-owned property in Republic of Tajikistan and law of RT “On denationalization and privatization of state-owned property in Republic of Tajikistan”, during making decision and in the process of privatization requirements of applied legislation were not complied, and undeveloped site is privatized without cause.

In accordance with requirements of article 47.87 of Civil Code of Republic of Tajikistan (articles 191, 224, 229 of current Code), contract of purchase dated 2 July 1997 was concluded in contravention of state interests, based on article 57 of Civil Code of Republic of Tajikistan (article 192 of current Code) all succeeding contracts being considered inconsistent cannot have legal effect and are held invalid from the moment of signing. According with requirements of article 92 of Civil Code of Republic of Tajikistan (article 247 of current Code) Mission center “Grace Sunmin” does not have right of ownership for specified site, the building cannot belong to it on legal basis.

In the plaint note there is an issue raised on invalidation of contract of purchase of undeveloped building of secondary school, located in Bofanda district, conclude on 2 July 1997 between Committee on management of state-owned property of Dushanbe city and Mission center “Grace Sunmin”, License for right of ownership dated 21 June 1998 batch no. 11 HMD no.3501470, issued by Committee on management of state-owned property of Dushanbe city to Mission center “Grace Sunmin”, delivery-acceptance certificate for undeveloped site dated 13 April 2000 due to the fact that they contravene legislation, and parties are to be set into original position.

By the decision of Economic court of Dushanbe city dated 11 December 2007 based on paragraph 2 of article 85 Economic procedural code of Republic of Tajikistan, proceedings are discontinued.

By the decision of appeals instance Supreme economic court of Republic of Tajikistan dated 4 February 2008, court order of Economic court of Dushanbe city dated 11 December 2007 quitted with no changes.

The case was not investigated in court of cassation.

Administration of Education of Dushanbe city appealed to Supreme Economic Court with petition in the exercise of supervisory powers of Republic of Tajikistan, and demonstrated that decision of Economic court of Dushanbe city dated 11 December 2007 and decision of appeals instance of Supreme Economic Court of Republic of Tajikistan dated 04 February 2008 is unjustified and contrary to law and should be abated with following reasons.

Economic Court of Dushanbe city ceased proceedings for the reason that by the decision of Economic Court of Dushanbe dated 27 May 2004, pretentions of prosecutor of Dushanbe city in favor of Hukumat (currently Executive body of state power) of Dushanbe city, co-defendant Mission center “Grace Sunmin” on invalidation of contract of purchase of undeveloped site dated 2 July 1997, License for the right of ownership dated 21 July 1998 and official act for right of acquisition state-owned property in specified period by labor collective dated 25 July 1997 is ignored. According with the decision in each case there is issue of dispute between parties about the same object and with the same arguments, and decision is made regarding first case which is legal.

Decision of Court and decision of appeals instance are unjustified, there are differences in arguments of plaintiffs for validation of contract of purchase. Administration of Education of Dushanbe city having found about violation of its rights, had laid an action to defend rights of students of the district and introduction of policy of the Government of Republic of Tajikistan and Executive body of state power of Dushanbe city in field of education. Despite that Education Administration of Dushanbe city is considered inadequate party of dispute by the decision of Court, state and public interests of Executive body of state power of Dushanbe city are subject to support and recognition on judicial proceedings.

By court ruling no judgment is given to decision of Chairman of Dushanbe city made in 1997 “On local body of state power” according to Constitutional law of Republic of Tajikistan that was not adopted yet and functions from 17 May 2004.

In addition, the court did not take in consideration the change of situation, since the decision of Chairman of Dushanbe city no.372 dated 6 July 2007 introduced change in the decision of Chairman of Dushanbe city no.53 dated 24 March 1997, and in appendix of the decision according to the later construction site of specified undeveloped school is excluded from the list of objects meant for sale.

Despite the fact that subject of current action is similar to subject of action considered in 2004, the basis to validate purchase of the site and parties of the case are different, as well as regarding decision of Chairman of Dushanbe city no.372 dated 06 June 2007, relations of parties regarding privatization and current utilization of the building with uncompleted construction of secondary school not in accordance with the intended use, have been changed.

During sale of the site in 1997 applicable legislation of the republic on privatization had been changed, law of Republic of Tajikistan “On privatization of state-owned property” was adopted and put into force on May 16, 1997. Although in plaint note there is argument that sale of the building was done in contravention of mentioned law and decision of the Government of Republic of Tajikistan dated 28 august 1997 no.388, but Economic Court of Dushanbe city did not consider the argument subject to forensic enquiry and judgment.

In despite of these facts, economic court of first instance had made decision on stay of proceedings without adequate foundation. The Court held the plaint note dated 11 April 2007 for 8 months without any necessity, and after it has ceased judicial procedure without investigation on merits what testifies about howler of judicial proceedings.

Guarantee for education is stipulated in article 41 of Constitution of republic of Tajikistan, as well as according to articles 3 and 6 of the Law of Republic of Tajikistan “On education” education is one the most priority areas. To all residents of Republic of Tajikistan irrespective of their nationality, race, gender, language, religion, political position, social level and property guarantee for education is given. State guarantees free common, fundamental, public, compulsory education in public educational institution.

It is also stipulated in paragraph 3 of article 48 of the Law of Republic of Tajikistan “On education” that it is prohibited to utilize material and technical base, buildings and property of educational institutions for purpose contravening their main use, educational process and activity that is not foreseen by Charter. But economic court of first instance did not take this point into consideration.

Also during the privatization of the site by Privatization Commission of Dushanbe city, real value of the site is underestimated in contravention of paragraph 3.4 of Guideline dated 6 September 1991 “On estimation of value of state-owned property, subject to lease, sale and privatization” and paragraph 6 of Guideline dated 4 May 1997 “On definition of estimated value of privatized objects”.

Besides, during privatization of the object by Mission center “Grace Sunmin” has applied as labor collective since the site is considered undeveloped, labor collective and Mission center “Grace Sunmin” as part of it could not act as labor collective. In this regard there was flagrant violation of then applicable Law “On labor collectives” and Law of Republic of Tajikistan “On denationalization and privatization of state-owned property in Republic of Tajikistan”, and unjustified method of sale to labor collective with prolongation of term.

It should be noted that while making decision by Chairman of Dushanbe city no.53 dated 24 March 1997 given disputable site was included into list of sites proposed for sale. At that time Law of Republic of Tajikistan “On denationalization and privatization of state-owned property in Republic of Tajikistan” and decision of Chairman of Dushanbe city was made based on this Law. However, later i.e. on May 16, 1997 Law of Republic of Tajikistan “On privatization of state-owned property” was adopted, and according to article 9 of the Law privatization of educational sites is done by the decision of the Government of Republic of Tajikistan, according to article 11 of the Law there is selling procedure in auctions and tender that are not observed.

Due to this reason conclusion of the contract of purchase of disputable site dated 2 July 1997 between Committee on management of state-owned property of Dushanbe city and Mission center “Grace Sunmin”, Law “On privatization of state-owned property” was in effect and its privatization should be done in accordance with requirements of this Law. In introductory clause of contract of purchase it is noted that the contract is concluded based on Law of Republic of Tajikistan “On denationalization and privatization of state-owned property in Republic of Tajikistan”, but during this period the Law was not in force anymore.

The specified object was intended for education purposes and after completion of construction it should have passed into disposal of education administration of Dushanbe city. In its application dated 25 June 1996 no.17 about privatization of the object Mission center “Grace Sunmin” states that building will be used in academic purposes, but after 9 long years after acquisition of undeveloped site it did not lay any legal effort to fulfill this obligation. According to revisions of supervisory body of State Inspection on construction and architecture of Dushanbe city and conclusion on construction of the site, but on the contrary above mentioned Center uses the object for their interest and had begun its illegal reconstruction.

Till now Mission Center “Grace Sunmin” did not fulfill its contract obligations stipulated in paragraph 1 and 2 of contract of purchase between the Center and Committee on state-owned property of Dushanbe city dated 2 July 1997. According to this paragraph mandatory utilization of the object is foreseen, and according to construction design it should be commissioned yet in 1990. This undeveloped site according to construction design and key plan of the quarter is only meant for educational purposes and without permission of Executive body of state power of Dushanbe city alteration of construction design and its utilization for purposes other than intended use is in contravention of concluded contract of purchase and appointment of the building. According to conclusion of experts modification of main design of the building without proper permission for reconstruction contravenes law on construction and architecture.

According to subparagraph 6 of paragraph 2 of contract of purchase between Committee on state-owned property of Dushanbe and Mission Center “Grace Sunmin”, compliance with legislation of republic of Tajikistan and the Contract was stipulated by provision of purchase.

However, Mission Center “Grace Sunmin” from the moment of acquisition of undeveloped site till now violates requirements of article 232 of Civil Code of Republic of Tajikistan, article 29 of Law of Republic of Tajikistan “On architecture and urban planning”, as well as subitems 1 and 6 of paragraph 2 of concluded contract.

For instance, according to article 232 part 4 of Civil Code of Republic of Tajikistan while owner practices its rights he/she should not violate rights and interests of other citizens legally protected. But contrary to law the building was not used in social interests of people residing in the quarter for 9 years whose children according to the design should have attend this comprehensive school domiciliary, thus it brought harm to people. Irrespective of purposes of privatization of the site which first of all includes early completion of construction and its commissioning, during 9 years construction work are not completed according to the design and the site is commissioned against its intended use. In result the site is still considered as undeveloped, and keeping it in this condition brings damage to urban planning and architecture policy of Executive body of state power of Dushanbe city.

According to paragraph 7 of the Contract between Committee on state-owned property of Dushanbe and Mission Center “Grace Sunmin” violation of provisions of the contract is one of the basis for its denouncement. In this case subitems 1 and 6 of paragraph 2 of the Contract were violated while using undeveloped building.

Yet, in this case management of Mission Center “Grace Sunmin” having violated legislation, had started to do minor construction work and partial reconstruction of undeveloped site of secondary school by putting additional doors, building walls and small classrooms against article 29 of the Law of republic of Tajikistan “On architecture and urban planning” i.e. without permission of Executive body of state power of Dushanbe city and Administration on architecture and urban planning of Dushanbe city.

Out of two cases of violation of legislation it follows that Mission Center “Grace Sunmin” while possessing the building had violated subitem 6 of paragraph 2 of the Contract.

In the exercise of supervisory powers in presented application there is request to cancel court order of Economic court of Dushanbe city dated 11.12.2007 and adjudication of appeals instance of Supreme Economical court of Republic of Tajikistan dated 04.02.2008.

Presidium of Supreme Economical court of Republic of Tajikistan having considered and analyzed the application presented in the exercise of supervisory powers, had come to conclusion that court order of Economic court of first instance dated 11 December 2007 on cancellation of proceedings of present case, as well as adjudication of appeals instance of Supreme Economical court of Republic of Tajikistan dated 04.02.2008 according to case in point are illegal and should be cancelled on the following basis.

According to the article 70 of Code of Republic of Tajikistan on economic judicial proceedings, economic court makes judgement of arguments of a case by moral certainty, justified based on their universal, full, independent and disinterested examination.

According to the article 282 of Code on economic judicial proceedings, the basis to alter or cancel judicial acts in the exercise of supervisory powers is their wrongfulness or insufficiency.

According to the conclusion of economic court of original jurisdiction dated 11.12.2007 proceeding is discontinued based on article 85 subitem 2 of Economic procedural code of Republic of Tajikistan. According to specified paragraph of the Code including case existence of a court order of trial court of general jurisdiction, made for one and the same dispute, about the same subject matter and with the same foundation, and acquired legal force, Economic court stops proceedings.

By the decision of collegiate organ appeals instance of Supreme Economical court of Republic of Tajikistan dated 04.02.2008 the order of Economic court of Dushanbe city remains unchanged.

According to the article 267 part 1 of Code of Republic of Tajikistan on economic judicial proceedings, rationale for altering or canceling of economic judicial act of first and appeals instance is inconsistency judicial opinion with true character of the case, defined by economic court of first and appeals instance, as well as existing arguments of the case, breach or incorrect application of regulation of economic and procedural law.

Presidium of Supreme Economical court of Republic of Tajikistan considers that opinion of court of first and appeals instance does not comply with actual condition of the case.

Namely, despite that Administration of Education of Dushanbe city had layed an action against Mission Center “Grace Sunmin” by the initiative of defendant – Mission Center “Grace Sunmin” made efforts to exclude Administration of Education of Dushanbe city from the case as inadequate plaintiff, replacing it with relevant plaintiff - Executive body of state power of Dushanbe city (pgs.45-47). But according to documents Administration of Education of Dushanbe city is separate legal entity and performs single policy of the state in field of education in Dushanbe city and realizes activity of local agency of administration of education, academic educational institutions and others structures related to education. Therefore Administration of Education of Dushanbe city did not agree with the provision, leaves its procedural position regarding the case without changes. Due to this reason based on the conclusion of economic court of first instance dated 29.11.2007 and 06.12.2007 it is proposed to include Executive body of local state power of Dushanbe city into the case as third party having independent demand to the object of dispute.

According to the article 38 of Economic procedural code of Republic of Tajikistan that was in effect during consideration of the case, third parties who raised demand to object of dispute can be included into case pending court decision.

In relation to the case Executive body of local state power of Dushanbe city did not enter the case separately, there is no application applied to the court in written form on its behalf to include it into the case. However, despite it, contrarily the article 38 of Economic procedural code of Republic of Tajikistan, Executive body of local state power of Dushanbe city is engaged into the case, nevertheless third party procedure having independent demand is not foreseen by Economic procedural code of Republic of Tajikistan. Afterwards taking into account that Executive body of local state power of Dushanbe city is considered as party to the case, the proceedings are discontinued by the decision of Economic Court of Dushanbe city dated 11.12.2007 based on the article 85 of Economic procedural code of Republic of Tajikistan. As according to the conclusion of Economic Court of Dushanbe city dated 27.05.2004 the same case was considered and between the same parties and for the same object-matter. As it was said above, such decision of economic court of first instance being unjustified contravenes submissions of the case, since the parties to the case are not the same, they are different.

On this basis Presidium of Supreme Economical court of Republic of Tajikistan came to conclusion that there are enough foundation to reverse judgment of Economic court of Dushanbe city dated 11.12.2007 and decision of appeals instance of Supreme Economical court of Republic of Tajikistan dated 04.02.2008 regarding the case.

Namely specified judicial acts of the case are unjustified and illegal.

According to the article 282 of the Code of Republic of Tajikistan on economic judicial procedure rationale to modify or reverse judicial acts in the exercise of supervisory powers is their wrongfulness and insufficiency.

According to second paragraph of the article 283 of named Code based on the conclusion of the case the Presidium of Supreme Economical court of Republic of Tajikistan in the exercise of supervisory powers can send the case for reconsideration of judicial act including that judicial act may be abate wholly or partly.

Due to this the Presidium see it proper to abate judicial act on the case in point and send it reconsideration.

When reconsidering Economical court of first instance should eliminate noted shortfalls and consider the case on merits of the complaint, without prejudice and without charge, give objective legal evaluation of arguments of the case, correctly applying regulations of economic and procedural law, and adopt judicial act in accordance with the law.

Follow articles 282-285 of the Code of Republic of Tajikistan on economic judicial procedure, the Presidium of Supreme Economical court of Republic of Tajikistan had

ADJUDGED:

That decision of Economic court of Dushanbe city dated 11.12.2007 and decision of appeals instance of Supreme Economical court of Republic of Tajikistan dated 04.02.2008 regarding the plea of Administration of Education of Dushanbe city who laid independent demand on the object of dispute in regard to defendant Committee on management of state-owned property of Dushanbe, co-defendant Mission Center “Grace Sunmin” about invalidation contract of purchase of undeveloped site dated 02.07.1997, license for right of ownership dated 21.07.1998г. and official act for right of acquisition of state-owned property by labor collective dated 25.07.1997г. – to be abated.

To send the case for reconsideration to procedure of Supreme Economical court of Republic of Tajikistan.

The decision acquires legal force from the moment of adoption and is not subject to appeal.

Presiding,
Chairman of Supreme
Economic Court
of Republic of Tajikistan
Goibnazarov A.